Filed 4/29/13 P. v. Carter CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D060328

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD208826)

JAMES L. CARTER,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Kenneth

K. So, Judge. Affirmed.



         A jury convicted James L. Carter of conspiracy to commit murder, two counts of

first degree murder, and three counts of attempted murder. The jury also found true gang

and firearm enhancements that were attached to the counts. Carter appeals, contending

the trial court erred when it (1) erroneously admitted evidence of items seized from his

home, and (2) failed to stay the sentence for conspiracy to commit murder under Penal

Code section 654 (section 654). We reject Carter's contentions and affirm the judgment.
                     FACTUAL AND PROCEDURAL BACKGROUND

          Because Carter does not challenge the sufficiency of the evidence to support his

convictions, we summarize the pertinent facts to provide background for our discussion

of his contentions on appeal.

          On December 31, 2002, a car full of suspected Lincoln Park gang members shot

Jason and Thomas Brown, both members of a rival Skyline gang. Thomas died from his

injuries and Jason was hospitalized for several days. Carter, who was also a member of a

Skyline gang, visited Jason in the hospital. During that visit, Jason told Carter that

Lincoln Park gang members were responsible for the shooting. In response, Carter

inquired about guns and Jason directed him to a duffel bag at Jason's father's house that

had an AK and handguns. That same day, Carter and his wife, Jenell Robinson, went to a

Big 5 Sporting Goods (Big 5) store where Robinson purchased a box of ammunition for

Carter.

          The next day, Carol Waites and Sharen Burton, two innocent bystanders, were

killed during a drive-by shooting outside Dr. J's liquor store, a known hangout for

Lincoln Park gang members and affiliates. Waites's seven-year-old nephew, Ozvie

Harris, was also shot and injured. There were several Lincoln Park gang members and

affiliates, including Travis Kirk, Kaelin Nelson, and Peter Cruz, at Dr. J's during the

shooting. Nelson was shot in his lower left leg, and Cruz was injured on his back and

shoulder.

          Officers found several bullets, bullet fragments, shell casings, shotgun slugs and

shotgun wadding at the scene of the shooting. Based on this evidence, officers

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determined that the perpetrators used at least five different firearms, including an AK-47,

a .45 caliber handgun, a .380 caliber handgun, a 12-guage shotgun, and a nine-millimeter

handgun. Officers could not rule out whether revolvers or other firearms were also used

because revolvers do not leave shell casings and some shell casings may not have been

recovered. Police never recovered any firearms that could be matched to the casings

found at the scene.

       Approximately four months after the shooting, officers searched Carter's home.

They found two revolvers, two boxes of ammunition, and a bulletproof vest. Both

firearms were inoperable. The two boxes of ammunition had tags on them indicating that

they were purchased from Big 5.

       The prosecution's case included testimony from several cooperating informants,

including members of Carter's gang and rival gangs. Some informants received financial

benefits from the county or leniency in their sentence in unrelated cases. Multiple

witnesses testified that they heard Carter admit to being one of the shooters at Dr. J's

liquor store. One witness also testified that he saw Carter with a duffel bag full of guns,

including an AK, at Brown's house before the shooting and another witness stated that he

saw Carter with an AK-47 on the night of the shooting.

                                       DISCUSSION

                               I. Alleged Evidentiary Error

       Carter argues he was denied due process and a fair trial because the trial court

erred by admitting evidence of the guns, ammunition and bulletproof vest found in his

home. Specifically, he asserts that because "the prosecution's case was founded entirely

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on cooperating witness testimony," the erroneous admission of the evidence tipped the

balance in favor of the prosecution in a close case.

       We review a trial court's ruling on the admissibility of evidence for abuse of

discretion. (People v. Scott (2011) 52 Cal.4th 452, 491.) Generally, evidence a

defendant possessed a weapon not used in the crime charged is inadmissible as such

evidence "leads logically only to an inference that defendant is the kind of person who

surrounds himself with deadly weapons—a fact of no relevant consequence to

determination of the guilt or innocence of the defendant." (People v. Henderson (1976)

58 Cal.App.3d 349, 360; see also People v. Riser (1956) 47 Cal.2d 566, 577 (Riser).)

Nonetheless, evidence of the defendant's possession of a weapon is admissible when it is

probative on issues other than the defendant's propensity to possess weapons. (See, e.g.,

People v. Jablonski (2006) 37 Cal.4th 774, 821–822; People v. Cox (2003) 30 Cal.4th

916, 956.)

       In this case, the prosecution argued the disputed evidence was admissible to

corroborate Robinson's testimony that she purchased ammunition for Carter at Big 5

shortly before the shooting and was relevant to show that Carter was part of a conspiracy

to provide ammunition to the gang to commit the murders. Further, the prosecution's

gang expert relied in part on evidence that Carter possessed weapons, ammunition and a

bulletproof vest to conclude Carter was an active member of a criminal street gang.

While we conclude the evidence was only minimally relevant to corroborate Robinson's

testimony and prove the conspiracy count and gang allegations, the evidence was not

prejudicial.

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        In regard to prejudice, "we are concerned only with the possibility of an emotional

response to the proposed evidence that would evoke the jury's bias against [Carter] as an

individual unrelated to his guilt or innocence." (People v. Gunder (2007) 151

Cal.App.4th 412, 417 (Gunder).) Such an emotional response by jurors to the challenged

evidence, or their confusion or being misled by that evidence, was unlikely here because

the evidence was no more prejudicial than other evidence in the case. Jurors heard

testimony from multiple witnesses that Carter was a gang member and admitted to being

involved in the Dr. J's shootings. Additionally, there was other evidence that Carter

possessed a weapon on the night of the murders. (See Riser, supra, 47 Cal.2d at pp. 577–

578 [no prejudice in admitting evidence of other firearm and ammunition possessed by

defendant when jury would have concluded from other properly admitted firearm

evidence that defendant possessed firearms]; Gunder, at p. 417 [no undue prejudice in

admission of evidence of defendant's prior firearm possession when firearm possession

was "inherent in the offenses at issue"].) The jurors also heard evidence that the firearms

found in Carter's home were inoperable and were informed that it was not illegal for

Carter to own a bulletproof vest. We presume the jury considered this information.

Under these circumstances, it is not reasonably likely that the jury would have reached a

result more favorable to Carter had the disputed evidence been excluded and any error in

the admission of that evidence was harmless. (People v. Watson (1956) 46 Cal.2d 818,

836.)

        Finally, we reject Carter's arguments that the admission of the firearms,

ammunition, and bulletproof vest evidence deprived him of due process. "Ordinarily,

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even erroneous admission of evidence does not offend due process unless it is so

prejudicial as to render the proceeding fundamentally unfair." (People v. Esayian (2003)

112 Cal.App.4th 1031, 1042; People v. Partida (2005) 37 Cal.4th 428, 436 ["the

admission of evidence, even if error under state law, violates due process only if it makes

the trial fundamentally unfair"].) Having reviewed the entire record of the trial, we do

not find this is a case where the disputed evidence was so uniquely inflammatory that it

rendered the trial fundamentally unfair. Accordingly, we reject Carter's due process

arguments.

                                      II. Section 654

       The trial court sentenced Carter to 50 years to life for conspiracy to commit

murder (count 1), consecutive terms of life without the possibility of parole, doubled, for

the two murder counts (counts 2–3), and three consecutive 30 years to life terms for the

attempted murder counts (counts 5–7). The court also imposed consecutive 25 years to

life terms as to each count for the firearm enhancements.

       Carter argues the trial court erred by failing to stay his sentence for conspiracy to

commit murder under section 654 because the conspiracy did not have an objective

separate from the other offenses. We disagree.

       Section 654 prohibits multiple punishment for an indivisible course of conduct

even though it violates more than one statute. (People v. Hicks (1993) 6 Cal.4th 784,

789.) Whether a course of conduct is indivisible depends on the intent and objective of

the actor. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) "If all the offenses were

incident to one objective, the defendant may be punished for any one of such offenses but

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not for more than one." (People v. Perez (1979) 23 Cal.3d 545, 551.) However, even if

the defendant entertained but a single principle objective during an indivisible course of

conduct, he may be punished separately for multiple convictions if he committed crimes

of violence against different victims. (People v. Champion (1995) 9 Cal.4th 879; People

v. Anderson (1990) 221 Cal.App.3d 331, 338.)

       "It is of course true that . . . section 654 prohibits the imposition of sentences,

whether concurrent or consecutive, for both a murder and conspiracy to commit the

murder. [Citations.] However, 'if "a conspiracy had an objective apart from an offense

for which the defendant is punished, he may properly be sentenced for the conspiracy as

well as for that offense. [Citation.]" ' " (People v. Moringlane (1982) 127 Cal.App.3d

811, 819 (Moringlane) [finding section 654 does not bar multiple punishment for murder

and conspiracy to commit murder where the murder victim was not the subject of the

conspiracy].)

       Here, the jury found Carter guilty of conspiring to murder rival gang members,

whereas the victims of the murder charges were nongang members Waites and Burton.

Accordingly, as in Moringlane, Waites's and Burton's deaths were not the object of the

conspiracy and section 654 does not bar multiple punishment. (Moringlane, supra, 127

Cal.App.3d at p. 819.) Carter argues, however, that Moringlane does not apply because

Waites and Burton became the object of the conspiracy by operation of law under the

transferred intent doctrine (see CALCRIM No. 562), which was reflected in the jury's

findings that the murders were committed for the benefit of a gang. The jury was

instructed that "[i]f the defendant intended to kill one person, but by mistake or accident

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killed someone else instead, then the crime, if any, is the same as if the intended person

had been killed." We are not convinced by Carter's argument because it still remains that

he had an objective in the conspiracy that was separate and distinct from the other crimes

for which he is being punished, namely murdering Waites and Burton.

                                      DISPOSITION

       The judgment is affirmed.



                                                                   MCINTYRE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.




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