By Josué Monroy
SACRAMENTO– A Sacramento man convicted and sentenced to 25 years to life plus a five-year enhancement in state prison for an attempted kidnapping to commit rape in 2015 came before Judge Laurel White at a sentencing reduction hearing in Sacramento Superior Court late last week.
The hearing is part of the appeal process that defendant Thomas Chavez has embarked on to overturn his conviction overall, and Judge White was asked by the defense to use her discretion in striking, or eliminating, the five-year enhancement for a prior felony conviction.
The enhancement is pursuant to Penal Code section 667, which requires it be applied if the defendant has prior serious felony convictions. However, in 2018, Senate Bill No. 1393 was passed, which amended sections 667 and 1385 of the Penal Code to give the trial court the discretion to strike the serious felony enhancement in “the interests of justice.”
Judge White convicted the defendant in 2017 after a court trial, so she can strike the charge. The defendant is appealing that conviction, stating he did not get a fair trial and was not given due process, and wants the trial court to use its discretion retroactively to strike the enhancement.
In May 2015, Chavez was arrested and subsequently charged with attempted kidnapping to commit rape and assault with intent to commit rape. The defendant kidnapped an off-duty prostitute while 
holding a sharpened screwdriver to her throat.
He forced her into his car and drove to a deserted parking lot to assault her. Before he could do anything, California Highway Patrol officers approached the car in their patrol vehicle, having seen the suspicious car in the parking lot, and shone a light at the car. The victim screamed for help and Chavez was arrested.
At trial, evidence of the defendant’s prior sexual assault convictions was presented by the prosecution, and one of his previous victims testified in court.
Chavez’s defense argues that this evidence should not have been presented, as the crimes were not similar enough to the current charges and the evidence would be prejudicial to the defendant, denying him due process.
According to Evidence Code section 1108 (a), “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by section 1101, if the evidence is not inadmissible pursuant to section 352.”
What that means to Chavez is that the prosecution has the right to use the prior convictions as evidence if they are similar to or relate to the current charges. Evidence that is solely used to establish a defendant’s character or personality traits (1101), or that is used to create jury prejudice (352), is not admissible.
At the original trial, Judge White found the evidence to be in compliance and let it stand.
The defense now charges that the trial court admitting the prior conviction evidence, and the evidence itself, both violated his right to due process, requiring an appeal.
In 1988, Chavez was convicted of a forcible lewd act with a child under the age of 14 years, for the sexual assault of a 12-year-old girl. He grabbed the girl while he was out jogging, forced her to the ground and attempted to sexually assault her. The victim fought back, and the defendant fled.
That same year, Chavez was convicted of attempted forcible rape with infliction of great bodily injury, forcible oral copulation with infliction of great bodily injury, forcible rape with infliction of great bodily injury, and robbery for his assault on a 23-year-old woman.
He was sentenced to 40 years to life for those crimes, and he was let out on parole after serving 26 years in state prison. The 2015 assault occurred 10 months after his release.
Deputy District Attorney Maria Wilson argued for the prosecution that, given nature of his crimes, the court should not strike the five-year enhancement.
“There’s no question that he has a serious problem that puts this community in danger. He is precisely the type of person that the legislature envisioned when they enacted Penal Code 667,” said Wilson, noting that the court should use its discretion to not strike the enhancement.
After the prosecution’s remarks, Judge White addressed the defendant.
“Your issues and your history show that you have problems with young women which manifest themselves [in] sexual assault and the preying upon women,” Judge White remarked.
She continued, saying that she believed Chavez to be a danger to the community, given his penchant for stalking and attacking victims. Based on that, she refused to strike the enhancement.
“I agree with the People that [Penal Code] 667 was intended to address the serious and violent conduct present in this case. While I recognize that I have the discretion to strike the five-year consecutive enhancement, I decline to do so for those reasons. I find that the defendant is not eligible for probation. He will be committed to state prison for the term of 25 years to life,” ruled Judge White.
At this time, Chavez is still appealing his conviction, although his defense failed to convince the court to dismiss the enhancement component.
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