People v. Tompkins CA4/3 ( 2021 )

Filed 4/26/21 P. v. Tompkins 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, G059007
v. (Super. Ct. No. 15WF1376)
SHAWN MARSHALL TOMPKINS, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Michael
J. Cassidy. Affirmed.
Jennifer Peabody, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
We appointed counsel to represent Shawn Marshall Tompkins on appeal.
Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her
client but advised the court she found no issues to argue on his behalf.
Counsel filed a brief following the procedures outlined in People v. Wende
(1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that
sets forth a summary of proceedings and facts but raises no specific issues. Under these
circumstances, the court must conduct an independent review of the entire record. When
the appellant himself raises specific issues in a Wende proceeding, we must expressly
address them in our opinion and explain why they fail. (People v. Kelly (2006)
40 Cal.4th 106, 110, 120, 124.)
Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the
court with its independent review, counsel provided the court with information as to
issues that might arguably support an appeal. Counsel raised the following six issues:
(1) did the trial court err by denying Tompkins’ motion to suppress/exclude the DNA
evidence secured from the victim’s clothing; (2) did the court err by denying Tompkins’
motion to suppress/exclude the DNA evidence obtained by the taking of a buccal swab of
Tompkins’ mouth; (3) did the court err by overruling Tompkins’ chain of custody
objections to the DNA evidence; (4) did the court err by denying Tompkins’ motion for
new trial based on ineffective assistance of counsel; (5) did the court abuse its discretion
by denying Tompkins’ request to strike his priors; and (6) was Tompkins denied his Sixth
and Fourteenth Amendment right to the effective assistance of counsel because counsel
did not request mental health diversion.
We gave Tompkins 30 days to file written argument on his own behalf.
Thirty days have passed, and he has not filed any written argument.
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We have independently reviewed the record in accordance with our
obligations under Wende and Anders, and we found no other arguable issues on appeal.
We affirm the judgment.
FACTS
C.T. (Cashier) was working at a food store in Garden Grove. Shortly
before 9:00 p.m., Cashier was assisting C.N. (Customer) with lottery tickets when two
men wearing ski masks entered the store. One man wore a multi-colored striped hooded
sweatshirt and the other wore a solid dark-colored hooded sweatshirt. The man wearing
the striped sweatshirt pushed Customer and said, “‘give me your wallet.’” Customer,
who was 5 feet 4 inches tall, estimated the man in the striped sweatshirt was about six
feet tall. The man pushed Customer to the ground, hit him multiple times, and dragged
him by the legs as Customer tried to hold onto his wallet. When he could no longer
resist, the man yanked the wallet out of his right hand. Meanwhile, the other masked
man, approached Cashier, pointed a gun at her, and told her to open the cash register or
he would shoot. Cashier, who was nervous and scared, was unable to open the cash
register. While she tried to open the cash register, the two men ran out of the store.
Customer chased after the men yelling for help. Customer had $30, credit cards, and his
lottery tickets in his wallet. The robbery was recorded on video and was played for the
jury.
After the robbery, Cashier called the police, who arrived shortly thereafter.
Customer described the man in the striped sweatshirt as Hispanic, six feet tall, and
160 pounds. He believed both men were Hispanic and had “some kind of beard or
whiskers.” Customer described the other man as “not tall.” Neither man removed his ski
mask during the robbery. Cashier was unable to describe either of the two men.
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Officer Angela Ledesma, who served as the crime scene investigator,
learned Customer had been in an altercation with one of the suspects. She watched the
video and saw he had been in direct contact with the suspect in the striped sweatshirt who
was not wearing gloves. Believing the suspect may have left contact DNA on
Customer’s clothing when he hit and dragged him, Ledesma collected tape lift samples
from his sweater sleeves and pants. After collecting the tape lifts, Ledesma secured each
to plastic film and labeled them. Ledesma also obtained DNA samples from Customer’s
face, glasses and his hand. Ledesma did not collect Customer’s actual clothes because
she did not think he had an extra set of clothes with him. Ledesma submitted the DNA
swabs and tape lifts to the crime lab for processing.
Detective Steven Heine was assigned to investigate the case. He viewed
the surveillance video and made still photographs from the video. Heine noticed the
suspect touched Customer around his shoulders and on his legs. Heine went to the
location and saw the strip marking in the center of the door accurately reflected the height
represented. From the video, Heine estimated both suspects were between “five and a
half and six feet tall.” He indicated it was difficult to estimate because he could not see
the top of their heads.
Heine received information from the Combined DNA Index System
(CODIS), that Tompkins’ DNA matched the evidence submitted in this case. Heine
learned Tompkins was on parole for an unrelated offense and he made arrangements with
Tompkins’ parole officer to be at the agent’s office when Tompkins arrived. When
Tompkins met with his parole officer, Heine was there and collected Tompkins’ DNA to
confirm the information he received from CODIS. Heine also collected the black high-
top Air Jordan shoes with white soles Tompkins was wearing, which looked “extremely
similar” to the shoes worn by the suspect in the striped sweatshirt. Heine estimated
Tompkins was 5 feet 8 inches tall and weighed approximately 150 pounds.
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Forensic Scientist Lisa Winter analyzed the DNA. DNA was extracted
from the swab from the tape lifts and Winter concluded there was a mixture of DNA from
two main contributors and one minor contributor. Winter concluded Customer was one
of the main contributors to the DNA on both the pants and the sweater. Winter also
concluded Tompkins could not be excluded as the second main contributor from the
DNA obtained from the sweater or pants tape lift samples. Winter explained the
frequency estimate on this sample was rarer than one in one trillion people.
Tompkins testified he was 34 years old. He suffered felony convictions
involving moral turpitude in 2003, 2005, and 2014 and spent a great deal of
his adult life in prison. Tompkins started getting into trouble when he was 11 or 12 years
old and got out of prison in December 2014. Tompkins testified that after he got out of
prison, he decided he did not want to live life as a criminal and wanted to become a better
person. He got married, had a daughter, and got a job. He paid bills and stayed away
from people he should not be associating with. He was complying with his parole
requirements and met with his parole officer once a week. Tompkins said he was living
with his family in Anaheim, and in February 2015, he started a job at a warehouse where
he worked until he got pneumonia. After that, he started to help a friend that was a Super
Shuttle driver. He assisted with greeting customers and helped at the airport and hotels.
Tompkins denied being one of the people shown in the video of the robbery
and denied he was at the store on the day of the robbery. Tompkins was 5 feet 7 or 8
inches tall, although his booking report shows he was 5 feet 9 inches tall and weighed
132 pounds. He denied knowing Customer and could not explain how his DNA ended up
on Customer’s sleeves and pants. When Tompkins spoke with Heine, who asked him
about his whereabouts on a particular day, Tompkins said he could not remember where
he was, and he still did not remember where he was on the day of the robbery. Tompkins
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told Heine that he did not ever remember being at a liquor store in Garden Grove, but
then stated he may have been at some type of 7-Eleven there.
A jury convicted Tompkins of second degree robbery (Pen. Code, §§ 211,
212.5, subd. (c)) (count 1-Customer), and attempted second degree robbery (Pen. Code,
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§§ 664, subd. (a), 211, 212.5, subd. (c)) (count 2-Cashier).
After Tompkins replaced his retained attorney with a new attorney, he filed
a motion for a new trial because he received ineffective assistance of counsel. At a
hearing, the trial court denied the motion. On the same date, the court found Tompkins
suffered two prior strikes (Pen. Code, §§ 667, subds. (d), (e)(2)(A); 1170.12, subds. (b),
(c)(2)(A)), and two prior serious felonies (Pen. Code, § 667, subd. (a)(1)). The court
dismissed three prison priors (Pen. Code, § 667.5, subd. (b)), pursuant to Senate Bill
No. 136. The court sentenced Tompkins to prison for 25 years to life on count 1 and a
concurrent term on count 2. The court struck the serious felony priors for purposes of
sentencing. Tompkins filed a timely notice of appeal.
DISCUSSION
A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and
Anders, supra, 386 U.S. 738, including the possible issues raised by appellate counsel,
has disclosed no reasonably arguable appellate issue.
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At the close of the prosecution’s case, the trial court granted Tompkins’
motion to dismiss an assault with a semiautomatic firearm count (Pen. Code, § 245, subd.
(b)), and firearm allegations (Pen. Code, § 12022, subd. (a)(1)), as to counts 1 and 2.
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DISPOSITION
The judgment is affirmed.
___________________________
O’LEARY, P. J.
WE CONCUR:
___________________________
MOORE, J.
___________________________
GOETHALS, J.
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