People v. Thompkins
| Decision Date | 01 May 2020 |
| Docket Number | A141375 |
| Citation | 50 Cal.App.5th 365,264 Cal.Rptr.3d 186 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Clem THOMPKINS et al., Defendants and Appellants. |
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
Penal Code sections 188, 189, 12022.5 and 12022.53.1 Defendants also raise individually or jointly evidentiary, instructional and sentencing issues, ineffective assistance of counsel, claims of clerical error, and cumulative prejudice. We reject most of these claims either on the merits, as forfeited, or as harmless error.
We do conclude, however, that (1) the five attempted murder convictions and related enhancements 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, 248 Cal.Rptr.3d 370, 442 P.3d 686 ( Canizales ) and other authority; (2) there was instructional error under People v. Chiu (2014) 59 Cal.4th 155, 172 Cal.Rptr.3d 438, 325 P.3d 972 ( Chiu ) as to Fox, but it was harmless under Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 ( Chapman ); (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, 189 Cal.Rptr.3d 518, 351 P.3d 1010 ( Elizalde ), but it was harmless beyond a reasonable doubt; (4) there was some evidentiary error under People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320 ( 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 sections 188 and 189 must be raised by petition in the trial court (§ 1170.95); (6) the special-circumstance finding applied only to the charge under count 2, and an amended abstract of judgment must so reflect; (7) gang enhancements (§ 186.22) should not have been imposed against Fox on counts 3 through 7 and must not be imposed if Fox is again convicted of these counts on remand ( § 12022.53, subd. (e)(2) ); and (8) the case must be returned to the trial court so the judge may exercise his discretion whether to impose or strike the firearm enhancements on counts 1 and 2 under section 12022.53, in light of an amendment to section 12022.53, subdivision (h). Only the discussion of items (1) and (4) above will appear in the published portion of the opinion.
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
model white Toyota Camry with no license plates double-parked outside Sweet Jimmie's. There were four men in the car. Three of them got out. The driver stayed in the car.
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.
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 what to do. If a member disobeyed a shot-caller there might be a violent
response. Gang members build respect for themselves and the gang by committing acts of violence in the company of other members.
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 ...
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