People v. Thrower CA5
F075926
| Cal. Ct. App. | Jun 28, 2021Background
- Defendant Robert Bear Thrower Jr. was tried for attempted murder; jury convicted him of attempted murder and found two firearm-use enhancements true; four prior prison-term enhancements were found true; sentence included the upper term plus prior-term enhancements and a 25‑to‑life firearm enhancement.
- At a September 9, 2016 pre‑preliminary hearing, codefendant Taylor’s counsel (Kinnison) briefly stood in for defendant’s counsel; on the record defendant first declared his codefendants innocent and later spontaneously stated he was the shooter.
- The prosecution introduced those on‑the‑record statements at trial; defendant moved to exclude them (Evidence Code § 352) and sought an Evidence Code § 402 hearing and argued Kinnison’s joint representation created a conflict of interest that led to ineffective assistance; the trial court admitted the statements and denied the 402 hearing.
- Trial evidence independently implicated defendant: eyewitness Hartfield identified defendant as the shooter, others heard shots and identified defendant, defendant’s girlfriend hid and later helped recover a black revolver containing two spent rounds.
- On appeal defendant argued (1) conflict‑free counsel violation, (2) erroneous admission under Evidence Code § 352, (3) remand under Senate Bill No. 620 to permit the trial court to consider striking firearm enhancements, and (4) striking prior prison‑term enhancements under Senate Bill No. 136.
- The Court of Appeal affirmed the conviction, ordered the four prior prison‑term enhancements stricken under SB 136, and remanded to allow the trial court to exercise discretion under SB 620 to strike or impose the firearm enhancements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conflict‑free counsel / ineffective assistance | People: no actual conflict or prejudice; even if conflict existed, overwhelming evidence of guilt | Thrower: codefendant’s counsel standing in created an actual conflict; counsel failed to prevent incriminating statements and defendant was prejudiced | No reversible error; court found no deficient performance or prejudice given overwhelming evidence; waiver/consent aspects and spontaneity undermined claim |
| Admission of pre‑preliminary statements (Evid. Code § 352) | People: statements were relevant and probative; admission within court’s discretion | Thrower: statements were unduly prejudicial and should have been excluded | No abuse of discretion was shown; any error harmless given overwhelming evidence |
| Remand for discretionary striking of firearm enhancements (SB 620) | People: concede remand appropriate because trial court lacked post‑SB 620 discretion | Thrower: requested remand so court may consider striking enhancements | Remand ordered so trial court may exercise discretion under § 12022.53(h) to strike or dismiss the firearm enhancements |
| Striking prior prison‑term enhancements (SB 136) | People: concede non‑sexually violent prior terms no longer qualify | Thrower: requested resentencing consistent with SB 136 | Court ordered the four prior prison term enhancements stricken under amended § 667.5(b) |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong ineffective assistance standard: deficient performance and prejudice)
- Mickens v. Taylor, 535 U.S. 162 (2002) (automatic reversal when counsel forced to represent conflicting interests over timely objection)
- People v. Doolin, 45 Cal.4th 390 (2009) (California discussion of conflict‑of‑interest analysis and prejudice standard)
- People v. Bonin, 47 Cal.3d 808 (1989) (conflict representation principles; waiver requirements)
- People v. Karis, 46 Cal.3d 612 (1988) (description of the kind of prejudice § 352 is intended to avoid)
- People v. Rodrigues, 8 Cal.4th 1060 (1994) (standard of review for § 352 rulings)
- Harrington v. Richter, 562 U.S. 86 (2011) (deference to reasonable tactical decisions by counsel)
- People v. Gutierrez, 58 Cal.4th 1354 (2014) (when a court must remand to allow exercise of newly recognized sentencing discretion)
- People v. Mroczko, 35 Cal.3d 86 (1983) (trial court’s duty to ensure waivers of constitutional rights are valid)