Filed 6/18/13 P. v. Thompson



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                        E056720

v.                                                                        (Super.Ct.No. FSB1105360)

CHRISTOPHER MICHAEL THOMPSON,                                             OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Annemarie G.

Pace, Judge. Affirmed.

         Renée Paradis, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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                                     INTRODUCTION

       On April 12, 2012, a first amended information charged defendant and appellant

Christopher Michael Thompson with evading an officer with willful disregard for safety,

in violation of Vehicle Code section 2800.2, subdivision (a) (count 1), and driving in a

direction opposite lawful traffic during flight from a pursuing officer, in violation of

Vehicle Code section 2800.4 (count 2). The information also alleged that defendant had

a prior serious or violent felony conviction. (Pen. Code, §§ 1170.12, subds. (a)-(d),

667, subds. (b)-(i).)

       Jury trial commenced on May 7, 2012, and concluded on May 17. The jury found

defendant guilty on count 1, but was unable to reach a verdict on count 2. Therefore, a

mistrial was declared as to count 2. Defendant waived a jury trial on his prior conviction.

On May 18, 2012, the trial court found the strike allegation true.

       On June 18, 2012, the trial court sentenced defendant to the upper term of three

years, doubled for his prior strike, for a total term of six years in state prison. The trial

court awarded defendant 206 actual days of credit and 206 conduct days, for a total of

412 days of credit. Defendant filed his timely notice of appeal on July 17, 2012.

                                STATEMENT OF FACTS

       I. Prosecution Case

       Pamela Clark-Holmes is a deputy probation officer in Orange County. She

supervised defendant on probation starting in November 2010. On November 9, 2011,

defendant was scheduled to report to her office, but did not. She spoke with defendant on



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the telephone and told him that if he failed to report on November 14, she would file a

probation violation report. Defendant failed to report on the 14th.

       Shaun Sandoval is a San Bernardino police officer. On November 26, 2011, he

was on patrol in the northeast district of San Bernardino. He was driving on

northbound Highway 215, responding to a call. While driving on the freeway, he saw a

gray four-door Cadillac in the middle northbound lane rapidly passing other cars. Officer

Sandoval later identified the driver of the Cadillac as defendant. The officer sped up to

match the speed of the Cadillac. The officer paced the Cadillac‟s speed at 80 miles per

hour. The speed limit was 55 miles per hour. Because Officer Sandoval was en route to

another call, he originally wanted to warn defendant to slow down and drive more safely,

not necessarily stop him.

       All traffic on the freeway slowed to around five to 10 miles per hour under the

Baseline overpass because of construction. Officer Sandoval used his spotlight to light

up defendant‟s side mirror on the Cadillac as they passed through the tunnel under the

overpass. The officer stated over his patrol car‟s loudspeaker, “„Driver of the Cadillac,

slow down and drive safely.‟” He saw defendant look in his rearview mirror. After

leaving the construction zone area, the Cadillac again accelerated, reaching a speed over

the posted limit. At that point, the officer decided to stop the Cadillac. He activated all

of his vehicle‟s emergency lights and sirens. At that point, the patrol car and the Cadillac

were traveling at speeds over 80 miles per hour. They merged onto Highway 259 north,

and then travelled east on Highway 210. As the two vehicles drove eastbound on

Highway 210, between the Valencia and Del Rosa exits, Officer Sandoval saw defendant

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lift both of his hands up, then bring them both down, with the left hand going outside the

window and making what he described as “an „OK‟ thumbs up and pointing gesture in

the direction” the two cars were traveling. Officer Sandoval saw defendant make the

same gesture approximately four or five times. Defendant, however, did not pull over.

The officer notified his dispatch that he had a vehicle failing to yield.

       Defendant exited the freeway at Highland Avenue, and Officer Sandoval followed.

Defendant made an illegal turn onto Highland Avenue eastbound and continued on

Highland Avenue at 80 miles per hour. Defendant then turned south on Robinson Road

and turned left again onto Case Street. Defendant drove the Cadillac through a stop sign

at the intersection of Case Street and Victoria Avenue as it turned right onto Victoria

Avenue. In making the turn, defendant was driving fast and crossed over the double

yellow lines on Victoria Avenue for about 100 feet before correcting. Defendant

continued south on Victoria Avenue, driving over 90 miles per hour, making a left turn

eastbound onto 14th Street through a red light.

       Defendant continued to speed through a residential neighborhood disobeying

many traffic laws. At one point, defendant again crossed double yellow lines for

approximately 100 feet. Eventually, Officer Sandoval performed a “„legal intervention,‟”

a maneuver used by the police department where they use a patrol vehicle to force a

fleeing vehicle to stop. Once the patrol vehicle made contact with the Cadillac, the

Cadillac veered left into a driveway of a residence and stopped. The passenger in the

Cadillac, Tanya Cruz, resided at this residence with her parents.



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       Officer Erick Martin was the first officer to arrive to assist Officer Sandoval.

Officer Sandoval ordered the occupants of the car to put their hands up. Both defendant

and his passenger complied. Individuals who were in the residence at the time exited the

home, and were standing in the yard.

       II. Defense Case

       Defendant was living with his mother, Jennie Saiz, for the past year. Saiz

observed defendant suffer from seizures on multiple occasions, at least seven times.

During those seizures, he would stumble, fall, and lose control of his bowels. He was

also unable to think or focus and was often confused. He took antiseizure medication

while living with her. She testified that defendant‟s seizures began when he was about

eight or nine years old.

       Gail Cook, defendant‟s passenger‟s mother, lived at the residence where defendant

stopped his vehicle and was arrested on November 26, 2011. She recalled that the

Cadillac and the police vehicle arrived at her residence around 3:30 or 4:30 in the

afternoon. Cook testified that she saw the officers arrest defendant and put him into a

patrol car. She said that defendant was then taken out of the patrol car and placed face

down on the pavement. She testified that it looked like defendant was having a seizure

because he was “twitching” and moving. There were three officers standing near

defendant. Cook asked one of the officers whether defendant was having a seizure and if

anything was being done for defendant, but the officer did not acknowledge her.

Defendant was eventually transported by ambulance to a hospital.



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       Tanya Cruz testified that on the night of the chase, she and defendant were

returning to her home from a friend‟s house in Colton. She testified that she did not

notice the police car behind them until they were at the Highland Avenue freeway exit.

Cruz testified that she first noticed defendant‟s behavior was abnormal while he was

driving on the freeway. She said he was incoherent, flushed, and nonresponsive, and

Cruz told him to slow down. When the police officers were questioning Cruz, she told

them that she was scared because of the way defendant was driving.

       Christopher Sangdahl is a staff psychiatrist for Riverside County. He testified as

an expert witness regarding seizure disorders. He stated that he had reviewed defendant‟s

medical records and criminal history, and that he had also interviewed defendant. He

testified that defendant could have been suffering from a partial complex seizure, in

which the sufferer suddenly goes blank. He stated that this can affect the brain more

generally and involve more physical symptoms. Dr. Sangdahl explained that during a

partial complex seizure, an individual could still be able to drive a car because driving is

an automated behavior that can continue during a seizure. A partial complex seizure

could last as long as seven minutes, although that would be an uncommon length.

       Dr. Sangdahl also testified that he had reviewed the levels of antiseizure

medication in defendant‟s blood after defendant was arrested and treated. Dr. Sangdahl

described the levels as “sub-therapeutic,” which increased the risk of having a seizure. In

his opinion, someone suffering from a partial complex seizure might seem to be in a

“trance-like” state.



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       On cross-examination, the prosecutor played for Dr. Sangdahl a recorded jailhouse

telephone conversation between defendant and Cruz, where they were discussing the

chase. Defendant stated that he “should have just stopped,” and recollected that the

officer had said, “don‟t crash.” Although they had told the police officers they had not

heard the officers, defendant admitted he had in fact heard them. Defendant additionally

stated, “I‟m going to beat those charges baby,” and “[w]e going to use it, I was about to

have a seizure, so.” Dr. Sangdahl testified that the conversation was evidence suggesting

malingering, and that the conversation would cause him to reevaluate his opinion.

                                       ANALYSIS

       After defendant appealed, and upon his request, this court appointed counsel to

represent him. Counsel has filed a brief under the authority of People v. Wende (1979)

25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of

the case, a summary of the facts and potential arguable issues, and requesting this court to

undertake a review of the entire record.

       We offered defendant an opportunity to file a personal supplemental brief, and he

has done so. On March 17, 2013, defendant submitted a four-page handwritten brief. In

his supplemental brief, defendant raises numerous points. Pursuant to the mandate of

People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for

potential error.

       First, defendant argues that he was not arraigned in a timely manner because the

minute order shows “Christopher Lamone Thompson,” not “Christopher Michael

Thompson” being arraigned. Although the minute orders indicate an incorrect middle

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name on several occasions, they all reference the proper first and last names, and the

correct case number. There is nothing to indicate that a different defendant was

participating in these proceedings.

       Second, defendant appears to argue that the information1 is defective because it

indicates that defendant “has been convicted of a crime with a Penal Code section 186.11

enhancement,” when he was convicted in Orange County of violating Penal Code section

459. This is not contradictory. The information indicates that defendant had previously

been convicted of a violating Penal Code section 459 with a Penal Code section 186.11

enhancement.

       Third, defendant argues that a felony guilty plea form indicates that he was to

receive the “mid term low term max term 2-4-6 from County of Orange” but he received

the “upper term of 3 yrs as of count 1.” The guilty plea form, however, is from his

previous felony conviction in Orange County. Hence, it is inapplicable to this appeal.

       In the same argument, defendant indicates that he “should be entitled to 1/2 credit

that fall under 4019 as for count 2 dismiss.” It is quite difficult to decipher defendant‟s

argument. However, we note that count 2 was declared a mistrial in this case, and

defendant was not sentenced whatsoever regarding count 2. Also, the trial court awarded

defendant both 206 actual and 206 conduct credits under Penal Code section 4019.




       1  Defendant references the information and not the first amended information.
This, however, is inconsequential as the portion of the information referenced is the same
in both the information and first amended information.

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       Fourth, defendant references the reporter‟s transcript wherein the deputy district

attorney is cross-examining Dr. Sangdahl. It appears that defendant is claiming error

because “the court did not let the jury hear that motion.” After reading the transcript

referenced by defendant, there is nothing to indicate error. The prosecutor was simply

asking defendant‟s expert witness questions regarding some medical reports. The

prosecutor indicated that they were running out of time and that he would “save this for

the next time I see you.”

       Fifth, defendant argues that Dr. Fenati showed bias and references the reporter‟s

transcript. We note that Dr. Fenati did not testify. The doctor, apparently, prepared a

report wherein he indicated that defendant had essentially faked a seizure. The

prosecutor was simply questioning defendant‟s own expert witness, Dr. Sangdahl, about

his opinion regarding Dr. Fenati‟s report. Again, defendant‟s argument is not only

incoherent, it is inapplicable to this appeal.

       Sixth, defendant mentions that an officer “did not make a report at [scene] of

crime.” There is nothing to indicate how this assists defendant in his appeal.

       Lastly, defendant argues that his trial counsel rendered ineffective assistance of

counsel (IAC). In order to establish a claim of IAC, defendant must demonstrate,

“(1) counsel‟s performance was deficient in that it fell below an objective standard of

reasonableness under prevailing professional norms, and (2) counsel‟s deficient

representation prejudiced the defendant, i.e., there is a „reasonable probability‟ that, but

for counsel‟s failings, defendant would have obtained a more favorable result.

[Citations.] A „reasonable probability‟ is one that is enough to undermine confidence in

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the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing,

among other cases, Strickland v. Washington (1984) 466 U.S. 668; accord, People v.

Boyette (2002) 29 Cal.4th 381, 430.) Hence, an IAC claim has two components:

deficient performance and prejudice. (Strickland v. Washington, supra, at pp. 687-688,

693-694; People v. Williams (1997) 16 Cal.4th 153, 214-215; People v. Davis (1995) 10

Cal.4th 463, 503; People v. Ledesma (1987) 43 Cal.3d 171, 217.) If a defendant fails to

establish either component, the claim fails.

       When a claim of ineffective assistance is made on direct appeal, and the record

does not show the reason for counsel‟s challenged actions or omissions, the conviction

must be affirmed unless there could be no satisfactory explanation. (People v. Pope

(1979) 23 Cal.3d 412, 426.)

       Here, defendant claims that his counsel was ineffective because defendant was

never given the opportunity to consider a plea agreement that was offered to him.

However, a careful review of the reporter‟s transcript on April 13, 2012, indicates that,

although defendant was present at the proceeding, he never informed the trial court that

he was unaware of an offer. Instead, when defense counsel stated: “Your Honor, there

has been an offer conveyed to [defendant]. He‟s rejecting that offer. It‟s 32 months,”

defendant did not indicate that he in fact did NOT know about the offer or reject the

offer. Instead, defendant did not state anything, indicating he approved with his counsel.

It also appears that defendant is arguing that defense counsel rendered IAC during trial

because he was suffering from partial seizures and his attorney ignored the seizures.



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After reviewing the trial transcript, we note that defendant‟s counsel actively engaged in

examining and cross-examining the witnesses and advocated for defendant.

          Based on the above, we find that defense counsel did not render assistance below

an objective standard of reasonableness under prevailing professional norms.

          We have conducted an independent review of the record and find no arguable

issues.

                                       DISPOSITION

          The judgment is affirmed.

          NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                                McKINSTER
                                                                                             J.

We concur:



RAMIREZ
                          P. J.



CODRINGTON
                             J.




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