P. v. Gibson

Filed 5/3/06 P. v. Gibson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. James M. Stuart, Judge.

John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant John Gibson appeals his convictions for first degree murder and attempted murder contending his convictions must be reversed because of prejudicial evidentiary and instructional errors, prosecutorial misconduct, and juror misconduct. We conclude any errors were not prejudicial and affirm the judgment.

STATEMENT OF THE CASE

On February 13, 2004, Gibson was charged with the December 1, 2003, willful, deliberate, and premeditated murder of Kay Horton and the attempted murder of Joe Rawls. Both counts included the allegation that Gibson personally used a dangerous weapon in the commission of the offense. It also was alleged as to the attempted murder count that Gibson inflicted great bodily injury.

On June 15, 2004, the jury returned verdicts of guilty on both counts and true findings as to all the allegations. Immediately thereafter, trial began on the issue of whether Gibson was not guilty by reason of insanity. On June 21, 2004, the jurors were excused after they deadlocked and were unable to reach a unanimous verdict on the issue of Gibson's sanity.

A new jury was impaneled on October 28, 2004, for the sanity phase retrial. On November 10, 2004, this jury returned its verdict finding Gibson was legally sane at the time he committed the crimes.

FACTUAL SUMMARY

Guilt phase

In November 2003, Rawls was homeless and staying at Horton's home. Gibson was living in a trailer on Horton's property and had been for approximately two years. Rawls had been staying in Horton's home for two days before Horton was killed.

During the week preceding Horton's death, Rhonda Copeland also was staying at Horton's home. In the days before Horton's death, Copeland heard Gibson frequently yelling at Horton. Gibson appeared to be angry with Horton and accused her of entering the trailer and taking items belonging to him.

Lloyd Wise and John Davis were friends of Gibson and Horton. Shortly before Thanksgiving, Gibson told Wise he was going to kill Horton if she didn't stop stealing from him. On Thanksgiving Day, Wise observed a heated argument between Gibson and Horton. Davis overheard Gibson say of Horton he was â€