People v. Tompkins CA4/3

Filed 4/26/21 P. v. Tompkins CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G059007

v. (Super. Ct. No. 15WF1376)

SHAWN MARSHALL TOMPKINS, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy. Affirmed. Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

We appointed counsel to represent Shawn Marshall Tompkins on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client but advised the court she found no issues to argue on his behalf. Counsel filed a brief following the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that sets forth a summary of proceedings and facts but raises no specific issues. Under these circumstances, the court must conduct an independent review of the entire record. When the appellant himself raises specific issues in a Wende proceeding, we must expressly address them in our opinion and explain why they fail. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.) Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the court with its independent review, counsel provided the court with information as to issues that might arguably support an appeal. Counsel raised the following six issues: (1) did the trial court err by denying Tompkins’ motion to suppress/exclude the DNA evidence secured from the victim’s clothing; (2) did the court err by denying Tompkins’ motion to suppress/exclude the DNA evidence obtained by the taking of a buccal swab of Tompkins’ mouth; (3) did the court err by overruling Tompkins’ chain of custody objections to the DNA evidence; (4) did the court err by denying Tompkins’ motion for new trial based on ineffective assistance of counsel; (5) did the court abuse its discretion by denying Tompkins’ request to strike his priors; and (6) was Tompkins denied his Sixth and Fourteenth Amendment right to the effective assistance of counsel because counsel did not request mental health diversion. We gave Tompkins 30 days to file written argument on his own behalf. Thirty days have passed, and he has not filed any written argument.