v. Lipscomb
Filed 6/29/12 P.
v. Lipscomb CA1/2
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and
Respondent,
v.
KEVIN LIPSCOMB,
Defendant and
Appellant.
A128549
(San Francisco City &
County
Super. Ct. No. 204082)
Defendant Kevin Lipscomb drove down Townsend Street
in San
Francisco and, without any provocation, shot and seriously injured a
stranger who was standing on the sidewalk.
He fled the scene in his car but was soon spotted by a number of San Francisco
police officers, who began a pursuit.
Defendant led them on a high-speed chase through the city streets,
eventually abandoning his car to flee on foot when he became stuck in
traffic. He was apprehended in an
abandoned building and arrested.
Following a jury trial in which defendant was convicted of multiple
charges, the trial court sentenced him to 67 years to life.
Defendant now challenges his conviction on the ground that the
victim’s identification of him as the shooter was obtained in what he claims
was an unduly suggestive manner. He
contends that his trial counsel’s failure to move to strike the identification
constituted ineffective assistance, and that admission of the evidence violated
his federal and state rights to due process. He also contends that a $27,800 restitution
fine imposed by the trial court must be reduced to $10,000, the maximum fine
permitted by Penal Code section 1202.4, subdivision (b).
As the People concede, defendant’s argument concerning the restitution
fine is well taken, and we order the abstract of judgment amended
accordingly. His ineffective assistance
of counsel and due process claims, however, lack merit. We thus affirm the judgment, subject to the
aforementioned amendment.
FACTUAL
BACKGROUND
On June
4, 2007, at approximately 11:55 a.m., Kenneth Lee parked his car on Townsend Street
in San Francisco, got out, and walked to a nearby crosswalk where he waited for the
pedestrian crossing light to turn green.
As he stood there, a silver Dodge Charger driven by defendant pulled up
into the crosswalk. Defendant made eye
contact with Mr. Lee and kept looking over at him. Because Mr. Lee thought perhaps he knew the
driver or that he was lost and wanted directions, he bent down to peer in
through the open passenger side window and asked, “Can I help you?†Defendant, whom Mr. Lee did not recognize,
looked at him with a smirk on his face and reached out as if he were going to
hand him something. Instead, defendant
shot him two to three times. Mr. Lee,
who suffered gunshot wounds to his left forearm and both groins, collapsed onto
the sidewalk. Defendant drove away.
San Francisco
police officer Richard Lee
name="_ftnref2" title="">[2]
was in a nearby store on Townsend
Street when he heard two
gunshots. He immediately ran outside and
saw Mr. Lee on the ground. As he
ran towards him, Officer Lee saw some bystanders pointing down Third Street. He looked in the direction they were pointing
and saw the back of a silver car that looked like a Dodge Charger. As he was running, he radioed to police
dispatch that there had been a shooting and that the suspect was in a silver
car that was heading down Townsend
Street past Third
Street. He then turned his attention to
Mr. Lee. Over the radio, he heard other
officers reporting that they had the silver car in their view.
Officer Anthony Holder and recruit Officer Christine Hayes had just
initiated a traffic stop on New
Montgomery Street near Mission Street
when they heard a radio broadcast of shots fired near Third and Townsend
Streets, with the suspect in a gray or silver car heading towards the
freeway. Anticipating that the driver
might attempt to get on the Bay Bridge, they got in their patrol car and drove to the area of Bryant and
Second Streets. As they were stopped at
a red light, Officer Holder spotted a gray Dodge Charger being driven by
defendant heading towards them. The
officer made a U-turn and pulled up behind the car. When he did so, defendant suddenly
accelerated and sped off. Officers
Holder and Hayes took off in pursuit and were soon joined by San Francisco
Police Officer Gary Peachey and others.
After leading the police on a high-speed chase through the city
streets—reaching speeds of 80 miles per hour at one point, as well as hitting a
car that was stopped in traffic—defendant eventually became unable to maneuver
through traffic, so abandoned his car at Mission Street and New Montgomery and
fled on foot. Officers Holder and Hayes
followed him, with Officer Peachey right behind. They chased him into an alley before briefly
losing sight of him. Officer Peachey
noticed a construction worker pointing to the door of an abandoned building, so
he went inside. Searching the building,
he found defendant in a bathroom, breathing hard and with his shirt stripped
off. Defendant was taken into custody
without further incident.
Meanwhile, other officers who had been involved in the pursuit had
secured defendant’s abandoned car, which bore the license plate “5RLG375.†Inside, they found a .40-caliber,
semi-automatic handgun lying on the front passenger seat. The hammer of the gun was cocked, which
typically indicates that the gun has recently been fired. They also found three bullet casings, an
unfired .40-caliber bullet, and a wallet containing defendant’s driver’s
license. Defendant’s fingerprint was
found on the gun, as well as on other objects in the car, and the driver’s side
headliner and a glove in the car tested positive for gunshot residue. A bullet jacket found at the scene of the
shooting had been fired from the gun found in defendant’s car.
There were numerous witnesses to the incident. Lindell Wilson was walking down Townsend
Street when he heard a “pop.†He looked
up in the direction of the noise, heard another “pop,†and then saw Mr. Lee
drop to the ground about 125 yards away.
A silver car—the only car that Mr. Wilson remembered seeing in the
vicinity—then drove past him down Townsend.
Mr. Wilson was on the driver’s side of the car, and through the open
driver’s side window, saw defendant behind the wheel. The car stopped at the next intersection
because the light was red, which gave Mr. Wilson enough time to note the
license plate number—5RLG375—and write it down.
He then gave the number to the police who responded to the scene.
Kerry Atkinson was also walking on Townsend Street, getting ready to
have lunch with his wife and a coworker.
As he was standing on the street corner, a silver car stopped in the
crosswalk across the street from him.
The windows were down on both sides of the car, and through the open
window he could see the silhouette of a stocky, black man in the driver’s
seat. He saw Mr. Lee bend down to
the car window and have an exchange with the driver. He heard two shots come from the car and saw
Mr. Lee fall to the ground. The car then drove off down Townsend Street. Mr. Atkinson ran over to help Mr. Lee, and
when Officer Lee arrived, he provided a description of the car and the direction
in which it was heading. Mr. Atkinson
was later taken to New Montgomery and Mission Streets and shown defendant’s
car, which he identified as the car he saw leave the scene of the
shooting. He was unable to positively
identify defendant as the driver, but he said that defendant was “very similarâ€
to the shooter.
William Sherman was at an automobile window repair shop on Townsend
Street. He had just walked out of the
shop and headed left onto Townsend towards Third Street when he heard two
gunshots. Looking across the street from
where the sound had come, he saw a grey or silver car stopped in or near a
crosswalk and Mr. Lee lying on the street.
The car then pulled away slowly, stopped at a red light at Third and
Townsend, and turned toward Second Street.
Because he suspected that the car had been involved in some kind of
incident, Mr. Sherman tried to note the license plate but was only able to
get the numbers and not the letters. He
gave the partial plate—5_ _ _375—to Officer Lee. He was later taken to another location, where
he identified defendant’s car as the car he saw on Townsend Street.
A nearby security camera captured an image of a car resembling
defendant’s on Townsend Street at the time of the shooting.
of Defendant
Mr. Lee suffered serious injuries and was taken to San Francisco
General Hospital, where he would undergo surgery. Before he was taken into surgery, however,
the police brought defendant to the hospital for possible identification. Mr. Lee, who had been given “a lot†of pain
medication, could not say “100 percent†that defendant was the assailant,
although he noted that they shared some similarities, such as the roundness of
the face, build, age, and mustache.
At a preliminary hearing in 2008, however, Mr. Lee positively
identified defendant as the shooter. And
he reiterated his positive identification at trial, explaining he had no doubts
because “I’ll never forget those eyes.â€
At trial, Mr. Lee explained why he had been unable to make a positive
identification in the hospital but could do so at the preliminary hearing: “Well, I was of clear mind. And the circumstances which I—at the
hospital, I couldn’t in my heart, because I really wasn’t 100 percent coherent,
having just been shot, pumped full of medication, being pressured to go into
surgery and having all the inspectors trying to get a statement from me and
make an identification, I just didn’t think it was fair to—I couldn’t do it.â€
On cross-examination, Mr. Lee acknowledged that on the day
of the preliminary hearing, while he was waiting outside the courtroom, one of
the officers involved in the case put a file down on the bench next to him, and
he saw defendant’s picture on the file.
Mr. Lee told the officer, “That’s the guy who shot me.†The officer responded, “You didn’t see
this.â€
Defendant’s Confession
San
Francisco police inspectors Mike Morley and Rich Danielly interviewed defendant
shortly after his arrest. When asked if
he would like to talk about what happened that day, defendant responded that he
was “just tripping,†that he “[j]ust was upset,†“frustrated,†and depressed
because he was broke and could not get a better job. He then explained that he drove his wife’s
car from Vallejo, and as he was driving down a street in San Francisco, he saw
an Asian man walking. He stopped his car
and said, “Excuse me.†When the man
looked over, he fired two to three times through the open passenger window with
a .40-caliber gun that he had bought off the street. This was, according to defendant, the first
time he had ever shot someone randomly.
He claimed he was not trying to hurt anybody and that he felt bad
afterwards. He also claimed that he did
not realize that he shot the man. He had
seen Mr. Lee at the hospital, and denied that he was the man at whom he had
fired his gun. When asked what happened
after he fired the gun, defendant admitted leading the police on a high-speed
chase.
PROCEDURAL
BACKGROUND
Defendant was charged in a five-count, amended information as
follows: (1)
(a)); (2) evading a police officer with willful and wanton disregard for the
safety of persons and property (Veh. Code, § 2800.2); (3) possession of a
firearm by a felon (§ 12021, subd. (a)(1)); (4) discharging a firearm from a
motor vehicle (§ 12034, subd. (c)); and (5) assault with a semiautomatic
firearm (§ 245, subd. (b)). Counts 1 and
4 alleged that defendant personally and intentionally discharged a firearm
which caused great bodily injury. Count
5 alleged that defendant used a firearm within the meaning of section 12022.5,
subdivision (d). It was further alleged
that defendant was ineligible for probation due to his prior felony convictions
and that he had three prior serious felony convictions with
A jury trial commenced on December 9, 2008, and the presentation of
evidence concluded on January 8, 2009.
As noted above, during trial, Mr. Lee testified that just prior to his
preliminary hearing testimony in which he identified defendant as the man who
shot him, he saw a police file containing defendant’s mug shot and commented to
a police officer, “That’s the guy that shot me.†The officer responded, “You didn’t see
this.†In light of this testimony,
counsel for defendant requested a special jury instruction on the suppression
of evidence, as follows: “If a police
officer or a member of the police department tried to hide evidence or
discourage someone from testifying as to a point, that conduct may show that he
or she was aware of how what actually occurred might affect the burden of proof
and the presumption of innocense. [
If you conclude that such an attempt was made, it is up to you to decide
its meaning and importance.†The court
declined to give this proposed instruction.
After one day of deliberations, the jury convicted defendant of
counts 2 through 5, and found true that he personally and intentionally
discharged a firearm. It deadlocked on
the attempted murder charge. Defendant
later stipulated to the factual basis for two of the prior felony convictions,
and the court found the allegations of the prior convictions to be true.
On September 15, 2009, defendant moved for new trial, citing the
trial court’s denial of his request for a special instruction regarding the
“destruction of exculpatory evidence, to wit, Kenneth Lee’s inability to
identify the defendant.†The trial court
denied the motion.
On February 19, 2010, the court sentenced defendant to 67 years to
life in state prison. It also imposed a
restitution fine of $27,800, as well as victim restitution to Mr. Lee.
This timely appeal
followed.
A. Defendant’s
Claims of Ineffective Assistance of Counsel and Violation of His Right to Due
Process Lack Merit
Defendant
challenges the validity of his conviction on that ground that Mr. Lee’s
identification of him as the shooter was procured in an unduly suggestive
manner, specifically, that it was improperly influenced by the police officer
who let him see—unintentionally or otherwise—defendant’s mugshot while he was
waiting to testify at defendant’s preliminary hearing. Defendant contends that his counsel should
have moved to strike Mr. Lee’s identification of him, and that the failure to
do so amounted to ineffective assistance of counsel. Further, he claims that admission of Mr.
Lee’s testimony at trial violated his right to due process. We need not decide whether Mr. Lee’s
identification was improperly influenced, however, because in order to prevail
on his claims, defendant must also demonstrate that he was prejudiced by the
alleged error. This, he cannot do.
In
our Supreme Court explained the showing necessary to obtain a reversal of a
conviction on ineffective assistance of counsel grounds: “ ‘A convicted defendant’s claim that
counsel’s assistance was so defective as to require reversal of a
conviction . . . has two components.’ [Citations.]
‘First, the defendant must show that counsel’s performance was
deficient.’ [Citations.] Specifically, he must establish that
‘counsel’s representation fell below an objective standard of reasonableness . . .
under prevailing professional norms.’
[Citations.] [¶] In determining
whether counsel’s performance was deficient, a court must in general exercise
deferential scrutiny.†(
component: “[A] criminal defendant must
also establish prejudice before he can obtain relief on an
ineffective-assistance claim.†(
a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ [Citations.]â€
(Id. at pp. 217-218; see
also Strickland v. Washington (1984) 466 U.S.
668, 687-696; People v. Babbitt
(1988) 45 Cal.3d 660, 707; People v.
Fosselman (1983) 33 Cal.3d 572, 584.)
It is well
established that “[a] court need not determine whether counsel’s performance
was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies. . . . If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.†(Strickland v.
Washington, supra, 466 U.S. at p. 697.) Here, the evidence of defendant’s guilt was
so overwhelming that even without Mr. Lee’s identification, there was no
reasonable probability that defendant would have been acquitted.
Multiple
eyewitnesses identified defendant’s car as the car involved in the
shooting. Lindell Wilson saw a silver
car driving away from the scene of the shooting. He wrote down the license plate number, which
matched that of the car defendant was driving during the police chase. Mr. Wilson also identified defendant as the
driver of the car. Kerry Atkinson saw a
silver car leaving the scene, and when later shown defendant’s car, identified
it as the car he saw leaving the shooting.
William Sherman saw a silver or gray car leaving the scene and noted the
numbers of the license plate, numbers that matched those on defendant’s
plate. He later identified defendant’s
abandoned car as the car he saw leaving the shooting. Officer Lee, who was in a nearby store when
the shooting occurred, saw witnesses pointing to a car that was leaving the
scene, a car he identified as a Dodge Charger, which was the make and model of
defendant’s car. Finally, a
closed-circuit television in the vicinity of the shooting recorded a Dodge
Charger at the scene at the time of the shooting.
A car matching
the description of that involved in the shooting was spotted by numerous San Francisco
police officers within moments of the shooting, and defendant was driving that
car. Officers Holder and Hayes, who led
the pursuit, saw defendant exit the Dodge Charger and continue running on foot. Officer Peachey chased defendant from the car
to the abandoned building where he was ultimately arrested.
Further, the
forensic evidence tied defendant to the shooting. A gun bearing defendant’s fingerprint was
found in his car, and gunshot residue was detected on the car’s headliner and a
glove found in the car. A bullet casing
retrieved from the scene of the shooting had been fired from the gun in
defendant’s car.
Finally,
defendant admitted to Inspectors Morley and Danielly that he fired his gun at
an Asian man walking down the street in San Francisco.
In light of this
evidence, there can be no question but that the outcome of the trial would have
been the same even without Mr. Lee’s identification. As defendant cannot establish that but for
his counsel’s failure to move to strike Mr. Lee’s identification, there was a
reasonable probability that the outcome would have been different, his
ineffective assistance of counsel claim fails.
The absence of
prejudice similarly defeats defendant’s claim that he was deprived of due
process. (See Chapman v. California (1967) 386 U.S. 18, 24 [where defendant was
deprived of a federal constitutional right, no reversal where error was
harmless beyond a reasonable doubt].) In
light of the overwhelming evidence of defendant’s guilt, as detailed above,
there can be no doubt that any claimed error in the admission of Mr. Lee’s
identification was harmless.
Defendant
impliedly concedes the correctness of this conclusion. In his opening brief, he argues that Mr.
Lee’s identification of defendant was the result of an unduly suggestive
identification process, and that without it, the prosecution would have had “a
difficult time establishing beyond a reasonable doubt that [defendant] was the
man who shot Lee.†In response, the
People detail the extensive evidence, aside from Mr. Lee’s identification,
establishing that defendant was the shooter, and argue that in light of the
evidence, defendant cannot show prejudice.
In reply, defendant completely
fails to acknowledge this argument.
Rather, he merely reargues his position that Mr. Lee’s identification
was unduly influenced and therefore unreliable.
He ignores the eyewitness testimony and forensic evidence tying him to
the crime, baldly concluding that “Lee’s identification of [defendant] at trial
was necessarily prejudicial to appellant.â€
By failing to respond to the People’s argument that he was not
prejudiced by the admission of Mr. Lee’s identification because of the
other evidence identifying him as the shooter, defendant has as much as
conceded the validity of the argument.
Restitution Fine Must Be Reduced to $10,000
Defendant’s
second argument is that the court erred when it ordered him to pay a $27,800
restitution fine, contending that the maximum allowable fine is $10,000. As the People concede, defendant is correct.
Under the version
of section 1202.4 in effect at the time plaintiff was sentenced, absent
“compelling and extraordinary reasons,†the trial court was required to impose
a restitution fine, which fine “shall not be less than two hundred dollars
($200), and not more than ten thousand dollars ($10,000), if the person is
convicted of a felony.†(§ 1202.4,
subd. (b)(1).) Here, trial court
calculated the fine as follows: $5,000
for count 2; $5,000 for count 3; $10,000 for count 4; and $7,800 for count 5,
for an aggregate fine of $27,800. We are unaware,
however, of any authority suggesting that the $10,000 maximum fine established
by section 1202.4, subdivision (b)(1) is per count, rather than in the aggregate. We therefore order the abstract of judgment
amended to reflect an aggregate restitution fine of $10,000.
The abstract of judgment shall be amended to reflect a restitution
fine of $10,000. In all other regards,
the judgment is affirmed.
_________________________
Richman,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Haerle, J.
name="_ftn1" title="">[1] All statutory references are to the Penal Code, except where
otherwise noted.
name="_ftn2" title="">[2] Presumably no relation to the victim.
