In re Thompkins CA1/2 ( 2022 )

Filed 8/3/22 In re Thompkins CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION TWO
In re RAYMOND A160500
THOMPKINS,
on Habeas Corpus. (Solano County
Super. Ct. No. VCR223508)
In 2017 Raymond Thompkins was tried for three crimes he was
charged with committing in 2015 against three of his wife’s young
granddaughters, A.G., T.C., and J.G. It was the third trial involving J.G., the
first trial involving the other two. Thompkins was convicted of the crimes
against A.G. and T.C., but acquitted of that involving J.G.
Thompkins appealed, and a lawyer from the panel of the First District
Appellate Project (FDAP) was assigned to represent him. Counsel filed an
opening brief that made two arguments, one of which was vindictive
prosecution, based on how the charges involving A.G. and T.C. became
involved. Following some criticism by us of the reply brief, counsel met with
FDAP and then filed a supplemental brief. We issued our opinion, rejecting
both arguments.
Following our opinion, FDAP itself substituted in as attorney for
Thompkins and, represented by J. Bradley O’Connell, Associate Director,
1
filed a petition for rehearing, which, as pertinent here, again asserted a claim
of vindictive prosecution. We again rejected the claim. FDAP filed a petition
for review, raising three claims: (1) vindictive prosecution;
(2) hearsay/confrontation error; and (3) ineffective assistance of trial counsel.
The Supreme Court denied review, in an order that provided it was “without
prejudice to the right to seek relief by way of petition for writ of habeas
corpus as to ineffective assistance of counsel and ineffective assistance of
appellate counsel.” FDAP then filed the within petition for writ of habeas
corpus against the Director of the Department of Corrections and
Rehabilitation (Director), asserting those two claims. The Director filed
informal opposition, Thompkins a reply, and we issued an order to show
cause. The Director then filed a traverse, Thompkins a return, and we held
oral argument. We now deny the petition.
BACKGROUND
The General Setting
In 2013, while he was in prison, Petitioner Raymond Thompkins
(Thompkins or petitioner), met B.T., and they married soon thereafter. B.T.
had a daughter (mother) who had five children, three of whom would become
involved in the charges here: sisters A.G., T.C., and J.G. In February or
March of 2015, mother asked B.T. to temporarily take custody of her five
children while she searched for housing, and for a short while the three
sisters, another sister, and their brother lived with B.T. and Thompkins—
until April 18.
On April 18, Tara Gulley and her husband were approaching their
truck after a walk on the Vallejo waterfront when she noticed Thompkins
sitting in a nearby car with his head laid back, his eyes closed, and a three- to
four-year-old girl, later identified as J.G., sitting on his lap. Thompkins was
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“panting,” “had sweat on him,” and an expression of “pleasure” on his face; “it
just didn’t look right.” Gulley moved her truck to block Thompkins’s car from
leaving, and then walked up to the car and saw that the little girl was
holding Thompkins’s penis and moving her hand up and down. Gulley dialed
911, described what she had seen, and said that she had blocked the car.
While she was on the phone, Thompkins and the little girl left the car and
walked away, but they soon came back with three other children. Gulley
moved her truck as instructed by the 911 operator, after which Thompkins
and all four children entered his car and he drove away.
The First Case and the Two Trials
On April 21, 2015, the Solano County District Attorney filed a
complaint, case No. VCR223508, charging Thompkins with committing a
single count of lewd acts (Pen. Code1 § 288, subd. (a)) upon J.G., a child under
14 years of age, and alleging Thompkins had suffered three prior serious
felony convictions. (§ 667, subd. (a)(1).) A preliminary hearing was held on
June 16, where Gulley testified, and Thompkins was held to answer.
The developments following that complaint are at the heart of
Thompkins’s claim of vindictive prosecution and we set forth those
developments in detail, with most of the facts taken from our opinion filed
June 14, 2019.2 (People v. Thompkins (Jun. 14, 2019, A152363) [nonpub.
opn.] (Thompkins).)
On June 19, an information was filed in the case, alleging the same
single count charged in the complaint. And as in the complaint, the prior
serious felonies were alleged only in connection with section 667, subdivision
1 All further undesignated statutory references are to the Penal Code.
2Which opinion is one of the many items Thompkins requests we
take judicial notice of, which we do.
3
(a)(1), which imposes a five-year enhancement for the commission of a second
serious felony. It was not alleged that the prior felonies subjected Thompkins
to punishment under the three strikes law.
On the eve of trial, which had been set for August 5, Thompkins sought
a continuance to allow counsel time to review discovery belatedly provided by
the People. Trial was reset for April 6, 2016, which date was confirmed at a
readiness conference on March 7, at which conference plea bargaining took
place in the trial judge’s chambers. On March 21, due to a conflict with
another scheduled trial, the prosecutor moved for another continuance, and
trial was reset for May 25. Then, on May 23, the prosecutor requested still
another continuance, and trial was reset for June 2.
On May 31, Thompkins moved for further discovery. The parties also
filed motions in limine, which were heard that day.
On June 2, the day last set for commencement of trial, 12 jurors and
two alternates were selected and sworn.
On June 3, prior to the commencement of testimony, the prosecutor
moved “to amend the information to allege defendant’s strike prior,”
specifying a “strike prior from 1991 for kidnapping and robbery.” The motion
stated that “[i]t is unclear why the strike prior was excluded from the
information. It appears to be an oversight since an enhancement based on
that same prior was alleged in the information.” The court adjourned the
proceedings and directed jurors to return on June 9.
On June 8, Thompkins filed a non-statutory motion to dismiss the
information “for due process violation and for prosecutorial misconduct” in
delaying commencement of trial and refusing to disclose evidence that could
be used to impeach Gulley. The next day, June 9, Thompkins moved to
dismiss the information on the additional ground that the destruction or
4
unavailability of a document containing Gulley’s statement violated his due
process right to a fair trial, as set forth in California v. Trombetta (1984)
467 U.S. 479 and Arizona v. Youngblood (1988) 488 U.S. 51.
The court refused to rule immediately on the two motions to dismiss,
ordered the trial continued, and inquired of the jurors previously selected and
sworn whether they could return at a future date. Too many jurors were
unavailable, and the court declared a mistrial.
On July 6, the court granted the People’s unopposed motion to amend
the information to specify that a prior felony conviction subjected Thompkins
to the “Three Strikes” law.
On July 20, a second jury was sworn in case No. VCR223508. On July
22 the jury announced it was unable to reach a verdict and the court declared
a second mistrial. According to a statement of defense counsel—a statement
the prosecutor did not dispute—the jury voted 10 to two for acquittal.
The Second Case
On August 9, the People filed a complaint in a second case,
No. VCR227210, charging Thompkins with two counts on two newly alleged
victims, A.G. and T.C. The district attorney advised the court that, although
the new complaint did not allege the prior strikes in the first case, he
intended to consolidate the two cases “and the prior strike and a five-year
enhancement, as has already been alleged in [case No.] 223508,” would
continue to operate. Defense counsel remarked that the district attorney “can
do that at any time. He doesn’t need our approval to do that,” after which the
court stated: “That’s fine. If both parties agree . . . that’s possible.” The
court then inquired whether the parties were “deeming the complaint an
Information?” The district attorney and public defender agreed they were,
5
and Thompkins waived his right to a preliminary hearing, stating, “I will
deem the complaint an information per your request.”
On November 10, the court granted the People’s motion to consolidate
the first case (VCR223508) and the second case (VCR227210).
On November 21, the People moved to further amend the amended
consolidated information “to allege [a] strike prior.” The motion stated that
the initial case, No. VCR223508, “went to trial but the jury hung and the
court declared a mistrial. The information in that case alleged three prior
strikes and a charged strike. During plea negotiations before trial, the
People had warned that if they were unsuccessful in securing a guilty verdict,
they would bring additional charges and seek a life sentence. After the jury
hung, the People filed VCR227210 and moved to join the cases. On
November 16, the court granted the People’s motion to join cases VCR223508
and VCR227210. Now the People are moving to amend the language to make
it clear that they are seeking a life sentence under the three strikes law.”
(Thompkins, supra, A152363, at pp. 11−12.)
When the court inquired whether the proposed amendment “add[s] new
people, new victims?”, the district attorney stated it did not, saying “[i]t
simply adds an extra paragraph making it clear we are pursuing [a] three
strikes penalty in this case. The priors have already been alleged since the
very beginning, and we had invoked the two-strikes law.” The court asked
defense counsel whether Thompkins objected to the motion to amend, and
she said “no,” but then said “I should take that back, your Honor. Given that
they are alleging—that this is a three strikes case, the underlying offenses, I
believe they are from one course of conduct. So, of course, I would object on
that ground. . . .”
6
The court granted the request to amend. As material here, the
amendment stated that Thompkins “has been convicted of the following two
or more serious and/or violent felonies, as defined in . . . section
667[, subdivision] (d) and . . . section 1170.12[, subdivision] (b),” and
identified his three prior strikes. The amendment added that, “Furthermore,
Counts ONE, TWO, AND THREE is [sic] a serious and/or violent felony thus
subjecting the defendant to sentencing pursuant to the provisions of Penal
Code section 667[, subdivisions] (b)−(j) and Penal Code section 1170.12.”
(Thompkins, supra, A152363, at pp. 11−12.)
On December 2, the district attorney moved to further amend the
amended consolidated information to correct specified “miscellaneous
language” and to add an allegation that the three charged offenses were
committed against multiple victims. Defendant opposed the motion, relying
on the doctrine of vindictive prosecution. The court rejected the argument
and granted the People’s motion to amend.
The Third Trial
Trial on the consolidated cases began in April 2017. The jury was
selected on April 13, following which counsel gave opening statements. The
first day of testimony was April 14, testimony that would be taken over three
more days, April 18, 19, and 21. Over 20 witnesses testified, including the
victims A.G. and T.C.; J.G. was deemed incompetent to testify. The
testimony on the last day, April 21, included that from two expert witnesses,
Anthony Urquiza on behalf of the People, followed shortly by William
O’Donahue on behalf of Thompkins. Dr. Urquiza’s testimony is the basis of
petitioner’s claim of ineffective assistance of trial counsel here, and will be
discussed in detail in connection with that claim.
7
In Thompkins we described for over six pages the facts put before the
jury by those many witnesses. And we quote extensively from that opinion,
(referring to Thompkins as appellant), where we described those facts:
“Officer Jade McLeod, who responded to Gulley’s 911 call, located and
performed a traffic stop of appellant. One child was in the front passenger
seat and three children were in the back. McLeod arrested appellant and
later took a statement from Gulley. After reviewing the videotape of his
interview with Gulley, Officer McLeod realized that his report of the
interview was erroneous in two respects. Gulley did not tell him that the car
seat appellant was sitting on was laid back, nor did she say appellant’s penis
was erect. As instructed, McLeod took appellant to Kaiser Hospital in Vallejo
for a sexual assault response team (SART) exam that was conducted there by
Nurse Kari Cordero.
“Nurse Cordero conducted a sexual assault examination of appellant
using a ‘Woods lamp,’ which ‘flouresces’ (i.e., lights up) any DNA, although it
can fluoresce other substances, such as semen or saliva. The Woods lamp lit
up appellant’s scrotum area. Cordero also used a Q-tip to swab appellant’s
mouth, penis, and scrotum. Cordero deposited all of the evidence she
collected in a sexual assault kit, which was later transported to the Richmond
laboratory of the Department of Justice.
“Heather Tomchick, a criminalist employed in the Richmond lab,
conducted an analysis of the swabs taken from appellant and found semen
present in both the penile and scrotal swabs.
“At some point after appellant was arrested, J.G. was placed in the
foster home of Kenneth Boyd and his wife, who had been foster parents for
17 years. Kenneth Boyd testified that J.G. had been in his home for ‘maybe a
year or longer,’ and ‘frequently’ exhibited ‘unusual behavior,’ such as
8
‘inserting toys into her vagina and touching her private parts with her own
hands.’ He also would see her ‘humping on the bed,’ and ‘taking her clothes
off in front of other children,’ and she had frequent tantrums. Caring for J.G.
‘got to be too much,’ he stated, because she required a higher level of care
than he was paid for, so he gave up the placement.
“Clinical Social Worker Stephanie Ladd testified that some of the
behavior Kenneth Boyd described was not ‘developmentally normal.’ Asked
whether it was ‘developmentally appropriate or common’ for a five-year-old
girl ‘to insert things into her vagina,’ Ladd stated that it is ‘usually a red flag’
because ‘children learn based on what they have seen or experienced.’
“A.G., who was seven years old at the time of trial, testified that T.C.
and J.G. were her sisters. When asked whether she had ever seen appellant,
who she and her sisters called ‘Poppa Ray’ or ‘Papa Ray,’ touch anyone in a
way that was a ‘bad touch?’ she answered ‘No.’ Asked did she ‘ever sit in
Poppa Ray’s lap?’ she said ‘I don’t know.’ Asked whether she remembered
talking to a lady one day in a conversation that was videotaped she said ‘No.’
Asked ‘has Poppa Ray ever taken off your clothes?’ she made no response.
When the district attorney inquired whether ‘there is anything that would
help you be able to talk?’ A.G. said ‘I don’t know.’ At that point the court
declared a brief recess.
“When the proceedings resumed, defense counsel asked A.G. a series of
questions regarding her past experiences with Starla and Leanne, who had
apparently interviewed her during dependency proceedings or appellant’s
prior criminal trial, and statements she made to them, such as whether she
remembered telling these two women ‘that Poppa Ray did not touch you’ and
that she told her mother that a Wendy had ‘told you to lie.’ A.G. did not
remember those questions or much of anything else she was asked about.
9
However, when asked by the district attorney on redirect whether she had
been ‘telling the truth here today?’ A.G. said ‘Yes’ and said ‘No’ when asked
whether she was ‘telling any lies here today.’ At that point, the court
initiated a conversation with A.G. establishing that she was ‘uncomfortable’
and did not want to talk ‘about good touches and bad touches.’ The court
then asked counsel ‘can we allow [A.G.] to leave?’ and both answered ‘yes.’
“Over objection, the district attorney was permitted to play a
videotaped interview with A.G. that took place about two years earlier, when
she was five years old. A.G. stated in the interview that when she was in the
bathroom brushing her teeth her grandfather touched her private part and
her behind over her clothes. At another time he touched her ‘private part’
while she was in her bedroom. At that time he pulled down her pants but not
her underwear. Appellant’s skin did not touch A.G.’s skin. When A.G. told
appellant she did not want him to touch her ‘body parts’ he said ‘no.’ He also
told her ‘don’t tell anyone’ and A.G. did not. A.G. considered what appellant
did to be ‘bad.’ A.G. said she saw appellant touch T.C.’s body part over her
clothes when T.C. was in the bathroom. When asked whether what ‘Papa
Ray’ did was good or bad, A.G. answered ‘bad.’ Asked whether appellant ever
asked her to touch his body parts, A.G. answered ‘no.’
“Nine-year-old T.C.’s testimony under oath was perhaps even more
evasive than that of A.G., so that she too was excused, and the court allowed
into evidence her previously videotaped interview.
“In that interview, which took place shortly after appellant was
arrested two years earlier when she was seven years old, T.C. stated that on
a Sunday when her grandmother was still in bed, she was sitting in a rocking
chair in the living room when appellant told her to get up. When she moved
to the couch, appellant followed and did not stop when she told him to. He
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tried to touch her in her ‘private, in the back, B-U-T-T’ with his hand under
her clothes. He also pinched her nipples once (which the interviewer referred
to as ‘nip-nips’). A.G. also said appellant touched her inside a ‘private’ she
described as the ‘middle’ and a ‘different place’ than her butt. Appellant did
not stop when she told him to, but ‘kept doing it.’ When he finally stopped,
T.C. got up and told her grandma and ‘[s]he told him to stop’ and ‘[t]hen he
did.’ T.C. was six when this happened. T.C. also stated that she had seen
[defendant] touch J.G.’s butt with his hand under her clothes, and A.G.’s
‘private part.’ J.G. had told T.C. that appellant ‘put his hand in her private,
her front and . . . her back.’
“T.C. also said she saw appellant put his hand in J.G.’s tights, and his
hand was ‘[g]oing all over the place.’ J.G. said nothing at the time but later
told T.C. that Papa Ray ‘kept digging in back and in the front.’ On the
occasion that T.C. saw appellant put his hand in A.G.’s privates, appellant
told her not to tell her grandmother, because ‘he didn’t want her to know.’
Appellant said he would ‘ground me and whoop me’ if she told her
grandmother, but she told her anyway because ‘I didn’t wanna keep a secret.’
“B.T., appellant’s wife and the grandmother of J.G., A.G., and T.C.,
testified that at the time the three girls were living in their home, appellant
was working at the Gap in San Francisco and would be gone from 4:00 in the
morning until after 6:00 or 7:00 at night. Every Saturday she took the family
to church and would never leave her grandchildren at home. Mother visited
them ‘practically seven days’ a week.
“After the family returned home from church on April 18, 2015, the
children asked appellant to take them to the waterfront to feed the birds.
Appellant took them there and during that time talked to B.T. on the phone
for 30 minutes.
11
“B.T. denied T.C. ever told her that appellant had touched her or any of
the other girls. She also stated that her granddaughters did not use the
phrase ‘private parts’ but instead called such bodily parts ‘punani.’ B.T.
again denied that appellant was ever home alone with her grandchildren.
“Mother of the three alleged victims testified that during the time the
children stayed at B.T.’s home she visited them there every day in the
morning before school and in the afternoon after school, and appellant was
never present. B.T. (grandmother of the three alleged victims) always took
the children with her when she went to church on Saturday or anywhere else
unless Mother was with them; she would not leave the children in
[defendant’s] care because ‘he wasn’t trustworthy.’
“T.C. and A.G. never used the term ‘private parts’ Mother stated, but
called those parts of their body ‘kit-kit.’ Neither T.C., J.G., nor A.G. ever told
her they had been touched by appellant. When Mother asked one of them—it
was either A.G. or T.C. but she could not recall which one—why she stated in
the taped interview that appellant had touched her, she said that the social
worker, Wendy, ‘told me to say it.’ Mother continued to visit her daughters
after they were placed in foster care. J.G. was placed in three different
homes. During the time she was at Kenneth Boyd’s foster home ‘she was
hitting me. Which is not her at all. She was really violent towards her
sisters and brother.’ And there were ‘reports that she was taking off her
underwear and throwing them on the ground in the back yard and touching
other little kids inappropriately and, yeah, that sort of stuff.’
“Mother stated that she was going to court to get reunification services
but denied there was any danger of losing her parental rights. She admitted
she ‘hated’ certain social workers because ‘[t]hey took my kids.’ Asked
whether she remembered having a discussion with Social Worker Wendy
12
Smith in which ‘she asked you what it would mean to you if the girls had
disclosed abuse to Wendy Smith, and you said it would mean that you failed
and you weren’t as close to the girls as you thought?’ Mother denied that
that was what she said. What she had said was, ‘I’m confident in my
relationship with . . . all four of my daughters. And I was willing to bet
money that if anything had ever happened, they would tell me. I would be
the first person to know.’
“Latoya, a cousin of J.G., A.G., and T.C., testified that when T.C. was in
foster care, she asked Latoya, ‘when do I get to go home?’ After Latoya said
she did not know, T.C. ‘said she was lying about something, but she never—
she wasn’t specific about what she was lying about.’
“The girls’ brother, who was 11 years old at the time of trial,
remembered going to the Vallejo waterfront with appellant two years earlier
on April 18, 2015 to feed the birds. He thought three of his four sisters went
with them but was unable to remember which ones. He did remember that
when he returned to their car he saw that J.G. was asleep and appellant was
playing a game on his phone.
“Wendy Smith was a social worker assigned to Solano County Child
Welfare Services to investigate a dependency proceeding involving J.G., A.G.,
and T.C. She met with them 10 to 20 times prior to the time of their
videotaped interviews, which she did not attend. However, she did not
discuss the events that allegedly took place at the waterfront on April 18,
2015, until June 30, about 72 days later. At that time, the children were
aware of the allegations against [defendant] but had made no statements
regarding them. When Smith began discussing the allegations (i.e., the
allegations of Gulley about what happened on April 18, 2015), ‘the girls began
to disclose beyond what was initially disclosed.’ When asked if the alleged
13
conduct of [defendant] only happened one time on April 18, and only to J.G.,
the children indicated it happened more than one time and to others beside
J.G.
“Kwanda Sylvester, a Solano County social worker assigned [to] the
three girls in October 2015, never saw J.G. act out ‘sexually.’ Though she had
been placed in at least three different foster homes, Kenneth Boyd was the
only foster parent who ever expressed concerns about J.G. acting out sexually
during the four- or five-months Sylvester was assigned to the girls.
“Dr. William O’Donahue, a professor of clinical psychology at the
University of Nevada who specializes in child sex abuse, spent 10 hours
reviewing 25 documents regarding appellant and the allegations against him
in this case.” (Thompkins, supra, A152363, at pp. 2−8.)
On April 26, the court gave preliminary instructions, counsel gave
closing arguments, the court gave its concluding instructions, and at 11:45
a.m. the case was in the hands of the jury. That afternoon the jury requested
an exhibit and readback of the testimony of Officer McLeod and Gulley. The
readback occurred and deliberations resumed.
Deliberations continued on April 27, in the afternoon of which the jury
announced it had reached a verdict. The jury acquitted Thompkins on the
count involving J.G., but convicted him on the counts involving A.G. and T.C.
The jury also found true both the original “serious felony” allegation and the
“third strike” allegation. The court thereafter imposed an aggregate sentence
of 60 years to life, consisting of consecutive “third strike” terms of 25 years to
life for each lewd act, and two five-year enhancements (§ 667, subd. (a)(1)) on
each term.
On August 23, Thompkins appealed.
14
The Appeal and Our Opinion
First District Appellate Project (FDAP) panel attorney Orzo Childs was
appointed as counsel for Thompkins on appeal. On July 3, 2018, Mr. Childs
filed his opening brief, which made two arguments: (1) the conviction and
prior strike enhancement must be reversed because charging them
constituted prosecutorial vindictiveness, and (2) erroneous admission of
videotaped testimony of victims violated the confrontation clause. There was
no claim of lack of substantial evidence to support the convictions, nor
attacking the quality of the evidence. Other than the evidentiary claim as to
the videos, there was no claim of any error by the trial court, not in the giving
of instructions or in responding to the jury’s request. There was no claim of
prosecutorial misconduct. Finally, and perhaps significant on the first issue
here, Mr. Childs—or for that matter, FDAP—made no claim of ineffective
assistance of trial counsel.
Mr. Childs’s briefing of the vindictive prosecution claim is at the heart
of petitioner’s second claim here, which initial briefing cited four cases:
North Carolina v. Pearce (1969) 395 U.S. 711; Blackedge v. Perry (1974) 417
U.S. 21; Twiggs v. Superior Court (1983) 34 Cal.3d 360 (Twiggs); and In re
Bower (1985) 38 Cal.3d 865 (Bower). The argument relied on “due process
under the 14th Amendment of the United States Constitution,” and had no
reference to any protections of the California Constitution (art. I, §§ 7, 15),
arguing that “penaliz[ing] a defendant by filing new charges in response to
his assertion of a right to trial denies due process under the 14th
Amendment” and that “vindictiveness is presumed when the prosecution ups
the ante after a mistrial.”
The Attorney General’s respondent’s brief devoted 14 pages to the
vindictive prosecution claim and discussed numerous cases not cited in
15
Thompkins’s opening brief, including federal circuit court opinions. The
Attorney General’s principal argument was that the increased charges were
“part of the give-and-take of the plea bargaining process,” and that because
the possibility of those charges had been mentioned during negotiations
before the first trial, there was no presumption of vindictive prosecution.
On December 13, Mr. Childs filed his reply brief. And in an order filed
February 14, 2019, we said this about that reply brief: “Insofar as it
addresses the issue of prosecutorial vindictiveness, appellant’s reply brief
consists of no more than a page and a half reiteration of the argument made
in the opening brief. The brief does not mention, let alone analyze and
respond to, any of the numerous state and federal cases cited and discussed
by respondent. . . .” Our order directed counsel to “file a supplemental reply
brief addressing the case law relied upon by the Attorney General” and to
“also address the applicable standard of review.”
On April 2, 2019, Mr. Childs filed a supplemental reply brief. As to
what happened leading to that brief and what followed it, we quote from
Thompkins’s petition (with all record references omitted): “In view of the
Court’s evident concerns as to the adequacy of the prior briefing, FDAP
consulted with appellate counsel Childs on the matters to address in the
supplemental reply brief. FDAP provided extensive substantive comments on
analysis of the vindictive prosecution issue for his draft brief. [Citation.] Mr.
Childs’s supplemental reply brief [citation] did incorporate a number of
FDAP’s recommendations. However, the that [sic] brief still failed to address
two crucial substantive subjects urged in FDAP’s recommendations [citation].
“Like counsel’s previous briefs, the supplemental reply brief said
nothing about the independent state constitutional basis of the California
Supreme Court’s leading vindictive prosecution cases, Twiggs v. Superior
16
Court and In re Bower [citation]; and the brief did not explicitly address the
role of prior attachment of jeopardy in the leading cases’ analysis of the
circumstances giving rise to a presumption of vindictiveness [citation].” A
footnote added this: “[t]he supplemental reply did include two sentences,
specifically suggested by FDAP in its marked comments on Mr. Childs’s
draft, which mentioned jeopardy. [Citation.] But the brief did not include
any explicit discussion of the role of prior attachment of jeopardy in the
leading cases’ analysis of vindictive prosecution. [Citation.]”
“At the time of its consultation with Mr. Childs on the supplemental
reply brief, FDAP had also specifically urged him to submit a separate
supplemental brief seeking a resentencing remand under recent litigation
giving sentencing courts discretion to strike 5-year ‘serious felony’
enhancements. (Stats. 2018, ch. 1013 ([Senate Bill No.] 1393).) Such
enhancements, which accounted for 10 years of Mr. Thompkins’s 60-to-life
sentence, had been mandatory at the time of the original sentencing.
However, Mr. Childs failed to file any supplemental brief on that sentencing
issue during the three months between FDAP’s advice and this Court’s
issuance of its opinion. [Citation.]”
On June 14, we filed our unpublished opinion, rejecting both of
Thompkins’s claims. Our opinion was 31 pages long, over six pages of which
was the recitation of facts, many of which are quoted here. We devoted over
15 pages to discussing—and rejecting—the vindictive prosecution claim,
concluding that the increased charges did not raise a presumption of
vindictiveness because the prosecution had raised the possibility of adding
the charges during pretrial negotiations. As we put it, “The fact that in this
case the additional charges were added after a mistrial and before the
subsequent retrial does not change the result, given that the prosecution had
17
informed appellant of the possibility of such charges during plea negotiations
that took place well before the prior trial ended in a mistrial.” (Thompkins,
supra, A152363, at p. 23.)
Developments Following Our Opinion
Thompkins’s petition describes what happened following our opinion,
and we again quote from that petition: “After the Court filed its original
opinion, FDAP suggested that Mr. Childs request leave to withdraw, so that
new counsel could substitute into the case. FDAP made that
recommendation due to concerns over the quality of Mr. Childs’s work,
including: 1) the strong criticism of his original briefing in the Court’s
February 2019 order; 2) his failure to follow through on important points
suggested in FDAP’s recommendations on the supplemental reply brief; and
3) his failure to act on FDAP’s recommendation that he file a separate
supplemental brief seeking a resentencing remand for reconsideration of the
serious felony enhancement pursuant to S.B. 1393. [Citation.]
“Mr. Childs agreed to request withdrawal. [Citation.] On June 24,
2019, on FDAP’s recommendation, the Court vacated Mr. Childs’s
appointment and reassigned the Thompkins appeal as a FDAP staff case.
[Citation.]” FDAP substituted in, replacing Mr. Childs, and on June 28,
FDAP filed a petition for rehearing. As the petition describes it, “FDAP
immediately filed a rehearing petition raising two grounds—(1) a request for
a remand for the sentencing court to exercise its newly-conferred discretion
as to the section 667[, subdivision] (a) enhancements; and [(2)] . . . that the
Court reconsider its disposition of the vindictive prosecution claim.”
On July 12, we filed an order modifying the opinion that remanded the
case for the sentencing court to exercise its discretion under the newly-
18
enacted section 667, subdivision (a)(1), (Stats. 2018, ch. 1013, §§ 1−2.) (S.B.
1393).3 We otherwise denied rehearing.
On July 29, FDAP filed a second petition for rehearing, raising a claim
of ineffective assistance of trial counsel. On August 12, we denied the
petition without modification of our opinion.
On August 21, FDAP filed a petition for review, raising three claims:
(1) vindictive prosecution; (2) hearsay/confrontation error; and (3) ineffective
assistance of counsel. On October 30, the Supreme Court denied review, in
an order that provided it was “without prejudice to the right to seek relief by
way of petition for writ of habeas corpus as to ineffective assistance of counsel
and ineffective assistance of appellate counsel.”
The Petition for Writ of Habeas Corpus
On July 17, 2020, represented by Mr. O’Connell, Thompkins filed this
petition for writ of habeas corpus naming the Director. It was 99 pages long,
in addition to which it included an appendix containing 14 exhibits; it also
requested we take judicial notice of the entire record in case No. A152363.
The Director filed informal opposition, Thompkins a reply, and we issued an
order to show cause.4 The Director filed a return, petitioner a traverse, and
we held oral argument. We now deny the petition.
On remand, the trial court struck the two five-year
3
enhancements and reduced Thompkins’s sentence to 50-years-to-life.
4 An order that is appropriate when the petition appears to have merit,
that is, states a prima facie claim for relief. (Durdines v. Superior Court
(1999) 76 Cal.App.4th 247, 251; In re Serrano (1995) 10 Cal.4th 447, 454−455
[order to show cause does not establish that petitioner is entitled to relief, but
is preliminary determination]; see generally In re Hochberg (1970) 2 Cal.3d
870, 875, fn. 4.)
19
DISCUSSION
The Law
As noted, Thompkins makes two arguments, both asserting ineffective
assistance of counsel, the first, by trial counsel Carrington, the second, by
appellate counsel Childs. We thus begin with the law of ineffective
assistance of counsel, beginning with reference to Strickland v. Washington
(1984) 466 U.S. 668 (Strickland), where the Supreme Court set out several
governing principles, including these:
“ Judicial scrutiny of counsel’s performance must be highly
deferential. . . . A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’ [Citation.]” (Strickland, supra, 466 U.S. at
p. 689.)
“[A]ctual ineffectiveness claims alleging a deficiency in attorney
performance are subject to a general requirement that the defendant
affirmatively prove prejudice. . . . [¶] It is not enough for the defendant to
show that the errors had some conceivable effect on the outcome of the
proceeding. . . . [¶] . . . [¶] The defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” (Strickland,
20
supra, 466 U.S. at pp. 693−694; see generally In re Cordero (1988) 46 Cal.3d
161, 180; People v. Ledesma (1987) 43 Cal.3d 171, 216; People v. Pope (1979)
23 Cal.3d 412, 425, overruled on other grounds in People v. Berryman (1993)
6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds in People v. Hill
(1998) 17 Cal.4th 800, 823, fn. 1.)
“[T]o be entitled to reversal of a judgment on grounds that counsel did
not provide constitutionally adequate assistance, the [defendant] must carry
his burden of proving prejudice as a ‘demonstrable reality,’ not simply
speculation as to the effect of the errors or omissions of counsel.” (People v.
Williams (1988) 44 Cal.3d 883, 937.) “The likelihood of a different result
must be substantial, not just conceivable.” (Harrington v. Richter (2011)
562 U.S. 86, 112.)
“[T]he question is not what the ‘ “best lawyers would have done,” ’ not
‘ “even what most good lawyers would have done,” ’ but simply whether
‘ “some reasonable lawyer” ’ could have acted, in the circumstances, as
defense counsel acted in the case at bar.” (People v. Jones (2010)
186 Cal.App.4th 216, 235.)
And perhaps most apt to the issue before us here are these three
principles:
(1) “[A] court deciding an actual ineffectiveness claim must judge the
reasonableness of counsel’s challenged conduct on the facts of the particular
case, viewed as of the time of counsel’s conduct.” (Strickland, supra, 466 U.S.
at. p. 690; People v. Weaver (2001) 26 Cal.4th 876, 926).
(2) “Defense counsel’s performance cannot be considered deficient if
there was no error to object to.” (People v. Eshelman (1990) 225 Cal.App.3d
1513, 1520).
21
(3) Counsel is not incompetent for failing to anticipate a change in law.
(People v. Dennis (1998) 17 Cal.4th 468, 537; People v. Turner (1990)
50 Cal.3d 668, 703; see People v. Criscione (1981) 125 Cal.App.3d 275, 295
[“[C]ounsel are not to be faulted for failing to anticipate subsequent Supreme
Court decisions, prescience being no more required of competent counsel than
omniscience”].)
The Claim of Ineffective Assistance of Trial Counsel Has No
Merit
Thompkins’s first argument is directed to the conduct of trial counsel,
Carrington who, in Thompkins’s words, was ineffective for “allowing expert
testimony on the rarity of false allegations of molestation and the frequency
of recantation from child victims.” The claim is based on how Carrington
acted—perhaps more accurately, failed to act—in dealing with some
testimony from Dr. Urquiza, the expert witness called by the prosecution.
We thus begin with discussion of Dr. Urquiza’s testimony.
Dr. Urquiza’s testimony was fundamentally devoted to child sexual
abuse accommodation syndrome (CSAAS), a theory that identifies behaviors
of sexually abused children, testimony our Supreme Court has held “ ‘is
needed to disabuse jurors of commonly held misconceptions about child
sexual abuse, and to explain the emotional antecedents of abused children’s
seemingly self-impeaching behavior.’ ” (People v. McAlpin (1991) 53 Cal.3d
1289, 1301 (McAlpin).) CSAAS evidence is not relevant to prove the alleged
sexual abuse occurred, and the expert providing CSAAS testimony may not
give “ ‘general’ testimony describing the components of the syndrome in such
a way as to allow the jury to apply the syndrome to the facts of the case and
conclude the child was sexually abused.” (People v. Bowker (1988)
203 Cal.App.3d 385, 393 (Bowker).) Nor is it proper for an expert to present
“predictive conclusions” (ibid.), such as alleged child abuse victim “should be
22
believed,” or “abused children give inconsistent accounts and are credible
nonetheless.” (Id. at p. 394.) In short, “The expert is not allowed to give an
opinion on whether a witness is telling the truth . . . .” (People v. Long (2005)
126 Cal.App.4th 865, 871.)
Dr. Urquiza emphasized that CSAAS was an educational, not a
diagnostic, tool: “the child sex abuse accommodation syndrome should not be
used to make a determination as to whether a child is abused or not because
it assumes a child has been abused. Its purpose is educational.” He further
explained, “In this case the purpose is to educate a jury so that they have
good information about sexual abuse sort of as a foundation so that when
they hear the evidence in this case, they may not be subject to any
misperception or myths that they have previously held and would be able to
render a better decision about guilt or innocence.”
Dr. Urquiza explained that CSAAS is based on observational data, not
experimental scientific studies. This is because “[y]ou cannot impose an
experimental design where you assign people to go get abused and then later
examine how they responded. . . . There is no research because you can’t do
that research.” As such, the concept of an “error rate” is inapplicable.
Dr. Urquiza did not know about Thompkins’s case, and had not read
relevant investigative reports. And he went on to explain, “I’m not here to
testify about any . . . specific aspect of this case. My position is . . . to testify
about the research related to child sex abuse, . . . to educate jurors about
sexual abuse. Not to render any opinion about whether somebody is guilty or
innocent of a crime or to say whether a particular child has been abused or
not. That would be improper.”
Dr. Urquiza testified that there are myths or misconceptions about the
way that sexually abused children react or behave. One such misconception
23
is that “[i]f a child has been sexually abused, they will tell right away.” And,
he explained, this misconception “fails to appreciate the context in which
abuse occurs,” including how sexually abused children are sometimes coerced,
told to keep quiet, or threatened. Additionally, shame, embarrassment,
confusion, or guilt may affect a child’s “ability or willingness or comfort in
talking about their own sexual victimization.”
Then, and germane to the issue here, Dr. Urquiza testified that another
misconception is that “[i]f you make a disclosure of sexual abuse and then you
take it back, . . . you were never abused to begin with.” Dr. Urquiza testified
that recantations do not occur often, “[b]ut they do, in fact, happen. The best
estimate we have is somewhere in the range of 20 to 25 percent of kids who
have been abused at some point will take back the allegation of abuse.” The
specific testimony was this:
“Q. All right. What about a child denying the abuse? Or let me
rephrase that. What about a child initially disclosing and then recanting,
saying that it didn’t happen?
“A. Okay.
“Q. Is that—are there myths or misconceptions associated with that?
“A. Well, the idea is if you are sexually abused and you disclose and
then you take it back—or I’m sorry. Change this. If you make a disclosure of
sexual abuse and then you take it back, the misperception is you were never
abused to begin with.
“Q. Why is that a misconception?
“A. I think it’s a misperception because people don’t often understand
the context of abuse and the reasons why a child would recant or take back
the allegation. So if you understand what some of the context is with regard
to sexual abuse and why a child would—and we have research to support
24
this—why a child would take back the allegation, recant the allegation who
actually had been sexually abused, then it’s easier to understand.
“So you have to understand the context. You have to understand the
underlying dynamics to see what some kids, given the correct situation,
would take back, would recant the experience of being abused. Some kids
who have been sexually abused take back the allegation of abuse.
“Q. Do recantations happen even though they were truthful, there was
abuse actually happening?
“A. Well, yeah, that’s the issue. The issue is—a recantation is you
have been abused, and at some point after you disclose, you take back the
allegation. Now, do they happen often? No. But they do, in fact, happen.
The best estimate we have is somewhere in the range of 20 to 25 percent of
kids who have been abused at some point will take back the allegation of
abuse.
“Q. All right. So the misconception in the public is that if there is a
recantation, it means it didn’t happen?
“A. Correct.”
Dr. Urquiza testified that CSAAS details the “kinds of behaviors that
we tend to see together that comprise the context of [child sexual] abuse and
children’s responses” to that abuse, going on to describe five possible
characteristics or behaviors associated with child victims of sexual abuse:
secrecy, helplessness, entrapment and accommodation, delayed and
unconvincing disclosure, and retraction or recantation. And later on direct
examination Dr. Urquiza was asked this:
“Q. The last factor, the fifth factor: retraction?
“A. Yes.
25
“Q. I know we kind of touched on that when I was going over myths
and misconceptions. Tell me about how that plays a factor in sexual abuse
accommodation syndrome.
“A. Well, understanding that, one, we are talking about kids who have
been abused, and understanding that it’s a really difficult thing to be able to
make a disclosure of abuse, that’s a hard thing to do to begin with, but if you
make a disclosure and there is no support for you as a child, if your mom or
dad or somebody tells you, ‘No. Don’t say that. Take that back,’ then those
are the kinds of things that undermine that child’s ability to make—to
sustain that disclosure. [¶] And so the best research that we have at the
moment is that roughly, what I said earlier, 20 to 25 percent of kids who have
been abused and are able to make a disclosure take back that allegation of
abuse, usually because of some type of family pressure imposed upon them.”
Direct examination of Dr. Urquiza ended on, 28 pages in all, and
defense counsel Carrington began her cross-examination. Following some
preliminary questions, she leadingly asked, your “information doesn’t
necessarily apply to this case at all,” to which Dr. Urquiza replied, “I’m not
here to testify about any aspect, specific aspect of this case.” Ms. Carrington
then spent several pages inquiring into Dr. Urquiza’s background, his current
practice, his publications and his teaching. She then turned to the “five
elements” he had mentioned, beginning with “secrecy,” where this exchange
took place:
“Q. Okay. All right. So you’re saying that it should not—it’s
inappropriate for the child sexual accommodation syndrome to be used as a
tool to determine whether or not a child has been sexually abused?
“A. Yes. And I believe he would agree with me.
26
“THE COURT: Let the record reflect the Judge nodding his head
vigorously up and down.”
The cross-examination then turned to “delay in disclosure,” where Ms.
Carrington spent several pages confronting Dr. Urquiza with various journals
and particularly the work of one Dr. Summit, which examination ended with
this exchange:
“Q. Okay. So what scientific data did he present to show that adults
had these common myths?
“A. I don’t believe he did in his 1983 article.
“Q. Okay. Now, you mentioned the recantation. You said there is
approximately 20 to 25 percent of children who have actually been abused
that recant?
“A. Correct.
“Q. And so there are 75 to 80 percent of children that recant who were
actually not abused?
“A. No. There are other kids who have been abused that didn’t recant.
“Q. Okay. All right. So how do you—how do you quantify the kids—or
can you quantify the kids that recant and actually weren’t abused?
“A. You mean—are you going to the land of false allegations?
“Q. Yes.
“A. Whenever anybody asks me about false allegations in sexual abuse,
I have a caveat that I usually start with which is: it’s hard to do research on
kids. It’s hard to do research on sexual abuse with kids—with sexual abuse
on kids. And I think it’s even harder to do research on false allegations of
sexual abuse.
“Now, there is a body of research. It’s not huge, but there is a body of
research on false allegations. I am glad to talk with you about it. But
27
basically it does happen. It does not happen very frequently. I usually use
the term it happens very infrequently or rarely. But it does happen that
sometimes kids who have not been abused will say that they were sexually
abused.”
Two pages later the examination ended.
In support of his first argument that trial counsel Carrington was
ineffective for not objecting to Dr. Urquiza’s testimony, Thompkins provided a
declaration from her, where she testified in part as follows:
“My defense theory of the case was that the alleged victims in this case,
T.C. and A.G., had not been purposely dishonest, but that they had been
unduly influenced. There was a high level of suggestibility from the MDIC
interviewer (Vicky Rister, the investigator from the District Attorney’s Office)
and CWS (Wendy Smith, the CWS social worker). The two girls were
essentially saying what they thought the interviewers and the social worker
wanted them to say. In support of that line of defense, I called Dr. William
O’Donahue who described how children can form ‘false memories’ of abuse
based on suggestive questioning during an interview.
“. . . The two girls here had either recanted their prior out-of-court
allegations of molestation or had refused to confirm or repeat those claims in
court. Consequently, Dr. Urquiza’s testimony that a high proportion of actual
child sexual abuse victims (20 to 25%) recant truthful allegations of abuse
was definitely not helpful to the defense. Similarly, his assertion that
scientific research has established that false allegations of such abuse occur
‘very infrequently or rarely’ was damaging to the defense.
“. . . I did not have any tactical reasons for allowing those portions of
Dr. Urquiza’s testimony to go before the jury. I would have preferred to have
that testimony excluded or stricken. I had reviewed Dr. Urquiza’s testimony
28
in two prior trials in which he had made similar assertions regarding the
rarity or very low percentage of false allegations of abuse. However, at the
time of the Thompkins trial, I was not aware of any legal basis for seeking
exclusion of that testimony. If I had been aware of such grounds, I would
have objected or have asked the court to strike those portions of Dr. Urquiza’s
testimony.
“. . . I first became aware of the legal basis for excluding such expert
testimony in July or August 2019, when I received a service copy of the
Second Petition for Rehearing in Mr. Thompkins’s appeal, A152363.”
The Director responds that Thompkins has submitted no expert
“criminal defense” testimony as to what trial counsel should have done.
Thompkins replies with this: “We have presented something better tha[n]
the opinion of ‘a criminal defense expert.’ Published judicial opinions,
including one from this Court, have expressly held that there could not have
been a reasonable ground for foregoing objection to expert testimony on the
putative rarity of false molestation allegations or to similar probabilistic
testimony beyond the proper bounds of CSAAS. ‘There is no justification for
counsel’s failure to object to Urquiza’s statistical evidence on false
allegations.’ ([People v.] Julian [(2019)] 34 Cal.App.5th [878,] 888 [(Julian)];
see Pet. 45 for further discussion.)”
The “published judicial opinions” are People v. Wilson (2019)
33 Cal.App.5th 559 (Wilson); Julian, supra, 34 Cal.App.5th 878; People v.
Lapenias (2021) 67 Cal.App.5th 162 (Lapenias); and People v. Clotfelter
(2021) 65 Cal.App.5th 30 (Clotfelter), the last case being the “one from this
Court.” We discuss them in order.
On March 27, 2019, our colleagues in Division Four filed Wilson, a
prosecution for 12 counts of lewd conduct against the daughter of Wilson’s
29
live-in girlfriend, in which Dr. Urquiza testified as to the infrequency of false
allegations of child sexual abuse. Surveying numerous cases nationally, both
state and federal, our colleagues held that such testimony invaded the
province of the jury, saying this: “Dr. Urquiza’s testimony had the effect of
telling the jury there was at least a 94 percent chance that any given child
who claimed to have been sexually abused was telling the truth. And,
although Dr. Urquiza’s testimony on this point was not expressly directed to
either L.D. or J.D., the practical result was to suggest to the jury that there
was an overwhelming likelihood their testimony was truthful. In doing so,
this testimony invaded the province of the jury, whose responsibility it is to
‘draw the ultimate inferences from the evidence.’ [Citations.]” (Wilson,
supra, 33 Cal.App.5th at pp. 570−571.) Our colleagues went on to find the
admission of the evidence not prejudicial, as defendant there—as did
Thompkins here—had called his own expert in rebuttal. (Wilson, at p. 572.)
Julian, an opinion by Division Six of the Second Appellate District filed
a month after Wilson, involved a prosecution for four counts of lewd acts upon
a child and one count of sexual penetration with a child under 10.
Dr. Urquiza testified about CSAAS theory. (Julian, supra, 34 Cal.App.5th at
pp. 882−883.) The Court of Appeal described what happened next:
“After presenting CSAAS evidence, the People introduced a new issue—
the statistical percentage of false allegations by child sexual abuse victims.
Urquiza testified false allegations by children ‘don’t happen very often.’ ‘The
range of false allegations that are known to law enforcement or [Child
Protective Services] . . . is about as low as one percent of cases to a high of
maybe, six, seven, eight percent of cases that appear to be false allegations.’
(Italics added.) Julian’s trial counsel did not object to this testimony. [¶]
Urquiza testified one study showed that of the [four] percent of cases where
30
there are false allegations, the ‘largest subgroup’ involved ‘some type [of]
custodial dispute.’ He also said that research bears out that false allegations
are ‘very infrequent, or rare.’ (Italics added.)” (Julian, supra, 34 Cal.App.5th
at p. 883.)
Citing many of the same authorities as in Wilson, the Court of Appeal
held that “[t]his statistical probability evidence deprived Julian of his right to
a fair trial.” (Julian, supra, 34 Cal.App.5th at p. 886.) In particular, citing to
Snowden v. Singletary (11th Cir. 1998) 135 F.3d 732, the Court said: “At
trial [in Snowden] an expert witness testified that ‘child witnesses in sexual
abuse cases tell the truth’ 99.5 percent of the time. [Citation.] The court
said, ‘That such evidence is improper, in both state and federal trials, can
hardly be disputed.’ [Citation.] ‘The jury’s opinion on truthfulness of the
children’s stories went to the heart of the case.’ [Citation.] ‘Witness
credibility is the sole province of the jury.’ [Citation.] Allowing this expert
testimony to ‘boost the credibility of the main witness against [the
defendant]’ resulted in a ‘fundamentally unfair’ trial. [Citation.]” (Julian, at
p. 886.)
The Court of Appeal went on to hold that by failing to object to such
testimony, trial counsel provided ineffective assistance, as there was no
justification for the failure to object. And, the court concluded, the errors
were prejudicial under any standard, and reversed and remanded for a new
trial given the circumstances there—circumstances the Court of Appeal
described in detail:
“Urquiza used that opportunity to repeatedly reassert his claim that
statistics show children do not lie about being abused. [Julian’s] counsel’s
questions about multiple studies only opened the door to a mountain of
prejudicial statistical data that fortified the prosecutor’s claim about a
31
statistical certainty that defendants are guilty. (In re Jones (1996) 13 Cal.4th
552, 571.)
“Moreover, in closing argument, the prosecutor asked the jury to rely
on Urquiza’s statistical evidence that ‘children rarely falsify allegations of
sexual abuse.’ He reminded jurors that Urquiza ‘quoted a Canadian study for
over 700 cases, not a single one where there was a false allegation.’ (Italics
added.) The claim that there is a zero percent chance children will fabricate
abuse claims replaced the presumption of innocence with a presumption of
guilt.
“In his closing argument, Julian’s counsel discussed his position
regarding Urquiza’s testimony about the ‘12 studies,’ the Canadian study, the
Trocme & Bala study, a social worker study showing ‘four percent or five
percent’ as false allegations, and the prosecutor’s claim that ‘false allegations
are very rare.’ When he discussed the statistical percentage of false
allegations in a study called ‘false allegations of sexual abuse of children and
adolescents,’ the prosecutor objected. The court stopped the argument for a
15-minute recess. When the jury returned, the court instructed jurors that
there was ‘a disagreement’ by counsel about ‘a certain study.’ The jury
should decide the issue based on the evidence introduced about the study, not
what the lawyers remember about it. Consequently, the jurors’ attention was
directed, once again, to the statistical study evidence right before they began
their deliberations.” (Julian, supra, 34 Cal.App.5th at pp. 888−889.)
On July 29, 2021, the Fourth Appellate District filed Lapenias, supra,
67 Cal.App.5th at page 177, where defendant was convicted of six offenses
against his stepdaughter. There, while CSAAS expert Dr. Blake Carmichael
was testifying, a juror asked, “is it common for children to make up a story
that abuse occurred, when, in fact, it did not?” Lapenias’s counsel objected to
32
the question, but the court allowed it, and the expert testified “no, that’s
rare.” (Ibid.) As relevant here, the Court of Appeal held that: (1) the trial
court properly admitted CSAAS evidence, and (2) although the court erred by
allowing the Dr. Carmichael to testify that it is “rare” for children to make up
stories about sexual abuse, the error was not prejudicial, as the testimony
was brief, and the victim’s contemporaneous disclosures to a close friend
about being molested by defendant provided corroborative evidence of his
guilt. (Id. at pp. 179–181.)
Our recent opinion in Clotfelter involved a prosecution for violating
section 647.6, and we held there was no substantial evidence that Clotfelter
engaged in conduct objectively irritating or disturbing under that section.
(See Clotfelter, supra, 65 Cal.App.5th at pp. 52–53.) As to the CSAAS
testimony involved there, it had nothing to do with recantation. (Id. at p. 64.)
Moreover, we held—as the Attorney General conceded—that the expert
misused the CSAAS testimony to suggest that the victims had actually been
abused. (See ibid.) Indeed, Clotfelter involved so many instances of improper
trial conduct that we took the unusual step of reminding trial judges
presiding over criminal cases of their independent responsibility in the
conduct of such trials. (See id. at p. 69, fn. 11.)
That, then, is the setting in which we review Thompkins’s claim of
ineffective assistance of trial counsel. And conclude it has no merit—for
several reasons.
First, it must be recalled that the trial here was in April 2017, two
years before the first of the cases Thompkins cites in claimed support of the
law that supposedly supports him. So, even assuming that the cases support
his position, such law cannot be relied on to support a claim of ineffective
assistance two years earlier. As noted, counsel is not incompetent for failing
33
to anticipate a change in law: “the constitutional standard for effective
assistance of counsel has never required . . . prescience.” (People v. Dennis,
supra, 17 Cal.4th at p. 537; People v. Turner, supra, 50 Cal.3d at p. 703.)
Indeed, if one would look for the law as of 2017, when the trial took
place, one would find People v. Housley (1992) 6 Cal.App.4th 947, 954−956
(Housley), a decision by this court, which held that testimony of recantation is
admissible to “dispel certain common misconceptions regarding the behavior
of abuse victims.” There, the victim recanted her previously-asserted claim
that her grandfather had sexually molested her when she was a child. (Id. at
p. 951.) A prosecution expert testified that “it is very common for victims of
abuse to recant the story after first making a report because they may not be
believed, or may be removed from their home, or may fear the offender will
suffer negative consequences from the reported abuse.” (Id. at p. 952.) As we
described it, appellant argued it was “error to allow the doctor to testify that
victims commonly and falsely recant their stories of abuse.” (Id. at p. 954.)
We rejected defendant’s challenge to the introduction of such
testimony, holding that it neither constituted an improper opinion as to the
victim’s credibility nor improperly suggested that the molestations had
actually taken place, as the expert had made clear—just as here—that she
had never met the victim, was unfamiliar with the details of the case, and
had never read any reports associated with the matter. (Housley, supra,
6 Cal.App.4th at pp. 954−955.) And we concluded, “[i]t is . . . unlikely the
jury would interpret [the expert’s] statements as a testimonial to [the
victim’s] credibility.” (Id. at pp. 955−956.)5
5Our Supreme Court has since cited Housley with approval in finding
similar testimony appropriate in the context of domestic violence. (People v.
Brown (2004) 33 Cal.4th 892, 906−908.) There, the victim recanted her
previously-asserted claim that her boyfriend had assaulted her. (Id. at
34
A similar case is People v. Bowker, supra, 203 Cal.App.3d at page 394,
where the Court of Appeal held that “Where an alleged victim recants his
story in whole or in part, a psychologist could testify on the basis of past
research that such behavior is not an uncommon response for an abused child
who is seeking to remove himself or herself from the pressure created by
police investigations and subsequent court proceedings.”
Second, the cases on which Thompkins relies did not involve the
testimony about which he fundamentally complains here—recantation.
And third, even if there were error—which Thompkins has not
demonstrated—his claim would fail for lack of his ability to prove prejudice,
just as in Wilson and Lapenias. Only Julian held the error was prejudicial,
and Thompkins points to Julian which he describes as “squarely on point.”
Hardly. The circumstances here are a far cry.
The extensive focus on Dr. Urquiza’s testimony in Julian, in both the
case in chief and the closing arguments, was described by the Court of Appeal
in detail, as noted above. There is no comparable focus here. The sum of Dr.
Urquiza’s challenged testimony here comprises a tiny part of his 51 pages of
testimony, explains that it is very hard to conduct research of child sexual
abuse and even more difficult to conduct research on false allegations, and
provides that the body of research is “not huge” on this topic but suggests
pp. 896−897.) A prosecution expert testified that “[a]bout 80 to 85 percent of
victims [of domestic violence] ‘actually recant at some point in the process,’ ”
with some saying, “they lied to the police” while “almost all will attempt to
minimize their experience.” (Id. at p. 897.) The Supreme Court concluded
there was an adequate foundation for the expert testimony and such
testimony was admissible to dispel the misconception that, “when the victim’s
trial testimony supports the defendant or minimizes the violence of his
actions, . . . if there really had been abusive behavior, the victim would not be
testifying in the defendant’s favor.” (Id. at pp. 906−907.)
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that false allegations do occur, albeit rarely or very infrequently. Dr. Urquiza
did not further expound on the topic, provide statistical data, or discuss
specific studies or their findings, as he did in Julian or Wilson. In short,
Thompkins has not demonstrated that the outcome of the trial would have
been more favorable had counsel objected to Dr. Urquiza’s brief testimony.
There are several reasons why.
First, Dr. Urquiza’s testimony included a warning that it was difficult
to conduct research with children alleging sexual abuse, and even more
difficult to conduct research on false allegations of child sexual abuse,
thereby limiting the impact of his testimony. Second, he explained that the
“research” was “not huge,” further minimizing the impact of that testimony to
the jury. Third, the challenged testimony was brief. Fourth, Dr. Urquiza
made it clear he knew nothing about the specific case or allegations and could
not render an opinion as to guilt or innocence of a crime or whether a
particular child has been abused. And fifth, Dr. Urquiza repeatedly
emphasized his testimony was purely educational: “[T]he purpose is to
educate a jury so that they have good information about sexual abuse sort of
as a foundation so that when they hear the evidence in this case, they may
not be subject to any misperception or myths that they may have previously
held and would be able to render a better decision about guilt or innocence.”
Thus, the challenged testimony was simply not likely to prejudice defendant
in light of the overall evidentiary presentation.
Moreover, and unlike the prosecutor in Julian, in closing argument the
prosecutor did not focus on Dr. Urquiza’s testimony, focusing on A.G. and
T.C.’s videotaped interviews, dispelling any suggestion that the children’s
statements were the product of suggestibility rather than actual abuse. He
also discussed the charge regarding J.G. and the percipient witness’s
36
testimony as to that incident. Indeed, the prosecutor referred to Dr. Urquiza
only three times during his opening argument. First, in discussing one of the
girls’ videotaped interviews, the prosecutor reminded the jury that “you have
to put in this context of a child reporting an incident of sexual abuse. Dr.
Urquiza . . . tried to help walk you through this, about why a child might
have difficulty remembering details, might have a delayed report, might have
discomfort talking about it.” Second, after referencing how T.C. could “barely
get through the door” to testify and ultimately denied the abuse, the
prosecutor explained, “Dr. Urquiza explained that that happens. Of course
that happens. This is not something that kids want to talk about.” And,
finally, after discussing J.G.’s abnormal behavior while in foster care, the
prosecution explained it with reference to Dr. Urquiza.6 The prosecutor spent
6 “Dr. Urquiza was the expert that we had testify about child sexual
abuse accommodation syndrome and to help get rid of some of the myths
associated with child sexual abuse. Dr. Urquiza, as we covered many, many
times, was not here to prove that sexual abuse occurred. His role is to try to
bring jurors back to neutral.
“He is trying to bring you back to zero so that you can objectively
evaluate the evidence. That was his role. Because jurors often come in with
these myths that just aren’t true about, ‘Well, kids are abused, and they run
and report it right away.’ Well, that’s not true. Science says that that is not
how it works.
“Or that children will have these photographic memories about what
happened. That’s not true, either. False reports are not common. And, in
fact, a child recanting, a child saying, ‘No, it didn’t happen,’ after the
investigation starts and they’ve got to talk to police, people are questioning
them, of course they are going to think, ‘Oh my god. Did I set off something?
Am I in trouble? Am I responsible?’
“And, again, the easy way, like [T.C.] is saying, ‘If I just say no, I don’t
get questioned. I don’t have to do this anymore.’ And Dr. Urquiza, he makes
his living off of studying this. And contrary to Dr. O’Donahue, Dr. Urquiza
didn’t know a thing about this case.”
37
the remainder of his argument discussing defense expert testimony,
admonishing the jury not to speculate on things not in evidence, explaining
the date range for the charges, and reviewing the burden of proof. And he
concluded, “Tie every decision to the evidence, and you will be able to reach a
reasonable conclusion in this case.”
Defense counsel Carrington argued that the percipient witnesses were
inconsistent, provided uncorroborated testimony, and that A.G.’s and T.C.’s
accusations against Thompkins were the product of suggestive interviews.
Defense counsel referred to Dr. Urquiza only briefly, reminding the jurors
that Dr. Urquiza said it would be “inappropriate” for the jury to use CSAAS
to determine whether or not a child has been molested, arguing that, “And
you are here to determine that. So that gets you nowhere. That neither adds
nor takes away from your ability to decide this case.”
The prosecutor referred to Dr. Urquiza only once during rebuttal,
however passingly, where, referring to defense counsel’s theory, said this:
“Everybody is lying. Kenneth Boyd is lying. Tara Gulley is lying. Wendy
Smith is lying. Dr. Urquiza isn’t truthful with you about what the real
science is about.”
Prejudice was further avoided by the testimony of defense expert
O’Donahue, who testified that “25 percent of adults can . . . be suggested, can
form false memories,” and research showed “similar sorts of effects [with
children] but much higher rates.” He further testified that young children of
three to five years old can form “false memor[ies]” based on the type of
questioning performed during an interview, explaining that there are “18
criteria that a good interview ought to have,” and a problem may arise if one
of the criteria is absent. In this way, Dr. O’Donahue’s testimony reinforced
the notion that false memories—and thus false allegations—occur.
38
Also bearing on the lack of prejudice is that the trial court instructed
that Dr. Urquiza’s testimony could not be used as evidence that Thompkins
committed any of the crimes charged, that the jury alone must judge the
credibility or believability of the witnesses. It is presumed that the jurors
followed these instructions. (People v. Gonzalez (2018) 5 Cal.5th 186, 202.)
Finally, there are the videotaped interviews of A.G. and T.C., where the
two girls chronicled their abuse with detailed—and compelling—evidence
that provided the jury with ample opportunity to judge the credibility of both
girls based on a variety of factors including demeanor, body language, tone of
voice, word choice, descriptions of the abuse, and their various interactions
with the interviewer. And after relatively brief deliberations, the jury
reached its verdict, in which it convicted on two counts and acquitted on one
other, a verdict that shows the jury thoughtfully and properly relied on the
case and the truthfulness of the allegations—not the expert witness.
Appellate Counsel was not Ineffective in Briefing the
Prosecutorial Vindictiveness Claim
Thompkins’s second claim of ineffective assistance of counsel is that
appellate counsel Childs was ineffective for the way he briefed the issue of
vindictive prosecution to us. The petition acknowledges that the claim “does
not involve a complete failure to raise a vindictive prosecution claim but
deficiencies in how appellate counsel presented that claim—specifically, his
failure to address the independent protections of the California Constitution
and the role of prior attachment of jeopardy in analysis of that claim.” And
the traverse acknowledges that any success on the claim “depends almost
entirely on the probable merits of the underlying claim.” We find no merit.
To begin with, Thompkins has not demonstrated that Mr. Childs’s
briefing on vindictive prosecution, following our request for further briefing,
was unreasonable. That briefing relied on the controlling state cases of
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Twiggs, supra, 34 Cal.3d 360 and Bower, supra, 38 Cal.3d 865 and argued:
“Here, the defendant exercised his right to a trial—twice. The first trial was
aborted, after the attachment of jeopardy, because the prosecution failed to
timely comply with its discovery obligations. The second trial resulted in a
mistrial as well, since (per defense counsel’s report) the jury hung 10−2 for
acquittal. Only after the result of that trial did not please the prosecutor
were new charges added, based on evidence the prosecutor had long
possessed. There can be no explanation for the prosecutor’s decision to add
new charges other than a vindictive motive, which must therefore be
presumed.”
Our opinion addressed the issue in a lengthy and detailed
analysis rejecting the claim. Doing so, we set forth the facts pertinent
to the issue, many of which are recited above. We then provided our
“legal analysis” (Thompkins, supra, A152363 at p. 14), including the
standard of review (id. at p. 13), and the relevant law (id. at p. 14), and
from there went on to discuss at length both Bower and Twiggs.
(Thompkins, at p. 15.) Then, following exposition of “the contentions of
the parties” (id. at p. 19), we referred to, and quoted from, the
prosecutor’s declaration which “stressed the decision making that took
place during the plea bargaining carried out in chambers on March 7,
2016.” (Id. at p. 20.) After more discussion as to what occurred, we
concluded that “[Thompkins], who was at all times represented by
competent counsel who vigorously protected his interests, must be
deemed to have been fully informed of the consequences of rejecting the
plea bargain offered by the prosecutor on March 7, 2016.” (Id. at p. 12.)
And we went on to hold, “Nothing in the record indicates it would be
unreasonable for us to assume, as we do, that, after weighing the
40
competing considerations with the assistance of able counsel, appellant
rejected the plea bargain offered by the prosecutor with full knowledge
of the risk that eventually materialized: the imposition of a life
sentence. (See Bordenkircher [v. Hayes (1978)] 434 U.S. [357,] 360.)”
(Thompkins, at p. 22.)7
Our opinion recognized that “The exception [to claims of prosecutorial
vindictiveness] recognized in the federal case law for plea bargaining is also
recognized in California.” (In re Bower, supra, 38 Cal.3d at p. 876.) We also
recognized that “[t]here is no vindictiveness where . . . the prosecutor’s
intention to increase the severity of the charges ‘ “was clearly expressed at
the outset of the plea negotiations” ’ and the defendant ‘ “was thus fully
informed of the true terms of the offer when he made his decision to plead not
guilty.” ’ ” (Thompkins, supra, A152363, at p. 23, quoting Twiggs, supra,
34 Cal.3d at p. 370; accord, People v. Jurado (2006) 38 Cal.4th 72, 98 [“It is
not a constitutional violation . . . for a prosecutor . . . to threaten to increase
the charges if the defendant does not plead guilty”].)
The opinion noted that during pretrial discussions, the prosecutor
“urged counsel to resolve the case as charged because there were potential
additional charges and multiple ways to achieve a life sentence against
defendant given his priors and the two other victims.” (Thompkins, supra,
A152363, at p. 20.) And that the trial court corroborated and credited this
assertion. (Id. at pp. 20−21.) Accordingly, given the parties’ pretrial
discussions, we concluded that neither the prosecutor’s amendment to add
the three-strikes enhancement nor its filing of the second case against
7 We also noted, “Moreover, with respect to appellant’s claim that
the prosecution did not allege the prior convictions as strikes until the
retrial, the record belies that assertion,” going on to demonstrate why.
(Thompkins, supra, A152363, at pp. 22−25.)
41
defendant gave rise to a presumption of vindictiveness. (Thompkins, at p.
24.)
Further, we held that Twiggs contradicted Thompkins’s assertion that
the plea-bargaining exception to claims of prosecutorial vindictiveness does
not apply where the prosecution seeks to increase charges following either a
mistrial or the swearing of a jury. While Twiggs found that a presumption of
vindictiveness arose where the prosecution sought to increase the charges
following a mistrial (Twiggs, supra, 34 Cal.3d at pp. 364, 372), it specifically
noted that “Bordenkircher[, supra, 434 U.S. 357] specifically did not decide
the issue of vindictiveness presented in a case such as this, where the record
suggests that the more serious charges were not part of the ‘give-and-take’ of
plea negotiations. Rather, in this case, the circumstances strongly suggest
that the prosecutor unilaterally imposed a penalty in response to the
defendant’s insistence on facing a jury retrial.” (Twiggs, at p. 371.) And in
line with Twiggs, we rejected the argument that the timing of the
prosecution’s actions makes the plea-bargaining exception inapplicable: “The
fact that in this case the additional charges were added after a mistrial and
before the subsequent retrial does not change the result, given that the
prosecut[or] had informed [defendant] of the possibility of such charges
during plea negotiations that took place well before the prior trial ended in a
mistrial. Thus, in this case, unlike Twiggs, the prosecutor did not
‘unilaterally impose[] a penalty in response to the defendant’s insistence on
facing a jury retrial’ (Twiggs, at p. 371, italics added), because at the time of
the offer [defendant] was not facing a retrial.” (Thompkins, supra, A152363,
at pp. 23−24.)
Finally, we added that even if the presumption of vindictiveness
applied, the prosecutor rebutted the presumption, concluding that: “the
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possibility [that the two additional victims] would provide new evidence
justifying additional charges was ‘an objective change in circumstances’ that
‘legitimately influenced the charging process’ (Bowker, supra, 38 Cal.3d at
p. 879), but the initial uncertainty whether those two children would testify
against [defendant] justified the delay in deciding whether to charge the
offenses involving them until after the mistrial due to the hung jury.”
(Thompkins, supra, A152363, at p. 21, fn. 8.) Given the established
uncertainty about whether the new evidence would arise, the prosecutor
sufficiently rebutted the presumption of vindictiveness.
Those were the facts, and the factors, relied on by us in our opinion, a
factual narration, we hasten to add, never challenged by Thompkins, not in
his petition for rehearing following our opinion—and perhaps most
significantly of all, not in the 2021 declaration by trial counsel Carrington.
Were all that not enough, it must be recalled that after appellate
counsel Childs withdrew from the case, FDAP itself filed a petition for
rehearing arguing that a presumption of prosecutorial vindictiveness is
required under state constitutional grounds and because jeopardy had
attached—an argument similar, if not identical, to FDAP’s current argument
(although shorter). Indeed, Thompkins’s own petition describes FDAP’s
petition for rehearing as raising a “request for reconsideration of this Court’s
rejection of the vindictive prosecution claim in view of the independent state
constitutional basis for the California Supreme Court’s leading cases and of
the crucial role of the prior attachment of jeopardy under those authorities.”
We rejected the argument and denied rehearing. Rearguing it here is no
more successful.
DISPOSITION
The petition for habeas corpus is denied.
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_________________________
Richman, Acting P. J.
We concur:
_________________________
Stewart, J.
_________________________
Miller, J.
In re Thompkins on HC (A160500)
44