People v. Thompson

Filed 8/11/22; Certified for Publication 9/12/22 (order attached) See concurring opinion IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT THE PEOPLE, H044699 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1514611) v. GREGORY JERMAINE THOMPSON, Defendant and Appellant. I. INTRODUCTION In the early morning hours of June 27, 2015, Marvin Jackson, Jr. was shot and killed by an unknown assailant in downtown San Jose. Jackson had been out on the town with his half-brother, William Maynard, and several friends. Maynard had gotten into an argument with the assailant and his associates within a half hour of the shooting. A jury found defendant Gregory Jermaine Thompson guilty of the offense, convicting him of first degree murder (Pen. Code, § 187, subd. (a)) 1 and possession of a firearm by a felon (§ 29800, subd. (a)(1)), and finding true the allegation that he personally and intentionally discharged a firearm in the commission of the murder (§ 12022.53, subd. (d)). After a bifurcated court trial, the court found true the allegations that defendant had a prior juvenile strike adjudication (§§ 667, subds. (b)-(i), 1170.12) and had served a 1 All further statutory references are to the Penal Code unless otherwise indicated. prior prison term (§ 667.5, subd. (b)). The court sentenced defendant to 76 years to life, imposed various fines and fees, and ordered victim restitution. Defendant contends that the trial court violated his right to an impartial jury, equal protection, and due process when it improperly dismissed a prospective juror for cause; the prosecutor committed misconduct when he partially told the fable of the scorpion and the frog during jury voir dire and the court erred when it denied defendant’s mistrial motion based on the misconduct; the court erred when it admitted evidence of his brother’s witness intimidation and Facebook internet searches because the evidence was irrelevant and more prejudicial than probative; and the cumulative prejudice from the trial errors violated his right to due process. Regarding sentencing, defendant claims that the prior prison term enhancement must be stricken; remand is required to allow the trial court an opportunity to exercise its new discretion to strike the firearm enhancement or impose a lesser enhancement; the criminal justice administration fee was unauthorized; insufficient evidence supports part of the restitution order; the court erred when it imposed the fines and fees without determining defendant’s ability to pay and abused its discretion when it imposed the maximum restitution fine; and the use of a prior juvenile adjudication as a strike enhancement violated his right to a jury trial. Regarding almost all of the claims, defendant contends that if the claim has been forfeited, he received ineffective assistance of counsel. The Attorney General concedes that the prior prison term enhancement must be stricken and that the case must be remanded to allow the court an opportunity to exercise its discretion to strike the firearm enhancement, and states that defendant may raise his inability to pay the fines and fees on …

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