Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C155497
Haerle, J.
I. INTRODUCTION
Defendant and appellant, Gerald Gibson, was convicted of first degree murder (Pen. Code, § 187), and possession of a firearm by a felon (§ 12021, subd. (a)(1)). The jury also found true a number of firearm enhancements. (§§ 12022.7, (subd. (a)), 12022.53, subds. (b), (c), and (d).) The court found true that Gibson had suffered two prior serious or violent felony convictions within the meaning of the Three Strikes law (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)), one prior serious felony conviction pursuant to section 667, subdivision (a), and had served five prior prison terms (§ 667.5, subd. (b)).
All further citations are to the Penal Code, unless otherwise noted.
Gibson was sentenced to a term of 110 years to life. In this appeal, he contends that his counsel was ineffective because he did not object to the admission of portions of a tape-recorded interview in which a witness discussed possible earlier interactions between Gibson and the victim, including the possibility that there was “bad blood” between the two men.
We disagree and affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Murder and Pretrial Investigation and Interviews
1. Bohannon’s Murder
The victim, Rodney Bohannon, was shot on April 13, 2006, when he was standing on the corner of Apgar and Market, in Oakland, California. Bohannon was pronounced dead shortly after he arrived at Highland Hospital in a car driven by two men, later identified as Josh Morris and Leonardo “Lepay” Henderson. An autopsy revealed that Bohannon had received three gunshot wounds. One was to the back of his head, another to the right side of his chest and a third was to his upper right arm. The bullet from the head wound perforated the inside of his skull and brain. The cause of death was these multiple gunshot wounds. The two men who took Bohannon to the hospital, Josh Morris and Leonardo Henderson, were detained and transported to the Oakland Police Department. Neither would speak to the police at that time.
2. Search of Gibson’s Apartment
In the days following the murder, “information started to come in” to the police about the shooter, who was initially identified as G-40, a “moniker, ” that is, a street name, of defendant Gibson.
Six days after the shooting, on April 19, 2006, Oakland Police Officer Mayer and his partner searched Gibson’s apartment. When Gibson opened the door for the officers, he was detained downstairs. Mayer went upstairs, where there was a bathroom and a bedroom. Mayer found a man’s clothing and shoes in the closet in sizes that would fit defendant. In the toe of a tennis shoe, he found a.38 caliber cartridge wrapped in tissue.
3. Josh Morris’s May 26, 2006 Interview
On May 26, 2006, Officer Jones of the Oakland police, spoke again with Josh Morris, the man who had driven Bohannon to Highland Hospital. Bohannon’s mother had recently reported to Jones that Morris had been shot. At trial, Morris testified that he believed he was shot because he was an important witness against Gibson and therefore a “liability.” According to Officer Jones, “I figured that this will be an opportunity for him [Morris] to talk to me and open up. Maybe getting shot may make him look at his life or life in general a lot differently and want to talk to us about his friend.”
In this interview, Morris told Jones that he saw Gibson shoot Bohannon. Morris did so because what Jones had said to him “hit home, ” and “kind of touched my heart.” Jones showed Morris a photo lineup at the conclusion of the interview. Morris identified the defendant as the person who shot Bohannon. Morris also identified Donel Poston as another person who was at the scene.
4. Poston’s August 8, 2006 Interview
Poston was in custody at the time of Morris’s interview, and on August 8, 2006, he was transported from Santa Rita jail to the Homicide Division of the Oakland police.
Poston made a statement to the police on August 8, 2006, a portion of which was taped. In the untaped portion of the interview, Poston told the officer with whom he spoke that “the whole reason he was talking to us is because he felt bad what happened to his friend. He was crying when we talked to him.” Poston stated that he did not know “G-40” but he had heard his name before. However, he had never seen him and didn’t know him.
The recorded portion of Poston’s interview was played to the jury after the court found that Poston was being untruthful when he testified at trial that he did not recall the events of the shooting.
In the recorded portion of the interview, Poston told the police that he met Bohannon in 2003, after he (Poston) had gotten out of jail. Earlier in the morning on the day Bohannon was killed, Poston spoke to Bohannon, who was going to come by the camper he and Bohannon owned together and in which Poston was living. When Bohannon didn’t come by, Poston walked to Apgar and Market. When he got there, Bohannon was just pulling up in a white Buick.
Bohannon told Poston that he had $2,200 in his pocket and was waiting to buy some marijuana. The two of them walked to the nail shop and liquor store on Market Street, where Poston had been hanging out for a couple of months. On the way there they smoked a “blunt” and finished off a bottle of liquor. Standing in front of the liquor store with Bohannon, Poston also split an ecstasy pill with Josh Morris.
Poston got into an argument with Bohannon, and walked toward the 88 bus stop. When he got there, he had “second thoughts, ” and turned around. He saw a man wearing blue jeans and a long-sleeved black or brown shirt. The man was trying to pull a weapon from the front of his pants. Poston could not see his face from where he was standing. Poston was 10 feet from Bohannon when he heard some shots. He saw the man’s hand come down and he saw Bohannon fall. He ran towards Bohannon. The shooter put a gun in his back pocket and turned toward Poston, looking at him for about five seconds before walking casually in the direction of Apgar. Poston did not recognize the man. He’d never seen him before.
Bohannon was lying on the ground. He had a bullet hole in the center of his head, blood on the bottom of his pants and was gagging and spitting up blood. Poston and another man, “L.A., ” put Bohannon in Josh Morris’s car. Poston asked Morris, “Who the fuck is that? Who the fuck is that? Who the fuck was that right there?” Morris told him, “That’s G-40! That was G-40!” Poston asked Morris if he was sure and Morris said, “That was G-40. I know him! I know who it is! I know who it is!”
Poston shut the door to Morris’s car and ran across the street. He saw the man Morris had identified as G-40 get into a 1992 dark gray Nissan Sentra. The man made a left on Market Street. Poston did not wait at the crime scene for the police to arrive because he was on parole and probation.
When Poston heard the name “G-40” he thought of something Bohannon had told him three weeks earlier after Poston asked Bohannon how his cousin, E., had become crippled. Poston had known E. in jail and he had not been crippled then. Bohannon said that in 2002, G-40 shot his cousin, E. Bohannon retaliated by shooting G-40.
At the end of the interview, Poston was shown a photographic lineup and asked to pick out the photograph of the person who shot Bohannon. Poston pointed to the photograph of Gibson. He told the officer that, “that’s the guy.”
5. Forensic Evidence
The day after Poston’s interview, the homicide department learned that the bullets that killed Bohannon were.38 caliber. An arrest warrant for Gibson was issued and on August 16, 2006, Gibson was arrested.
B. Poston’s Preliminary Hearing Testimony
Poston testified at the preliminary hearing that he had known Bohannon for two or three years. He was with Bohannon on April 13, 2006. They were hanging out on the corner of Market Street and Apgar. Poston had been there since about 10:00 that morning; Bohannon arrived an hour or so later.
Around 3:00 p.m., Poston had a “couple lines of cocaine, ” half an Ecstasy pill, some sips of alcohol and one hit of marijuana, that was “casually passed around.” At that point, he was “okay.” He had no problem seeing what happened next.
At about 3:30 p.m., Bohannon was shot while he was in front of a small shop. Poston was 10 feet away when it happened. Before the shooting, he and Bohannon had had “an argument between two friends” about whether Bohannon should carry a gun for his own protection. As Poston walked away from his friend, he heard gunshots. Before he heard the gunshots he saw a man he didn’t recognize “fumbling for a weapon” “beneath his shirt....” After the shooting, the shooter “saunter[ed]” away, from Bohannon and Poston, his hands in his pocket or under his coat.
At this point in the preliminary hearing, Poston identified Gibson as the shooter.
Bohannon fell to the ground. Poston ran toward him and “tried to resuscitate him, tried to bring him back.” Bohannon had been shot in the “lower part of his body” and “in the center of his forehead.” Poston picked him up and put him in Josh Morris’s car with the help of “L.A.” He asked Morris who “it was.” Poston neither recognized nor knew G-40.
The shooter got into a small, gray compact car that might have been either a “Century” or a Nissan. He made a three-point turn and drove away. Poston saw the shooter through the windshield and testified that he was alone.
After lifting Bohannon into the car, Poston ran away. A man named Lepay was in the car’s passenger’s seat and Josh Morris was in the driver’s seat. Poston ran away because he was scared.
Poston admitted that he gave Sergeant Jones a statement about the incident and stated that he had been truthful in that statement.
Poston also stated that he had identified Gibson at a photo lineup and had no doubt that Gibson was the person he saw shoot Bohannon.
Two weeks before he testified at the preliminary hearing, Poston saw defendant when they were both in custody. At that time, they had a conversation in which the defendant told Poston “to have convenient amnesia” because he (Poston) didn’t “want to end up like Josh Morris.” Defendant told Poston “all I need you to do is to go in there and say nothing like Josh did.” Poston felt threatened by this.
C. Trial
1. Poston’s Testimony
At trial, Poston attempted to undermine the statements he had made in his August 8, 2006, interview. When asked what he had seen the day Bohannon was killed, he responded, “I was high, sir, so, I mean, things – I mean, you know, I was delusional, I was high, I was loosy. You know what I mean? So what I seen, you know what I mean, ain’t what I seen, you know what I mean? I was high, you know what I mean? I was off a lot of drugs. I couldn’t possibly be telling you what I seen was what I seen because of the drugs that I was off of. I mean, honestly, I’d be lying to the Court if I told you, and I’d be lying to everybody else. [¶] But what alerted me was the pop sounds, and from that point on, I rushed to my friend, and it wasn’t nothing else more important at that time but my friend....”
Poston claimed that the statements he made in his August interview with Jones were “kind of coerced.... Pushed on, egged on, coerced.” In addition, Poston asserted that Jones made promises before the taping began in order to induce him to make his statement. The promises consisted of giving Poston a “break of some sort” and food as well as a promise to get Poston out of jail for his daughter’s second birthday.
When asked about the statements he made to Jones regarding the murder, including his identification of defendant, Poston claimed that he only saw the shooter from the back. When asked if he did not ever see the person who shot Bohannon, he stated, “Sir, I was high. I may have been hallucinating, delusional. Anything could have occurred at that time. I wasn’t – I wasn’t on my best at that time. Not that I am now, not like I am now, I should say.”
Poston also claimed that he chose Gibson’s photograph in the lineup he was shown by Jones because Jones told him to choose that photograph. He also repeatedly claimed not to recall making various statements to Jones identifying Gibson as the shooter and not to remember his testimony at the preliminary hearing regarding the identity of the shooter. When asked why he could not remember these statements, he stated, “I’m telling you that I don’t recall that were asked to me then. I don’t recall the answer that I gave then. I don’t recall what was going on then to tell you about now, and right now, I don’t remember, sir.”
Poston also claimed that he had bad eyes and hadn’t had them checked in a long time. He might have said he was “a little bit closer” to Bohannon than he really was.
Poston also testified that a week or so after Bohannon’s murder he learned that there was some question of where the $2,200 Bohannon had in his pocket had gone.
Following Poston’s testimony, the People requested the court admit Poston’s August 8, 2006, taped statement as well as his preliminary hearing testimony as prior inconsistent statements in light of Poston’s claim that he did not remember anything having to do with the identity of the shooter or the events, and that his statement had been coerced. Counsel objected on the ground that parts of the taped statement were objectionable. When the court suggested that the tape be played and stopped at points counsel wished to object, counsel, “tactically [chose] not to be put in the position of trying to edit the District Attorney’s cross-examination right in front of a jury.” Counsel then “object[ed] to it all.” The court stated that it would require the defense to “object to the particular portions; otherwise I’m going to view it as nonobjectionable or view it as not being objected to.” Counsel restated that he was “objecting to all of it and asking that we proceed by the usual question-and-answer impeachment for the record.”
The jury then heard the tape of the August 8, 2006, interview.
2. Josh Morris’s Testimony
Josh Morris also testified at trial. Morris was in custody on a pending case for assault with a firearm. Morris had been convicted of possession of marijuana in 2004, assault with a deadly weapon in 2005, and misdemeanor driving a stolen vehicle in 2004. No promises had been made to him in exchange for his testimony at trial.
Morris testified that, on April 13, 2006, he observed Gibson “shooting Rodney [Bohannon].” He identified Bohannon’s photograph. Morris had known Bohannon since they were kids and they had grown up together since childhood. Morris was hanging out with “Don Dada, Leonardo, Billy Ashley.” He didn’t know Don Dada’s full name. Morris drove up, got out, greeted and talked with Bohannon. Morris crossed the street to his car, an ’89 red or burgundy Dodge, and sat in it. He saw defendant coming toward Bohannon and thought to himself, “I know this ain’t G-40.” Gibson noticed Morris and then shook his head at Morris. Morris called “G-40, G-40, ” a reference to Gibson, to Bohannon in order to warn him to get out of the way.
Gibson began to shoot at Bohannon. Morris knew who Gibson was because he’d known him for years, and they had hung out together. Bohannon was standing with Lepay when this occurred. Gibson had a chrome revolver in his hand. Morris yelled “you’re going to get it” at Gibson as he ran off. Morris got in his car, made a u-turn and by the time he reached Bohannon, he was on the ground. Gibson, meanwhile, “ran off.” Morris described him “limping off to 45-degree angle... like he was skipping or something.”
When Morris pulled up to where Bohannon was lying, two men – Don Dada and Lepay – put Bohannon in the back of the car. Lepay got in the front with Morris and they drove to the hospital. Lepay got in the back seat, after saying that he wanted to move Bohannon’s head. They pulled into the driveway of the hospital, and Lepay jumped out.
The Oakland police detained Morris and put him in the back of a police car. Morris was taken to the Oakland Police Department. Sergeant Jones interviewed him when he arrived and Morris “just tell him I heard shots, and I told him I didn’t see nothin.” Morris was not telling the truth when he said this because it was his “intention[]... to retaliate on the defendant” himself.
Morris recalled going to the police station on May 26, 2006, to meet with Sergeant Jones again. At that time, Morris identified Gibson as the person who had shot Bohannon. He also identified Gibson in a photo lineup. Morris also testified that before he talked to Sergeant Jones, he had been shot. He did not know who had done it but he felt it was because he was “a liability due to the fact that me and Rodney [Bohannon], you know, we – we was close friends, and I feel like I’m a target.”
Morris acknowledged that he had refused to testify at the preliminary examination on May 9, 2007. At the time, he was afraid of some harm coming to his family if he testified because defendant “was sending people to me making threats and things like that.” He changed his mind and decided to testify because arrangements had been made to keep him safe while in custody.
Morris did not know if there was any “bad blood” between Gibson and Bohannon although he had “heard some things.” That was why he warned Bohannon when he saw Gibson coming. Morris also testified that he did not have any firsthand knowledge of any “bad blood” between the two. He was, however, aware that Bohannon may have shot Gibson to retaliate against Gibson for shooting Eric Ford, or E. Morris knew about this because he had heard about it from other people.
Morris was nearsighted but he had not worn glasses since he was 16 years old. His eyesight had gotten worse in the last couple of years and was now “slightly” worse than it was when he was a teenager. He did not, however, have any problem recognizing Gibson either in the courtroom when he was testifying or on the day Bohannon was shot. On the day of the shooting he had ingested “just a little bit” of Hennessy.
Morris knew that Bohannon had sold drugs in the past. He also told the police that Bohannon “might have some money in his pocket.” Bohannon’s family told Morris that there was no money with Bohannon’s property. Morris believed that Lepay, the other passenger in the car when he brought Bohannon to the hospital, had stolen the money from Bohannon while they were driving him to the hospital and Lepay had climbed into the back seat to move Bohannon’s head. However, Morris looked in back and saw that Bohannon’s head was never moved. He surmised that Lepay had used this as an excuse to get in the back seat and steal Bohannon’s money.
Gibson had left the neighborhood three years before the shooting and Morris had not seen him since.
Morris denied that he expected or was told that he would receive better treatment in his pending case after he testified.
On cross-examination, Morris stated that he understood that Gibson had been shot in the legs by Bohannon. He also stated that he saw Bohannon “running, limping off.”
3. Defense Case: Dion McDaniel Testimony
Dion McDaniel, who was Bohannon’s uncle, testified that he was present when Bohannon was shot. He observed Josh Morris sitting in his car and Lepay hanging around the area. Sometime between 2:30 and 3:40 that afternoon, McDaniel heard Morris yell, “Look out, G-40.” He then heard three shots fired. He ducked and looked around to see where the shots were coming from. A few seconds later he heard two more shots. A minute or so later a man screamed “someone’s been shot.”
McDaniel ran to the corner of Market and Apgar to see what had happened. He did not see anyone in the area who was walking, running, or driving away. When he got to the corner, two minutes after he heard the shots, he saw a white man who had been doing some landscaping work around his house standing over Bohannon. The man was yelling, “Someone’s been shot.”
At trial, Paul Steindal, who is Caucasian testified that, at about 3:30 p.m. on April 13, 2006, he was in his garden at 3850 Market Street when he heard two gunshots. He ran to his gate and saw a person lying on the sidewalk, near the front door of a nail salon on Market Street. He heard someone screaming, “He's been shot.” Steindal saw several people running from the scene. He called 911 from his apartment and came back out to Market Street, where he saw several people in a car that drove away. Because he no longer saw the body on the sidewalk, he assumed the person who had been shot was in the car and being taken to a hospital.
McDaniel ran past his nephew, looking for Don Dada. He was upset with Don Dada because “I felt he had abandoned my nephew; he wasn’t there.” McDaniel understood that Don Dada would be looking out for his nephew. In the past, McDaniel had seen Don Dada with a chrome.357 revolver. He found Don Dada in a detail shop inside a barber shop. He tried to get Don Dada’s attention but he was “nonresponsive.” McDaniel knew who Gibson was and had seen him around the Apgar area in the past.
McDaniel had not seen Gibson for some time because “[h]e hadn’t been around because he had shot a guy around there.” There was a feud going on and Gibson had been run out of the area.
McDaniel saw Josh Morris sitting in his car that day. From where Josh Morris was parked, he would have been able to see the shooting if he had gotten out of his car and was standing behind it, or looking out of the window, or turned in the passenger seat to the left.
The jury found Gibson guilty of first degree murder (§ 187, subd. (a)), and possession of a firearm by a felon (§ 12021, subd. (a)(1)). The jury also found true a number of firearm enhancements. (§§ 12022.7, (subd. (a)), 12022.53, subds. (b), (c), and (d).) The court found true that Gibson had suffered two prior serious or violent felony convictions within the meaning of the Three Strikes law (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2), one prior serious felony conviction pursuant to section 667, subdivision (a), and had served five prior prison terms (§ 667.5, subd. (b)). Gibson was sentenced to a term of 110 years to life.
This timely appeal followed.
III. DISCUSSION
A. Ineffective Assistance of Counsel
1. Legal Principles
Gibson argues on appeal that trial counsel was ineffective because he did not specifically object to those portions of the August 8, 2006, tape-recorded interview in which Poston described what he had learned about Bohannon’s past dealings with Gibson. We disagree.
The right to effective assistance of counsel is guaranteed by both the federal and California Constitutions. (People v. Ledesma (1987) 43 Cal.3d 171, 215; Strickland v. Washington (1983) 466 U.S. 668.) Gibson carries the burden of rebutting, by a preponderance of the evidence, a presumption that he received effective assistance. (People v. Garrison (1989) 47 Cal.3d 746, 788.) “The claim of ineffective assistance of counsel involves two components, a showing the counsel’s performance was deficient and proof of actual prejudice.” (Id. at p. 786.)
To be deficient, counsel’s performance must have fallen “ ‘below an objective standard of reasonableness... under prevailing professional norms.’ ” (People v. Ledesma, supra, 43 Cal.3d at p. 216.) “In reviewing an ineffective assistance of counsel claim, courts do not generally second-guess counsel’s tactical decisions. [Citations.] ‘Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” ’ ” (In re Alcox (2006) 137 Cal.App.4th 657, 665.)
Further, except in circumstances not here relevant, prejudice must be affirmatively proved. (People v. Williams (1988) 44 Cal.3d 883, 937.) “ ‘The defendant must show that there is 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.’ ” (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)
2. Factual Background
Following Poston’s trial testimony in which he claimed to remember nothing about the identity of the shooter, but remembered many of the other details of the events that occurred during the shooting, the People requested that the court admit Poston’s August 8, 2006, taped statement as well as his preliminary hearing testimony as prior inconsistent statements. Trial counsel objected. He argued that parts – but not all – of the taped statement were objectionable.
The trial court stated that counsel could object at any point during the tape play-back that he felt merited objection. Defense counsel, “tactically [chose] not to be put in the position of trying to edit the District Attorney’s cross-examination right in front of a jury.” Counsel then “object[ed] to it all.” The court stated that it would require the defense to “object to the particular portions; otherwise I’m going to view it as nonobjectionable or view it as not being objected to.” Counsel restated that he was “objecting to all of it and asking that we proceed by the usual question-and-answer impeachment for the record.” The jury then heard the tape of the August 8, 2006, interview. At no point during this interview did trial counsel object.
Gibson now argues that the following colloquy was objectionable because it raised the possibility that he killed Bohannon, whom he referred to as “Peanut, ” because of “bad blood” between the two men:
“Q. What did you and Peanut [Bohannon] talk about with G-40?
“A. We talked about the incident that he had had with him prior.
“Q. Okay. What was that?
“A. That, um... Some years back... I think... I think he said 2002, man. I’m not... I’m not for sure. He said, um... A friend of his, or his cousin... He... got shot by this guy. Peanut goes and retaliates and shoots the G-40 guy.
“Q. Mm hm?
“A. Okay? Now... It was animosity between these three individuals. Peanut... And E been on the same side... On the same, you know what I mean? The same team, I suppose.
“Q. Mm hm?
“A. And G-40 being on the opposin’ team.
“Q. Right.
“A. So... G-40 shot E and paralyzed him.
“Q. Uh huh?
“A. Boom. Peanut retaliates for E and shoots G-40, boom.
“Q. And Peanut told you this?
“A. Peanut told me (inaudible)....
“Q. How long before he died did he tell you this?
“A. Maybe... Several weeks. Two, three weeks. It was
“Q. --What made the topic come up?
“A. I asked, um... I asked Peanut how did E get crippled.
“Q. Okay.
“A. You know what I mean? I was... I mean, I was curious, cuz I was in the Pen with E before. And then E wasn’t crippled in the Pen.”
We disagree that any competent attorney would have objected to this testimony. Rather, it is clear from the record that defense counsel made a reasonable tactical decision to inform the jury of the existing feud between Bohannon and Gibson and, therefore, chose not to object during the playback of the August 8, 2006, taped interview. Counsel’s tactical decision was on display from the very beginning of this trial, when, in his opening statement, he told the jury that “in order to evaluate those witnesses, you, actually, do have to understand who they’re related to, who they’re friends with, what kind of pressures are on them, what kind of baggage they’re carrying.”
Indeed, counsel solicited this very information from the only defense witness, Bohannon’s uncle, Dion McDaniel. McDaniel testified that there was a feud between his nephew and Gibson.
In closing argument, both the prosecution and the defense brought up the animosity between defendant and the victim. The prosecution stated that “During this trial, you heard a lot of speculation about what the possible motive is for this case, and for argument’s sake, let’s assume those are true. Let’s assume the Defendant, back in 2003 shot [Bohannon’s] friend E., for Eric Ford, and paralyzed him, and back in 2003, [Bohannon] came back and shot the Defendant. That would be a pretty clear motive for the Defendant to then come back and shoot [Bohannon]. These two were not strangers, and you know at the very least that there was bad blood between them. And so if you put all of that together, you find the Defendant did have a clear motive to kill the victim in this case.”
Defense counsel had a different view of the same evidence. He suggested that both Poston and Morris named Gibson as the killer not because they had seen him shoot Bohannon but because they believed Gibson was the most likely person to have killed Bohannon in light of the animosity between the two men. In his closing argument, counsel told the jury: “Mr. Poston is, also, familiar with the history of the neighborhood, particularly as it relates to Mr. Gibson, because Mr. Gibson was run out of there several years earlier because of something that happened between him and the fellows who were operating around there, which resulted finally in Mr. Bohannon’s shooting Mr. Gibson. [¶] And the reason that both the prosecution and I wanted you to know about this, it’s perhaps objectionable. It’s a lot of people don’t have firsthand knowledge, may well have been a lot of hearsay, but it does provide [the prosecutor] with a motive. Why the heck would Gibson kill Bohannon? It, also, provides the defense a motive. Why are these people – why would any one of these people, number one, jump to a conclusion it must have been Mr. Gibson or want to get at Mr. Gibson to retaliate against him, to put him away, to do him harm? [¶] It works all kinds of ways. Explains why Mr. Gibson doesn’t live around there anymore, which opens up a lot of other questions. It’s a very important fact whether or not we have no direct proof that Mr. Gibson shot anybody back there. We know they think he did. We don’t have much evidence that Mr. Bohannon shot Mr. Gibson, but we know that’s what everybody thinks. That’s almost as important as knowing the street layout and where the store was and where the pool of blood was. What is the state of mind of these people with regards to each other?”
Nor was this tactical decision unreasonable, as Gibson contends. The defense theory that Poston and Morris identified him as Bohannon’s killer because of the history between the two men was a plausible one, even if it was not accepted by the jury.
Defendant also contends that because counsel did not object to Poston’s description of his conversation with Bohannon about Gibson’s prior acts, the trial court did not instruct the jury that the evidence was not admissible for its truth, as it had when this same evidence came in when Morris testified. In other words, defendant argues that the jury was permitted to conclude that the events Poston had related were actually true, rather than simply something Poston believed to be true.
As the People point out, however, the jury was aware that Poston did not have any direct knowledge of the events Bohannon described to him. In fact, after the jury heard the playback of Poston’s taped interview, he stated unequivocally that he had not personally witnessed any of these encounters and stated that everything he knew about them came from the accounts of other people. Therefore, it was unlikely that the jury would construe Poston’s interview as evidence that Gibson had shot Bohannon’s cousin, E.
The People explicitly asked Poston about his direct knowledge of these events as follows: After the jury heard the tape, the People asked Poston about the statements he had made in the interview.
In arguing that defense counsel’s performance was “objectively unreasonable, ” Gibson cites People v. Guizar (1986) 180 Cal.App.3d 487. This case, however, is inapposite. In Guizar, defense counsel did not object to the admission of a taped statement in which a witness stated that defendant, on trial for murder, had committed other murders. Because defendant admitted that he had committed the murder with which he was charged, the only issue in Guizar was the defendant’s degree of guilt. The court, unable to find a “sound tactical reason why defense counsel would have” failed to object to the evidence and finding no support in the record for “an assumption that admission of the evidence was a tactical decision” found that counsel was ineffective in failing to object to what the court characterized as highly prejudicial evidence. (People v. Guizar, supra, 180 Cal.App.3d 487, 492, fn. 3.) In contrast, here, the record provides a clear tactical reason for defense counsel’s decision, which we do not find objectively unreasonable.
Giving in hindsight, as we must, “great deference to counsel’s tactical decisions, ” (People v. Holt (1997) 15 Cal.4th 619, 703), “in order to avoid ‘second-guessing counsel’s tactics and chilling vigorous advocacy....” (In re Fields (1990) 51 Cal.3d 1063, 1069-1070), we conclude that counsel was not ineffective because he made a reasonable tactical decision not to object to the playback of Poston’s August 8, 2006, interview.
D. Prejudice
Moreover, even if counsel was deficient, defendant has not shown that the small portion of Poston’s interview which described the “bad blood” between Bohannon and Gibson was prejudicial. (Strickland v. Washington, supra, 466 U.S. at pp. 687-696.) This evidence was, of course, already before the jury. Both Morris and McDaniel testified about the animosity between Bohannon and Gibson and, therefore, the jury was already aware of the widely held belief that Gibson had shot E, and that Bohannon had retaliated against Gibson by shooting him. The jury would already have known about the relationship between the two men even if counsel had objected to Poston’s statements about it.
Moreover, the evidence that Gibson was believed to have shot and paralyzed E. was not prejudicial in light of the substantial evidence of Gibson’s guilt. Morris’s testimony in his pretrial interview with Jones, at the preliminary hearing, and at trial was not in conflict. He was unequivocal in his identification of Gibson as the shooter. The fact that Morris lied to the police the night of the murder because he wanted to go after the murderer himself does not undermine his later admission that he saw the shooter and could identify him. The jury could reasonably have credited his later, more specific statements over his first blanket denial of knowing anything about the murder.
Poston’s early testimony regarding the identity of the shooter was similarly unequivocal. In contrast, his statements at trial that he could not remember the identity of Bohannon’s killer, while he was able to recall other events that afternoon, were not believable. The fact that a.38 caliber shell, the same size as the bullet with which Bohannon was shot, was found in Gibson’s possession made the case against him all the stronger. The defense’s alternate theories – that Morris was lying about the killer in order to avoid being blamed for the loss of Bohannon’s money, that there might have been more than one killer, that Poston and Morris were mistaken in their identification of Bohannon – were relatively weak in contrast with the evidence of Gibson’s guilt. Taken together, Poston and Morris’s testimony and the discovery of the.38 bullet was compelling evidence of Gibson’s guilt.
Nor do we agree that the jury’s request for a readback of Morris’s testimony, the opportunity to review Poston’s preliminary hearing testimony and a request that the CD of Poston’s statement to Jones be fixed, indicates that this was a close case which focused on Poston’s statement regarding Bohannon and Gibson’s animosity toward each other. As the People point out, a jury’s request for a readback of testimony does not necessarily indicate that a case was close. In fact, it is equally likely that this was indicative of the seriousness with which the jury approached its task. Similarly, there was nothing unusual about the jury deliberating from 2:50 p.m. until 4:21 p.m. on the first day of deliberations and then returning a verdict at 3:58 p.m. the next day. The trial in this case went on for six days and involved a murder. The length of the deliberations do not strike us as indicating a close call and do not suggest that, but for the admission of the disputed evidence, the jury would have voted to acquit defendant.
In sum, the admission of Poston’s statements regarding Gibson and Bohannon’s feud was not so prejudicial as to merit reversal.
IV. DISPOSITION
The judgment is affirmed.
We concur Kline, P.J.Richman, J.
“Q. During this recording that we just listened to, you had made some mention of prior shootings, and you had heard the person G-40 shot a friend of Peanut's named E; is that right?
“A. Mmm-hmm.
“Q. Were you present for that shooting?
“A. Nope.
“Q. Do you have any knowledge of that shooting other than what you’ve heard on the street?
“A. Nope [¶]... [¶]
“Q. Do you have any knowledge of that shooting other than what you’ve heard on the street?
“A. No.
“Q. You also made mention of a shooting involving Peanut and the Defendant. You said that Peanut had shot the Defendant at some point. Were you present for that shooting?
“A. No.
“Q. Do you have any knowledge of it other than what you heard from people outside on the street?
“A. No.