THE PEOPLE, Plaintiff and Respondent, v. CLEM THOMPKINS et al., Defendants and Appellants.
A141375 (Alameda County Super. Ct. No. 168583A/B)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FOUR
June 17, 2020
CERTIFIED FOR PARTIAL PUBLICATION*
Filed 6/17/20 (unmodified opn. attached)
ORDER MODIFYING OPINION AND DENYING REHEARING; NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on May 1, 2020, be modified as follows:
- On page 22, delete the sentence “A kill zone instruction was given in this case, apparently given at the court‘s own suggestion, as the prosecutor‘s request for jury instructions did not list CALIC No. 8.66.1.” and insert the following sentence in its place:
A kill zone instruction was given in this case, apparently at the court‘s own suggestion, as the prosecutor‘s request for jury instructions did not list CALJIC No. 8.66.1.
- On page 32, line 10, after the sentence ending with “and the related enhancement findings” add the following new paragraphs:
In a rehearing petition that for the first time acknowledges the legal inadequacy of the kill zone instruction under Canizales (a case which, to be sure, had yet to be decided when these appeals were originally briefed), the Attorney General suggests that “[w]hen viewed in light of the facts of this case and the standard set forth in Aledamat and [People v. Merritt (2017) 2 Cal.5th 819 (Merritt)], the opinion in this case appears to set the bar too high” for affirmance. According to the Attorney General, “[t]he test under those cases and the United States Supreme Court cases upon which they relied,” Neder v. United States (1999) 527 U.S. 1 (Neder) and Hedgpeth v. Pulido (2008) 555 U.S. 57 (Hedgpeth), “is not whether the reviewing court can say beyond a reasonable doubt that the ‘jury‘s actual verdicts were not tainted by the inaccurate jury instruction’ ” (quoting this court‘s opinion, italics added by the Attorney General), but “whether it is ’ “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error” ’ ” (quoting Merritt, supra, 2 Cal.5th at p. 827 (quoting Neder, supra, 527 U.S. at p. 18), italics added by the Attorney General).
The Attorney General‘s formulation of the applicable test, which is based on his selectively italicizing a quotation from Neder in the Merritt opinion, is not only inconsistent with Chapman itself, but sets the bar for affirmance too low under Aledamat. “Consistent with the jury-trial guarantee, the question [Chapman] instructs the reviewing court to consider is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) “Harmless-error review” under Chapman, the high court explained in Sullivan, looks to “the basis on which ‘the jury actually rested its verdict.’ [Citation.] The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered—no matter how inescapable the findings to support that verdict might be—would violate the jury-trial guarantee.” (Ibid.)
What Aledamat holds, in line with Neder and Hedgpeth, is that an analysis of the actual verdict rendered is but a specific application of the more general Chapman standard, which looks to whether, upon an examination of “the entire cause, including the evidence, and considering all relevant circumstances,” the error was harmless beyond a reasonable doubt. (Aledamat, supra, 8 Cal.5th at p. 13.) Besides examination of the actual verdict, there are other permissible modes of analysis for determining that no reasonable jury could have made the finding the actual jury made without also making the necessary findings under a correct set of instructions. (Neder, supra, 527 U.S. at pp. 18-19; cf. Hedgpeth, supra, 555 U.S. at p. 61 [”Neder makes clear that harmless-error analysis applies to instructional errors so long as the error at issue does not categorically ’ “vitiat[e] all the jury‘s findings.” ’ “].) Among these other approaches, the Aledamat court held, is the one used in Merritt. (Aledamat, supra, 8 Cal.5th at p. 15.)
Our analysis here is fully consistent with AledamatChapman. On this record, we would, and we do, arrive at the same conclusion utilizing the approach in Merritt, which looks to whether, based on evidence that is overwhelming and uncontroverted, we are convinced on appeal, beyond a reasonable doubt, that ” ‘the jury verdict would have been the same absent the error.’ ” (Merritt, supra, 2 Cal.5th at p. 832.)
Thompkins fired his rifle into a crowd gathered at the entrance to Sweet Jimmie‘s, where the scuffle involving Fox occurred. One of the attempted murder victims (Waterman) may have been involved in the scuffle at the door, but all of the others suffered their injuries inside the restaurant. Unlike Merritt, where the omitted portions of the instructions went to uncontested elements of the charged offense, in this case the issue of specific intent for the charged attempted murders was a matter of dispute. While the evidence may have been sufficient to convict under a Stone theory, as we note above, we cannot say it was overwhelming and we certainly cannot say it was uncontroverted. In fact, any distinction among the victims based on their locations when injured is the very issue the erroneous kill zone instruction allowed the jury to avoid. No matter how plausible it may seem to us that a properly instructed hypothetical jury would have found a specific intent to kill each of the five attempted murder victims, we cannot step in for this jury and so find on appeal.
The modifications effect no change in the judgment.
The Attorney General‘s amended petition for rehearing is denied.
Dated: June 17, 2020
POLLAK, P. J.
Trial Court: Alameda County Superior Court
Trial Judge: Honorable Vernon K. Nakahara
Counsel for plaintiff and respondent: Xavier Becerra, Attorney General of California; Lance E. Winters, Chief Assistant Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Catherine A. Rivlin, Supervising Deputy Attorney General; Bruce M. Slavin, Deputy Attorney General
Counsel for defendant and appellant Clem Thompkins: Stephen B. Bedrick, under appointment by the Court of Appeal
Counsel for defendant and appellant Lamar Fox: Neil Jacob Rosenbaum, under appointment by the
Filed 5/1/20 (unmodified opinion)
I. INTRODUCTION
Late on Easter night in 2011, gunfire erupted at Sweet Jimmie‘s bar and restaurant in Oakland, leaving two people dead and five wounded. Defendants Clem Thompkins and Lamar Fox both were convicted of two counts of first degree murder for the benefit of a criminal street gang, with firearm discharge enhancements, a multiple-murder special circumstance, and five counts of attempted murder with great bodily injury findings, gang enhancements, and firearm discharge enhancements. Thompkins was charged and convicted as the shooter and Fox as an accomplice. Both men received the same sentence: life in prison without possibility of parole, plus 224 years to life.
After Thompkins was sentenced and had appealed, when Fox came on for sentencing, Fox told the court under oath he was the actual shooter and Thompkins knew nothing about Fox‘s intentions. On appeal and in a separate petition for writ of habeas corpus (In re Thompkins on Habeas Corpus (July 16, 2019, No. A147135)), Thompkins claimed this new testimony, and his attorney‘s professionally incompetent reaction to it, entitle him to a new trial. Thompkins‘s habeas petition presented additional new evidence that Fox was the shooter in the form of a declaration by another gang member who was with Fox and Thompkins that night.
We conclude in the direct appeal that Thompkins‘s trial counsel was not ineffective for failing to bring the matter before the court in a motion to recall the sentence followed by a new trial motion because Thompkins has failed to show prejudice. The remaining arguments that the newly discovered evidence calls for a new trial and related ineffective assistance of counsel arguments were considered in the habeas matter. We issued an order to show cause returnable before the superior court and stayed the appeal pending the outcome of the habeas proceeding. The superior court judge who presided over the trial, Judge Vernon J. Nakahara (now retired), also presided over a three-day evidentiary hearing on the issues raised in the habeas petition, after which he filed a 55-page opinion denying the petition and finding Fox‘s posttrial confession not credible.
Because this case has been pending for an unusually long time, several posttrial legal developments have affected our analysis. We address first the issues raised based on posttrial case law and statutory amendments to
We do conclude, however, that (1) the five attempted murder convictions and related enhancemеnts must be reversed for both defendants based on the erroneous giving of a flawed kill zone instruction under People v. Canizales (2019) 7 Cal.5th 591 (Canizales) and other authority; (2) there was instructional error under People v. Chiu (2014) 59 Cal.4th 155 (Chiu) as to Fox, but it was harmless under Chapman, supra, 386 U.S. at p. 24; (3) introducing evidence that defendants admitted their gang affiliation at jail intake violated the defendants’ privilege against self-incrimination under People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde), but it was harmless beyond a reasonable doubt; (4) there was some evidentiary error under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which was harmless even under Chapman due to the wealth of admissible evidence establishing the gang enhancements; (5) arguments based on the statutory amendments to
II. BACKGROUND
A. Overview
Sweet Jimmie‘s was a family-run, second-generation Black-owned restaurant and bar located on Broadway, between Third and Fourth Streets, near Oakland‘s Jack London Square. On Easter Sunday 2011, as Sunday turned into Monday, many of the remaining 10 to 20 guests in the bar knew each other or knew the owner. About 12:45 a.m. on Monday, April 25, 2011, a late
One of the men, whose hair was in dreadlocks, went to Sweet Jimmie‘s front door and shortly had a brief shoving match with some of the customers of the bar. He was ejected by some of the bar‘s patrons, and he left the bar entryway. By most accounts, the driver then got out of the car with an assault rifle in hand, walked to the entrance of Sweet Jimmie‘s, and opened fire on the restaurant‘s guests. Two people were killed and five others wounded.
The prosecution‘s theory was that the men in the car belonged to the Lower Bottoms street gang, and the shooting resulted from an incident earlier that evening near Sweet Jimmie‘s in which a member of the rival Acorn gang flashed a handgun at one of the men. The four then went and got an assault rifle from Fox‘s house and returned to Sweet Jimmie‘s, looking to kill members of the Acorn gang. They did not find their rivals at the bar; the people shot were not gang members. But the scuffle involving the man in dreadlocks was sufficient to trigger a violent reaction from the driver of the car, according to a gang expert, because a retaliatory attack would increase the public‘s fear of the gang and give the shooter increased status among gangsters.
B. The Gang Expert‘s General Background Testimony
Oakland Police Officer Steve Valle testified as an expert on West Oakland gangs. Valle identified three primary West Oakland gangs, each reflecting the name of the neighborhood in which it was based: Lower Bottoms, Ghost Town, and Acorn. The gangs were mutual enemies and were at war. Lower Bottoms was a criminal street gang with several subsets based on the street corner they claimed, such as the Center gang and Campbell Village Gangsters. Lower Bottoms also contained a clique called the 30 Gang, which took its name from high capacity magazines that hold 30 rounds of ammunition. Acorn identified with the letter “A” and members sometimes wore Oakland A‘s or Atlanta Braves baseball caps. Lower Bottoms claimed the letters “L” and “B” for Lower Bottoms and “C” for “Center” (a street in the Lower Bottoms neighborhood of Oakland and a gang subset). Members sometimes wore Chicago Cubs baseball caps.
In April 2011, Lower Bottoms had 50 or more members. Lower Bottoms was an informal gang with no identifiable hierarchy, structure, or bylaws. Even without a formal structure, there were members of the gang who were shot-callers, who influenced the direction of the gang and told other members whаt to do. If a member disobeyed a shot-caller there might be a violent
C. Testimony of Witnesses Inside Sweet Jimmie‘s
Several patrons of Sweet Jimmie‘s testified at trial that a Black man with dreadlocks approached the entrance to the bar. One witness described him as wearing jeans, a black hooded sweatshirt, and a Chicago Cubs baseball cap, carrying a water bottle in his left hand. More than one customer saw a short-haired Black man with him, and another witness told the police there were one or two others with him.
Several witnesses described an incident in which the man with dreadlocks became engaged in a scuffle with some patrons near the front door of the bar. Some of them said the dispute began when the man with dreadlocks “flipped” or tugged on someone‘s neck chain or medallion, perhaps trying to pull it off. Those witnesses were David Ward, the owner of Sweet Jimmie‘s; Miah Sims, a regular customer at Sweet Jimmie‘s who was seated near the front of the restaurant with a friend, six to eight feet from the front door; Robert Baskin, an out-of-towner who frequented the bar while working in Oakland and who was seated 15 to 20 feet from the door; and Ward‘s nephew, Robert “Piglet” Ford, who was at the back corner of the bar. Ward saw someone‘s shirt being lifted up during the scuffle. For a few seconds, there was pushing and shoving. Baskin and Sims testified friends of the man with the neck chain “hemmed” up the man with dreadlocks, essentially surrounding him before pushing him out of the bar entryway. The man with dreadlocks was either pushed from or backed away from the entrance and seemed to have left the immediate area.
Less than a minute later, a man with dreadlocks appeared at the entrance to the restaurant and fired into the crowd. Sims thought it was the same man who came back and fired the shots. She identified that man as Thompkins and said he “patted down” the man wearing the medallion with his left hand before shooting. Baskin, too, thought it might have been the same man. Baskin said the man in dreadlocks came back a few seconds after he left and said, “Fuck that.” The second time the man with dreadlocks appeared in the doorway and lifted his right hand, Baskin turned away and the gunfire began. Baskin did not actually see the man holding a gun that night, nor did Ward or Sims. Baskin was shot twice in the left leg, injuring him in four places. Ward was not injured.
Other witnesses said the gunman was a different man with dreadlocks. Ward saw a second man with dreadlocks approach Sweet Jimmie‘s from the direction of Third Street. Ward was not able to identify Thompkins from a
Two other patrons, Carvell Stemley and Ford, also said the gunman was a second man with dreadlocks, but they testified they actually saw him come from the driver‘s side of the white car and approach the entrance to Sweet Jimmie‘s. Stemley, who had been in the bar but had not been drinking, stepped outside when he was told by his friend, Luke Waterman, there was a problem at the door. When he got outside, Stemley saw “just a lot of little commotion. Nothing too drastic.” He saw two Black men, one with long dreadlocks and one with short hair. He testified he then saw a man with dreadlocks exit the driver‘s door of the white car and walk around the car in a “militant” way, but Stemley did not see a gun. Stemley said the second man with dreadlocks could have been Black; he was not White.
Ford‘s testimony was more explicit. He said 10 or 15 seconds after the first man was ejected from the bar, another Black man with dreadlocks got out of the driver‘s side of a white car that was double-parked outside. With a semiautomatic rifle in hand, the man walked around the back of the car and approached the entrance to Sweet Jimmie‘s. Seconds later the shooting started. Ford heard 10 to 15 gunshots. Fоrd testified the gunman was not the same man he saw pulling someone‘s neck chain. Ford told the police that the person involved in the commotion “signaled to somebody and then the shooting happened.” Neither Ford nor Stemley was hit by the bullets and neither could identify the shooter in a photo lineup.
D. The Aftermath
Altogether, seven people were hit by bullets that night. Billy Jenkins and Adam Williams (Adam) were killed.2 Sims was shot in her leg and pelvis. She was off work for a month, had surgery twice, and needed assistance walking for the next four months. Mandi Lee, Sims‘s companion, suffered a grazing wound to her calf, which left a scar. Baskin was wounded in the leg and thigh. Señorita Freeman was hit in the forearm, requiring surgery, and resulting in a plate being installed in her arm. Of the survivors, then 28-year-old Waterman suffered the most serious injuries. Shot in the head and leg, he required three operations, was in the hospital for two months, and was left with a plate in his head. Despite physical and speech therapy, his ability to speak was very limited at trial, and his right side was almost paralyzed. He could no longer use his right arm, and he walked with a limp. He could no
When the crime scene was processed, 10 spent cartridges and one live round were found, all from a 7.62 by 39-millimeter caliber gun. No other bullet casings from a different caliber weapon were recovered. Seven of the casings were found outside the bar, and the other three were found inside. One live round (7.62 by 39-millimeter) was found on the sidewalk outside the bar.
E. Discovery of the Murder Weapon and Arrest of Defendants
Three weeks after the shooting, Fox was at his mother‘s house when Oakland police officers executed a search warrant relating to his brother‘s suspected narcotics activity. The officers did not find any drugs, but they did find Fox in the same room with a modified SKS semi-automatic assault rifle, whose stock had been sawed off, to which a detachable magazine had been affixed, along with a folding bayonet. The rifle was equipped with a magazine containing ammunition, and one additional round was chambered. Fox, whose hair was in dreadlocks down to his waist, was arrested for a parole violation, and the gun was seized.
After Fox‘s arrest, criminalists from the Oakland Police Department Firearms Unit examined the assault rifle. They compared test-fired bullet casings from the SKS to those found at the Sweet Jimmie‘s crime scene. One of them testified that all 10 casings found at the scene were 7.62 by 39-millimeter caliber and at least nine, and most likely all 10, were fired from the SKS assault rifle. Because one casing did not have a primer, the criminalist could not say for sure it had been fired, but it had been cycled through the same firearm and likely had been fired from it. He also examined the one live cartridge recovered at the scene. It was the same caliber and had markings showing it had been cycled through the same firearm. He found no ballistic evidence supporting a theory that a second gun had been fired at Sweet Jimmie‘s.
The police had received information as early as the day after the shooting suggesting Thompkins was involved and the shooting was gang-related. In mid-May 2011, Baskin identified the shooter as Thompkins from a photo lineup, but could not identify Fox. At trial, however, he was not able to identify either defendant as the gunman, apparently because at that time neither wore dreadlocks. Baskin‘s testimony also called into question whether
On June 8, 2011, Lieutenant Tony Jones of the Oakland Police Department interviewed Sims, and she identified Thompkins‘s photo as the gunman at Sweet Jimmie‘s, and she identified him at trial. On June 15, 2011, the police arrested Thompkins for the Sweet Jimmie‘s shooting and two days later filed a felony complaint against him alleging he was the shooter. Lieutenant Jones and another officer interviewed him that same day. Thompkins‘s statement was not introduced at trial, but he told them Fox, whose nickname was “Mar Mar,” was the shooter. Fox was not charged until May 15, 2012, and then only as an accomplice.
F. Fox‘s Pretrial Statements
1. Phone Calls from Jail
Fox was arrested on the parole violation nearly a month before Thompkins was arrested. On the date of his arrest, Fox made two phone calls from jail to Thompkins. The calls were recorded and excerpts played for the jury. In the first call Fox said, “I fucked up, brah. It‘s a wrap brah. I just know it this time.” A woman on the line asked Fox, “If you didn‘t do nothing, why are you saying it‘s a wrap?” Fox replied, “Because, man, they went in the house and found a gun and hella shit.” Thompkins said “Bro, you told me you put that somewhere up already.” Fox continued in self-reproach.
In the second call, Fox said to Thompkins, “I fucked up. But you feel me, bro, like I said, bro, I love you. I made the bed, I‘m gonna lay in it nigger.” A short time later, Thompkins told Fox, “You and that were never supposed to be in the same place. Man. You hear me?” Fox responded, “Fuck, bro. I fucked up so much.” In the second call, Fox also told Thompkins that “whatever time it is, bro. Never, nigger. I ain‘t never, nigger, on the real nigger, if I got to go sit down, brah, you already know it‘s nothing.” “Sitting down,” Lieutenant Jones explained, means going to jail. Fox was saying “he‘ll do time; he won‘t tell; he‘s not going to say anything to police.” To that Thompkins replied, “Ain‘t no snitches ride with us.”
Partly because of the dynamics of the telephone calls, with Fox confessing error and apologizing to Thompkins, while Thompkins reprimanded Fox, it may be inferred that Thompkins had more status within the gang than Fox did. This was later confirmed by Christopher Nelson, one of the men in the white Toyota, who ultimately testified Thompkins was, at least by reputation, the “leader” of the Lower Bottoms gang, and by Officer Valle, who had known of Thompkins as a gang member for years.
Lieutenant Jones interviewed Fox twice: first on June 1, 2011, and again on June 29, 2011. Both interviews were video recorded. In the first, Fox did not admit being at Sweet Jimmie‘s at the time of the shooting. In the second, he admitted he was at Sweet Jimmie‘s that night and supplied the rifle for the attack. Fox denied being the shooter and said he did not know the shooting was going to happen. Though it was not disclosed to the jury, Fox named Thompkins as the shooter.3
Fox did not testify at trial. A redacted version of his June 29 statement to the police was admitted into evidence and played for the jury. The trial court instructed the jury this statement was only admissible against Fox, not Thompkins. The trial court also told the jury Fox‘s statement had been edited and the jury was “not to speculate about portions of [his] statement that you did not hear.” In the redacted recording, different segments of the interview appear as vignettes, separated by blank video, which eliminates any misperception that the action is continuous.
In the redacted version, Fox said he was in a brand new white four-door Camry on the night of the shooting. He went to Sweet Jimmie‘s, where he stopped to talk to two friends in front of the bar. While he was talking to them, he saw an “Acorn cat” standing in front of Nation‘s Hamburgers next door. The Acorn gang member, who was dressed all in white, had a handgun stuck in his waistband. He lifted up his shirt to expose the gun and gestured toward Fox in a challenging manner.
Fox got into the car and went “East,” got the SKS assault rifle, and returned to Jack London Square. He stopped to talk to some people lined up in front of Sweet Jimmie‘s. He looked for Acorn gang members but did not see any. As he was talking to people in the entrance to Sweet Jimmie‘s, some people pushed him away. Fox said, “I knew had a weapon in the car, but there wasn‘t really no need for that.”
The redacted recording resumed with a description of what happened after the shooting. Fox said he put the rifle (“the banger“) in the same place where the police found it. Asked if he was “supposed to get rid of it,” he said he had tried but had trouble selling it because buyers wanted smaller, concealable firearms.
Nearly a year after Thompkins was charged, Fox was also charged, and the cases were later consolidated. The district attorney charged both Thompkins and Fox with two counts of first degree murder (counts 1 and 2) (
H. The Prosecution‘s Star Witness: Christopher Nelson
The prosecution‘s star witness was Christopher Nelson, one of the occupants of the white Toyota. He identified the other occupants as Thompkins, Fox, and Tyree James. Nelson testified that on April 24, 2011 (Easter Sunday), he and his friend James were hanging out and drinking in West Oakland. Around noon Thompkins and Fox, who belonged to the 30 Gang subset of the Lower Bottoms gang, drove up in a white four-door sedan. Nelson testified he was not a member of any gang and he had no gang tattoos. James had Lower Bottoms gang tattoos on his forearms, but Nelson did not think he was a member of the gang. Nelson did not spend a lot of time with Thompkins and Fox, but he was friends with James and associated with Fox and Thompkins so he could feel like he “fit in” with other people in his neighborhood. In fact, Nelson testified the day of the shooting was the first time he had met Thompkins and Fox.
Thompkins was driving and Fox was in the front passenger seat. Thompkins and Fox both had dreadlocks, while Nelson and James had short hair. Nelson and James climbed into the back seat, and the four men spent the rest of the day
Late that night the four men drove to the 300 block of Broadway, near Jack London Square. They got out of the car and talked to some girls who were in line outside Sweet Jimmie‘s, waiting to get in. Next door, in front of Nation‘s Hamburgers, Fox got into an argument with a member of Acorn, one of Lower Bottoms‘s rival gangs. After about 15 minutes, the four men went back to their car and drove off, with Thompkins still driving.
They drove to Fox‘s house in the Dubs neighborhood of Oakland, where Fox retrieved an assault rifle, which he gave to Thompkins. En route to Fox‘s house, Thompkins said something about “bitch ass Acorn niggas.” Nelson understood Fox and Thompkins were talking about “killing the Acorn guys,” though their conversation was not explicit. From Fox‘s house, the men drove back to downtown Oakland, looking for members of the Acorn gang. Thompkins double-parked in the middle of the street near Sweet Jimmie‘s. Fox, James, and Nelson got out; Thompkins stayed in the car. Nelson and James approached some girls who were standing outside Sweet Jimmie‘s.
Near the restaurant entrance, Fox got into an argument with some of the people waiting in line to get into Sweet Jimmie‘s.4 The Acorn member with whom he had argued earlier that night was not among them. When Nelson saw a dispute developing he said to Fox, “Let‘s go.” At that point, Thompkins emerged from the car, holding the assault rifle in his right hand, down by his side. He walked up to Sweet Jimmie‘s front door and opened fire. There was no doubt in Nelson‘s mind that Thompkins was the gunman. He told the prosecution‘s investigator he was “100 percent” sure.
As far as Nelson knew, Thompkins made the decision to shoot on his own. Nelson‘s testimony differed from the first statement he gave to the police because, as we shall discuss, he originally named Fox as the shooter.
When Nelson heard the shots, he went back to the car. The other three quickly joined him. They drove away, with Fox driving. No one spoke. Nelson and James got out when they reached the Bottoms district of Oakland. “Don‘t say anything,” Thompkins told them. The next day Nelson learned from television that two people had been killed.
A couple days after the shooting, Thompkins phoned James while Nelson was with him and again told them not to say anything. Fox was with
For the next seven months, Nelson said nothing to the police. During that time members of 30 Gang—but not Thompkins or Fox—threatened him, beat him up, robbed him, and accused him of being a snitch. Nelson also testified one of the men who beat him up told him Thompkins had put a “green light” on killing him. Around Christmas 2011, someone tried to shoot Nelson. At trial, nearly two years later, he was still afraid of being killed. He asked to be put into a witness protection program, but at the time of trial had not been informed if his request would be granted.
Nelson was arrested in November 2011, at which point he talked to the police—but he initially told them Fox was the one who shot up Sweet Jimmie‘s. He later told them Thompkins was the shooter and repeated that story to the deputy district attorney in September 2013. Nelson testified he lied at first because someone (he could not remember who) told him he should say Fox was the shooter—supposedly passing on a message from Thompkins.
Nelson had been convicted of an unrelated assault with a firearm in Contra Costa County and was serving a jail sentence at the time he testified. He also had been caught with a gun when he was 18 or 19. He was not prosecuted for the Sweet Jimmie‘s shooting. He claimed he was testifying voluntarily in this case, was telling the truth, and had been promised nothing.
I. The Man Dressed All in White
The man dressed all in white who Fox and the others thought was an Acorn gang member turned out to be Brian Williams. Officer Valle opined that Williams was a member of the Acorn gang subset, the Gas Team. Ward identified him as having been at Sweet Jimmie‘s that night. Williams testified at trial that he had no gang involvement and virtually no memory of anything from the night of the shooting.
He had also been interviewed by the police two weeks after the shooting and told them he did not have a gun on him that night (“I didn‘t have nothing on me man“). He was “Acorn born and raised,” but he had just been trying to have a good time by going to a Lil Wayne concert at Oracle Arena earlier in the evening with friends, then going to Sweet Jimmie‘s for dinner, and then to Kimball‘s nightclub for an after-concert party.
After eating, he and his friends left Sweet Jimmie‘s on their way to Kimball‘s and were standing near Nation‘s Hamburgers when Williams saw a
The jury asked to have the DVD of Williams‘s police interview delivered to the jury room during deliberations, as well as those of Fox‘s June 29, 2011 interview and the recorded telephone calls he placed from jail. The jury also asked for and received a readback of Nelson‘s testimony about who was involved in the “two arguments.”
J. The Verdicts
The jury found Thompkins guilty of two counts of first degree murder for the benefit of a criminal street gang (
The jury also convicted each defendant of five counts of attempted murder with great bodily injury, and with gang and firearm discharge enhancements. (
Because the shooting was a gang offense,
K. The Sentencing and Fox‘s Confession
Defendants were sentenced in separate hearings. Thompkins was sentenced to life without possibility of parole (LWOP), plus 224 years to life on March
proceeding to sentencing, and after being sentenced to LWOP, plus 224 years to life, he asked permission to address the court.
Fox confessed he was the shooter at Sweet Jimmie‘s and accepted sole responsibility: “Clem Thompkins never shot anybody. Clem Thompkins never did anything. Clem Thompkins was at the front of the door where people said they seen him at. It was me who got out of the car with the gun because I thought I saw somebody inside Sweet Jimmie‘s with a gun. And I was drunk. I wasn‘t thinking straight. I just want the court to know that Clem Thompkins never did anything. It was all me. It was all my thinking. Nobody didn‘t never knew I was going to do it. I made a wrong judgment call. Nobody. Nobody never knew it. They never knew I was going to shoot or do anything.” The judge commented, “if that‘s believable, that might change things,” and agreed to take Fox‘s testimony at the request of Thompkins‘s trial counsel.
Fox was placed under oath, subject to cross-examination, and described the events much as Nelson did, except he claimed he was the driver of the white car, not Thompkins. Under oath, and against counsel‘s advice, Fox claimed to have been the shooter and said none of the others knew what he was going to do. He also claimed Thompkins was the one who got into the initial scuffle with the people in Sweet Jimmie‘s doorway.
After placing Fox‘s testimony on the record, Judge Nakahara gave no opinion on Fox‘s credibility, unless his failure to recall Thompkins‘s sentence has some communicative value, perhaps implicitly suggesting he found Fox‘s confession unworthy of belief. Thompkins‘s attorney said he planned to file a motion for a new trial, but the court told him it was too late because Thompkins had already filed a notice of appeal. Thompkins‘s lawyer continued to indicate he might file “some kind of motion,” but no such motion ever materialized. Fox also appealed.
L. Thompkins‘s Petitions for Writ of Habeas Corpus
In addition to appealing his convictions, Thompkins also filed two petitions for writ of habeas corpus in this court, one of which has already been denied after an order to show cause returnable before the superior court (A147135). The other, filed August 20, 2019 (A158110) is pending before this court and will be resolved by separate order.
Several of the issues raised by defendants invoke changes in the law after judgment was imposed, based on new authority from the Supreme Court or statutory amendment while the appeal was pending. We will address those issues first.
The most recent new development claimed by defendants to affect this appeal—and the most significant—was the Supreme Court‘s restriction on use of a so-called “kill zone” instruction (
In addition to postjudgment case law, defendants interpret some postjudgment statutory changes as affording them relief by retroactive application. Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 2) amended
In addition to claims of evidentiary error under new legal authority, Thompkins makes a more routine claim under Bruton v. United States (1968) 391 U.S. 123, 135-136 (Bruton) and People v. Aranda (1965) 63 Cal.2d 518, 530-531 (Aranda) based on the admission into evidence of a redacted video of Fox‘s June 29, 2011 interview with the police. Thompkins also claims Investigator Phillips should not have been allowed to testify that he believed Nelson was telling the truth, and Nelson should not have been allowed to testify that he heard Thompkins had given the “green light” to kill him.
Fox correctly points out that a gang enhancement was improperly imposed on him as a nonkiller, when a firearms enhancement was also imposed on counts 3 through 7. (
Thompkins argues, in light of Fox‘s confession at sentencing, that he was entitled to prevail on a motion for a new trial, and his attorney was ineffective in failing to move to recall his sentence so that he could move for one. We also address Fox‘s claims of clerical error and both defendants’ contention that the errors, assessed cumulatively, were prejudicial.
III. DISCUSSION
A. ISSUES BASED ON POSTJUDGMENT LEGAL DEVELOPMENTS
1. People v. Canizales (2019) 7 Cal.5th 591: The Kill Zone Instruction
a. The Kill Zone Theory of Attempted Murder
The Supreme Court last year undertook to clarify the kill zone theory of attempted murder and the circumstances under which the jury may be given a kill zone instruction. (Canizales, supra, 7 Cal.5th at pp. 602-616.) Canizales involved a gang-related shooting at a neighborhood block party that left an innocent woman dead. (Id. at pp. 598-602.) That woman was not the target of the shooting; she was dancing in the street to the music playing on her car radio when she was struck by a stray bullet meant for someone else. (Id. at pp. 599-600.) Five spent nine-millimeter cartridges were found at the site of the shooting, and it eventually came to appear that the five had been fired by KeAndre Windfield from a distance of approximately 100 to 160 feet (id. at p. 600), while in the company of and with the encouragement of Michael Canizales, both of whom were members of the Ramona Blocc gаng (id. at pp. 598, 616). Though neither of them was shot (id. at p. 600), the prosecution would ultimately theorize that Denzell Pride was Windfield‘s
The district attorney charged Windfield and Canizales with one count of murder, two counts of attempted murder, and street terrorism.5 (Canizales, supra, 7 Cal.5th at p. 600.) The evidence was fairly strong that Pride was specifically targeted due to a run-in he and Canizales had earlier on the day of the shooting. (Id. at p. 616.) There was not such clear evidence that Bolden was specifically targeted, but he was close to Pride at the time of the shooting. (Id. at pp. 601, 614.) The trial was conducted on the theory that Pride was the main target, while Bolden was within a zone of danger around Pride. (Id. at pp. 609-610Id. at p. 597.) The Supreme Court reversed the attempted murder conviction and related enhancements pertaining to Bolden because, although the jury could have legitimately convicted the defendants of his attempted murder, it was also possible the jury improperly relied on the kill zone theory in reaching its verdict on the Bolden shooting. (Id. at pp. 601, 612-618.)
The Supreme Court has repeatedly expressed skepticism over the general utility of a kill zone instruction (Canizales, supra, 7 Cal.5th at pp. 596-598, 608; People v. Stone (2009) 46 Cal.4th 131, 137-138 (Stone); People v. Bland (2002) 28 Cal.4th 313, 331, fn. 6 (Bland)), noting it is a matter that can be left for the jury to infer. (Stone, at pp. 137-138.) In Canizales, it recognized the “potential for the misapplication of the kill zone theory, as evidenced by prior appellate cases,” which implied the theory had been overused in California trials. (Canizales, at p. 606.) Canizales explained “the kill zone theory for establishing the specific intent to kill required for conviction of attempted murder may properly be applied only when a jury concludes: (1) the circumstances of the defendant‘s attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target‘s death—around the primary target and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm. Taken together, such evidence will support a finding that the defendant harbored the requisite specific intent to kill both the primary target and everyone within the zone of fatal harm.” (Id. at p. 607, italics added; see also id. at p. 597.) In a case involving multiple
Indeed, Canizales was written with an eye toward reining in prosecutors who might like to rely on a kill zone theory in any case in which a “single act is charged as an attempt on the lives of two or more persons.” (Canizales, supra, 7 Cal.5th at p. 602.) The Supreme Court cautioned trial courts against overuse of any type of kill zone instruction. While specifically declining to analyze the constitutionality of a pattern instruction commonly used in California and the one used in Canizales,
The kill zone theory is a device of relatively recent origin. It was first adopted in California in Bland, supra, 28 Cal.4th 313 in 2002, and it originated in Maryland roughly a decade earlier in Ford v. State (1993) 625 A.2d 984, 997-1001. One complication that the kill zone theory attempts to address is the difference in the treatment of transferred intent in cases of murder versus attempted murder. In a murder case, if the defendant intended to kill one person but killed someone else instead, we say that his murderous intent was transferred from the intended victim to the actual victim. (Stone, supra, 46 Cal.4th at p. 139; Bland, supra, at pp. 320-321.) If a defendant kills the intended victim and others as well, he is guilty of murdering all that he killed. (Bland, at pp. 317, 323-326; People v. Souza (2012) 54 Cal.4th 90, 120.)
On the other hand, “[w]hen a single act is charged as an attempt on the lives of two or more persons, the intent to kill element must be examined independently as to each alleged attempted murder victim; an intent to kill cannot be ‘transferred’ from one attempted murder victim to another under the transferred intent doctrine.” (Canizales, supra, 7 Cal.5th at p. 602; see also Bland, supra, 28 Cal.4th at pp. 326-331.) The kill zone theory was adopted to address the situation in which a killer intends to kill one person, as well as all the people in the intended victim‘s immediate vicinity, to ensure the death of the intended victim. In such a case—and only in such a case—the kill zone instruction may be used, and the defendant may be found guilty of attempted murder of anyone in the kill zone.
“Evidence that a defendant who intends to kill a primary target acted with only conscious disregard of the risk of serious injury or death for those
A kill zone instruction was given in this case, apparently given at the court‘s own suggestion, as the prosecutor‘s request for jury instructions did not list
“THE COURT: Okay. [CALJIC No.] 8.66. That‘s the attempt murder. And I think you have to also give 8.66.1.
“[PROSECUTOR]: Okay.
“MR. BILLUPS: Which one?
“MR. BILLUPS: Who‘s the object of—
“THE COURT: It‘s like when you shoot into a crowd.
“MR. BILLUPS: I understand that on the theory of implied malice. What we‘re talking about within the kill zone, who‘s the intended victim?
“THE COURT: Anybody within the kill zone. The zone of risk.
“MR. BILLUPS: It sounds like an implied malice theory of murder as opposed to attempt, as opposed to a specific intent to kill.
“THE COURT: No, there‘s the intent to kill.
“MR. BILLUPS: You get to implied malice if you shoot into a crowded room.
“THE COURT: So that will be given.”
b. Instructions Given the Jury on Attempted Murder
On the attempted murder charges, the trial court instructed the jury with
The kill zone instruction given in this case stated: “A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. This zone of risk is termed the ‘kill zone.’
Given the wording of
c. Thompkins‘s Contentions on Appeal7
Thompkins attacks the kill zone instruction on two levels. Most fundamentally, he claims the instruction was improperly given in this case because the evidence did not satisfy the two-part test of Canizales. He contends the evidence was insufficient to support a finding that he harbored a specific intent to kill anyone other than the two named victims in the murder charges, Adam and Jenkins. He reaches this conclusion by proposing, without record citation, that Adam and Jenkins were the very same two patrons who engaged with Fox over the neck chain. Building on that supposition, he implicitly suggests the prior scuffle provided the motive for Thompkins to want to kill them, and because the scuffle did not involve the other injured victims, there was no evidence showing intent to kill those individuals, either as individuals or as occupants of the kill zone. He seems to define the “kill zone” as the area in the immediate vicinity of the doorway and goes to some length to argue that the various injured victims were not within the kill zone.
Secondarily, he claims that even if a kill zone instruction was warranted, the wording of this particular instruction made it erroneous under Canizales. It required only that the jurors find it “reasonable to infer” that Thompkins intended to kill everyone in the zone of fatal harm, whereas Canizales held such an inference must be the “only reasonable inference” before the kill zone theory of concurrent intent to kill may be employed or an instruction given. (Canizales, supra, 7 Cal.5th at p. 597, italics in original.)
d. A Kill Zone Instruction Should Not Have Been Given
Canizales clarified that a kill zone theory cannot be used unless (1) the defendant has a primary target, (2) the defendant harbors the intent to
The prosecution never attempted to identify any particular target victim or victims. To say that Adam and Jenkins were the targets (as Thompkins now does) merely because they ended up being killed is to superimpose a specificity not supported by the evidence. It would require us to assume that Thompkins knew exactly which men had confronted Fox and that Thompkins was an accurate marksman and killed exactly whom he intended to kill. True, he was firing at close range, but we do not believe there was sufficient evidence to establish that Adam and Jenkins were the same men who scuffled with Fox in the doorway to Sweet Jimmie‘s, or that Thompkins specifically targeted them for any other reason. In the absence of such proof, a kill zone instruction was unwarranted either before or after Canizales. (Canizales, supra, 7 Cal.5th at pp. 596-597, 606-607, 609-610; Stone, supra, 46 Cal.4th at pp. 137-138.)
Thе Attorney General agrees the kill zone instruction should not have been given, but claims it was harmless error. Citing Stone, supra, 46 Cal.4th 131, he claims the case law even before Canizales was decided already firmly established that a defendant who shoots indiscriminately into a crowd, intending to kill someone—but no particular person—is criminally liable for attempted murder without resort to a kill zone instruction. (Stone, at pp. 137-139id. at pp. 140-142) but was superfluous.
Stone involved a defendant who fired a single shot at a group of rival gang members at a distance of four to five feet, where there was testimony that he may have been pointing his gun at the group, as well as testimony that he may have been pointing it over their heads, trying just to scare them. (Stone, supra, 46 Cal.4th at p. 135.) Although the opinion does not indicate whether anyone was injured, the defendant was charged with attempted murder of one person, Joel F. (Id. at p. 136.) Stone was convicted of one count of attempted murder by a jury which had been given a kill zone instruction modeled on
Notes
issue, especially because there was no specific request for the instruction36 and the jury would have been naturally skeptical of any attempt by Fox to shift blame from himself simply because of his role in the crime.37 (See Lewis, supra, 26 Cal.4th at p. 371 [omission of “care and caution” instruction harmless where “[a]ny reasonable juror would reach this conclusion without instruction“].)
Moreover, any error in omitting such an instruction is deemed harmless if there was sufficient corroboration. (Lewis, supra, 26 Cal.4th at p. 370.) Here, presuming the inculpatory implication from Fox’s statement was that Thompkins had control of the gun in the car while Fox was arguing with the patrons of Sweet Jimmie’s, Sims’s and Baskin’s identifications of Thompkins as the shooter provided ample independent corroborating evidence. Ford saw the driver exit the car carrying the rifle. Any instructional error on this point was harmless. (See Avila, supra, 38 Cal.4th at p. 562 [Watson applies].)
3. Fox Was Not Entitled to Instruction on Voluntary Intoxication
In a supplemental brief, Fox claims he was erroneously denied an instruction on voluntary intoxication. The record shows the People initially listed instructions on voluntary intoxication in their proposed jury instructions with the annotation “to discuss.” Later, Fox’s counsel requested such instruction.
Nelson testified that before the shooting he and the others had spent the day driving around Oakland and drinking. Nelson was “loaded,” but not to the point where he had problems with perception or decisionmaking. He did say he drank “a gallon” of gin and juice, and he told the police he was intoxicated to the point of not remembering all the details of the events. Nelson testified Fox was “drunk,” but he was not asked to elaborate and did not.
In his interview with Lt. Jones, Fox described himself as “drunk.” He said he had been drinking Patrón tequila, Seagram’s gin, another brand of tequila, and Hennessey. Nevertheless, he described in detail his activities in the period immediately before, during and after the shooting. The only detail that he claimed to be too drunk to recall was the time at which the group first pulled up to Nation’s.
Fox’s trial counsel asked the court to instruct the jury on voluntary intoxication using
“Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with
murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.” (
We agree the jury was required to make multiple findings of specific intent in this case but disagree with the rest of Fox’s analysis. There was no evidence that Fox was so intoxicated he could not form the intent required in the various charges and enhancements for which he was on trial. And there was convincing evidence to the contrary.
This case is comparable to Williams, supra, 16 Cal.4th 635, where the Supreme Court held a witness’s testimony that the defendant was “probably spaced out” on the morning of the killings, together with defendant’s comments in a police interview that he was “doped up” and “smokin’ pretty tough,” provided “scant” evidence of voluntary intoxication and, considering the lack of evidence the drugs “had any effect on defendant’s ability to formulate intent,” such evidence did not qualify as “substantial” for purposes of requiring instruction on voluntary intoxication. (Id. at pp. 677-678.)
Indeed, courts have frequently found instruction on voluntary intoxication unnecessary when there was self-reporting of intoxication but no indication that mental functioning was impaired. (See People v. Ramirez (1990) 50 Cal.3d 1158, 1180-1181 [defendant testified he was drunk but gave a detailed account of the events and did not suggest his drinking affected his memory or conduct]; People v. Ivans, supra, 2 Cal.App.4th at p. 1662 [defendant testified he was high on speed but gave a detailed account of the events]; People v. Simpson (1987) 192 Cal.App.3d 1360, 1369-1370 [defendant had been “drinking for several hours” and was “woozy” but recalled the events]; People v. Harris (1981) 28 Cal.3d 935, 958 [defendant told police, “I was pretty loaded and I didn’t know what I was doing“]; People v. Spencer (1963) 60 Cal.2d 64, 88 [“pretty well plastered“].)
Nelson described Fox as “drunk,” and Fox described himself the same way. Fox said in his redacted June 29 interview he was too drunk to remember the exact time the party of four arrived at Nation’s. That was the sum and substance of testimony about his state of intoxication. Neither Nelson nor any other witness described any behavior that would lead one to believe Fox was unable to form a specific intent. There was no expert testimony to substantiate a diminished actuality defense, and not even any evidence Fox was stumbling, slurred his speech, vomited, or was mentally confused. As in Williams, there was no evidence that Fox’s state of insobriety affected his ability to form a specific intent. (Williams, supra, 16 Cal.4th at pp. 677-678.) Without such evidence, the court was not required to give the instruction.
In fact, the evidence established that Fox was able to and did entertain goal-directed thoughts and formed the intention to carry out identified actions despite his drinking. He described going to East Oakland to get his assault rifle and returning downtown “looking for the Acorn niggers.” Considering the strong evidence that Fox actually formulated the intent to participate in a murder—which the jury found convincing beyond a reasonable doubt—the trial court properly denied the requested instruction on voluntary intoxication. There was, in any event, no reasonable probability the outcome of the trial would have been better for Fox if a voluntary intoxication instruction had been given. (See People v. Mendoza (1998) 18 Cal.4th 1114, 1134-1135 [Watson applies]; People v. Rivera (1984) 162 Cal.App.3d 141, 146 [same].)
D. ISSUES THAT AROSE AT SENTENCING*
1. The Penalties for the Gang Enhancements on Fox’s Attempted Murder Convictions Were Unauthorized Under Section 12022.53, Subdivision (e)(2)
Fox correctly argues the gang enhancements imposed on him on the attempted murder counts were imposed in error. The provision allowing an accomplice to a gang-related crime to be sentenced as harshly as the shooter is subdivision (e)(1) of
Because we reverse counts 3 through 7 for error in giving the kill zone instruction, no immediate action by the court below is necessary upon remand. If, however, the charges are retried, the court should take care not to repeat this sentencing error if Fox is again convicted on any of counts 3 through 7.
2. Claimed Error in Imposing the Great Bodily Injury Enhancement on Count 7
Defendants initially claimed the evidence was insufficient to support the true finding of great bodily injury to Sims’s friend Lee under
minor to support a great bodily injury finding, defendants claimed the 25-to-life enhancement on count 7 should be vacated. We need not address this issue because we are reversing the conviction on count 7 altogether and the enhancement with it.
3. Fox’s Confession at Sentencing as it Allegedly Affects Thompkins’s Convictions
Thompkins argues both on appeal and in his first habeas petition (A147135) that he should have had a hearing on a motion for a new trial based on Fox’s post-sentencing testimony as newly discovered evidence, and he did not receive one, in part due to his attorney’s failure to take the proper procedural steps. In this appeal, we discuss only Fox’s statements and testimony at sentencing, not the additional matter alleged in Thompkins’s habeas petitions.39
Thompkins argues he is entitled to a new trial because, if the trial court had recalled his sentence, either on its own motion or on Thompkins’s motion, Thompkins’s attorney could have made a new trial motion, which was destined to succeed. Besides faulting the court for failing to recall the sentence on its own motion, Thompkins argues his trial attorney was ineffective under the Sixth Amendment for failing to make such a motion under
The Attorney General agrees that Thompkins’s attorney could have made a motion for the trial court to recall its sentence, at which point he could have made a motion for a new trial, citing Dix v. Superior Court (1991) 53 Cal.3d 442, 455, 460 and Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1834-1836 (Portillo). He therefore addresses the issue as ineffective assistance of counsel and concludes a new trial motion
would not have been successful because Fox’s testimony was not credible enough to warrant granting a new trial motion; hence, he argues, Thompkins has not shown prejudice under Strickland v. Washington, 466 U.S. 668, 687 (1984).
We agree with the Attorney General. Even assuming Thompkins’s counsel could have—and should have—filed a memorandum urging the trial court to exercise in Thompkins’s favor its virtually unfettered discretion to recall Thompkins’s sentence (
Even assuming the court would have granted the request, the problem remains that a new trial motion on the basis of Fox’s testimony was doomed to fail. This is especially clear now, since Thompkins has had an evidentiary hearing on his habeas petition (A141375), and Judge Nakahara has determined Fox’s testimony to have been incredible and in conflict with the physical evidence. We can therefore say with confidence there is no reasonable likelihood an outcome more favorable to Thompkins would have ensued if his attorney had made a motion to recall his sentence. A new trial motion would have failed for the same reasons that Thompkins’s habeas petition failed. Thompkins has filed a second habeas petition (A158110) claiming error in Judge Nakahara’s conduct of the first habeas hearing. Those issues will be dealt with in connection with the second habeas petition. Thompkins is not entitled to relief on appeal.
E. FOX’S CLAIMS OF CLERICAL ERROR*
Fox argues his abstract of judgment shows he was sentenced to LWOP on both counts one and two. Comparing the transcript of his sentencing and the abstract of judgment, he frames this as clerical error. The Attorney General is silent on the point. We agree that there was an error here. The court did say, “So as to count one and two, it’s going to be life in prison without the possibility of parole plus 50 years to life for the 12022.53(d) clauses and then two years on the prison prior[s].” A special circumstance
LWOP penalty should not have been imposed on count 1. The special circumstance was only alleged with respect to count 2, and the jury’s finding only applied to count 2. Nor could the court lawfully have imposed the LWOP sentence on both counts because the special circumstance defined by
Thompkins’s abstract of judgment is similarly flawed. Though he did not raise any issue with respect to the correctness of the abstract or the imposition of two LWOP sentences, the abstract of judgment shows a spеcial-circumstance penalty was imposed on both counts 1 and 2, and the reporter’s transcript supports the conclusion that two LWOP sentences were imposed. Because such a sentence is unauthorized, for him too we shall vacate the LWOP sentence on count 1 and direct that, as with Fox’s sentence on counts 1 and 2, LWOP be imposed only as to count 2, with the abstract of judgment to reflect the correction.
F. CUMULATIVE PREJUDICE*
Finally, both defendants ask us to consider cumulatively the prejudicial impact of the various alleged errors. When multiple errors occur in a trial, though individually harmless, in cumulative effect they may be sufficiently prejudicial to violate due process. (People v. Hill (1998) 17 Cal.4th 800, 844; In re Avena (1996) 12 Cal.4th 694, 772, fn. 32 (dis. opn. of Mosk, J.).) We found numerous errors in this case, but we have taken sufficient care to cure the harm of each reversible error individually, while concluding the remainder were harmless. Because none of the harmlessness determinations was particularly close, little remains to cumulate. We now reach the conclusion that no further relief is warranted, even considering the cumulative impact of all identified errors. Even considered cumulatively, these errors do not add up to a due process violation.
IV. DISPOSITION
The judgment is partially reversed and partially affirmed.
The judgment on counts 1 and 2 is reversed, and the matter is remanded solely for resentencing as to both defendants, specifically to allow the judge to exercise his discretion on whether to impose or strike the firearm enhancements found true with respect to counts 1 and 2. (
The judgment on counts 3 through 7 and related enhancement findings are reversed as to both defendants due to error in giving a kill zone instruction, and the flaw in the instruction itself. Upon remand, the People may retry counts 3 through 7 and related enhancement allegations if the district attorney so elects. The judgment against Fox was also in error in that it imposed gang enhancements (
must not repeat this error if those counts are retried and Fox is again convicted, even if the gang allegations are found true.
In all other respects the judgment is affirmed, including the judgment on count 8.
The trial court shall prepare an amended abstract of judgment for each defendant to reflect the sentences imposed on remand or after any additional trial proceedings. The amended abstracts shall correct the errors identified, ante, at page 94 of this opinion, footnote 40. The trial court is directed to forward certified copies of the amended abstracts of judgment to the Department of Corrections and Rehabilitation.
STREETER, J.
I CONCUR:
TUCHER, J.
POLLAK, P.J. — I concur in the lead opinion with one reservation. I see no reason to address the conflict between People v. Ochoa (2017) 7 Cal.App.5th 575 and People v. Blessett (2018) 22 Cal.App.5th 903, review granted August 8, 2018, S249250, disapproved on other grounds in People v. Perez (2020) 9 Cal.5th 1, as the lead opinion does in part A.4.f.ii of the Discussion. There is no reason to decide whether testimony by a gang expert about predicate offenses by gang members should be considered admissible background information or inadmissible case-specific hearsay because, as the majority opinion goes on to hold, there is substantial nonhearsay or hearsay excepted evidence of the predicate offenses in this case. Even if the hearsay concerning predicate offenses should not have been admitted, any possible error was harmless, as the lead opinion also holds. Considerable logic supports the conflicting views in both Ochoa and Blessett. It will be for the Supreme Court to resolve the conflict.
POLLAK, P. J.
Trial court: Alameda County Superior Court
Trial judge: Honorable Vernon K. Nakahara
Counsel for plaintiff and respondent: Xavier Becerra Attorney General of California, Lance E. Winters Chief Assistant Attorney General, Jeffrey M. Laurence Senior Assistant Attorney General, Catherine A. Rivlin Supervising Deputy Attorney General, Bruce M. Slavin Deputy Attorney General.
Counsel for defendant and appellant Clem Thompkins: Stephen B. Bedrick, under appointment by the Court of Appeal.
Counsel for defendant and appellant Lamar Fox: Neil Jacob Rosenbaum, under appointment by the Court of Appeal.
A141375