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People v. Thompson

California Court of Appeals, Fifth District
Jul 11, 2008
No. F053311 (Cal. Ct. App. Jul. 11, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Tulare County No. VCF150758, Patrick J. O’Hara, Judge.

William I. Parks, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

THE COURT

Before Vartabedian, Acting P.J., Wiseman, J., and Hill, J.

Procedural History

Appellant Fred Louis Thompson was convicted by jury trial of two counts of making criminal threats (Pen. Code, § 422); four counts of discharging a firearm with gross negligence (Pen. Code, § 246.3); assault with a firearm (Pen. Code, § 245, subd. (a)(2)); disobeying a domestic relations court order (Pen. Code, § 273.6); and battery of a spouse (Pen. Code, § 243, subd. (e)(1)). His wife was the victim in all nine counts.

Thompson was sentenced to state prison for a total term of three years and four months.

Facts

According to the victim, the couple’s 22-year relationship included consistent acts of violence directed at the victim. Thompson was extremely controlling and suspicious of the victim. The couple married in 1987. The victim filed for divorce in May 2005. The abuse escalated in the last years of the marriage, causing the victim to flee to a women’s shelter, taking the couple’s two children with her. The charged counts occurred on six different dates during the period immediately preceding the victim’s departure and immediately thereafter. The victim testified at trial about each of the incidents as follows:

On May 17, 2004, Thompson became upset when he learned that police officers had visited the house to investigate a theft at a neighbor’s house. The next morning at the family breakfast table, Thompson began to scream about why the police were there and shoved the table into the chest of his two-year-old daughter as he got up. He went outside to his truck, where he retrieved a gun and started shooting toward the house, causing the victim to hide under the table with her daughter. When he returned to the house later, he screamed at the victim and said, “if you try to leave me and take these kids, I will slit your throat, knock your teeth out, and throw you in the bottom of the lake and take the kids to Mexico.”

On June 12, 2004, Thompson came home in the middle of the night after drinking. The victim had been asleep for some time. When Thompson attempted to initiate sex, the victim turned away. Thompson became angry and asked who had been in the house that day. When the victim said no one, Thompson called her a lying whore and viciously kicked her in the middle of the back. The victim moved to the downstairs couch. Thompson retrieved a handgun from the top shelf of a closet, put a bullet in the chamber, and went downstairs. Thompson continued to yell at the victim, who was huddled on the couch believing she would be killed. The gun went off and Thompson laughed. He said, “oh, I didn’t mean to do that.” The victim heard glass shatter. Thompson ordered her back upstairs. As the victim climbed the stairs, Thompson was right behind her with the gun. Afterward, the victim saw that her grandmother’s antique punch bowl, which had been stored in a glass hutch, had been shattered along with the doors to the hutch. The victim spackled the bullet holes in the walls around the hutch afterward. Investigating officers confirmed there were numerous bullet-hole-size patches on the inside walls of the house. Pictures of the hutch before June 2004 showed it had glass doors. Pictures after June 2004 show the glass gone from the doors. The officers found no bullet damage to the hutch.

On September 14, 2004, Thompson was mad because the victim had taken their two children to the fair. When he arrived home, he took out his rifle and pointed it at the victim and the two children who were standing outside the house. He then lifted it up and started shooting up over the house. The victim ran into the house with the children and put them to bed. When Thompson came into the house he started screaming, “why did you go to the fair? Who did you meet there?” and threatened to murder the victim.

In the first part of May 2004, the couple received a check for improvement work they had done on the home of Mary Lugo. The check was needed to pay off credit card debt which had been incurred during the project. Thompson told the victim she had to cash the check and give the money to him. The victim objected because she had no other money to pay the bills. Thompson got mad and began yelling at the victim. He then hit her in the chest as hard as he could, knocking the victim backward.

On May 12, 2005, the victim took her daughter to town for a doctor’s appointment. When she came out of her appointment there were several messages on the phone from Thompson, screaming and cussing, ordering the victim to “[g]et [her] ass home.” When the victim returned home, Thompson gave her the silent treatment and then left. He did not come home for several days. When he did came home, he continued to scream at her and told her she could go to town only once a month to get groceries and that was all. On Thursday, May 19, at 1:00 o’clock in the morning, Thompson arrived home and, as he walked toward the house, he began shooting his gun. The family was sleeping. When Thompson came to the bedroom, he pulled a different gun from the closet, put a bullet in the chamber and walked over to the bed where the victim was lying. She believed he was going to kill her. Instead, he put the gun under the mattress and then tried to initiate sexual intercourse. The victim refused. She was able to talk Thompson into placing the gun back into the closet.

While at the women’s shelter, the victim obtained a temporary restraining order. On July 12, 2005, Thompson called the victim and left a threatening message on her cell phone in violation of the order. He told her that she had better call him back because he was on the way over to “put [her] away.” The victim called the sheriff’s department and the responding deputy testified at trial that he heard this message on the phone.

In defense, Thompson testified that the victim had a “hereditary problem” and an “herbal problem”; that she was involved in witchcraft; that she was mentally unstable; and that her mother and sister were both crazy. He denies any abuse toward his wife, but stated that he had saved her life on more than one occasion. He said he was simply messing with the punch bowl when he dropped it through the hutch windows and that the victim has been mad about it ever since. He admitted violating the court’s restraining order stating that he “wanted [his] family back.” He claims he never shot his guns in the house or at his family. He also claims his wife had affairs because he saw a naked man running out of his house. He then modified his testimony to say it was a half-naked man, wearing what appeared to be boxer-type shorts and identified the man as a neighbor. He also claimed his wife wanted to sell their babies. On cross-examination, he testified that, because of a rare genetic blood condition, the genetics department a Cedars Sinai Hospital “wanted to test the children every other day and take blood from them every other day,” but he would not allow this.

Discussion

Thompson raises only a single issue on appeal. He claims he was denied effective assistance of counsel when his retained attorney failed to object to evidence of prior uncharged acts of domestic violence. We disagree and will affirm the judgment.

Evidence Code section 1109 permits the admission of evidence of prior acts of domestic violence in domestic violence cases if the evidence is not otherwise inadmissible under section 352 because it is more prejudicial than probative and so long as the evidence is disclosed to the defense prior to trial. (§ 1109, subds. (a)(1), (b) & (e).) Prior to the admission of section 1109 evidence, the trial court must undergo a careful weighing process, considering the inflammatory nature of the evidence, the probability of confusion by the jury, the remoteness of time, the consumption of trial time, and the probative value of the evidence. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1028-1029.) Thompson contends that the trial court erred because it did not undergo the weighing process. However, because defense counsel failed to object to the admission of the evidence, Thompson’s only viable contention on appeal is ineffective assistance of counsel. (§ 353; People v. Williams (1988) 44 Cal.3d 883, 906 [verdict may not be set aside on basis of erroneous admission of evidence, even if prejudicial, unless party asserting error has preserved question by timely and specific objection to admission of evidence, or by motion to strike or exclude evidence].)

All further references are to the Evidence Code unless otherwise noted.

Thompson contends that the evidence was never presented to the defense before trial, but fails to cite to record proof of this assertion. We therefore reject this assertion as unsupported by the record. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132 [appellant has burden to provide record sufficient to support claim of error].) We do note that the victim offered testimony at the preliminary hearing about the prior beatings by Thompson and his shooting his guns off. This was not unexpected evidence.

To succeed on a claim of ineffective assistance of counsel, an appellant must show that counsel’s performance was deficient when reviewed by an objective standard of reasonableness under prevailing professional norms, and he must show prejudice, i.e., that it is reasonably probable, but for counsel’s failings, the result would have been more favorable to the defendant. (People v. Riel (2000) 22 Cal.4th 1153, 1175.) Prejudice must be affirmatively proved; the record must demonstrate a reasonable probability that, but for counsel’s failures, the result of trial would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Maury (2003) 30 Cal.4th 342, 389.) Thompson cannot meet either prong of the test.

First, there is no duty to interject a meritless objection to evidence. (People v. Cudjo (1993) 6 Cal.4th 585, 616 [no ineffective representation for failure to object where there is no sound basis for objection]; accord, People v. Majors (1998) 18 Cal.4th 385, 403.) The evidence of the uncharged acts was clearly admissible under sections 1109 and 352. The evidence was not unduly inflammatory when considered in light of the detailed testimony of the charged offense. The victim testified that Thompson had fired shots in the house at times other than those for which he was charged, once specifically in 1992. She also testified that Thompson beat her, resulting in black eyes or bruises, “maybe seven times” in the 22 years she had lived with him. Three photographs were admitted without objection, showing the victim with a bruised and swollen face. The date of the incident was 1996. Thompson does not claim that the photographs were unusually inflammatory in what they depicted, only that it was evidence of uncharged offenses. Introduction of the evidence did not consume an unreasonable amount of trial time. The testimony covered approximately six pages of the victim’s nearly 200 pages of testimony. The uncharged acts were not unduly remote from the charged offenses given the length of the couple’s relationship. There was no risk that the evidence would confuse the jury; the charged incidents were carefully designated by date and context from the uncharged acts.

In contrast, the evidence of the uncharged offenses was highly probative. It established the long-term, consistent nature of Thompson’s abuse and explained in part why the victim had not sought help at the time the incidents occurred. The Legislature has recognized that ongoing violence and abuse is the norm in domestic violence cases. There is a great likelihood that one battering episode is part of a larger scheme of dominance and control, and that scheme will likely escalate in frequency and severity. (People v. Johnson (2000) 77 Cal.App.4th 410, 419.) The Legislature has determined that “the policy considerations favoring the exclusion of evidence of uncharged domestic violence offenses are outweighed in criminal domestic violence cases by the policy considerations favoring the admission of such evidence.” (Id. at p. 420.) The evidence, even after a section 352 analyses, was clearly admissible given the policies embodied in section 1109.

Lastly, Thompson cannot establish prejudice, even if we were to assume that the evidence was in some way objectionable. The victim was extremely credible. She testified in careful detail about the charged incidents. She was careful not to extend, by implication or emotion, Thompson’s acts beyond their factual reality. Her testimony was confirmed in part by the consistency of her prior testimony and reports to investigating officers. It was objectively confirmed by the spackled holes in the house and the threatening message on her cell phone. Thompson’s testimony on the other hand is unbelievable. He made a number of incredible accusations against his wife, including that she engaged in witchcraft and was going to sell her children, only to admit after further questioning that these allegations were based on his own suspicions unsupported by fact. He admitted violating the restraining order without justification or remorse. Although the prosecutor mentioned the uncharged acts in closing argument, the uncharged acts were not emphasized over the charged acts. It was the violent nature of the entire relationship that was emphasized. The jury, which was properly instructed on how to consider any evidence of uncharged acts, had no trouble finding guilt. The record provides no support for a conclusion that the jury would have reached a different outcome had the evidence of the uncharged acts been excluded.

Disposition

The judgment is affirmed.


Summaries of

People v. Thompson

California Court of Appeals, Fifth District
Jul 11, 2008
No. F053311 (Cal. Ct. App. Jul. 11, 2008)
Case details for

People v. Thompson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. FRED LOUIS THOMPSON, Defendant…

Court:California Court of Appeals, Fifth District

Date published: Jul 11, 2008

Citations

No. F053311 (Cal. Ct. App. Jul. 11, 2008)