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The People v. James Davis Gipson

February 28, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JAMES DAVIS GIPSON, JR., DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County. Patrick Connolly, Judge. (Los Angeles County Super. Ct. No. TA109322)

The opinion of the court was delivered by: J. Ashmann-gerst

CERTIFIED FOR PUBLICATION

Affirmed.

James Davis Gipson, Jr. (Gipson) appeals from the order revoking his probation, vacating the suspension of a previously imposed sentence and committing him to prison for five years. He contends that there was insufficient evidence of a probation violation. In addition, he argues that his commitment to state prison violates the Criminal Justice Realignment Act of 2011 (Realignment Act) because his sentence was executed after the threshold date of October 1, 2011. Neither contention has merit.

With respect to the Realignment Act, we note that in People v. Clytus (2012) 209 Cal.App.4th 1001, 1004 (Clytus), Division Eight of our district held that a defendant is sentenced for purposes of the Realignment Act on the date a trial court orders a previously imposed but suspended sentence to be executed. We disagree with Clytus and hold that a defendant is sentenced on the date that sentence is first announced and imposed even if execution of the sentence does not happen until a later date.

We affirm.

FACTS

Gipson is a member of a gang called the Grape Street Crips.

He pleaded guilty to possessing a firearm while a felon in violation of former Penal Code section 12021, subdivision (a)(1),*fn1 and to possessing an assault rifle in violation of former section 12280, subdivision (b).*fn2 In addition, he admitted that he committed the crimes for the benefit of a gang within the meaning of section 186.22, subdivision (b)(1)(A). On October 12, 2010, he was sentenced to five years in state prison.*fn3 The sentence was suspended and he was placed on probation for three years. As a condition of his probation, Gipson was told not to associate with known gang members.

On May 29, 2012, Officer Daniel Pearce of the Los Angeles Police Department was called to testify at a probation revocation hearing. He relayed the following facts. He is assigned to Jordan Downs and is familiar with the Grape Street Crips. After working with this gang, he knows a majority of its 2,000 members. The members all grew up together and know each other. For personal safety, they have to know each other in order to identify friends from enemies. The members of the gang mainly hang out inside Jordan Downs. Officer Pearce has had a lot of contact with Gipson. On January 17, 2012, while assigned to a beat in Jordan Downs, Officer Pearce saw Gipson in a parking lot. For about five to 10 seconds, Gipson was standing in the company of three Grape Street Crips: Rodney Johnson (Johnson), Ronald Brim (Brim) and Johnny Bailey (Bailey). Based on how they were positioned, it appeared to Officer Pearce that Gipson was talking to Johnson. Officer Pearce is on a first name basis with Johnson and has had contact with Johnson about five times a year. In the past, Johnson admitted to being a gang member. Every parking lot in Jordan Downs is a known hang-out for the Grape Street Crips.

The trial court found that Gipson violated his probation by associating with known gang members. Probation was revoked and Gipson was sentenced to five years in state prison.

This appeal followed.

DISCUSSION

I. The Revocation of ...


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