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P. v. Gipson

P. v. Gipson


P. v. Gipson

Filed 4/8/13 P.
v. Gipson CA1/1







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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.






and Respondent,



and Appellant.


(Solano County

Super. Ct. No. VCR-189342)

was convicted following a jury trial of first
degree murder
(Pen. Code, § 187) with personal use of a firearm in the
commission of the murder (Pen. Code, § 12022.53).href="#_ftn1" name="_ftnref1" title="">>[1] He claims in this appeal that admission of
prior inconsistent statements of witnesses without adequate indicia of
reliability violated his right to
. We conclude that the
admission of the pretrial statements of witnesses who appeared and testified at
trial was not error, and affirm the judgment.


The victim,
Michael Sample, was shot and killed near a pedestrian gate of a building in the
Marina Vista Apartments in Vallejo, a “low-income” apartment complex associated
with “lots of reports” of shootings,
violence, robberies and narcotics trafficking.
Officers of the Vallejo Police Department
responded to a report of the shooting at around 8:00 p.m. on January 10,
2006. A group of “Black” males and
females were carrying Sample, but placed him on the street next to a silver
Chevy Impala when the police arrived.
Sample was not breathing and had no pulse. He was transported by href="">paramedic personnel to the
hospital, where he was pronounced dead.
The autopsy disclosed that the victim died from a bullet that entered
the right side of his chest and penetrated his heart. The absence of strippling on the body
indicated that the shot was fired from at least two feet away.

of the scene of the shooting resulted in the discovery of a total of five
expended 9-millimeter shell casings: two next to a maroon car parked on the
street 15 to 20 feet north of the pedestrian gate, and three others on the
sidewalk near a wrought iron fence that surrounded the apartment complex. Three baggies that appeared to contain rock
cocaine were found in front of the pedestrian gate.

After the
police arrived, most of the group of people dispersed, but four or five of them
stayed at the scene. One of the officers
asked “who had shot the guy,” but no one responded, although someone pointed to
the location where the shooting occurred.
The owner of the silver Chevy Impala, Ranika Sterling, and her boyfriend
Clyde Moore, remained at the scene of the shooting. They were transported to the police station
for questioning by detectives.

conviction was based primarily on a procession of witnesses who gave statements
to the police, but did not offer any evidence at trial that they observed
defendant fire the shots at Sample. The
witnesses gave varying and often inconsistent accounts of the shooting or their
observations in their pretrial statements to the police and later in testimony
presented at the first and second trials in the case.href="#_ftn2" name="_ftnref2" title="">>[2]

Sterling was twice questioned by Detective Mathew Mustard, the first time a few
hours after the shooting, then again a day or two later at her request. Her two statements to the police were not
internally inconsistent. Sterling lived
at the Marina Vista Apartments with Moore, and was acquainted with both
defendant and the victim. She stated
that after returning to her apartment from the Laundromat she heard three to
five gunshots and a commotion on the street.
A minute or so later she proceeded to the street and discovered that the
person who had been shot was her friend Sample.
She assisted others with an effort to carry Sample to her car to be
transported to the hospital. Just as
they reached the door of her car the police arrived and advised the group
carrying Sample to “put the body down.”
Sterling was then transported by the police to the station for
questioning. During her second interview
with Detective Mustard, Sterling added that defendant’s close friend Ronar
Inocencio, known as “Reno,” was with Sample just before he was shot. After the shooting Sterling overheard Reno
state to Moore that he “tried to stop what had happened,” and “was sorry for
what had happened, and that Mr. Gipson is the person that had killed Mike
Sample.” Sterling also offered
information that defendant’s girlfriend was named “Jemina,” and drove a beige
Isuzu. Sterling repeatedly expressed to
the police that she was concerned for her safety, and asked to remain anonymous
in the case.

At trial,
Sterling essentially reiterated her account of the shooting and its immediate
aftermath. She did not recall much of
the content of her interviews with Detective Mustard, including telling him she
overheard Reno state that defendant killed Sample.

police officers testified that about two weeks after the shooting they were
present at a neighborhood memorial erected for Sample on the sidewalk near the
Marina Vista Apartments. An
African-American woman who fit Sterling’s description dropped a folded note on
the ground as she passed close to the officers, before walking into the
apartment complex. The note, which was
given to Detective Mustard, again requested anonymity, and stated that the
suspect “in question” in the case could be found at the “Vallejo Inn with
Jemina.” Jemina Perryman was identified
as defendant’s girlfriend when the shooting occurred; she regularly drove her
mother’s 1999 silver Isuzu Rodeo.
Sterling testified at trial that she attended the memorial for Sample,
but denied that she left a note for the officers who were present.

Clyde Moore
was also questioned by detectives the night of the shooting, and provided a
version of events that fundamentally matched that given by Sterling. Nearly a week later Moore was arrested for
possession of a handgun. In an effort to
“negotiate with the police” he requested to meet with Detective Mustard to
“provide additional information” on the murder of Sample. Moore recounted for the detective a previous
conversation with Reno, who told him that he was “present when the murder
occurred.” According to Reno, Sample
slapped defendant during an altercation; defendant then “pulled a gun
. . . and shot Mr. Sample.”
Moore was “wired up” and instructed to meet with Reno to attempt to
obtain a recorded statement. During
their conversation Reno reiterated that he attempted to stop the shooting, and
“did not want anybody to get hurt.”

When Moore
was arrested again in June of 2008 for possession of a firearm, he advised the
arresting officers that he was “a witness” in the “Harold Gipson” murder case,
and wanted to provide information to “get out of going to jail that day.” Moore told the officers he previously “lied
in the case” when he stated he “was in the hallway” and did not observe the
shooting. He stated that he “had really
seen” defendant “walking away after the shots were fired.”

At trial,
Moore remembered almost nothing of the events surrounding the shooting of
Sample, or any other facts of his life for that matter. He denied living in the Marina Vista
Apartments with Sterling. He did not
recall anything about Sterling, visiting the Marina Vista Apartments, hearing
the gunshots, speaking with officers thereafter, telling them that Reno talked
to him about the shooting, or even knowing Reno. Basically, Moore’s testimony may be distilled
to his repeated assertion, “I don’t recall nothing.”

witnesses gave statements to the police that did not entirely correspond to
their testimony at trial. Calveda
Daniels testified that she lived at the Marina Vista Apartments and had known
the victim all her life. On the night of
the shooting of Sample, Daniels was waiting at a bus stop on Marin Street three
blocks from the apartment complex with her sister Bessie and a friend, Maurice
Brewer. She observed defendant walk past
the bus stop toward the Marina Vista Apartments. Defendant was talking on his cell phone,
“screaming and yelling.” Daniels heard
defendant yell, “Are you going to give me my shit?” He continued walking in the direction of the
apartment complex. Daniels subsequently
heard gunshots “coming from towards the apartments,” although at trial she was
uncertain of the length of time that passed between her observation of
defendant and the shots.

Daniels was
interviewed twice by the police in January of 2006, the second time after she
was arrested on an outstanding warrant.
During the first interview she was uncooperative. During the second interview with Detective
Mustard she provided more information.
Daniels stated that she was at the bus stop “selling dope” when she
observed defendant walk past, talking “very loudly into the phone.” Defendant yelled, “I want my shit. And if you don’t give me my shit, we’re going
to have a problem.” He then ran toward
the Marina Vista Apartments south of the bus stop. Soon thereafter, Ryan Daniels, a man known to
her as Cudha, appeared at the bus stop and told her that “guys” at the
apartment were taking ecstasy, and “somebody has got a gun.” Fifteen or twenty minutes after defendant
passed her, Daniels heard several gunshots from the direction of the Marina
Vista Apartments.

Brewer, known as “Reese,” was interviewed about the shooting of Sample in May
of 2006, after he had been arrested for drug possession. Brewer told Detective Mustard that he would
“help” with the investigation of Sample’s murder, but wanted protection and
assistance with the charges against him.
Brewer was fearful of defendant’s “family in jail,” and had received href="">death threats. Detective Mustard agreed to protect Brewer by
putting him in an apartment or taking him to relatives in Sacramento. Brewer then disclosed to the detective that
he, defendant, Sample and a few others were shooting dice at the Marina Vista
Apartments on the evening of the shooting.
Brewer went to buy cigarettes, then stopped at a church across from the
apartments. Through the church window
Brewer observed defendant and Sample talking; Sample then slapped
defendant. After defendant asked Sample
if he had a gun, Brewer heard shots and saw Sample fall to the ground. Brewer ran to help Sample, who had been shot
through the chest. Defendant hopped into
a car driven by Jemina, known as Mimi, and “they sped off.” A little later, after the police left, Reno
told Brewer that he gave defendant the gun, but “didn’t know he was gonna do
all this shit.” Brewer subsequently
encountered defendant, who warned him to keep his “mouth shut.” At trial, Brewer did not recall anything he
said to Detective Mustard. He denied
that he saw any shots fired at Sample by defendant. He denied that defendant threatened him.

Clark lived in Vallejo “on and off” during 2006. He also provided statements to the police
related to Sample’s murder while in custody on unrelated criminal charges
against him, but suffered from impaired memory of the events at trial. After he was arrested Clark stated to a
detective that just before the shooting occurred he walked past Sample on his
way to a market and greeted him briefly.
Sample was arguing vigorously with someone Clark did not know near the
Marina Vista Apartments. Clark continued
walking to the market, whereupon he heard multiple gunshots from the location
of the argument. Clark expressed fear of
making an identification, but ultimately selected a photograph of defendant as
the man he saw arguing with Sample.
After Clark made the identification he was released, and was not charged
with any criminal offense.

At trial,
however, Clark testified that he “heard” of Sample but did not know him. He did not know defendant; he did not recall
Sample “being killed” by anyone; he did not recall identifying a photograph of
defendant. He did not recall identifying
anyone for the police; he did not even recall speaking with the police about
the shooting. Clark also testified that
he did recall hearing shots and seeing “flashes” of light, but did not see a
gun. Clark asserted that he lied in his
statement to the police and his identification of defendant as the shooter to
obtain his release from jail, not because he feared retaliation from defendant.

Smith, Sample’s former girlfriend, testified that she attended the vigil for
the victim. She overheard a conversation
during which someone said a “guy named Harold” shot Sample after a disagreement
between them. Smith also heard that
“Reno tried to stop” the shooting. She
relayed to Detective Mustard the substance of the conversation she overheard.

Inocencio, a “Filipino rapper” also called by his “stage name” Reno, testified
that he lived at the Marina Vista Apartments with his girlfriend Lamkia Webster
in January of 2006. He was returning
from a nearby liquor store when the shooting occurred. He heard the gunshots as he entered the
apartment complex gate, “and ran” to his apartment. Reno denied that he was with defendant when
Sample was shot, or that he told anyone he tried to stop the shooting. Reno claimed that he had seen defendant
around the apartment complex, but was not friendly with him. An examination of cell phone records
disclosed that on the night of January 10, 2006, Reno called the cell phone
number that belonged to defendant four times just before the shooting
occurred. Reno testified that he did not
recall the conversation; he did not “remember a lot of this.” Reno asserted that he did not “want to be involved”
in the case, and feared that his life was “in jeopardy” due to his questioning
by the police and testimony at trial.

Reno’s interview with the police the day after the shooting he stated that he
heard an argument as he left the apartment complex for the store, and heard
gunshots when he returned. He denied
knowing anything about the murder, and expressed concern for his safety.

Jovan Simms
was yet another witness who provided information on the shooting in a statement
to the police when confronted with his own criminal charges, then essentially
recanted his statement at trial. He was
friends with both defendant and Sample.
Simms talked to the police after he “got arrested” for possession of a
“gun and drugs,” and thought he “might get a break” in his criminal case. Simms reported that defendant and Sample
“didn’t get along” for years, and had a conflict over a “drug-selling area” in
downtown Vallejo. Simms was aware that
defendant conspicuously carried a gun.
The day of the shooting, Simms encountered Sample, who complained that
he did not “get along” with defendant, and “got into it” with him that
day. Referring to defendant, Sample told
Simms “he was gonna whip his ass.”
Later, Simms observed defendant and Sample circle each other; defendant
warned Sample, “You gonna get yours.”
Simms feared that something bad was “about to happen,” and left. The next morning his father told him Sample
had been killed. Simms stated he “knew
it was” defendant who committed the shooting.
Defendant subsequently said Sample was shot because he “disrespected”
him, and bragged to Simms that “won’t nobody fuck with him now.”

At trial,
Simms testified that if he gave a statement to the police that defendant
admitted the shooting, “that was a lie.”
He denied giving any statements to the police that associated defendant
with the shooting of Sample. He never
talked about who killed Sample. He did
not even recall any interview with the police.
Simms denied that he was fearful of defendant, but expressed to police
detectives that he was “scared to testify,” and “scared of being a snitch.”

Evidence of
defendant’s interview with Detective Mustard was also presented. Defendant said he “never had any problems”
with Sample, and denied that he shot the victim.


complains of the admission as “prior inconsistent statements” made during the
interviews of the witnesses with the police that implicated him in the
shooting. He acknowledges that
established law generally authorizes “the introduction of this kind of hearsay
at trial” where the witnesses appear to testify and are subject to
cross-examination, but claims that in the present case the evidence lacked the
requisite “sufficient indicia of reliability.”
Defendant points out that the prior statements “consisted of multiple
layers of hearsay,” were given long after the shooting, and the witnesses were in many cases motivated by
their own arrests and incentive to provide the police with information to
secure “release on unrelated criminal charges.”
He also complains that at trial the witnesses for the most part
disavowed or did not recall the statements rather than admit “to perjury or
that they had lied to the police,” so “effective cross-examination was not
possible.” He argues that under >Crawford v. Washington (2004) 541 U.S.
36, 57 (Crawford), without any
“showing of indicia of reliability,” the statements of the witnesses,
particularly Sims, Clark, Brewer and Moore, were erroneously admitted in
violation of his right to confrontation.

In Crawford, the href="">United
States Supreme Court declared that the confrontation clause of the United
States Constitution bars admission of testimonial statements unless the declarant
appears at the trial or the declarant is legally unavailable and the defendant
had a prior opportunity for cross-examination.
(Crawford, supra, 541 U.S. 36,
53–54; see also People v. Johnson
(2010) 189 Cal.App.4th 1216, 1222.) The
court reiterated in Crawford,
however, that “when the declarant
appears for cross-examination at trial, the Confrontation Clause places no
constraints at all on the use of his prior testimonial
statements. . . . The
Clause does not bar admission of a statement so long as the declarant is
present at trial to defend or explain it.”
(Crawford, supra, at p. 59,
fn. 9, citation omitted; see also People
v. Clark
(2011) 52 Cal.4th 856, 927.)

To resolve defendant’s claim here,
we need do nothing more than refer to the decision of the California Supreme
Court in People v. Dement (2011) 53
Cal.4th 1, 21–24 (Dement), in which
the defendant complained of the admission of the prior inconsistent statements
of two witnesses, his fellow inmates Johnson and Martinez, to the police. As in the present case, the witnesses in >Dement implicated the defendant in the
charged murder in their pretrial statements, but at trial either did not recall
or denied having made those statements during their interviews. (Id.
at pp. 22–23.)href="#_ftn3" name="_ftnref3"

The court concluded in >Dement that defendant’s claim of
erroneous admission of the prior inconsistent statements lacked merit. (Dement,
, 53 Cal. 4th 1, 23.) The court
declared: “Both Johnson’s and Martinez’s prior statements were properly
admitted because both of these individuals . . .
testified. . . . When a
declarant ‘appears for cross-examination at trial, the Confrontation Clause
places no constraints at all on the use of his prior testimonial
statements. [Citation.] It is therefore irrelevant that the reliability
of some out-of-court statements “ ‘cannot be replicated
. . . .’ ”
[Citation.] The Clause does not
bar admission of a statement so long as the declarant is present at trial to
defend or explain it.’ (>Crawford v. Washington (2004) 541 U.S.
36, 60, fn. 9 [158 L.Ed.2d 177, 124 S.Ct. 1354] (Crawford); see California v.
(1970) 399 U.S. 149, 161 [26 L.Ed.2d 489, 90 S.Ct. 1930] [‘[N]one of
our decisions interpreting the Confrontation Clause requires excluding the
out-of-court statements of a witness who is available and testifying at
trial.’].) The testimony by Johnson and
Martinez at trial gave the jury the opportunity to assess their demeanor as
they denied making or asserted lack of recollection regarding their prior
statements. (People v. Martinez (2005) 125 Cal.App.4th 1035, 1050 [23
Cal.Rptr.3d 508]; see California v.
at p. 160.) Defendant
‘received what the confrontation clause requires: a full opportunity to
confront and cross-examine’ Johnson and Martinez. (People
v. Stevens
(2007) 41 Cal.4th 182, 199 [59 Cal.Rptr.3d 196, 158 P.3d 763] (>Stevens).)” (Id.
at pp. 23–24.)

As for the defendant’s contention in
Dement that because witnesses Johnson
and Martinez did not affirm their statements, they could not “ ‘defend or
explain’ them as that language is used in Crawford,”
the court concluded that “the phrase ‘defend or explain’ in footnote 9 of >Crawford does not mean that when a
witness denies making, or claims lack of recollection of, a particular
statement, admission of the statement violates a defendant’s right to
confrontation. (Crawford, supra, 541 U.S. at p. 60, fn. 9.) This is made clear by the first sentence of
the same paragraph of the footnote, which broadly states that when a declarant
‘appears for cross-examination at trial, the Confrontation Clause places no
constraints at all on the use of his prior testimonial statements.’ (Ibid.) Nothing in Crawford casts doubt on earlier cases holding that the
confrontation clause is not violated by the introduction of out-of-court
statements a witness denies or does not recall making. (Nelson
v. O’Neil
[(1971) 402 U.S. 622,] 629–630 [a defendant is ‘denied no rights
protected by the Sixth and Fourteenth Amendments’ when a ‘codefendant takes the
stand in his own defense, denies making an alleged out-of-court statement
implicating the defendant, and proceeds to testify favorably to the defendant
concerning the underlying facts’]; United
States v. Owens
(1988) 484 U.S. 554, 555–556, 559 [98 L.Ed.2d 951, 108
S.Ct. 838] [the confrontation clause does not bar ‘testimony concerning a
prior, out-of-court identification when the identifying witness is unable,
because of memory loss, to explain the basis for the identification’].)” (Dement,
supra, 53 Cal.4th 1, 24.) We do not
operate as an appellate court with an assumption the United States Supreme
Court overrules its precedent in such a muted fashion.

The prior inconsistent statements
admitted in the present case were as reliable as those admitted in >Dement.
Cross-examination of the witnesses by the defense not only occurred, but
was effective. The motives of the
witnesses for making the prior statements were subject to exploration, as were
the ostensible causes for their inability to recall the statements at trial,
and their reasons for reluctance to testify or the changes in their
testimony. The direct testimony and
extensive cross-examination of the witnesses at trial provided the jury with a
meaningful basis for evaluating the credibility of the witnesses. No more was constitutionally required. (People
v. Clark
(2011) 52 Cal.4th 856, 927.)

Defendant’s claim that his due
process rights were contravened by a conviction based on the “prior unsworn
statements” of witnesses, is contrary to existing established law. Unless and until the high court alters its
position, we apply the long-standing principle reiterated in >Crawford and find that the evidence was
properly admitted. (People v. Redd (2010) 48 Cal.4th 691, 730–731.) Counsel here would do well to acknowledge
such understanding of our appellate jurisprudence.

Accordingly, the judgment is






Acting P. J.




name="_ftn1" title="">[1] Defendant was tried twice on the murder charge. In the first trial, the murder charge case
was consolidated with a separate attempted murder charge. The jury found defendant guilty of attempted
murder, but was unable to reach a verdict on the murder charge. Following a second trial defendant was found
guilty of murder and the associated firearm use enhancement.


name="_ftn2" title="">[2] Our references to the testimony presented at trial is
to the second trial that resulted in the convictions under review in this


name="_ftn3" title="">[3] In Dement,
both of the witnesses, along with defendant and the victim, were confined
together in Fresno County jail. One of
the witnesses stated that he heard defendant say he “was going to take care of”
the victim, who “had just been put into his” cell. (Dement,
53 Cal.4th 1, 7.) Another
inmate told investigating officers during an interview that he heard “somebody
calling for help, screaming ‘Just leave me alone,’ and . . . what
sounded like a body being thrown against a wall and the toilet,” then later
heard the victim plead, “Somebody, please get me out of this cell,” and say,
“You might as well go ahead and kill me.”
(Id. at p. 9.) On direct examination, both witnesses
testified that they did not know defendant, denied or did not recall having
made several observations or hearing certain statements when the victim was
killed, and did not recall their prior interviews. (Id.
at p. 22.)

Defendant was convicted following a jury trial of first degree murder (Pen. Code, § 187) with personal use of a firearm in the commission of the murder (Pen. Code, § 12022.53).[1] He claims in this appeal that admission of prior inconsistent statements of witnesses without adequate indicia of reliability violated his right to confrontation. We conclude that the admission of the pretrial statements of witnesses who appeared and testified at trial was not error, and affirm the judgment.
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