Filed 6/ 4/21 P. v. Thompson CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

GARY ALBERT THOMPSON,

Defendant and Appellant. G058655

(Super. Ct. No. 18NF0020)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Michael

A. Leversen, Judge. Affirmed.

Benjamin Kington, under appointment by the Court of Appeal, for

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters , Chief Assistant

Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Deputy

Attorney General, for Plaintiff and Respondent.

* * *2 A jury found Gary Albert Thompson guilty of assault with force likely to

produce great bodily injury (Pen. Code, § 245, subd. (a)(4) ; count 1 )

, 1 two counts of

criminal threats (§ 422, subd. (a) ; count s 2 & 5 ), robbery (§ § 211 , 212 .5 , subd. (c) ; count

3 ), brandishing an imitation firearm (§ 417.4 ; count 4 )

, criminal threats and possession of

ammunition by a prohibited person (§ 30305, subd. (a)(1) ; count 6 ). In connection with

count 5, the jury found it to be tr ue that defendant used a dangerous weapon; to wit, a BB

gun. T he court found true that defendant had suffered a prior strike. Defendant was

sentenced to a total term of imprisonment of 13 years 4 months.

The evidence show s that when defendant ’ s ex

- girlf riend claimed she had

lost certain jewelry defendant previously gave her, he accused her of lying, waited for her

at her apartment, brandished a fake firearm, slammed her against the wall, and began to

choke her. When a good Samaritan tried to stop him, h e brandished the fake firearm and

threatened her.

On appeal, defendant contends the prosecutor engaged in misconduct. At

trial, defendant testified, offering a far

- fetched take on what happened on the day in

question. During closing argument, the prose cutor implied that to find defendant no t

guilty, they would have to believe defendant ’ s fanciful tale and disbelieve the prosecution

witnesses whose testimony was well corroborated. Defendant contends this improperly

shifted the burden of proof to him.

We conclude defendant waived the argument by failing to object at trial

. Defendant contends that the lack of objection constituted ineffective assistance of

counsel

. We disagree and affirm the judgment.

1 All statutory references are to the Penal Code unless otherwise stated.3 FACTS

1. Prosecution evidence

T .S . began dating d efendant after they met online in February 2016. They

were in a relationship for approximately one year and eight months until T.S. ended it in

November of 2017. After the breakup, they talked about getting back together but

Defendant sai d he did not want to; T.S. had mixed feelings.

Approximately two or three weeks after they decided not to get back

together, Defendant contacted T.S. and asked her to return some jewelry he had given

her. She had moved and cleaned her apartment ; and co uld not find the jewelry.

Defendant was angry and did not believe her.

On December 4, 2017, Defendant and T.S. exchanged text messages

arguing over the jewelry. Defendant said, “ I just want the shit I gave you because that

shit was paid off by sleepless nights and that was paid to show you how much I cared

about you, but now I see I wasn ’ t appreciated and I am still not appreciated. ” “ The

earrings [were] $500 themselves together. Man, I am going to fuck somebody up if that

shit don ’ t turn up. ” T.S. interpreted this to mean d efendant might show up at any time

and hurt someone, possibly her. She was scared. T.S. said she might have accidentally

thrown the jewelry away and d efendant said, “ [ Y ] ou ’ re fucking lying your ass off. ” I

will fuck the s hit out of you if it don ’ t come up. ” “ I am going out there and take

everybody ’ s shit out of the house. That ’ s because you are lying. ” T.S. said she would

call the police and d efendant replied, “ Find my shit. I don ’ t care if you call the police.

That will be the one thing you ’ ll regret, on my dead uncle ’ s grave. Bring that shit out of

the trash. ” T.S. called the police and showed them the text messages. On December 8,

2017 d efendant sent a text that said, “ I ’ m coming out there tomorrow, so you better have

an army of patrol police cars out there, because I am going to bust some shit up. ” T.S.

again called police.4 T.S. lived about half a block from a bus stop and usually called her mother

as she walked from the bus stop

, up the stairs to her apartment

. After the text messages

from d efendant , she altered her usual path home and began texting friends so that

someone always knew where she was.

T.S. did not have any contact with d efendant until December 29, 2017. On

that day, she got home from work at about 6 :00 or 6:30 p.m. and called her mother as she

walked from the bus stop to her apartment building and up the stairs.

As she was going up the stairs, she saw d efendant out of the corner of her

eye and said, “ Oh, shit. ” Defendant said, “ I just want to talk. ” T.S. told d efendant to

“ leave [her] alone, ” then exited the stairwell on the second floor, even though she lived

on the third floor. After she left the stairwell, T.S. yelled at d efendant

, “ Go away and

leave me alone. You are not supposed to b e here. ”

T.S. ’ s mother testified T.S. said over the phone, while crying, “ Mom, call

the police. He ’ s here. ” Her mother asked, “ Who is here? ” T.S. replied “ Garry. ” She then

heard T.S. say, “ Let me go. Leave me alone. Stop. Stop. Stop. ” Defendant said, “ I told

you I would get you, bitch. ”

A.D. , a neighbor, came out of her apartment after hearing screaming and a

bump against her wall

. A.D. and T.S. had seen each other around the building, but were

not actually acquainted. T.S. told A.D.

, “ He is not supposed to be here. He needs to leave

me alone. ” A.D. tried to talk to d efendant and told him, “ See, she don ’ t want you here.

Just go. Why are you here? Just leave her alone. ”

Defendant walked back toward A.D. and said, “ It ’ s none of your business.

Mind your business. ” A.D. testified that she invited T.S. into her apartment, but T.S. did

not respond. As T.S. backed away, d efendant pulled out a gun, pressed it against A.D.

, and repeated, “ Mind your own fucking business. ” D efendant began to walk away but

A.D. said, “ Leave her alone. ” Defendant returned, put the gun to A.D. ’ s head, and said

“ You don ’ t know me. ” Meanwhile, T.S. had rounded the corner into another hallway.5

Defendant walked away and A.D. called 9 11

. A.D. was so scared by the incident that she

moved out of her apartment.

T.S. continued walking away and rounded a corner. When d efendant

caught up to T.S. , she saw him holding a gun with a red laser sight

. T.S. ran but

d efendant grabbed her arm and shoved her against a wall. She began to scream. He put

his left hand around her neck, squeezed, and said, “ You want to make a scene? This is

what a scene looks like. I told you I was going to fuck shit up. ” Defendant ’ s hand was on

h er neck for 30 to 45 seconds. It was painful and T.S. had trouble breathing, but she did

not lose consciousness. Defendant grabbed her phone and ran. T.S. went into a different

apartment and called 9 11

.

T.S. ’ s mother was still on the phone and heard d efendant running away

with T.S. ’ s cell phone

. She yelled, “ Garry Thompson, we will get your ass. ” She heard

d efendant say, “ Oh, shit, ” and hang up.

At about 9:30 p.m., police found d efendant sitting in his park ed car in Los

Angeles

. Under the cover for the spare tire compartment, an officer found the replica

handgun defendant had used in the assault. The officer believed it to be a real handgun

when he first found it , but the officer later determined it was a BB gun

. The gun did not

have an orange tip that sometimes distinguishes fake handguns. BBs were in the trunk.

More BBs, a .22 caliber bullet, and T.S. ’ s cell phone were found in d efendant ’ s pocket.

The parties stipulated d efendant had been convicted of a felony.

2. Defense evidence

Defendant testified that he dated T.S. from February 2016 to March of

2017. They were apart from March until October 8, 2017, while defendant was

incarcerated. T hey discussed getting back together , b ut defendant chose not to, which

upset T.S

.

Defendant had given T.S. approximately $4, 2 00 worth of jewelry to hold

for him while he was incarcerated. He denied that it was a gift. Defendant sent T.S. text6

messages about returning the jewelry, but she s aid she lost it. On December 29, 2017,

T.S. told d efendant that she found the jewelry, and he should come over when she got off

work around 6 :00 p.m. When d efendant arrived, he saw T.S. walking into the building

talking on the phone and followed her in. She exited the stairwell on the second floor,

which d efendant found strange. She said into the phone, “ He ’ s here, he finally showed

up. ” She was backing up and would not explain what was going on. He said

, “ I just

want to talk to you. ” She pushed him and said, L eave me alone. ” He said, “ I just came

to get my jewelry. ”

A.D. came out of her apartment and said, “ What ’ s going on? ” Defendant

said, “ Mind your business. ” He was angry and raised his voice but did not use a replica

firearm

. A.D. and T.S. were friends.

T.S. pushed d efendant and he grabbed her hand. He said, “ Why [ are ] you

pushing me? Why are you trying to fight? ” He denied strangling her or say ing

, “ I ’ m

going to fuck you up. ”

Defendant left and returned to his car

. T.S. fol lowed him, sat in the car,

and apologized to him.

On cross

- examination, defendant denied that the BB gun was his.

Defendant was not sure why the BB gun was in his trunk, but surmised that relatives may

have had it in a backpack, the gun may have fallen out, then fallen into the spare tire

compartment, which, though covered, does not have a latch. When confronted with one

of his text messages that suggested the jewelry was a gift to T.S. , he claimed it was a

typo. He testified that T.S. ’ s cell phone mu st have fallen out of her pocket when she

apologized to him in his car and that is how he ended up with her cell phone

. 3. Closing Argument

During her rebuttal closing argument, the prosecutor made the following

argument, which forms the basis of this appeal.7 “ So I ’ ve made a list of everything you need to ignore and you need to

believe in order to find the defendant not guilty. Okay? So we ’ re going to go over that

real quick.

“ You need to believe [A.D.] is lying about everything.

“ You need to believe [ T.S. ] is lying about everything.

“ You need to believe that the defendant, the only one with a motive to lie,

is the only one telling the truth.

“ You need t o believe that [A.D.] and [T.S.] knew each other. ”

“ You need to believe that [T.S.] invited the defendant over on the 29th after

receiving threatening text messages from him and after calling the police on him.

“ You need to ignore the fact that she was screaming. Those screams were

heard by her mother over the phone and later by [A.D.] in the hallway.

“ And you also need to remember that not only did [A.D.] hear voices, she

heard a thud against her apartment wall as well.

“ And then you need to believe that [T.S.] acted crazy and just went crazy

on the defendant for no reason after she invited him over.

“ You need to ignore the fact that the testimony of [A.D.] and [T.S.] is

consistent with each other regarding what happened in front of [A.D.] ’ s door.

“ You need to believe that the defendant did not remove the gun from his

waistband and press that gun against [A.D.] ’ s chest with his finger on the trigger and

[told] her to mind her fucking business.

“ You need to believe that h e did not point a gun at her face or head from a

couple of feet away, again, telling her to mind her fucking business, with his finger on the

trigger.

“ You need to ignore that [A.D.] saw the defendant walk toward [T.S.]

holding the gun in his hand.8 “ And then you need to ignore that [T.S.] then saw the defendant coming

back around the corner from [A.D.] , putting a gun in his waistband.

“ You need to ignore the fact that [A.D.] called 9 11

.

“ You need to ignore that both [A.D.] and [T.S.] provided the same

description of the gun.

“ You need to ignore that the defendant chased and grabbed [T.S.] by her

arm, spun her around, and pinned her against the wall. That ’ s what she told you, that ’ s

what she told Officer Valdes, and that ’ s what she to ld Detective Greene.

“ You need to believe that he never touched [T.S ].

“ You need to ignore that [T.S.] testified she was strangled, told O fficer

Valdes she was strangled, and told Detective Greene she was strangled.

“ You need to believe that the defenda nt never threatened [T.S.] that he was

going to, quote, fuck her up as he strangled her, even though that ’ s what she told Officer

Valdes happened right after the incident.

“ You need to believe that the defendant did not grab [T.S.] ’ s phone out of

her hand as he strangled her and ignore her testimony that he did.

“ You need to ignore the testimony of her mother, that she heard screams, a

scuffle, and then the sound of running.

“ And you also need to ignore when her mother testified that she yelled at

the defendant through the phone and he replied, ‘ Oh, shit, ’ before disconnecting the call.

“ You need to believe that her mother is a liar.

“ You need to believe that [T.S.] followed the defendant out to the parking

lot where his imaginary friend was.

“ You n eed to believe she got into the car with him and that she dropped her

phone inside the car.

“ You need to ignore the fact that [T.S.] ’ s phone was found in the pocket of

defendant ’ s pants.9 “ You need to believe he didn ’ t take a gun to the apartment.

“ You n eed to ignore the fact that [A.D.] and [T.S.] both provide the same

description of the gun that matches the description of the gun that is found three hours

later in the trunk of his car.

“ You need to believe the gun was not his.

“ You need to believe he did not know there was a gun in the trunk of his

car.

“ You need to believe that it must have been

— and I couldn ’ t remember if he

said it was his cousin ’ s or his friend ’ s

— must have been in his cousin ’ s or friend ’ s

backpack

. . . and it must have somehow fallen underneath the panel that covers the spare

tire or must have fallen there when the police were going through the trunk of the car.

“ You need to believe that the cousin of friend or true owner of the BB gun

never asked the defendant about it, never said, ‘ Hey, I think I lost my gun in your trunk. ’

And he said that was on a trip to the beach; so you need to believe the y were going to the

beach in December.

“ You need to ignore that there were BB ’ s for the gun in the trunk, that there

w ere BB ’ s for the gun in the pocket of the defendant ’ s pants.

“ So in order to find th e defendant no t guilty, you need to ignore and believe

those things.

“ And like I said before, I will say it again, his story is completely

unreasonable and inconsistent w ith the facts and the evidence in this case, and if you

follow CALCRIM 224, it will tell you what you do with wh at is unreasonable. You

disregard it.

“ At the end of the day, this case comes down to two questions: Do you

believe [A.D.] or the defendant? Do you believe [T.S.] or the defendant? It is as simple

as that. Okay? ”10 Defense counsel did not object at any point during this portion of the

argument.

Defendant appealed from the judgment.

DISCUSSION

Defendant contends the judgment should be reverse d because the

prosecutor committed misconduct. Specifically, he contends the argument quoted above

had the effect of shifting the burden of proof to him. The People deny any misconduct

and contend d efendant waived the misconduct argument by failing to ob ject at trial.

We agree defendant waived the prosecutorial misconduct claim because

defense counsel failed to object. ( People v. Jackson (2016) 1 Cal.5th 269, 367 [ “ A

defendant ’ s ‘ failure to object and request an admonition waives a misconduct claim on

appeal unless an objection would have been futile or an admonition ineffective ’” ] .)

Defendant seeks to avoid the waiver in three ways.

First, defendant contends that an admonishment would have been

ineffective. However, he cites nothing in the record to support that contention and based

on our own independent review of the record, we find nothing to suggest an admonition

would have been ineffective.

Second, defendant cites the princip le that we have discretion to consider

issues on appeal that were not properly preserved. ( People v. Williams (1998) 17 Cal.4th

148, 161

- 162 , fn. 6 .) We decline to exercise that discretion here because, in our vie w ,

any improper implication regarding the b urden of proof could easily have been remedied

with an admonition

.

Finally, defendant claims that if the objection were waived, which it was,

then he received ineffective assistance of counsel. “ A claim of ineffective assistance of

counsel has two compo nents: ‘“ First, the defendant must show that counsel ’ s

performance was deficient. This requires showing that counsel made errors so serious

that counsel was not functioning as the ‘ counsel ’ guaranteed the defendant by the Sixth11

Amendment

. Second, the de fendant must show that the deficient performance prejudiced

the defense. ” ’” ( In re Vargas ( 2000) 83 Cal.App.4th 1125, 1132 .)

“ Our review of counsel ’ s performance is a deferential one. [Citation.] ‘ It is

all too tempting for a defendant to secondguess counsel ’ s assistance after conviction or

adverse sentence, and it is all too easy for a court, examining counsel ’ s defense after it

has proved unsuccessful, to conclude that a particular act or omission of counsel was

unreasonable. [Citation.] 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.] ’ [Citation.] ‘ However, “ deferential scrutiny

of counsel ’ s performance is limited in extent and indeed in certain cases may be

altogether unjusti fied. ‘ [D]eference is not abdication ’ [citation]; it must never be used to

insulate counsel ’ s performance from meaningful scrutiny and thereby automatically

validate challenged acts or omissions. ” ’ [Citations.] ‘ Otherwise, the constitutional right

to the effective assistance of counsel would be reduced to form without substance. ’”

( In re Jones (1996) 13 Cal.4th 552, 561

- 562.)

“ When attacking the prosecutor ’ s remarks to the jury, the defendant must

show that

, ‘ [i]n the context of the whole argument and t he instructions ’ [citation] , there

was ‘ a reasonable likelihood the jury understood or applied the complained

- of comments

in an improper or erroneous manner. [Citations.] In conducting this inquiry, we “ do not

lightly infer ” that the jury drew the most damaging rather than the least damaging

meaning from the prosecutor ’ s statements. ’” ( People v. Centeno (2014) 60 Cal.4th 659,

667 .)12 Balancing those competing considerations here, we conclude there was no

ineffective assistance of counsel. While we recognize that the prosecutor ’ s arguments

bore implications for the burden of proof that were potentially problematic

— in particular,

the no tion that the jury must disbelieve defendant ’ s testimony in order to find him not

guilty

— we do not view the prosecutor ’ s comments primarily in that light. In our view,

the prosecutor ’ s argument was primarily a commentary on the quality of the evidence.

T he gist of the argument was that the People ’ s evidence was abundant and well

corroborated, whereas defendant ’ s testimony was self

- serving and far

- fetched. That was

plainly a proper argument to make.

The question , therefore, is whether defense counsel wa s required to object

to a problematic implication from an otherwise proper argument. We conclude defense

counsel was not. A defense attorney is not required to raise every possible objection at

trial. In proper cases, a defense attorney “ could reasonabl y have determined that the risks

of raising the objection and offending or annoying the jury outweighed whatever benefit

might have been obtained from prosecutorial remarks that were little likely to prejudice

his client. ” ( People v. Welch (1999) 20 Cal.4th 701, 754.)

Here , the jury had been repeatedly told that the burden of proof was on the

People. The court properly instructed the jury on the burden of proof at the outset of the

trial, immediately before the prosecutor ’ s opening stat ement, and after the close of

evidence

. The prosecutor reminded the jury during closing argument that “ it is my

burden in this case, ” and during her rebuttal argument, immediately prior to the alleged

misconduct, stated, “ I am in no way shifting the burde n of proof because, again, the

burden of proof is fully on me. ” Defense counsel had likewise referred to the burden on

the prosecution.

The jury was further instructed that its verdict must be based only on the

law provided by the court

— even if it conf

licts with what the attorneys said

— and the13

evidence presented during the trial, and that statements made by counsel during their

opening and closing arguments are not evidence.

In this context

, where the prosecutor ’ s remarks were not directed at the

burde n of proof, and the jury had been repeatedly reminded that the burden rested on the

prosecution

, it was within defense counsel’ s reasonable discretion to determine that the

benefit of an objection to a potentially problematic implication was outweighed by the

risk of annoying the jury. Defense c ounsel ’ s performance in failing to object , therefore,

was not deficient. Thus, there was no ineffec tive assistance of counsel

.

DISPOSITION

The judgment is affirmed.

THOMPSON, J.

WE CONCUR:

O’LEARY, P. J.

GOETHALS, J.