P. v. Thompson



Filed 4/25/11 P. v. Thompson CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. RICHARD LEE THOMPSON, Defendant and Appellant.

G043404 (Super. Ct. No. 08WF0891) O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed as modified.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane
R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, Stacy Tyler and Scott Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant was convicted of involuntary manslaughter for fatally striking a fellow bar patron in the head with a pool cue. He contends the trial court erred in failing to give his requested jury instruction on self-defense, and we agree. However, given the circumstances of the killing, we do not believe it is reasonably probable appellant would have obtained a more favorable verdict had the instruction been given. Therefore, other than to modify appellant's presentence custody credits, we affirm the judgment in all respects.
FACTS
The basic facts are not in dispute. It was St. Patrick's Day, 2008, and appellant was drinking with his girlfriend at Breaker's bar in Cypress. After finishing a game of pool with Bradley Castle, appellant ordered Castle a beer. However, instead of delivering the drink to Castle, the bartender mistakenly gave it to Steve Toole, who was sitting at the bar. Toole didn't want the beer, so he pushed it away. Thinking that was rude, appellant approached Toole. The two men exchanged words, and then Toole pushed appellant, causing him to stumble backwards and fall down. When appellant got up, he grabbed a pool cue and flipped it around so he was holding it by the tip. He then swung the cue at Toole, hitting him in the side of the head with the heavy end of the stick. The blow was fatal; Toole fell to the floor â€