Filed 6/27/14 P. v. Carter CA1/5

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                       FIRST APPELLATE DISTRICT
                                                  DIVISION FIVE




THE PEOPLE,

         Plaintiff and Respondent,                                                    A135833

         v.                                                                           (Alameda County
                                                                                      Super. Ct. No. C164410)
HAROLD CARTER,

      Defendant and Appellant.
_____________________________________/

         A jury convicted Harold Carter of first degree murder (Pen. Code, § 187, subd.
(a))1 and found true various sentencing enhancements (§§ 12022.53, subds. (b), (c), (d),
(g), 12202.7, subd. (a)). The trial court sentenced Carter to state prison.
         Carter appeals. He claims the court erred by ruling the prosecution could cross
examine him using a “prejudicial photograph.” We affirm.
                         FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
         Webster Johnson and two of his friends — Ezell Holmes and Andrea Smith —
spent an August 2009 morning smoking marijuana and drinking “[p]romethazine with
codeine” cough syrup. That afternoon, the three friends decided to go to the corner of
90th Avenue and Olive Street in Oakland to buy music. Holmes drove. Johnson sat in
1
         Unless noted, all further statutory references are to the Penal Code.
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the front passenger seat and Smith sat in the backseat behind Holmes. Holmes parked the
car near Bookers Market, a convenience store.
       Smith got out of Holmes’s car and walked across the street to buy a CD. Johnson
remained in the car. When Smith returned, Johnson asked her to buy another CD. Smith
walked across the street and purchased another CD. As she was returning to Holmes’s
car, she noticed Carter walk up to the sidewalk on Johnson’s side of the car. Carter
“reach[ed] back, and got a gun and just shot” Johnson about eight or nine times.
       Law enforcement officers found Johnson dead in the front passenger seat of
Holmes’s car with multiple gunshot wounds. Outside Holmes’s car, an investigator
found 11 .40 caliber shell casings, which appeared to have been fired from a semi-
automatic pistol. Inside the car, the investigator found five expended .40 caliber bullets.
       Roberto Tinoco and Amarrell Perry identified Carter as the shooter. Jermain
Hackett, one of Johnson’s friends, told police Carter bragged about having a .40 caliber
gun a few days before the shooting; Hackett also told police he saw the gun. At trial,
Tinoco testified he was “[p]ositive” Carter “was the one shooting outside Bookers”
Market but Perry, Hackett, and Smith recanted their identifications to varying degrees.
Surveillance video showed Carter in the parking lot of Booker’s Market a few minutes
before the murder.
Carter’s Request to Testify
       After the prosecution rested, defense counsel told the court Carter “wished to
testify as a witness [on] his own behalf.” In response, the prosecution requested
permission to use an undated photograph of Carter when it cross-examined him. The
photograph showed Carter and two other people in front of Bookers Market. Carter had a
“gun in his waistband . . . [I]t appears that he is lifting a shirt to show that gun in his
waistband.”
       Defense counsel objected that the picture was “more prejudicial than probative.”
Counsel noted there was no evidence of when the photograph was taken and argued
Carter would be prejudiced by the “gang signs” displayed by other people in the
photograph. The court indicated it would “allow [the photograph] to be used in the cross-

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examination of the defendant . . . when he testifies.” The court examined the photograph
and determined it was relevant and authenticated. It also concluded the photograph was
“damaging to the defendant . . . but it is not . . . the kind of evidence which uniquely
tends to evoke emotional bias against the defendant as an individual” pursuant to
Evidence Code section 352. Finally, the court determined the gestures made by the other
people in the picture did not “add[ ] to the prejudice” under Evidence Code section 352.
Defense counsel informed the court Carter would not testify. The court marked the
exhibit for identification but did not admit it.
Verdict and Sentencing
       The jury convicted Carter of the first degree murder of Johnson (§ 187, subd. (a))
and found true various sentencing enhancements (§§ 12022.53, subds. (b), (c), (d), (g),
12202.7, subd. (a)). The trial court sentenced Carter to 25 years to life in state prison for
first degree murder (§ 187, subd. (a)), to run consecutively with a 25-year-to-life sentence
on the enhancement for personally and intentionally discharging a firearm causing death
(§ 12202.53, subd. (d)).
                                        DISCUSSION
       Carter contends the court violated his constitutional right to testify in his own
defense “when it erroneously ruled that the People could use a prejudicial photograph as
substantive evidence of guilt when [the prosecutor] cross-examined him.” Carter “has
failed to preserve this claim of error. It is well established that the denial of a motion to
exclude impeachment evidence is not reviewable on appeal if the defendant subsequently
declines to testify. [Citations.]” (People v. Ledesma (2006) 39 Cal.4th 641, 731
(Ledesma), citing Luce v. United States (1984) 469 U.S. 38 (Luce) [denial of in limine
motion to preclude impeachment of the defendant with a prior conviction is not
reviewable on appeal if the defendant did not testify] and People v. Collins (1986) 42
Cal.3d 378, 383-388 [prospectively applying Luce]; see also People v. Ayala (2000) 23
Cal.4th 225, 274 (Ayala) [the defendant waived claim “that the trial court’s ruling denied




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him a constitutional right to present his defense” where he “chose not to present the
testimony”].)2
        Ledesma is instructive. There, the defendant “sought a ruling that, should [he]
testify and state he was remorseful, the prosecutor would not be permitted to question
him about the circumstances of the crimes or use defendant’s prior testimony for
impeachment. The court declined to make such a ruling, and defense counsel indicated
that as a result he would not call defendant as a witness.” (Ledesma, supra, 39 Cal.4th at
p. 731.) On appeal, the defendant claimed “the trial court’s ruling denied him his rights
to effective assistance of counsel and to testify in his own defense under the Fifth, Sixth,
and Fourteenth Amendments to the federal Constitution and . . . the California
Constitution.” (Ibid.)
        Our high court concluded the defendant waived this argument because he did not
testify at trial. (Ledesma, supra, 39 Cal.4th at p. 731.) Relying on Luce, the California
Supreme Court explained: “First, in order to determine the admissibility of defendant’s
prior testimony, the court must balance its probative value against its prejudicial effect
under Evidence Code section 352, an analysis that cannot be performed unless the record
discloses the content of the defendant’s testimony. [Citations.] Second, if the defendant
does not testify, any possible harm from the trial court’s ruling is wholly speculative.
The ruling might change in response to the actual content of the defendant’s testimony, or
the prosecution might choose not to use the evidence at issue. [Citations.] Third, if the
trial court erred in its ruling, the appellate court could not ‘intelligently weigh the
prejudicial affect of that error.’ [Citations.]” (Ledesma, supra, 39 Cal.4th at pp. 731-
732.)



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        Carter’s claim fails for the additional reason he did not raise it in the trial court.
“‘The appellate court’s review of the trial court’s admission of evidence is [ ] limited to
the stated ground for the objection. [Citation.]’ [Citation.]” (See People v. Abel (2012)
53 Cal.4th 891, 924, quoting Evid. Code, § 353; People v. Skiles (2011) 51 Cal.4th 1178,
1189 [the defendant forfeited claim that admission of evidence violated his constitutional
rights to confrontation and cross-examination “by failing to raise it at trial”].)
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       Like the defendant in Ledesma, Carter did not testify and, as a result, he has not
preserved his claim for appellate review. As in Ledesma, the rationale for the Luce rule
applies here. (See Ayala, supra, 23 Cal.4th at p. 273.) Carter attempts to distinguish
Luce by arguing the photograph was not offered as impeachment evidence but rather as
“substantive evidence” of his guilt. We disagree. The prosecution offered the
photograph to impeach Carter if he denied being at the scene of the murder with a gun.
       Carter’s reliance on People v. Brown (1996) 42 Cal.App.4th 461 (Brown) and
People v. Jablonski (2006) 37 Cal.4th 774 (Jablonski) does not alter our conclusion. In
Brown, the appellate court determined the defendant’s claim was cognizable on appeal
notwithstanding his failure to testify at trial because the defendant argued the
impeachment evidence was obtained in violation of his Sixth Amendment right to
counsel. (Brown, supra, 42 Cal.App.4th at pp. 470-471.) In Jablonski, the California
Supreme Court considered the merits of the defendant’s claim even though he did not
testify at trial because the impeachment evidence was obtained in violation of his
Miranda rights. (Jablonski, supra, 37 Cal.4th at pp. 810, 812-813.) Here, the
impeachment evidence — i.e., the photograph — was not obtained in violation of
Carter’s constitutional rights and, as a result, neither Brown nor Jablonski apply.
       Carter also claims the photograph was not properly authenticated, that it was more
prejudicial than probative under Evidence Code section 352, and that its admission
prejudiced him. Even if we assume for the sake of argument Carter preserved these
arguments for appellate review, we would reject them because it is not reasonably
probable a different ruling would have affected the verdict. When a defendant claims the
trial court committed an evidentiary error, “the applicable standard of prejudice is that for
state law error, as set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (error harmless
if it does not appear reasonably probable verdict was affected).” (People v. Cudjo (1993)
6 Cal.4th 585, 611.) Here, several witnesses identified Carter as the shooter and Tinoco
testified at trial he was “[p]ositive” Carter was the shooter. It is not reasonably probable
the jury would have acquitted Carter had the court excluded the photograph and had
Carter testified in his own defense.

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                            DISPOSITION
The judgment is affirmed.




                                          _________________________
                                          Jones, P.J.




We concur:


_________________________
Needham, J.


_________________________
Bruiniers, J.




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