P. v. Pippin
Filed
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
THIRD APPELLATE DISTRICT
(Siskiyou)
----
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL JOHN PIPPIN, Defendant and Appellant. | C051327 (Super. Ct. No. |
Defendant Gabriel John Pippin admitted shooting his former girlfriend and her new boyfriend as they stood on the porch of her grandparents' house. Rejecting his defense that the killing was manslaughter, not murder, the jury convicted him of first degree murder. On appeal, defendant contends: 1) the trial court abused its discretion by failing to excuse a juror who, during closing argument, expressed his confusion about the law in a letter to the court; 2) the prosecutor committed prejudicial misconduct by misstating the law during closing argument; 3) the court committed reversible error by failing to instruct the jury sua sponte that to find defendant guilty of shooting at an occupied building (Pen. Code, § 246), he must have fired in the direction of an inhabited dwelling house with knowledge that his act would probably result in harm to each of the named victims; and 4) there is insufficient evidence to support the special circumstance that defendant was lying in wait. We agree with defendant's last contention. The special circumstance finding is reversed, the parole revocation fine is stricken, and in all other respects, the judgment is affirmed.
FACTS
The facts leading up to the shooting revolve around a small town gym, baseball, betrayal, anger, rage, and a brother who decided he was not his brother's keeper. The trial focused on whether defendant committed murder or manslaughter, and for that reason, the lead-up to the shooting was of paramount importance. However, the many details surrounding the escalation of defendant's mental and emotional state, while interesting, are not germane to the issues on appeal since he does not challenge the sufficiency of the evidence that he murdered the mother of his five-month-old son and her new boyfriend, defendant's friend from Mt. Shasta's Rockhouse Gym.
The prosecution presented a sordid portrait of defendant's character, peppered with a history of violence, substance abuse, and depression. He fathered at least three children with three different women by the time he was 26 years old. His three-year relationship with Sacha Marino ended in January 2002 at about the time their son Caleb was born. Sacha and Caleb moved in with Sacha's grandparents.
There was conflicting evidence about the nature of defendant's relationship with Sacha between January and June of 2002. Whatever the ups and downs of the relationship during this time period, by mid-June Sacha had secured a restraining order against defendant preventing him from seeing Caleb.
Defendant lifted weights regularly at the Rockhouse Gym. Other regulars included the victim, Jimmy Jackson; Jackson's brother-in-law; and defendant's brother-in-law. Some, if not many, of the regulars at the Rockhouse also played in a baseball league. Witnesses testified that in the days before June 18 defendant seemed very down, he complained about the break-up and the restraining order, and he threatened both homicide and suicide.
A series of unfortunate events occurred on Tuesday, June 18. According to one of his coworkers, defendant saw Sacha at a Burger King where he was doing some construction work. The coworker reported that the encounter troubled defendant and he left the job. Nevertheless, he was able to play in an afternoon baseball game and, accompanied by his eight-year-old son, stayed to keep score for a later game.
Meanwhile, Sacha, her sister, and Caleb arrived at the baseball field to watch Jackson play in the later game and were startled to see defendant. Defendant was unaware that Sacha had started dating Jackson. Jackson flirted with Sacha between innings and played with Caleb. Defendant left the game sad and shocked.
Defendant appeared upset and depressed when he arrived home. His grandmother ordered his brother, Joshua, to accompany him when he left the house. Joshua testified defendant bought a bottle of alcohol; visited the Rockhouse Gym, where he expressed his disappointment and anger that his friend had betrayed him; and then drove to a mobile home park. Defendant told Joshua he wanted to hurt Sacha and Jackson. Joshua remained in the car while defendant visited his acquaintances at the mobile home park.
One resident testified defendant threatened to kill Sacha and Jackson. Defendant asked to borrow a gun or a knife. The resident gave him neither but drank from a bottle of tequila with him to raise his spirits. A second resident gave him a rifle because defendant told him he had hit a deer and wanted to put it out of its misery. Defendant got back in the car with Joshua and put the gun in the backseat.
When they stopped at a Methodist church, Joshua remained in the car, afraid that defendant was going to commit suicide. From the church, they drove to a dirt road where defendant stopped and jumped out of the car. Joshua heard a shot fired and thought that defendant had killed himself. But defendant reappeared and they drove on. Defendant stopped the car and Joshua jumped out, told his brother not to kill himself, and ran all the way back to his grandmother's house.
What happened next is unclear. Apparently Sacha and Jackson were saying good night on her grandparents' porch. Although initially Sacha was holding Caleb, she went inside and handed the baby to her sister. She returned to the porch and, the prosecutor argued, was embracing Jackson when defendant fired at them.
Defendant shot Jackson eight times, in the head, stomach, foot, and buttock. The forensic pathologist opined it was likely Jackson was already lying face down when he received the two wounds to the back of the head. Defendant shot Sacha five times, in the jaw, head, chest, back, and chin. The pathologist believed the wounds to Sacha's chin were likely inflicted last, after Sacha had fallen down and was lying on her back.
The defense portrayed defendant as despondent over learning Sacha was dating someone else. A parade of family members confessed he had been abused as a child and continued to suffer from depression. A forensic psychologist opined that defendant experienced post-traumatic stress disorder and had suffered a â€
