P. v. Thomspon 11/10/10 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C061568

Case Date: 02/17/2011

Preview:Filed 11/10/10

P. v. Thompson CA3

NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, Plaintiff and Respondent, v. ANDREW BRUCE THOMPSON III, Defendant and Appellant.

C061568 (Super. Ct. No. SF108385A)

A jury found defendant Andrew Bruce Thompson III guilty of second degree murder, unlawful possession of a handgun, unlawful possession of ammunition, and active participation in a criminal street gang (i.e., street terrorism), with various sentencing enhancements, all in connection with the shooting death of his girlfriend, Erica Orsino. Sentenced to an aggregate term of 68

years 8 months to life in prison, defendant appeals, contending: (1) the trial court violated his constitutional right to confront the witnesses against him by admitting a medical examiners testimony about an autopsy performed by another examiner; (2) a police detective who testified for the

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prosecution committed Doyle1 error by repeatedly testifying about defendants request for an attorney; (3) the trial court erred when it directed the jury to reconsider inconsistent verdicts on two different firearm enhancements on the murder charge; (4) there was insufficient evidence to support a gang enhancement and the street terrorism charge; and (5) the trial court erred in failing to stay the sentence for street terrorism under Penal Code2 section 654. We conclude the trial court did not violate defendants constitutional rights by admitting testimony about an autopsy by a different medical examiner than the one who performed the autopsy and did not err in sentencing defendant for street terrorism. We also conclude there was no Doyle error and

defendant has not shown there was insufficient evidence to support the street terrorism charge. We do find error, however,

in the trial court asking the jury to "take a second look at the [enhancement] findings on [the murder charge]," because the jury had found the firearm enhancement allegation under section 12022.53, subdivision (d) not true but the allegation under section 12022.5, subdivision (a) true, and the court "wasnt sure if thats what they intended." This was error because the

trial court had no right or power to direct or suggest that the

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Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91]. All further section references are to the Penal Code. 2

jury reconsider its "not true" finding on the first firearm enhancement. Because of this error, we will reverse the finding on the section 12022.53, subdivision (d) enhancement that the jurors returned after the court told them to "take a second look" and will remand the case for resentencing. FACTUAL AND PROCEDURAL BACKGROUND For our purposes, the underlying facts may be briefly stated. On May 24, 2008, Orsino was shot to death in her At the time, defendant (her Defendant is

bedroom at her mothers house.

boyfriend) was the only other person in the room. an admitted gang member. The Charges

Defendant was first charged in the death of Orsino four days later. Ultimately, an information charged him with murder.

The murder charge included an enhancement allegation under subdivision (d) of section 12022.53, alleging defendant intentionally and personally discharged a handgun in the commission of the murder (the gun discharge enhancement). was also an enhancement allegation under subdivision (a) of section 12022.5, alleging defendant personally used a firearm in the commission of the murder (the gun use enhancement). The information also charged defendant with being a felon in possession of a handgun, a rifle, and ammunition. Defendant There

was also charged with street terrorism and that charge included a gun use enhancement allegation. The information also alleged

that defendant had a prior serious felony conviction and two 3

prior prison terms.

Early on in the trial, defendant admitted

the prior conviction and prior prison term allegations. Dr. Omalu's Testimony At trial, Dr. Bennet Omalu, the chief medical examiner for San Joaquin County, testified for the prosecution. After the

prosecution established his qualifications, the court determined that Dr. Omalu qualified as an expert in forensic pathology. Dr. Omalu then testified that "part of [his] job as chief medical examiner is to review autopsies performed by other doctors and then testify independently based on [his] experience at a trial." Dr. Omalu reviewed the official records of the autopsy of Orsino, including the autopsy photographs, the crime scene photographs, and the clothes Orsino was wearing when she was shot. He also reviewed the autopsy report prepared by From the

Dr. Pakdaman, who performed the autopsy of Orsino.

report, Dr. Omalu testified to the time of death and about Dr. Pakdamans examination of Orsinos body and clothing. From

autopsy photographs and Orsinos shirt, Dr. Omalu testified about the entrance gunshot wound on Orsinos abdomen and to his opinion that the gun was at least two feet away from Orsino when the shot was fired. From another autopsy photograph showing the

exit wound and measurement information that was presumably from the autopsy report, Dr. Omalu testified that the bullet went essentially straight through the body. With reference to a mannequin (and, again, presumably to information from the autopsy report), Dr. Omalu then testified 4

about the organs the bullet struck, the damage it caused -particularly to the iliac artery -- and how that damage caused arterial bleeding that led to Orsinos death. Further testimony

addressed the amount of internal bleeding, the absence of additional injuries, and the likelihood that Orsino was lying on the bed when she was shot. At no time did defendant object to

Dr. Omalu testifying because he did not perform the autopsy on Orsino. Detective Rodriguez's Testimony Stockton Police Detective Eduardo Rodriguez testified that when defendant turned himself in to the police after the police went to his parents house, defendant had an injury on his upper left arm. Detective Rodriguez further testified that he thought

he asked defendant if he wanted medical assistance, but defendant "wouldnt say anything to [him]." On cross-examination, Detective Rodriguez testified defendant had a wound on his chest as well. As defense counsel

pursued the issue of medical care, the following exchange occurred: "Q. Now, I think you indicated that you offered some

medical care to the defendant, and you indicated he just didnt answer your question about whether or not he wanted medical care, or -"A. It was kind of unusual, because whatever question we

asked him, I believe he said he wanted his lawyer. "Q. Okay.

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"A. lawyer. "Q.

If we asked him for water, medical help, ,,I want my

Okay.

And that was -- you asked him if he wanted to

see somebody to get some help for his wounds, and thats the same answer he gave you? "A. No matter what question we asked him, his response was

he wanted his lawyer. "Q. Here is my question. Did he ask you to see a lawyer

prior to the time that he saw someone to get medical care for his wounds? "A. Well, a lawyer had brought him in, so I assume they

discussed it. "Q. Well, I know. Im not interested in your assumptions. Did he make that reply, I want

Please listen to the question.

to talk to my lawyer, when you asked him about getting medical care? "A. I dont remember. Id have to refer back to the tape

for his response. "Q. When you were talking to him about whether he wanted

medical care or not, was his lawyer present? "A. "Q. No. And just for the record, I was not the lawyer who was

with him at the time, is that correct? "A. Correct." "A

The trial court later instructed the jury as follows: defendant has an absolute constitutional right not to make statements to the police and request representation by an 6

attorney.

Do not consider, for any reason at all, the fact that

the defendant did not give a statement to the police and requested representation by an attorney. Do not discuss that

fact during your deliberations or let it influence your decision in any way." The Verdicts The jury returned its verdicts on January 27, 2009, but because the foreperson was not well, the trial court did not unseal them until the morning of January 28. the court made the following statement: When it did so, [Jury

"Okay.

foreperson], Im going to have you folks go back into the jury room. You have two verdict forms filled out on Count 1 [the

murder charge] that are inconsistent, okay, so I need you folks to tell me what you meant, okay? Put those on top. And I'm

also going to ask you to take a second look at the findings on Count 1. in." Okay. Send us a note when you are ready to come back

(Italics added.) The jury subsequently sent a note indicating "[t]he

corrections have been made for the required paperwork."

The

jury then returned a verdict of guilty of second degree murder, with true findings on both the gun discharge enhancement and the gun use enhancement on that charge. The jury found defendant

guilty of unlawfully possessing a handgun and ammunition, but not guilty of unlawfully possessing a rifle. The jury also

found defendant guilty of street terrorism and found the gun use enhancement allegation on that charge true.

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The New Trial Motion Defendant moved for a new trial on the gun discharge enhancement. Defense counsel asserted that on the original

guilty verdict form for the murder charge, the jury had found the gun use enhancement true but found the gun discharge enhancement not true. The new trial motion was supported by a

declaration that addressed discussions defense counsel and the prosecutor had with the jurors after they were dismissed. Defense counsel also related a subsequent conversation he had with one of the jurors, who said that when the jurors returned to the jury room they had not simply corrected the verdict form but had taken an additional ballot on the murder charge before changing the form. The new trial motion was also supported by a memorandum of points and authorities citing various statutes and cases addressing the different elements of the two firearm enhancements, the law on inconsistent verdicts and findings, and the law on a courts influence on a jury verdict, but nowhere did the moving papers actually include argument expressly asserting why a new trial should be granted based on those authorities. The prosecutor opposed the motion. To the extent defendant

was arguing that the jury was entitled to find defendant guilty of murder and find the gun use enhancement true but find the gun discharge enhancement not true, the prosecutor argued "[t]his would have been impossible" because "[t]he whole Defense argument was that the gun discharged accidentally." 8

At the hearing on the new trial motion, defense counsel filed a declaration from the jury foreperson, who asserted that when the jurors returned to the jury room no further deliberation occurred and no further ballots were taken (contradicting the earlier statement by the other juror). Defense counsel did not elaborate on the basis on which defendant was seeking a new trial. as follows: The trial court then ruled

"The record should reflect, and I think I did not

do this after the jury was discharged, but to be clear, the Court received the verdicts initially with the murder verdict form properly executed indicating . . . the defendant was guilty of murder with the degree being fixed as murder in the second degree. [

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