83 Cal.App.5th 69
Cal. Ct. App.2022Background
- On June 27, 2015 Marvin Jackson Jr. was shot and killed in downtown San Jose after an earlier argument; defendant Gregory Thompson was arrested and tried for the murder. Key eyewitnesses (Jessie Gulley and Khalil Owens) placed defendant at the scene and Gulley testified defendant shot him and ran behind him after being shot. Surveillance, blood/DNA evidence, and admissions in recorded jail calls corroborated parts of the prosecution’s case.
- Defendant was convicted by jury of first degree murder (Pen. Code § 187), possession of a firearm by a felon (§ 29800), and a true finding that he personally and intentionally discharged a firearm causing death (§ 12022.53(d)). The court found a prior juvenile strike and a prior prison term and sentenced him to 76 years to life plus fines, fees, and restitution.
- At trial the court excused a prospective juror (Y.B.) for cause after Y.B. expressed concerns about systemic bias against Black defendants and said punishment concerns would affect his judgment; defense counsel did not lodge a specific contemporaneous legal objection to the excusal.
- During voir dire the prosecutor began to tell (but was interrupted from completing) the scorpion-and-frog fable while explaining motive was not required; defense moved for a mistrial which was denied. The prosecutor’s partial reference prompted an objection and later argument about possible racialized meaning and improper character inference.
- The court admitted evidence of witness intimidation by defendant’s brother George (Facebook posts, searches, a recorded jail call) and Facebook search records tied to an account associated with defendant’s home address; the court limited jury use of that evidence to evaluating the credibility of intimidated witnesses.
- On appeal the court ordered resentencing limited to: striking the prior prison-term enhancement; giving the trial court the opportunity to exercise discretion under amended § 12022.53(h) (strike or impose a lesser firearm enhancement); and vacating any unpaid portion of the criminal-justice administration booking fee under Gov. Code § 6111. Other claims (voir dire excusal, partial fable recitation, admission of intimidation/search evidence, restitution/fines) were rejected or preserved-for-remand as discussed below.
Issues
| Issue | People’s Argument | Thompson’s Argument | Held |
|---|---|---|---|
| Excusal of prospective juror Y.B. for cause | Excusal proper given Y.B.’s statements that punishment concerns would influence his verdict; defendant forfeited claim by failing to object | Excusal violated right to impartial jury and discriminated against jurors who recognize systemic bias; ineffective assistance if forfeited | Claim forfeited; no ineffective assistance shown on record because counsel may have had tactical reason; excusal proper on alternative ground (juror’s unwillingness to follow law re: sentencing) |
| Prosecutor’s partial scorpion-and-frog fable in voir dire; mistrial denial | Comments were limited, interrupted, occurred during voir dire, and were curable; no reasonable likelihood jury applied racially discriminatory meaning; mistrial not required | Fable was an improper character argument and racially coded dehumanizing imagery; prejudicial; mistrial required | No reversible prosecutorial misconduct; claim forfeited for failing to request admonition; mistrial denial not abuse of discretion given brevity, context, and curative instructions |
| Admission of evidence re: George’s witness intimidation and Facebook searches | Evidence relevant to credibility of Owens and Gulley and (circumstantially) to identity; limited-use instruction cured prejudice | Evidence irrelevant (Woods didn’t testify) and unfairly prejudicial; violated due process | Admission not an abuse of discretion: probative of witnesses’ credibility and not substantially more prejudicial; limiting instructions and other corroborating evidence make any error harmless |
| Sentencing: prior-prior prison-term, firearm enhancement discretion, fees/fines, restitution | AG concedes prior prison-term enhancement must be stricken and remand for §12022.53 discretion fine; unpaid booking fee vacated per Gov. Code §6111; Dueñas ability-to-pay issue can be raised on remand | Strike prior prison-term; court should exercise discretion to strike or reduce firearm enhancement; booking fee unauthorized; inability to pay fines and fees; restitution overbreadth | Remand for resentencing to strike §667.5(b) prior prison-term, let trial court decide whether to strike or reduce §12022.53(d) (Tirado applies); vacate unpaid portion of booking fee; permit Dueñas inability-to-pay proceedings on remand; restitution/fine claims largely rejected or remand-appropriate as explained |
Key Cases Cited
- People v. Holt, 15 Cal.4th 619 (1997) (contemporaneous, specific objection required to preserve claim that juror excusal for cause was erroneous)
- People v. Gutierrez, 45 Cal.4th 789 (2009) (forfeiture applies where defendant fails to object to juror excusal)
- Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel: deficient performance and prejudice)
- People v. Booker, 51 Cal.4th 141 (2011) (standards for prosecutorial misconduct review; reasonable likelihood the jury applied improper meaning)
- People v. Tirado, 12 Cal.5th 688 (2022) (trial court may strike a §12022.53(d) enhancement and impose a lesser §12022.53(b) or (c) enhancement)
- People v. Nguyen, 46 Cal.4th 1007 (2009) (use of prior juvenile adjudication as a strike does not violate Apprendi where prior conviction rule applies)
- People v. Flinner, 10 Cal.5th 686 (2020) (presumption that jurors follow limiting and instructional directions)
- People v. Partida, 37 Cal.4th 428 (2005) (specificity requirement for objections under Evid. Code § 353 interpreted reasonably; appellate review limited to objections made at trial)
- People v. Watson, 46 Cal.2d 818 (1956) (standard for harmless error under state law)
- People v. Dueñas, 30 Cal.App.5th 1157 (2019) (holding inability-to-pay analysis required before imposing certain assessments and fines)