People v. Carter CA2/1 ( 2023 )

Filed 7/26/23 P. v. Carter CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B316233
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA102814)
v.
RICHARD CARTER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James D. Otto, Judge. Affirmed; remanded with
directions.
Aurora Elizabeth Bewicke, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________________________
A jury convicted Richard Carter of seven counts of
attempted murder and other charges and found gun
enhancements to be true. He contends (1) no substantial
evidence supports three of the convictions; (2) the court erred in
admitting preserved testimony of two absent witnesses; (3) the
court erred in admitting evidence of custodial interrogations; (4)
the court erred in failing to offer a jury instruction on a lesser
included offense; (5) his sentence was unlawful in one respect;
and (6) he is entitled to remand for resentencing under new law.
We agree with the sentencing claims, and will thus affirm the
judgment but remand for resentencing.
BACKGROUND
I. FACTS
On four nights in 2015, Carter shot at seven people, a car, a
restaurant, and a dwelling.
A. The Shootings
1. Vehicle Shooting, August 16, 2015
At approximately 1:00 a.m. on August 16, 2015, Carter was
riding a bicycle on the street. Reaching a corner, he stepped off
the bike and shot at a car from approximately 40 feet away. Jose
Martinez was driving the car, with Edwin Jurado in the front
passenger seat and Ivan Santos in the back. Carter’s shots hit
the windshield and right side headlight and fender, and struck
Jurado in the leg and put a hole in Martinez’s pants leg. Jurado
identified Carter at a preliminary hearing, and DNA from a glove
recovered at the scene tied him to the shooting.
2. Restaurant Shooting, September 1, 2015
At a little past midnight on September 1, 2015, Carter rode
his bicycle near the Taqueria Los Primos restaurant. Carlos Soto
and Blanca Guerrero were exiting the restaurant and Francisco
2
Robledo was skateboarding nearby. Soto, a gang member and
concededly intoxicated and believing Carter to be a rival gang
member, called out a derogatory gang slur, “fuck slobs.”
When Carter reached the corner at the end of the
restaurant parking lot, he started shooting toward the
restaurant. Soto hid behind a car, Guerrero ducked down by her
bike, and Robledo hid behind a palm tree. Soto was grazed by a
bullet. Guerrero was uninjured and heard no bullets strike
nearby. Robledo was uninjured but heard something hit the tree.
Responding Police Officer Patrick Lyon observed bullet
holes in the windows of the restaurant and “strike marks” on and
near the palm tree. At least one of the bullets striking the
restaurant hit where Guerrero had recently stood.
3. Garage Shooting, September 26, 2015
On September 26, 2015, Carter was smoking marijuana in
a residential garage with his girlfriend. They began to fight and
Carter fired three shots into the air, striking the garage ceiling
but failing to penetrate into the residence above.
4. Busani Shooting, October 3, 2015
On October 3, 2015, Carter, standing near a street, shouted
“fuck chongos” and shot four times at Luis Busani, who was
riding his bike, striking Busani in the head and arm.
5. The Victims
The seven victims were thus as follows: Jose Martinez,
Edwin Jurado and Ivan Santos in the vehicle shooting, Jurado
receiving a leg wound and Martinez a hole in his pants leg;
Francisco Robledo, Carlos Soto and Blanca Guerrero in the
restaurant shooting, Soto receiving a graze wound; and Luis
Busani, who was seriously injured.
3
B. Arrest and Investigation
1. Arrest
On October 8, 2015, Carter pointed a gun at Terrence
Howlett, who had just exited his tent with his friend “Red.”
Speaking what Howlett characterized as gibberish, Carter told
Howlett he was on a “genocide” to protect Black people from
Mexicans, and was wanted for four or five murders already. He
accused Howlett of being a snitch and threatened to shoot him
and rape Red. Carter instructed Howlett to empty his pockets
and leave.
Howlett left and called police. Responding Police Officer
Jose Rios accompanied him back to his tent, from which Carter
emerged. Police seized two bullets and a bag of
methamphetamine from Carter’s person and a handgun from the
tent. Forensic analyses revealed that the bullets fired at the four
shootings all came from this gun.
2. Jailhouse Statements
Carter was initially charged with crimes pertaining only to
the Howlett incident: assault with a firearm, possession of a
controlled substance with a firearm, possession of a firearm with
priors, attempted second degree robbery with person present, and
first-degree burglary with person present.
Police planted undercover agents in Carter’s jail cell. In
surreptitiously recorded conversations, Carter admitted his
involvement in several of the shootings and stated he was
fighting against a “genocide” being committed against Black
people. Regarding the shooting outside Los Primos restaurant,
Carter admitted he was there but said he had been “rushed, by
about 15 or 20 individuals,” and he merely defended himself. He
stated, “Yeah and I wasn’t even really looking, I was just riding
4
by shooting as the motherfuckers advanced at me and that’s why
only the fat one got shot.”
The prosecution later dismissed these initial charges and
filed charges pertaining to the four shootings.
3. Conditional Examinations of Soto and
Howlett, and Due Diligence Hearing
a. Soto
Carter was arrested on October 8, 2015. He was initially
represented by the Office of the Public Defender but that office
declared a conflict of interest on November 16, 2016, and the
alternate public defender’s office was appointed.
By this time, all sides knew that Carlos Soto, a victim of
the shooting outside Los Primos restaurant, was in danger of
deportation. On November 29, 2016, he was taken out of custody
and testified in a conditional examination about the restaurant
shooting.
Soto was deported on April 25, 2017.
In 2019, the alternate public defender declared a conflict
and a bar panel attorney was assigned to represent Carter. In
April 2021, the prosecutor indicated he intended to introduce
Soto’s conditional hearing testimony without calling him as a
witness.
b. Howlett
Howlett, who was homeless, had tried to avoid testifying at
the preliminary hearing, saying he feared for his life. By April
2017, he had left California with apparently no intention of
returning.
On June 2, 2017, Howlett nevertheless testified at a
conditional examination concerning events on the day Carter was
arrested.
5
c. Due Diligence Hearing
Because the prosecution proposed at trial to offer the
conditional examination testimony of Soto and Howlett, the court
held a contested due diligence hearing to determine whether
reasonable efforts had been made to locate and produce them.
Detective Shea Robertson testified he began looking for
Soto in March 2021. He ran Soto’s name through local and
national databases, learning he had been either removed or
deported on April 25, 2017. Although there was an active
warrant for his arrest, Soto had not been arrested in the United
States since his removal. Robertson believed Soto was deported
to Mexico but found no address for him. No parole contacts were
documented and no local coroner’s cases involving Soto were
discovered. Robertson did not attempt to contact Soto’s friends,
family, or associates within the United States.
Detective Donald Collier testified he began trying to locate
Howlett in March 2021. He called multiple phone numbers
associated with Howlett and sent an email to his purported
address but achieved no results. Detective Collier determined
that Howlett’s last known address was in Sparks, Nevada, and he
had been arrested in nearby Reno on February 12, 2021.
Detective Collier contacted the Reno Police Department for
assistance. He spoke to Sergeant Laura Conklin, who assigned
some bike patrol officers to go to Sparks, but by April 20, 2021,
the day jury selection began, police were unable to find Howlett.
The Washoe County coroner’s office (which covers Reno and
Sparks) had no record of Howlett being deceased.
The trial court ruled that the prosecution met its burden of
showing both Soto and Howlett were unavailable, and ordered
6
that the conditional examination testimony of each could be
introduced at trial.
C. Trial
Carter was tried on seven counts of attempted willful,
deliberate, and premeditated murder and three counts of
shooting at an inhabited dwelling and occupied motor vehicle,
and it was alleged he intentionally discharged a firearm during
the crimes. (Prior prison allegations and the counts related to
events on the day of his arrest had been dismissed in the interest
of justice.) His defense was misidentification.
A transcript of Soto’s conditional hearing testimony was
read to the jury. In it, Soto used a map to describe where he and
Carter were positioned near the restaurant at the time of the
shooting. He admitted he was intoxicated and shouted a gang
slur at Carter, and testified Carter did not look where he was
shooting.
A videotape of Howlett’s conditional hearing testimony was
played for the jury. In it, he detailed the interaction between
himself and Carter on October 8, 2015, denied that the gun found
in his tent belonged to him, and stated that Carter admitted he
was wanted for four murders and was “committing a genocide
protecting the Black people and killing Mexicans.”
The prosecution also introduced several prior consistent
statements made by Howlett via responding Officer Jose Rios.
The court instructed the jury that these statements could be
considered only to assess the credibility of Howlett’s testimony at
the conditional hearing.
In closing, defense counsel indicated that Carter had been
homeless for a substantial period and suffered from substance
abuse disorder.
7
The jury convicted Carter on all counts, separately found
that he acted willfully, deliberately, and with premeditation with
respect to the seven attempted murders, and found true all gun
use allegations.
On November 2, 2021, the trial court sentenced Carter to a
total of 168 years and four months to life in prison. We will
discuss details of this sentence as they become pertinent.
Carter appeals.
DISCUSSION
I. Sufficiency of the Evidence of Attempted Murders of
Santos, Guerrero and Robledo
Carter contends his convictions for the attempted murders
of Ivan Santos, who was sitting in the back seat of Martinez’s car
during the vehicle shooting, and Blanca Guerrero and Francisco
Robledo, from the restaurant shooting, all of whom were
uninjured, must be reversed based on insufficiency of the
evidence. He argues that because no evidence indicates Carter
aimed at or said anything to these victims, the jury’s finding that
he acted willfully, deliberately and with premeditation with
respect to them is unsupported. We disagree.
“ ‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’ ” (People v. Avila (2009) 46 Cal.4th 680, 701.)
A conviction for attempted murder requires proof that the
defendant intended to kill the victim and a direct but ineffectual
act toward accomplishing that goal. (People v. Perez (2010) 50
8
Cal.4th 222, 229.) “ ‘ “[G]uilt of attempted murder must be
judged separately as to each alleged victim.” ’ [Citations.] ‘[T]his
is true whether the alleged victim was particularly targeted or
randomly chosen.’ ” (Id. at p. 230.)
An intentional attempted killing is premeditated and
deliberate if it occurred as the result of preexisting thought and
reflection rather than unconsidered or rash impulse. (People v.
Boatman (2013) 221 Cal.App.4th 1253, 1264.)
“Direct evidence of intent to kill is rare, and ordinarily the
intent to kill must be inferred from the statements and actions of
the defendant and the circumstances surrounding the crime.”
(People v. Canizales (2019) 7 Cal.5th 591, 602.)
Premeditation may be inferred from the defendant’s
planning activity, prior relationship to the victim, and manner of
committing the crime. (People v. Hovarter (2008) 44 Cal.4th 983,
1019.)
A jury may, for example, determine whether premeditation
exists “from a consideration of the type of weapon employed and
the manner of its use; the nature of the wounds suffered by the
[victim]; the fact that the attack was unprovoked and that the
[victim] was unarmed at the time of the assault; the conduct of
[the] assailant in . . . neglecting to aid [the victim,] . . . and [the
assailant’s] immediate flight thereafter from the scene of the
assault.” (People v. Cook (1940) 15 Cal.2d 507, 516.)
The act of obtaining a weapon is evidence of planning
consistent with a finding of premeditation and deliberation.
(People v. Koontz (2002) 27 Cal.4th 1041, 1081-1082.)
Here, Carter obtained a handgun and carried it for months,
which is consistent with premeditation and deliberation.
9
Carter admitted to undercover police agents and Howlett
that he harbored race-based antipathies. He told Howlett he
intended to kill Mexicans, and told police agents that he was
resisting a Black genocide. This reflects premeditation,
deliberation and willfulness.
Carter fired several shots that struck within a few feet of
where Santos sat in the back seat of Martinez’s car, and shot a
palm tree behind which Robledo hid and a restaurant window
where Guerrero had recently stood. The shots at Martinez’s car
came from about 40 feet away. The shots at the restaurant came
from outside a corner of the parking lot. (Although the record
does not indicate the size of the parking lot, we may presume it
was at least large enough for two cars to drive and others to
park.) And though the record does not indicate how far Carter
was standing from the tree, an urban tree is usually a relatively
narrow target. In sum, the evidence suggests that Carter’s shots
were relatively accurate. The shots at Santos and Guerrero came
from a fair distance away and struck close to where Santos sat
and where Guerrero had recently stood. The shot at Robledo
struck the tree behind which he hid. This suggests that Guerrero
targeted these victims. “ ‘The act of firing toward a victim at a
close, but not point blank, range “in a manner that could have
inflicted a mortal wound had the bullet been on target is
sufficient to support an inference of intent to kill.” ’ ” (People v.
Smith (2005) 37 Cal.4th 733, 741.)
Carter adduces several circumstances that show he
exhibited at most a conscious disregard for the risk of serious
injury or death to these three victims: He did not know or
address them, and not only did not injure them but shot at other
people entirely. In fact, Carter argues, Soto testified that Carter
10
did not even look where he was shooting. He argues that bullets
landing near other individuals were too far away to evince intent
to kill Santos, Guerrero and Robledo.
But “ ‘ “the fact that the victim may have escaped death
because of the shooter’s poor marksmanship” ’ ” does not
necessarily establish a less culpable state of mind. (People v.
Smith, supra, 37 Cal.4th at p. 741.) Whether circumstances
consistent with innocence are persuasive is a question for the
jury. “[T]he relevant question on appeal is not whether we are
convinced beyond a reasonable doubt, but whether any rational
trier of fact could have been persuaded beyond a reasonable
doubt that defendant premeditated the murder.” (People v. Perez
(1992) 2 Cal.4th 1117, 1127; see also People v. Reed (2018) 4
Cal.5th 989, 1006-1007.) We may not substitute our judgment for
that of the jury. (People v. Pride (1992) 3 Cal.4th 195, 247.)
Possession of a weapon, admitted antipathies, and multiple
relatively accurate shots constitute substantial evidence of
willfulness, deliberation, and premeditation.
II. Conditional Examination Testimony of Soto and
Howlett
Carter contends that introduction of the conditional
examination testimony of Soto and Howlett violated his
confrontation right. (U.S. Const., 6th Amend.; Cal. Const., art. I,
§ 15.) He argues introduction of the several-years-old testimony
of these absent witnesses hindered his trial counsel’s ability to
cross-examine either witness or formulate a trial strategy, and in
the case of Soto (who was not videotaped), deprived the jury of an
opportunity to assess the witness’s demeanor. We disagree.
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A. Carter’s Claim is not Forfeited
Respondent preliminarily argues that Carter forfeited his
constitutional argument because he failed to raise it at the
hearing.
On the contrary, at the due diligence hearing, defense
counsel asked the court to consider People v. Sandoval (2001) 87
Cal.App.4th 1425, 1443 and People v. Sanchez (2016) 63 Cal.4th
411, 442 before ruling. The trial court agreed to do so and later
indicated it had done so. Sandoval analyzed the prosecution’s
due diligence responsibilities with respect to unavailable
witnesses and the Confrontation Clause, and the page in Sanchez
to which defense counsel referred cited the constitutional holding
in Sandoval. Defense counsel’s invocation of Sandoval and
Sanchez therefore preserved the constitutional dimension of
Carter’s evidentiary challenge. (See People v. Champion (1995) 9
Cal.4th 879, 908, fn. 6 [to the extent the question of forfeiture is a
close call, the appellate court is to assume the issue is
preserved].)
B. Applicable Law
Under the Confrontation Clause, a testimonial statement of
a witness who is absent from trial is admissible where the
declarant is unavailable and the defendant has had a prior
opportunity to cross-examine. (Crawford v. Washington (2004)
541 U.S. 36, 59; see Evid. Code, § 1291.) A witness will not be
deemed unavailable unless the prosecutorial authority “has
exercised reasonable diligence but has been unable to procure his
or her attendance by the court’s process.” (Evid. Code, § 240,
subd. (a)(5); People v. Cromer (2001) 24 Cal.4th 889 (Cromer).)
Although Evidence Code section 240 refers to “reasonable
diligence,” courts often describe the analysis as one involving
12
“due diligence.” (People v. Bunyard (2009) 45 Cal.4th 836, 849,
897.)
In reviewing whether the prosecution exercised reasonable
diligence in its unsuccessful efforts to locate a missing witness so
that the prosecution could use the witness’s prior testimony at
trial without violating defendant’s constitutional right of
confrontation, the first inquiry is a matter of determining the
historical facts—a detailed account of the prosecution’s failed
efforts to locate the absent witness. Those facts will rarely be in
dispute. When they are, we apply a deferential standard of
review to the trial court’s factual findings. (Cromer, supra, 24
Cal.4th at p. 900.) We independently determine whether these
historical facts amount to due diligence. (Id. at p. 901.) To do so
we consider “ ‘whether the search was timely begun, and whether
the witness would have been produced if reasonable diligence had
been exercised.’ ” (People v. Sanders (1995) 11 Cal.4th 475, 523.)
C. Proceedings Below
Here, detectives testified to substantial efforts made over a
period of about a month to locate Soto and Howlett.
Detective Robertson testified he ran Soto’s name through
local and national databases and learned he had been deported to
Mexico but could not locate him there. Detective Collier testified
he tried multiple phone numbers associated with Howlett and
sent him an email, and after learning he had been arrested in
Reno, sent Nevada police to his last known address.
D. Discussion
We conclude that even though these searches were
conducted for only about a month, they were timely begun and
reasonably diligent in scope. It does not take long to conduct an
exhaustive digital search for someone.
13
Carter argues the prosecution should have started earlier
and done more to secure the witnesses’ attendance after they
became absent. For example, Carter argues, if the prosecution
had started its search for Howlett a month earlier it would have
found him in a Reno jail cell, and could have easily secured his
attendance via interstate processes. And if the prosecution had
started its search for Soto earlier it might have been able to elicit
cooperation from Mexico.
But nothing in the record suggests that the witnesses
would have been found and produced if other avenues had been
explored. For example, nothing affirmatively suggests that Soto
was still in Mexico or even still alive, or that Howlett, who had a
history of homelessness, actually lived at his last known address
in Sparks, Nevada.
Carter relies on Cromer, which held that a search
conducted only a month before trial was untimely. Cromer is
distinguishable. There, a man at the witness’s former home told
a prosecution investigator that the witness was living with her
mother. The investigator waited two days before driving to the
mother’s home, where a woman said the mother was out but
would return the next day. She also said the witness did not live
there, and she had no idea where she was. The investigator
never returned and made no further effort to speak to or locate
the witness’s mother, for example by calling or visiting her at
work. (Cromer, supra, 24 Cal.4th at pp. 903-904.)
The detectives here had less to go on than did the
investigator in Cromer: Their witnesses were either out of state
or out of the country, no one told them where either Howlett or
Soto lived. Arguably, the detectives could have started their
14
investigations earlier and done more but nothing in the record
indicates that further measures would have been fruitful.
Carter argues that investigators should have tried to
contact Mexican authorities and Soto’s known relatives and
associates in the United States for assistance in conducting a
search. They should also have posted a notice at Howlett’s last
known address or at least ensured that the Nevada officers had
actually visited the address.
But we will not reverse a finding of unavailability “ ‘simply
because the defendant can conceive of some further step or
avenue left unexplored by the prosecution. Where the record
reveals . . . that sustained and substantial good faith efforts were
undertaken, the defendant’s ability to suggest additional steps
(usually . . . with the benefit of hindsight) does not automatically
render the prosecution’s efforts “unreasonable.” [Citations.] The
law requires only reasonable efforts, not prescient perfection.’
[Citations.] ‘That additional efforts might have been made or
other lines of inquiry pursued does not affect [a] conclusion [there
was due diligence] . . . . It is enough that the People used
reasonable efforts to locate the witness.’ ” (People v. Diaz (2002)
95 Cal.App.4th 695, 706.)
Carter argues the prosecution was required to prevent the
witnesses from becoming absent, for example by undertaking
surveillance, independently verifying their predicted further
whereabouts, delaying deportation, invoking mutual assistance
measures with Mexico, or making use of the Uniform Act to
Secure the Attendance of Witnesses without the State in
Criminal Cases (Pen. Code, §§ 1334-1334.6).1 We disagree. The
1 Undesignated statutory references will be to the Penal
Code.
15
time between arrest and trial was five and a half years. The
prosecution owed no duty to keep tabs on unwilling or unable
witnesses for five years.
E. Prejudice
Even were Soto’s and Howlett’s testimony inadmissible,
reversal is not required if the record shows beyond a reasonable
doubt that Carter suffered no prejudice. (People v. Foy (2016) 245
Cal.App.4th 328, 350.) Under this standard, respondent must
demonstrate beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.
(Chapman v. California (1967) 386 U.S. 18, 24.) “ ‘ “To say that
an error did not contribute to the ensuing verdict is . . . to find
that error unimportant in relation to everything else the jury
considered on the issue in question, as revealed in the record.”
[Citation.] Thus, the focus is what the jury actually decided and
whether the error might have tainted its decision. That is to say,
the issue is “whether the . . . verdict actually rendered in this
trial was surely unattributable to the error.” ’ ” (People v.
Pearson (2013) 56 Cal.4th 393, 463.)
To determine whether a confrontation clause violation is
harmless beyond a reasonable doubt, courts consider “the
importance of the witness’[s] testimony in the prosecution’s case,
whether the testimony was cumulative, the presence or absence
of evidence corroborating or contradicting the testimony of the
witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the
prosecution’s case.” (Delaware v. Van Arsdall (1986) 475 U.S.
673, 684.)
Here, Howlett’s testimony was either irrelevant or
superfluous. He described his interactions with Carter, denied
16
that the gun belonged to him, and stated that Carter admitted he
was wanted for four murders as part of a “genocide protecting the
Black people and killing Mexicans.” Howlett’s interactions with
Carter were irrelevant because the charges pertaining to them
were dismissed before trial. His denial about the gun, i.e., his
intimation that the gun belonged to Carter, was superfluous
because Carter admitted to undercover agents that he committed
the restaurant shooting, and ballistics evidence tied that shooting
to the others, including the Martinez shooting, where DNA
evidence pertaining to Carter was also found. Further, police
found cartridges for the gun on Carter’s person when he was
arrested. Because substantial independent evidence tied Carter
to the gun, Howlett’s intimation that the gun belonged to Carter
was superfluous beyond a reasonable doubt.
Carter’s admission to Howlett about genocide and murder
were also irrelevant or superfluous because Carter had not
committed any murders, nothing about the shootings indicated
he targeted the victims as part of a Mexican genocide, and Carter
also admitted to police agents that he felt he was engaged in a
racial war.
Carter argues that Howlett’s testimony was the only
evidence establishing either premeditation or, in the case of the
restaurant and car shootings, an intent to kill. For the reasons
discussed above, the argument is without merit.
Soto’s testimony added nothing the jury did not already
know. Although he was the only person to identify Carter as the
restaurant shooter, Carter was also linked to that shooting by
ballistic evidence—bullets fired at the restaurant came from the
gun in his possession when he was arrested—and his own
admissions to undercover agents.
17
Carter argues that Soto’s testimony was the chief
component contradicting Carter’s claim that when he fired at the
restaurant he was defending himself against an attack. But no
evidence suggested he was defending himself. Neither Robledo
nor Guerrero said anything about Carter being attacked. On the
contrary, only Soto himself suggested Carter was attacked—by
Soto. Soto’s claim to have verbally attacked Carter only bolstered
Carter’s claim that he was attacked.
On this record, any error in admitting Howlett’s or Soto’s
testimony was harmless beyond a reasonable doubt.
III. Admission of Custodial Interrogations
Carter argues his rights against self-incrimination and to
due process and the presence of counsel were violated by the
introduction of custodial interrogations by undercover police
agents. (U.S. Const., 5th, 6th & 14th Amends.; Cal. Const., art. I,
§ 7.) Carter concedes that binding caselaw is against him on this
point but calls for the California Supreme Court to reconsider the
constitutionality of deceptive police tactics that skirt
requirements set forth by Miranda v. Arizona (1966) 384 U.S.
436 (Miranda).
We preliminarily note that Carter has forfeited the
argument by failing to make it below. (People v. Kennedy (2005)
36 Cal.4th 595, 612.)
His claim fails on the merits too.
Under Miranda and its progeny, “ ‘ “the accused must be
adequately and effectively apprised of his rights” to remain silent
and to have the assistance of counsel [prior to a custodial
interrogation]. [Citation.] “[I]f the accused indicates in any
manner that he wishes to remain silent or to consult an attorney,
interrogation must cease, and any statement obtained from him
18
during interrogation thereafter may not be admitted against him
at his trial” [citation], at least during the prosecution’s case-in-
chief [citations].’ ” (People v. Nelson (2012) 53 Cal.4th 367, 374,
377.)
However, as our Supreme Court has observed, “[b]oth
‘custody’ and ‘police questioning’ are necessary to invoke
Miranda, and both concepts are viewed from the suspect’s
perspective.” (People v. Tate (2010) 49 Cal.4th 635, 685-686.)
“Miranda’s aim is to ensure that the suspect’s will to remain
silent is not overborne by the coercive atmosphere of police
questioning in custody.” (Id. at p. 686.) Consequently, “voluntary
statements to someone the suspect does not believe is a police
officer or agent, in a conversation the suspect assumes is private,
simply does not involve one of these two critical concerns” of
custody and police questioning, and Miranda is inapplicable in
such a case “even if a suspect happens to be in custody” at the
time that person makes inculpatory statements. (Id. at pp. 685-
686.)
Tate controls here, and we are bound to follow it.
(Tanguilig v. Bloomingdale’s, Inc. (2016) 5 Cal.App.5th 665, 673.)
We therefore cannot accept Carter’s invitation to reexamine
whether Miranda’s protections are available to a suspect who
made inculpatory statements to undercover police operatives
while in custody.
IV. The Court Properly Omitted any Instruction About
Involuntary Manslaughter Based on a Self-Defense
Theory
Carter argues the court erred in failing to instruct the jury
sua sponte on attempted voluntary manslaughter as a lesser
included offense of the charged attempted murders. We disagree.
19
A. Relevant Proceedings
In his surreptitiously recorded conversations with
undercover agents, Carter stated that during the restaurant
shooting he was rushed by 15 to 20 people before he fired the
shots. He claimed there was a “genocide” being committed
against Black people, and stated he only ever shot in self-defense.
As relevant to the issue of self-defense, an eyewitness to
the aftermath of the vehicle shooting testified that Carter’s bike
was lying on the ground, Carter was getting up, and his
belongings were scattered. Martinez, the driver, admitted he
drank alcohol that day, drove slowly in a circle around 1:00 a.m.
near a closed parking lot before approaching Carter from behind,
and lied to police about who had been driving.
As to the restaurant shooting, Soto testified he shouted a
derogatory term at Carter.
As to the Busani shooting, an eyewitness testified that she
saw two men engage in a shooting.
Carter intimates that these events constitute evidence of
provocation.
The jurors were not instructed on attempted voluntary
manslaughter as a lesser included offense of attempted murder (§
192, subd. (a)) but were instructed that: “[a] decision to kill made
rashly, impulsively, or without careful consideration of the choice
and its consequences is not deliberate and premeditated.”
B. Applicable Law
Attempted voluntary manslaughter is a lesser included
offense of attempted murder. The only difference between the
two offenses is that in the case of attempted voluntary
manslaughter, the perpetrator acts without malice, attempting to
kill either “upon a sudden quarrel or heat of passion” (§ 192,
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subd. (a)) or in “ ‘unreasonable self-defense’—the unreasonable
but good faith belief in having to act in self-defense.” (People v.
Moye (2009) 47 Cal.4th 537, 549.)
“ ‘ “ ‘Under the doctrine of imperfect self-defense, when the
trier of fact finds that a defendant killed another person because
the defendant actually, but unreasonably, believed he was in
imminent danger of death or great bodily injury, the defendant is
deemed to have acted without malice and thus can be convicted of
no crime greater than voluntary manslaughter.’ ” ’ [Citation.]
Imperfect self-defense ‘obviates malice because that most
culpable of mental states “cannot coexist” with an actual belief
that the lethal act was necessary to avoid one’s own death or
serious injury at the victim’s hand.’ ” (People v. Beck and Cruz
(2019) 8 Cal.5th 548, 648.) “This doctrine is a ‘ “narrow” ’ one and
‘will apply only when the defendant has an actual belief in the
need for self-defense and only when the defendant fears
immediate harm that “ ‘ “must be instantly dealt with.” ’ ” ’ ”
(People v. Landry (2016) 2 Cal.5th 52, 97-98.)
“ ‘[I]mperfect self-defense is not an affirmative defense, but
a description of one type of voluntary manslaughter. Thus the
trial court must instruct on this doctrine . . . whenever there is
evidence substantial enough to merit consideration by the jury
that under this doctrine the defendant is guilty of voluntary
manslaughter.’ ” (People v. Manriquez (2005) 37 Cal.4th 547,
581.) “The duty applies whenever there is evidence in the record
from which a reasonable jury could conclude the defendant is
guilty of the lesser, but not the greater, offense.” (People v. Duff
(2014) 58 Cal.4th 527, 561.)
On appeal, “[w]e review de novo a trial court’s failure to
instruct on a lesser included offense” and, in doing so, “view the
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evidence in the light most favorable to the defendant.” (People v.
Millbrook (2014) 222 Cal.App.4th 1122, 1137.)
C. Application
Here, there was no evidence that Carter shot at his victims
because someone provoked him. There was no evidence that any
victim assaulted or aggressed Carter, i.e., no evidence indicated
that Martinez threatened Carter with his car, that Soto followed
up on his verbal assault at the restaurant with aggressive
behavior, or that the two men purportedly shooting at Busani
were engaged in a struggle with each other. To conclude
otherwise the jury would have to draw three inferences
unsupported by any evidence: (1) Someone other than Carter
acted aggressively; (2) that person provoked Carter; and (3)
Carter actually feared for his safety. Because no evidence
supported any of these inferences, no reasonable jury could
conclude that Carter believed he was in imminent danger of
death or great bodily injury when he fired his handgun.
Therefore, the court properly eschewed any instruction on
attempted voluntary manslaughter/self-defense.
V. The Sentence for Shooting at an Occupied Vehicle
Must Be Stayed
For the vehicle shooting, Carter was charged with the
attempted murders of driver Martinez and passengers, Jurado
and Santos, and with shooting at the vehicle they occupied.
In sentencing, the court selected count 9 (the restaurant
shooting) as the base, determinate count, imposing a midterm
sentence of five years. The court imposed indeterminate life
terms, plus enhancements, for the three attempted murder
counts from the vehicle shooting, and added a consecutive 20-
month term for shooting at an occupied vehicle.
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Appellant contends the 20-month term for shooting at an
occupied vehicle must be stayed. Respondent concedes the point,
and we agree.
Section 654 proscribes multiple punishment for the same
conduct. Here, Carter fired a handgun at the occupants of
Martinez’s car, and at the car itself, in an indivisible course of
conduct. The court imposed consecutive sentences when it should
have stayed the term imposed upon the less serious offense of
shooting at an occupied vehicle. We will order the 20-month
sentence stayed and direct the trial court to modify the abstract
of judgment.
VI. Carter is Entitled to a Remand for Resentencing
under Assembly Bill No. 124
Carter argues that a recent amendment to section 1170—
Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Assembly Bill
124)—applies retroactively to his case, and this matter should be
remanded for resentencing proceedings. The Attorney General
agrees Assembly Bill 124 has retroactive application to nonfinal
judgments but argues Carter’s sentence should be affirmed
because the trial court already considered factors set forth in the
bill.
A. Amendment to Section 1170
When Carter was sentenced on November 2, 2021, section
1170, subdivision (b) provided that when a penal statute specified
three possible imprisonment terms (lower, middle, and upper),
the trial court generally had broad discretion to select the term
from that triad that best served the interests of justice. (Former
§ 1170, subd. (b).) The trial court was further required to specify
the reasons for its sentencing decision. (Ibid.)
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On October 8, 2021, the Governor signed Assembly Bill 124
and Senate Bill No. 567 (2021-2022 Reg. Sess.); Statutes 2021,
chapter 731, section 1.3 (Senate Bill 567) into law.
Senate Bill 567 basically established a preference for
middle rather than higher terms.
Assembly Bill 124 amended section 1170 to add that
“unless the court finds that the aggravating circumstances
outweigh the mitigating circumstances that imposition of the
lower term would be contrary to the interests of justice, the court
shall order imposition of the lower term” if certain factors were “a
contributing factor in the commission of the offense.” (Stats.
2021, ch. 695, § 5.1, adding § 1170, subd. (b)(6).) As relevant
here, those factors include the defendant having “experienced
psychological, physical, or childhood trauma, including, but not
limited to, abuse, neglect, exploitation, or sexual violence.” (§
1170, subd. (b)(6)(A).)
On January 1, 2022, Assembly Bill 124 and Senate Bill 567
went into effect.
The parties agree and we concur that the changes to section
1170 made by Senate Bill 567 and Assembly Bill 124 apply
retroactively to nonfinal judgments because they operate to
reduce punishment, and there is no evidence to rebut the
presumption of retroactivity. (E.g., People v. Flores (2022) 73
Cal.App.5th 1032, 1039.)
B. Relevant Proceedings
The trial court sentenced Carter on November 2, 2021,
after Assembly Bill 124 was signed but before it went into effect.
At sentencing, the court possessed only a 2015 pretrial
probation report, which indicated Carter was homeless and had
suffered a history of mostly misdemeanor offenses. The report
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said nothing about psychological, physical, or childhood abuse,
neglect, exploitation, or sexual violence.
In fashioning the sentence, the court selected the midterm
for each of the three determinate counts—shooting at a
restaurant, at an occupied vehicle, and at an occupied dwelling.
As factors in aggravation, the trial court found: (1) The offenses
showed planning and sophistication; (2) there was an increasing
seriousness in Carter’s criminal conduct; (3) the level of violence
was high; and (4) the injuries suffered were serious. In
mitigation, the court found that Carter suffered from drug
addiction.
Regarding the new laws going into effect on January 1,
2022, the court stated: “I have also considered the things—the
new statutes that will go into effect January 1 would ask me to
consider, and I have not imposed any of those. I have not
stricken any of those. I have considered all of those factors. I
don’t think they affect this case. . . . I did give the defendant mid-
term as a consideration, not low term, because of the nature of
the crimes involved.”
Defense counsel made no argument at sentencing.
C. Standard of Review
We review a trial court’s sentencing decisions for abuse of
discretion, evaluating whether the court exercised its discretion
“in a manner that is not arbitrary and capricious, that is
consistent with the letter and spirit of the law, and that is based
upon an ‘individualized consideration of the offense, the offender,
and the public interest.’ ” (People v. Sandoval (2007) 41 Cal.4th
825, 847.) “A failure to exercise discretion also may constitute an
abuse of discretion.” (People v. Sandoval, supra, 41 Cal.4th at pp.
847-848.) If the court failed to exercise newly granted discretion
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in sentencing, remand for resentencing is required unless “the
record contains” a “clear indication that the trial court will not
exercise its discretion to reduce [the defendant’s] sentence” under
the new law. (People v. McDaniels (2018) 22 Cal.App.5th 420,
423.)
D. Application
Although the trial court did not explicitly reference
Assembly Bill 124 when it sentenced Carter, it appears the court
took the bill into consideration—it stated that it considered “the
new statutes” and “all of those factors.” The court stated it
imposed the “mid-term as a consideration,” “not [the] low term”
(apparently referencing an Assembly Bill 124 analysis), only
because of the “nature of the crimes involved.”
However, the record is not fully developed as to the
relevant factors. The 2015 probation report was prepared six
years before Assembly Bill 124 was enacted, and gave no
indication that factors made pertinent by that bill may have been
investigated. Further, the record is silent as to whether Carter’s
defense counsel even knew about Assembly Bill 124. (See In re
Gay (2020) 8 Cal.5th 1059, 1073 [constitutional right to the
effective assistance of counsel ensures defendants the right to
effective performance “ ‘assessed according to the prevailing
norms at the time’ ”].)
We therefore doubt that the court’s examination of what it
called “those factors” constituted an exercise of informed
discretion. (See People v. Flores (2021) 63 Cal.App.5th 368, 385
[“ ‘ “Defendants are entitled to sentencing decisions made in the
exercise of the ‘informed discretion’ of the sentencing court” ’ ”].)
We find it further unclear whether the trial court, with the
benefit of counsel prepared to address the new law, would reach
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the same conclusion as to the determinate counts had the new
law already been in effect.
We will therefore remand the matter for resentencing. On
remand, trial counsel may ask the probation department to
prepare an updated report and undertake relevant investigations
aimed at exploring whether Carter’s childhood or other
circumstances qualify him for the new presumption.
(See People v. Sotelo-Urena (2016) 4 Cal.App.5th 732, 755-756
[“the extent to which the homeless are confronted with persistent
danger, as demonstrated by the evidence of the violence
experienced by the homeless, and the psychological consequences
of experiencing chronic homelessness, is beyond the ken of
most”].) The trial court will then have the opportunity to exercise
its informed discretion as to whether Assembly Bill 124’s
presumption applies in Carter’s case.
DISPOSITION
The convictions are affirmed. The matter is remanded for
limited resentencing and correction of the abstract of judgment in
accordance with the discussion above.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
WEINGART, J.
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