Modification: People v. Thompkins

THE PEOPLE,

Plaintiff and Respondent,

v.

CLEM THOMPKINS et al.,

Defendants and Appellants.

No. A141375

(Alameda County

Super. Ct. No. 168583A/B)

California Courts of Appeal

First Appellate District

Division Four

Filed June 17, 2020

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

THE COURT:

It is ordered that the opinion filed herein on May 1, 2020, be modified as follows:

1. 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.

2. 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 Aledamat. We do not suggest that examination of the jury's actual verdicts is the only way to determine whether alternative-theory error is reversible under Chapman. 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.