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P. v Thompson CA4/3

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P. v Thompson CA4/3
By
05/14/18

Filed 5/1/18 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

TONY LEE THOMPSON,

Defendant and Appellant.


G055343

(Super. Ct. No. 11NF0268)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Julian W. Bailey, Judge.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Respondent.
* * *
1. Introduction
In a prior opinion, People v. Thompson (March 14, 2017, G051654) (nonpub. opn.), a panel of this court remanded with directions to the trial court to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) into allegations made by defendant Tony Lee Thompson (Thompson) of ineffective assistance of counsel. The trial court conducted a Marsden hearing, denied Thompson’s Marsden motion, and reinstated the judgment.
Thompson appealed from the reinstated judgment. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) setting forth the facts of the case and requesting that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel suggests we address the issue whether the trial court erred by finding that a failure to replace Thompson’s appointed counsel before sentencing would not substantially impair his right to assistance of counsel. 2Thompson was granted 30 days in which to file a supplemental brief on his own behalf. He has not filed a supplemental brief.
We have reviewed counsel’s Wende/Anders brief and have examined the record in accordance with our obligations under Wende and Anders. After considering the entire record, we have found no reasonably arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore affirm.
2. Facts
The following facts are taken from our prior opinion:
“I.
“Sexual Assault of Jane Doe
“In September 1998, Jane Doe was working as a housekeeper in a family’s home in Anaheim Hills. Doe lived and worked in the home during the week and returned to her home on the weekends. Doe’s native language is Spanish but she can understand and communicate some in English.
“Around noon on September 28, 1998, Doe was mopping the downstairs living room floor when a man whom she had never seen before knocked on the French doors which opened to the backyard. The man, later identified as Thompson, made a gesture to indicate he wanted to use the telephone. Doe thought the man was a painter working on the house or yard and opened the door for him. When Doe opened the door, Thompson said, ‘telephone.’ Doe told Thompson she needed to get the telephone and she walked to the kitchen where it was located. He followed her. When Doe reached the telephone, Thompson put his right arm around her mouth and neck and forced her upstairs. As he was taking her upstairs, the family’s large dog started barking at him. He grabbed the dog, put it in the first room at the top of the stairs, and closed the door.
“Thompson took Doe to another upstairs bedroom and forced her to lie down on the bed. He lifted her skirt, removed her underwear, pulled down his pants and underwear, and got on top of her. He briefly put a pillow over her face. At first, Thompson could not get an erection. He inserted his penis and fingers into her vagina, and both insertions hurt. When Thompson got up from off of Doe, she noticed blood coming from her vagina.
“Thompson asked Doe, ‘where’s the money at.’ She said she did not know. While Doe sat at the foot of the bed, Thompson went to another bedroom and then downstairs.
“Thompson left, carrying a stereo, through the front door. He also stole some jewelry. After Thompson left, Doe called the homeowner’s mother, who speaks Spanish, and told her what had happened. At about 12:15 p.m., the homeowner received a call from her mother who said her daughter needed to go home. When she arrived home, the police were there talking to Doe.
“II.
“Police Investigation and Sexual Assault Examination
“Anaheim Police Officer William Bird took Doe’s statement through another officer who acted as an interpreter. Doe stated the man did not have an erection and was not able to insert his penis in her vagina the first time he tried. He then inserted his finger into her vagina and again attempted to insert his penis, but there was only slight penetration, ‘if any penetration at all.’ Bird then took Doe to a hospital where a sexual assault examination was performed by Dr. Darilyn Falcke and nurse Kathleen West.
“Dr. Falcke used an ultraviolet light to look for biological fluids. Seminal fluid and amylase, a protein secreted by the salivary glands, will fluoresce under the ultraviolet light. Dr. Falcke noted the ultraviolet light fluorescence on Doe’s leg, but she was not able to tell from the light whether the fluoresced area was seminal fluid or amylase. Oral, vaginal, labial, and rectal swabs were taken, as well as swabs from the fluoresced area on Doe’s leg. Dr. Falcke examined Doe and noted reddened vaginal tissue, a transection of the hymen with minor bleeding, redness in the posterior fourchette area, ‘diffusely swollen labial major and minor and hood of clitoris,’ very dry labia with whitish discharge coating tissue, and three linear tears. Dr. Falcke’s findings from the examination were consistent with the history given by Doe. Dr. Falcke made a finding that ‘different evidence of sexual abuse or sexual abuse is highly suspected.’ Dr. Falcke could not determine whether Doe’s injuries were caused by penetration with a finger or penis.
“West obtained a statement from Doe, who communicated without difficulty in English. West asked Doe whether specific sexual acts occurred and checked the corresponding boxes on the sexual assault form based on Doe’s responses. The sexual assault form shows that penetration of the vagina by a penis was attempted twice. West marked ‘[y]es’ to penetration of the vagina by fingers and ‘[n]o’ to penetration by a foreign object.
“About a week later, on October 7, 1998, Anaheim Police Sergeant Frank Pinela interviewed Doe in Spanish. Doe stated that once Thompson took her to the bedroom, he had told her to lie on the bed. She sat down on the bed. Thompson lowered his pants and underwear and said something in English that she did not understand. Thompson pushed Doe’s head toward his genital area but stopped when Doe resisted. Thompson then removed Doe’s shorts and underwear and climbed on top of her. He attempted to put his penis in her vagina, but was not able to do so. He stopped and inserted some of his fingers into her vagina, causing her pain. He then tried vaginal intercourse again. This time, Doe felt slight penetration, and it hurt. Thompson stopped, picked up a towel, and used it to wipe Doe’s genital area. Doe noticed blood on the towel. Thompson told Doe to put her clothes on. He then rummaged through some drawers. He went into another bedroom, rummaged through more drawers, and removed clothing and jewelry. Thompson put Doe in the room with the dog and left the home.
“III.
“2009 Investigation and DNA Evidence
“In July 2009, Anaheim Police Detective German Alvarez contacted Doe regarding her original statements. After reviewing her statements from 1998, Doe indicated they were accurate. Alvarez showed Doe a ‘six pack’ photographic lineup that included Thompson’s photograph. Doe pointed to Thompson’s photograph and described him as most resembling the man who had assaulted her.
“Also in 2009, the swabs taken from Doe during her sexual assault examination were sent to the Orange County Crime Laboratory for DNA testing. No sperm cells were detected in the swabs from Doe’s internal labia, right thigh, or right calf. The external labial swab contained spermatozoa (sperm cells). Sperm was also found in the vaginal swab. The male DNA profile in the external labial sample was consistent with the male profile in the vaginal swab. Thompson’s DNA profile matched the one obtained from the sperm fraction from the external labial swab. The male DNA profile obtained from the sperm fraction from the vaginal swab also matched Thompson, but complete typing in all marker locations was not possible because there was a low level of male DNA in the vaginal swab. Significant levels of amylase were found in the swabs from Doe’s right thigh and calf, but DNA foreign to Doe was not detected.
“IV.
“Thompson’s Testimony
“Thompson testified in his own defense. He denied raping Doe or forcing her upstairs. He testified that he met Doe in mid September 1998 at an apartment in Santa Ana. He gave her a ride to work and helped carry her bag into the house. He testified that he and Doe talked on the telephone a few times between that day and September 28, 1998.
“According to Thompson, on September 28, Doe invited him to the house so they could ‘hook up.’ He arrived at around 9:00 a.m. or 10:00 a.m. and knocked on the front door. After Doe let Thompson into the house, they started kissing on a couch downstairs, then moved upstairs to one of the bedrooms. Thompson testified he had a difficult time getting an erection. He performed oral sex on Doe and asked her to perform oral sex on him. She declined. She told him to hurry because she was not supposed to have anyone in the house. Doe started bleeding and went to the bathroom. Thompson went into the master bedroom and took a couple of watches from the jewelry box. On his way out of the house, he also grabbed a ‘boom box’ from downstairs. He left and had no other contact with Doe. Thompson testified that Doe’s testimony was accurate except for Doe’s testimony that he raped her.
“Thompson testified that when first questioned by police about the case, he claimed he was not near Anaheim Hills on September 28, 1998 and did not know anything about a home invasion robbery and rape. He claimed it was not until seeing the police reports that he understood they were referring to his ‘hook up’ with Doe.” (People v. Thompson, supra, G051654.)
3. Procedural History
A jury found Thompson guilty of one count of forcible rape (Pen. Code, § 261, subd. (a)(2)) and one count of sexual penetration by a foreign object by force (§ 289, subd. (a)). As to both counts, the jury found four enhancement allegations to be true: (1) Thompson committed a burglary with the intent to commit a sex offense (§ 667.61, subds. (a) & (d)(4)); (2) Thompson kidnapped the victim and the movement of the victim substantially increased the risk of harm to the victim over and above the level of risk necessarily inherent in the offense (§ 667.61, subds. (a) & (d)(2)); (3) Thompson kidnapped the victim during the commission of the offense (§ 667.61, subds. (b) & (e)(1)); and (4) Thompson committed the offense during a burglary (§ 667.61, subds. (b) & (e)(2)).
The trial court sentenced Thompson to a total term of 25 years to life in prison on the forcible rape count and the enhancement alleged under section 667.61, subdivisions (a) and (d)(4). Sentence was imposed and stayed on the sexual penetration count and on all the other enhancement allegations.
Thompson appealed from the judgment. He argued (1) substantial evidence did not support the true finding on the allegation under section 667.61, subdivisions (a) and (d)(2) and (2) the trial court erred by not conducting a Marsden hearing.
In our prior opinion, we concluded that substantial evidence supported the allegation under section 667.61, subdivisions (a) and (d)(2) but that the trial court should have conducted a Marsden hearing because Thompson had unequivocally expressed his desire for appointment of new counsel. (People v. Thompson, supra, G051654.) We remanded with directions to the trial court to hold a hearing on Thompson’s Marsden motion and, if the court were to deny the Marsden motion, to reinstate the judgment. (Ibid.)
The trial court conducted a Marsden hearing in July 2017. Thompson argued his appointed counsel did not provide adequate representation because counsel failed to investigate the case, to cross-examine witnesses, to locate potential witnesses (including Doe’s cousin, a drug dealer, who knew Thompson and introduced him to Doe in 1998), and to file a motion for a new trial. He stated that he had a sinus infection when he testified at trial but his counsel did not request a continuance. Thompson claimed that informants had been sent to monitor him at jail, but his counsel did not call them as witnesses. Thompson’s appointed counsel also spoke at the Marsden hearing.
The trial court denied the Marsden motion. The court stated, “I haven’t heard evidence that, in my mind, justifies relieving [appointed counsel] as your attorney at the time of sentencing.” The court ordered the judgment reinstated.
4. Discussion
We have reviewed the record in accordance with our obligations under Wende and Anders, and we find no arguable issues on appeal. Thompson himself has not filed a supplemental brief raising any issues for our review. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.) As to counsel’s suggested issue, we conclude the trial court did not abuse its discretion by denying Thompson’s Marsden motion. (See People v. Smith (1993) 6 Cal.4th 684, 690 691.)


5. Disposition
The judgment, as reinstated by the trial court, is affirmed.



FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



IKOLA, J.





Description In a prior opinion, People v. Thompson (March 14, 2017, G051654) (nonpub. opn.), a panel of this court remanded with directions to the trial court to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) into allegations made by defendant Tony Lee Thompson (Thompson) of ineffective assistance of counsel. The trial court conducted a Marsden hearing, denied Thompson’s Marsden motion, and reinstated the judgment.
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