People v. Thomkins
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On Easter night in 2011, gunfire erupted at an Oakland bar-restaurant, leaving two people dead and five wounded. Thompkins and Fox 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 convicted as the shooter and Fox as an accomplice. Both were sentenced to life in prison without possibility of parole, plus 224 years to life. After Thompkins was sentenced, Fox stated under oath he was the actual shooter and Thompkins knew nothing about Fox’s intentions. Thompkins claimed this new testimony, and his attorney’s incompetent reaction entitled him to a new trial and submitted a declaration by another gang member who was present that night.
The court of appeal concluded that Thompkins’s attorney was not ineffective for failing to bring a motion to recall the sentence followed by a new trial motion because Thompkins failed to show prejudice. The attempted murder convictions and related enhancements must be reversed for both defendants based on the flawed kill zone instruction. Introducing evidence that defendants admitted their gang affiliation at jail intake violated the defendants’ privilege against self-incrimination but was harmless. There was some evidentiary error that was harmless due to the wealth of admissible evidence establishing the gang enhancements. Arguments based on the statutory amendments to Penal Code 188 and 189 must be raised in the trial court (section 1170.95). The case must be remanded so the judge may exercise his discretion whether to impose or strike the firearm enhancements on under Penal Code 12022.53.
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