Thompson

This case involves the rape and murder of 20-year-old Ginger Fleischli on September 11, 1981. For these offenses, the jury convicted defendant of one count of first degree murder (Pen. Code, §§ 187, 189) 1 and one count of forcible rape (§ 261, subd. (2)) and found true allegations that defendant personally used a knife in the commission of these crimes (§ 12022, subd. (b)). In addition, the jury found true one special circumstance allegation: that the murder occurred in the commission of rape (§ 190.2, subd. (a)(17)(iii)). At the penalty phase, the jury returned a sentence of death. The matter is before us on automatic appeal. (§ 1239.)

We conclude that the judgment should be affirmed in its entirety.

*97 Guilt Phase

Facts

A. The Prosecution Case

The prosecution’s theory was that the victim Ginger Fleischli was raped and then killed by defendant Thomas Thompson to prevent her from reporting the rape and thereby possibly interfering with an imminent and illegal foreign venture defendant had planned. Fleischli met defendant through David Leitch who, in defendant’s view, had a motive to kill her himself. Fleischli had lived with David Leitch in an apartment at 1261…

I concur in affirming the judgment of guilt and the finding of special circumstances, but I dissent from the affirmance of the death penalty.

The majority appear to concede it was error for the court to admit evidence that while confined on the present charges defendant solicited Del Erate, a jailhouse informant, to kill Leitch, defendant’s associate in crime. While the solicitation under more convincing circumstances—such as corroboration by other witnesses—could have been a violation of Penal Code section 653f, subdivision (b), it should not have been introduced in this case for any purpose. Nevertheless the majority find the error to be “harmless under any standard.”

I do not share the confidence of the majority that this improper evidence had no effect on the jury weighing the issue of defendant’s life or death. It appears to me reasonably possible that a jury, when considering penalty, would give serious consideration to evidence tending to prove that while defendant was awaiting trial for one murder he was at the same time attempting to arrange still another murder. This damaging evidence might reasonably convince the jurors that sparing defendant’s life could well be…

This case involves the rape and murder of 20-year-old Ginger Fleischli on September 11, 1981. For these offenses, the jury convicted defendant of one count of first degree murder (Pen. Code, งง 187, 189) [1] and one count of forcible rape (ง 261, subd. (2)) and found true allegations that defendant personally used a knife in the commission of these crimes (ง 12022, subd. (b)). In addition, the jury found true one special circumstance allegation: that the murder occurred in the commission of rape (ง 190.2, subd. (a)(17)(iii)). At the penalty phase, the jury returned a sentence of death. The matter is before us on automatic appeal. (ง 1239.)

We conclude that the judgment should be affirmed in its entirety.

The prosecution's theory was that the victim Ginger Fleischli was raped and then killed by defendant Thomas Thompson to prevent her from reporting the rape and thereby possibly interfering with an imminent and illegal foreign venture defendant had planned. Fleischli met defendant through David Leitch who, in defendant's view, had a motive to kill her himself. Fleischli had lived with David Leitch in an apartment at 1261 Ocean Front in Laguna Beach. [2] In…