People v. Van Es CA5 ( 2024 )

Filed 10/21/24 P. v. Van Es CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F086034
Plaintiff and Respondent,
(Super. Ct. No. VCF430094)
v.
THOMAS KIRK VAN ES, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Nathan G.
Leedy, Judge.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
* Before Poochigian, Acting P. J., Franson, J. and Smith, J.
-ooOoo-
Appellant and defendant Thomas Kirk Van Es was found guilty by a jury of first
degree murder with related true findings on two firearm allegations. The trial court
sentenced defendant to an aggregate term of 50 years to life.
Defendant’s appointed counsel filed an opening brief pursuant to People v. Wende
(1979) 25 Cal.3d 436, identifying no error and asking this court to conduct an
independent review of the record on appeal. Defendant was invited to submit a letter
stating any grounds for appeal, but he failed to do so within the time allotted. We
conducted an independent review of the entire record and find no error. We affirm.
PROCEDURAL SUMMARY
On July 11, 2022, the Tulare County District Attorney filed a single count
information charging defendant with the murder (Pen. Code,1 § 187, subd. (a)) of K.V.
The information further alleged defendant personally and intentionally discharged a
firearm causing great bodily injury and death to K.V. (§ 12022.53, subds. (b), (c) & (d))
and personally used a firearm (§ 1203.06, subd. (a)(1)).
On February 6, 2023, the jury found defendant guilty of first degree murder. The
jury also found true the allegations that defendant personally and intentionally discharged
a firearm resulting in death in the commission of the murder (§ 12022.53, subd. (d)) and
personally used a firearm.
On March 23, 2023, the trial court held a sentencing hearing. Defendant had filed
a statement in mitigation asking the court to stay the sentence on the firearm
enhancement. The court denied this request and sentenced defendant to 50 years to life
consisting of 25 years to life for the murder with an additional 25 years to life for the
firearm enhancement.
On March 30, 2023, defendant filed a notice of appeal.
1 All further statutory references are to the Penal Code.
2.
FACTUAL SUMMARY
Defendant and K.V. knew each other for 13 years before they married in
March 2020. K.V. had two teenage children, Dustin and Justine, from a previous
relationship but only Dustin lived with defendant and K.V.
Defendant and K.V.’s marriage was volatile with frequent arguing. K.V.’s brother,
Daniel, testified that once when defendant and K.V. were fighting, Daniel and his wife,
Tamara, were called over to the house to calm down the situation. After defendant left,
Daniel and Tamara also left. Defendant later told Daniel he pinned K.V. down because
she would not answer his questions. Defendant held K.V. down until she answered his
questions about her alleged drug use. Regarding this incident, defendant testified he had
caught K.V. with cocaine earlier in the month and then found more. Defendant wanted
K.V. to tell him where she was getting her cocaine because he wanted to help her.
Defendant testified he rolled over in bed and put his arm around K.V. while asking her
where she was getting cocaine. He applied slight pressure on K.V. with his arm but
denied K.V. indicated he was causing her pain.
Another time, Dustin called Tamara and asked if she and Daniel could come to the
house to get in the middle of defendant and K.V. Dustin sounded frantic and upset on the
phone. The couple was fighting, and defendant threw a fan at K.V. Defendant claimed
he stubbed his toe on the fan while the couple was fighting and threw the fan against the
wall. Defendant denied that he threw the fan at K.V.
Defendant and K.V. separated in January 2022. After they separated, defendant
moved into his mother’s house in Visalia. K.V. told Tamara that she “wanted it over,”
was “done,” and had filed for divorce. Defendant testified however that he and K.V.
continued to see each other after their separation including taking trips together and being
sexually intimate. Defendant testified K.V. was secretive about their continued contact
and wanted to keep it between the two of them. He would deny to anyone other than
family or friends that the two were seeing each other. Defendant was aware K.V. was
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dating because she had told him. He claimed to be unbothered K.V. was seeing other
men, but that K.V. was bothered defendant was seeing other women.
On June 9, 2022, K.V.’s cell phone showed she and defendant exchanged text
messages starting at 4:54 p.m. The messages began with defendant asking K.V. for her
personal email address. K.V. responded with her email address and the exchange
continued as follows:
[K.V.]: “ ‘Why?’ ”
[Defendant]: “ ‘Thank you.’ ”
[K.V.]: “ ‘Y do you need it?’ ”
[K.V.]: “ ‘Next time I won’t send info without asking first. Who know[s]
what you will do with it.’ ”
[Defendant]: “ ‘I’m going to send you an email. That’s all.’ ” [¶] … [¶]
[Defendant]: “ ‘That is all [I] want it for. Nothing else.’ ”
[Defendant]: “ ‘Care to talk?’ ”
[K.V.]: “ ‘Call.’ ”
[Defendant]: “ ‘Sure.’ ”
[Defendant]: “ ‘Call or in person?’ ”
The last message was time stamped at 7:03 p.m. Video surveillance of defendant’s
mother’s residence showed defendant’s truck leaving the driveway at 7:25 p.m.2
Defendant continued the text message exchange with K.V. at 7:59 p.m.:
[Defendant]: “ ‘If I said spot, what would you do?’ ” [¶] … [¶]
[K.V.]: “ ‘I’m at my mom’s right now handling stuff.’ ”
2 The Visalia Police obtained the contents of a digital video recorder from the
mother’s residence pursuant to a search warrant. The prosecution submitted several
video recordings as Exhibit 40. Defendant was aware of the cameras around his mother’s
residence.
4.
[Defendant]: “ ‘Okay. So after dark?’ ”
[Defendant]: “ ‘I like to talk in person.’ ” [¶] … [¶]
[K.V.]: “ ‘I’m leaving mom’s.’ ”
[Defendant]: “ ‘So?’ ”
[K.V.]: “ ‘If you want to talk a min, [sic] we can.’ ”
[Defendant]: “ ‘Spot?’ ”
[K.V.]: “ ‘Yeah.’ ”
[Defendant]: “ ‘Okay, leaving here in ten.’ ”
[K.V.]: “ ‘We need to make it short and sweet. I’m not trying to be an
[a**]. [¶] … [¶] But I am trying to move on and I have been seeing
someone.’ ” [¶] … [¶]
[Defendant]: “ ‘I get it 20 away.’ ”
Defendant’s last text message was sent at 8:49 p.m. “ ‘[S]pot’ ” refers to a place where
defendant and K.V. would usually meet up to hang out. Defendant denied he was upset
by K.V.’s message she was seeing someone.
At 8:14 p.m., video showed defendant approached his truck’s driver’s side door
holding something in his left hand and a square-shaped object protruding from his left
hip. Defendant testified this object was a truck sunshade he wanted to offer to K.V.
Defendant placed a long object behind the seat of his truck. At 8:52 p.m., defendant
reached into the truck’s cab and turned on the truck’s interior lights. The lights
illuminated the inside of the truck and showed a box with an “ ‘R’ ” on it on the center
console. Defendant admitted this was a box of ammunition and testified he intended to
give the ammunition to K.V.3 Defendant drove his truck out of his mother’s driveway at
8:54 p.m.
Defendant gave his account at trial of what occurred when he and K.V. met on the
3 K.V. owned firearms including a 12-gauge shotgun.
5.
night of June 9, 2022. K.V. was already at their spot when defendant arrived. After he
arrived, defendant and K.V. sat on the tailgate of defendant’s truck for about 40 minutes.
They smoked cigarettes and defendant drank two beers. Defendant talked to K.V. about
being a better person for her next relationship. Defendant and K.V. agreed they would
miss their intimacy. K.V. reportedly offered to have sex with defendant one last time and
defendant accepted. K.V. got down on her knees and began to perform oral sex on
defendant. After a few minutes, defendant looked down because he noticed K.V.’s watch
lit up. Defendant said he saw a shotgun barrel coming up towards him as K.V. was
pointing a shotgun at him from her left side. He reportedly grabbed the gun and pointed
it away from him. The shotgun went off. Defendant could not see if K.V. was hit and did
not verify if she had been hurt. Defendant heard K.V. breathing and grunting after the
gun went off so he did not believe he needed to check if she was okay. Defendant denied
he ever hurt K.V. or intended to physically harm her. After the gun went off, defendant
cursed, waddled back to his truck with his pants down, threw the shotgun in the back of
the truck, and drove away. Defendant never looked back at K.V. to see if she was injured.
Defendant stopped on his way home to think for about 20 minutes and then drove home.
Video showed defendant backed his truck into the driveway of his mother’s
residence at 11:24 p.m. that night. A black pump action shotgun can be seen in the bed of
defendant’s truck. At 11:26 p.m., defendant came around to the truck’s passenger side
and retrieved the shotgun from the truck bed. Defendant put the shotgun in his mother’s
garage.
The next morning on June 10, 2022, K.V.’s body was discovered near her truck in
a dirt field on Road 68 between Avenue 280 and Avenue 288. K.V.’s body was located at
the “spot” where defendant and K.V. would usually meet up. K.V. had gunshot wounds
on the right side of her head and right hand. Her right hand had been partially mutilated
by a shot traveling through her hand and into her head. Birdshot pellets were found in
K.V.’s head and right hand. K.V.’s clothing was clean except for dirt patches on both
6.
knees indicating she had been kneeling. There was a blue cup by K.V.’s right knee and
sunglasses by her left knee. The police identified K.V. by an identification badge with
her name and photograph located in her truck.
Six cigarette butts were collected at the crime scene and tested for DNA. Three of
the butts contained defendant’s DNA, two contained K.V.’s DNA, and no DNA was
detected on the sixth butt.
The police contacted Daniel who identified defendant as K.V.’s spouse. The
police obtained a search warrant to ping4 defendant’s phone to get his location.
Defendant was found at a mechanic shop in Visalia and taken to the Visalia Police
Department headquarters.
The police obtained defendant’s truck when he was arrested. A black shotgun was
found inside the truck under a green towel, hard hat, and other items. A records check of
the shotgun’s serial number did not identify a registered owner. A fingerprint on the
shotgun’s barrel matched defendant’s right index finger. A sample of blood on the
shotgun was collected but was not analyzed for DNA due to contamination by a lab
employee. A box of 12-gauge Rio King load ammunition was found under the
passenger’s side seat of defendant’s truck. The box had a big “R” on its side and
contained 12 rounds. The ammunition was birdshot for game birds. A spent 12-gauge
shell casing of the same type of ammunition fell out of the shotgun when the police
opened its pump action.
After advising defendant of his rights pursuant to Miranda v. Arizona (1966) 384
U.S. 436, the police interviewed defendant. The interview was audio and video recorded,
and the recording played for the jury. When the police asked defendant what he did the
previous day after work, defendant said he went home, got in the pool, had a couple
4 “Pinging” a person’s cell phone is a technological method to obtain the phone’s
location.
7.
beers, went back in the pool, and then watched a baseball game on his laptop. Defendant
said he also went to a friend’s house, but she was not there so defendant got more beers
and went home. Defendant claimed he then stayed home until he went to work early the
next day. Defendant told the police he and K.V. were divorcing but he still “love[s] her”
and “wanna be with her.” He said the couple split up in January because defendant
caught K.V. cheating. Defendant reported he and K.V. continued to spend time together
after their split. Defendant said the couple was “working it out” but K.V.’s kids did not
know because K.V. was “a very secretive person.” K.V. purportedly text messaged
defendant the day before to ask if he could come get some of his stuff, but he responded
he could not that day. Defendant said they talked on the phone and text messaged and
were going to meet up but denied they did so. After the police told defendant K.V. had
been found deceased, defendant persisted in denying he had met with her the previous
night. Defendant told the police he was going to meet K.V. at their spot but claimed he
never left the house. Defendant testified he lied to the police because of the couple’s pact
to keep secret their continued contact.
DISCUSSION
As discussed above, defense counsel filed a Wende brief identifying no basis for
relief and asking that we review the record to determine if there were any arguable issues
on appeal. Pursuant to Wende and People v. Kelly (2006) 40 Cal.4th 106, we have
conducted a thorough review of the record, including the video surveillance recordings
admitted as an exhibit. Consistent with Kelly, we have provided a brief description of the
facts and the procedural history of the case, the crimes for which defendant was
convicted, and the punishment imposed. (Kelly, at p. 110.) We conclude there are no
arguable issues on appeal and affirm the judgment. (People v. Wende, supra, 25 Cal.3d at
pp. 441–443.)
DISPOSITION
The judgment is affirmed.
8.