People v. Carter (30 Cal. 4th 1166, 2003)

Opinion

WERDEGAR, J.

A Los Angeles County jury convicted defendant Tracey Lavell Carter of the robbery and murder of David Thompson, the robbery of Namora Thompson, the murder and attempted robbery of Leopoldo Salgado, and the attempted robbery and attempted premeditated murder of Manuel Figueroa. (Pen. Code, §§ 187, 211, 664; unless otherwise specified, further statutory references are to the Penal Code.) With respect to each charge, the jury found that a principal was armed with a handgun and that defendant personally used a firearm. (§§ 12022, subd. (a), 12022.5.) With respect to both murder counts, the jury found true robbery-murder and multiple-murder special-circumstance allegations. (§ 190.2, subd. (a)(3), (17)(A).) The jury returned a verdict of death for the murder of David Thompson and one of life imprisonment without possibility of parole for the murder of Leopoldo Salgado. The trial court imposed sentence accordingly, and this appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I. Facts

A. Guilt Phase

1. Prosecution case

a. Thompson murder and robbery

On the evening of April 9, 1987, David Thompson and his wife Namora Thompson, residents of Tustin in Orange County, drove their 1987 Hyundai to Los Angeles to attend a church-related function. The event ended around 11:00 or 11:30 p.m. One of the members of their church then told Mr. Thompson that the bus carrying fellow church members to Los Angeles had broken down. Mr. Thompson attempted unsuccessfully to telephone the pastor of the church; then, along with his wife, he went to the location of the inoperative bus to see whether he could be of assistance. When efforts to start the bus failed, Mr. and Mrs. Thompson got back into their car and drove to a telephone booth to try again to contact their pastor. They rejected the first booth they encountered because it was poorly lit and they were concerned for their safety.

Driving further, they stopped at a well-lit gas station with four telephone booths. Mr. Thompson parked the car about six feet away from the booths and got out to make the call while Mrs. Thompson remained in the car. Suddenly, two men approached from behind the car. The first one, who was tall and “kind of fair skinned,” got into the phone booth next to Mr. Thompson’s. The second, who was more fair skinned than the first man and about three inches shorter than Mr. Thompson, stood in front of Mr. Thompson. The second man then opened the driver’s side door of the Thompsons’ car, reached in and told Mrs. Thompson to give him the car keys. At that point, a third man, who appeared to be about Mrs. Thompson’s height (five feet six inches tall) knocked on the passenger’s side window and told her to get out of the car without turning around. She complied. The first man, now standing in front of Mr. Thompson, was telling him to hang up the phone, cursing at him and demanding his money. The man who was standing behind Mrs. Thompson asked if she had any money. She told him she would see, took the wallet from her purse, removed a $10 bill and handed it to him over her right shoulder. When he asked if that was all she had, she told him to look for himself and gave him her wallet, whereupon he insisted she look. The man instructed her to walk towards the back of the car. He then came around the back of the car and got into the backseat on the driver’s side, while the first man, who had been at the phone booth, started to get into the driver’s seat. As Mr. Thompson hung up the receiver, the first man got out of the car, returned to the phone booth and put the gun to Mr. Thompson’s head. As Mr. Thompson prayed aloud, the man shot him. All three men then got into the car and drove away.

Later on the night of the shooting, being under great stress, Mrs. Thompson told police she was unable to identify any of the assailants, and she failed to make an identification from a photographic lineup. At the preliminary hearing and at trial, however, she identified defendant as the man who had shot her husband.

At the time of the Thompson murder, George Austin was driving east on the inside lane of Slauson Avenue. As he approached a Mobil station located at Slauson and Broadway, he heard a gunshot. Looking in the direction of the shot, he observed several phone booths, a small gray car and three Black males near the car. Two were getting in on the passenger’s side of the car, while the third was coming from the phone booth and entering the driver’s side of the vehicle. Austin described the third man as a Black man of medium build, five feet six inches to five feet eight inches in height. Although Austin failed to identify defendant at the preliminary hearing, at trial he identified defendant as the man he had seen walking back to the car from the phone booths.

Around 11:00 on the night of the Thompson murder, Homer Butler was at the Mobil station at the comer of Broadway and Slauson. He was often there, assisting people in getting gas, checking oil and doing things of that nature in exchange for some change. On that occasion, Butler heard a woman screaming and, near the telephone booths, saw a man going through a purse, a man in a suit inside the phone booth and a young Black male going through his pockets. Two young Black males were near the woman who was screaming. Realizing a robbery was in progress, Butler hid behind the gas station cashier’s booth so he would not be seen. Butler then ran across the street to a barbecue restaurant to dial 911. As he was doing so, he heard a gunshot coming from the robbery scene. Looking over, he saw three to four people drive away. After calling 911, he rushed back across the street. The woman was still screaming hysterically; the man had been fatally shot.

Butler spoke with the police. Detective William Baird testified that Butler had identified defendant’s picture in a photographic lineup as looking “familiar to one of the guys in the car[’s] right front passenger seat.” Subsequently, at some point prior to trial, Baird again spoke with Butler, who said of defendant’s picture in the photo lineup, “That’s the guy, but I’m not going to testify to it.” Butler indicated he feared he would be in danger if he identified anyone and, if called to testify, would deny having done so.

The Thompsons’ damaged car was found abandoned in the area of 70th Street and Estrella Avenue, its battery and radio missing. Todd Lavera admitted to Detective Baird that he had thrown Mr. Thompson’s wallet into a storm drain at Hoover Street and Florence Avenue; Baird drove there and recovered the wallet.

Detective Baird participated in the arrest of both defendant, then age 18, and Todd Lavera, then age 22. In the course of their booking, the police determined defendant’s height to be six feet one inch and that of Lavera to be six feet two inches. Detective Morton Duff took part in arresting Andre Moore, then age 16, whose height was determined, during booking, to be five feet five inches.

b. Offenses against Salgado and Figueroa

On April 10, 1987, Rochelle Stewart lived on Hoover Street next door to Tom’s Liquor Store. Around 1:00 a.m. that night, she left that store and was walking south on Hoover toward her house when she noticed two men whom she described as “Mexican” and whom she did not know (later identified as Manuel Serrano Figueroa and Leopoldo Magania Salgado) in a small blue car. They asked her to get in the car with them, but she refused. Todd Lavera, whom she knew as Buster, approached from behind and asked what she was doing talking to the Mexicans. Two other men walked up behind her; one was short, about five feet four inches, and the other about five feet 11 inches or about the same height as Lavera. The short man, whom she had seen before but whose name she did not know, went up to the blue car, stuck a gun in the driver’s window and said, “Give me the money.” As the driver (Figueroa) started to roll up the window, the short man fired four shots from what appeared to Stewart to be a small .22- or .25-caliber gun, breaking the window on the driver’s side. The Mexican man on the passenger side (Salgado) got out of the car, whereupon the short man fired three more shots at him. The driver pulled out of the driveway. As Lavera stood near Stewart, the other tall man took the gun from the short man and fired two more shots at the passenger. Lavera and the two unknown men then ran to an alley connecting Hoover Street and 73d Street. Salgado’s wounds proved fatal.

In speaking with the police later that night, Stewart initially told them she “didn’t know who did what,” but later identified Lavera, Moore and defendant in separate photo lineups. With respect to defendant’s photo, she told the police, “That kind of look [szc] like the last person that shot the gun.” At the preliminary hearing in this case, Stewart identified Lavera, but testified she did not see the other two men in the courtroom. At trial, she acknowledged she had in fact recognized the other two men at the preliminary hearing, but had been too fearful to identify them because she was then still living in the neighborhood. At Lavera’s separate trial, Stewart had identified Moore as the first shooter when he was brought out for her to see, and she testified Lavera was the man who stood beside her during the crime, but she did not recognize defendant as being the second shooter when he was brought out. At defendant’s trial, Stewart denied seeing the second shooter anywhere in the courtroom and denied that defendant looked anything like the photograph she had identified as being the second shooter. She also denied ever telling the prosecutor and her investigator that she was afraid to testify.

Vivian Bivians, Todd Lavera’s sister, testified she had long known defendant and Andre Moore, and both men were friends of her brother. On the night of the offenses, defendant and Moore were visiting with Lavera at the back of the house where she and Lavera lived with their mother. The house was located about a block from Tom’s Liquor Store. At one point their mother asked Lavera to go to Tom’s Liquor Store, get a broom and come right back home with it. Lavera left to go to the store, closely followed by Moore and defendant. Ten to 15 minutes later, Bivians heard two or more gunshots and, thinking Lavera might have been shot, ran to the comer. There she saw defendant walking down Hoover Street with four or five girls. She asked defendant where Lavera was; he replied he did not know. An hour later, she saw Lavera in a police car. Neither Lavera, Moore or defendant ever returned to her house with the broom or any explanation of what had happened.

Manuel Figueroa testified at the preliminary hearing. As he had died of natural causes by the time of trial, his former testimony was read into evidence. Figueroa testified that around 1:15 a.m. on April 10, 1987, he and Salgado were sitting in Figueroa’s car at Tom’s Liquor Store when a young Black woman walked by. Figueroa and Salgado had been drinking at a club, and Salgado began to flirt with the woman. Three Black men, whose ages he estimated as 20 to 22 years, walked up behind the woman and then approached his car. One of the men walked up to his open window, said, “I’m going to kill you,” and took out his gun. The other two men lined up behind the man with the gun, who fired four shots. The second and third shots grazed the back of his head and neck as he ducked forward; the fourth shot hit him behind his right ear. After the fourth shot was fired, Salgado got out of the car. Figueroa unsuccessfully tried to stop him. Figueroa then pulled out of the lot and drove away. He identified Moore as the shooter and Lavera and defendant as the two men lined up behind Moore.

When Figueroa first spoke with the police about the crime, he did not want to cooperate because he was afraid of reprisal. He therefore told the police he could not identify the three attackers and could only describe them as being young and Black. By the time of the preliminary hearing, however, his fear had diminished because he had moved to a new residence, having been paid $1,000 as part of a relocation effort by the district attorney’s office.

Officer Arthur Duran of the Los Angeles Police Department was on patrol with his partner in a marked police car during the early morning hours of April 10, 1987. As he reached 73d Street and Vermont Avenue, a radio broadcast informed him that a shooting had occurred at Tom’s Liquor Store and that the suspects, three Black men, were running westbound on 73 d Street. Duran stopped the patrol car at 73d and Florence and observed three Black males walking westbound on the sidewalk, two walking together and a third some 20 or 30 feet behind the others. When the car’s headlights shone on them, the three men ran into the yards of the residences at 936 and 932 West 73d Street. A canine unit responded to the residence toward which Duran had seen the first two suspects flee; Lavera was found hiding at the rear of that location. The other two suspects were not found. Lavera underwent a gunshot residue test with negative results.

Later that day, Jose Alvarado was cleaning his yard at 940 West 73d Street, across from Tom’s Liquor Store, when he found a gun missing its cylinder. He gave it to his mother-in-law, who gave it to the police.

During the autopsy of Salgado, the coroner, Dr. Susan Selzer, retrieved a .22-caliber slug from Salgado’s chest. The slug was compared with the gun found in Alvarado’s yard. Detective Donald Richards testified that, depending on the brand of revolver and the cylinder used, a .22-caliber revolver could fire between five and nine shots. In his experience, a nail could be used as well as a pin to make the revolver operable.

c. Johnny Davenport’s extrajudicial statement and testimony

After defendant, Moore and Lavera were arrested, Detective Morton Duff twice interviewed Johnny Davenport, who knew all three suspects and who, by the time of trial, was incarcerated at Avenal State Prison on a 1987 robbery conviction. During the second interview, Davenport gave a statement that, redacted to eliminate minor irrelevancies, read as follows;

“It was about Noon when this guy from the Eight-Trey I know as Blackie came over. He was telling me, Tracey [Carter], Andre [Moore], and Todd [Lavera] that he had gotten into a fight with an East Coaster who killed a guy named Otis that was from our set. Todd got real mad about it and said he had a ‘gat’ (a gun) and he wanted to go bust on the East Coast. Todd left for five to ten minutes and then came back with this old raggedy .22 pistol. When he showed it to us it had a nail holding the cylinder. When he pulled out the nail, it fell apart. Todd was asking if anyone had some more shells because he only had about (4) in the gun. [f ] . . .1 stayed around the house until 12:00 or 1:00 p.m. then I went over to Andre’s. Andre started telling me about the Mexicans at the liquor store. Andre said he tried to jack them and when he stuck the gun up to the window, the guy tried to roll the window up on his hand. Andre said he dropped the gun and when he picked it up he started shooting at both the Mexicans. Andre said he shot, he ran. While Andre was telling about the Mexicans at the liquor store at Florence and Hoover, Tracey came up. That’s why I was wondering why the hood got hot, the police were everywhere. After Andre finished telling me about shooting the Mexicans, they both, Tracey and Andre, started telling me about a preacher they jacked. Tracey said when he walked up the preacher was at the telephone booth. Tracey told the preacher to give him the money. That’s when the preacher started praying. That’s when Tracey said he shot the preacher. Tracey said it was at Slauson and Broadway where it happened. I don’t know whether it was the same day or the next day. [f] Andre said they got a car. Then it was Andre who told me about the lady. They got her out of the car and they jetted out. He said they parked the car and threw the keys on the roof. While Andre was telling me about the car, Tracey was there along with some others, but I don’t remember who else. It was both Tracey and Andre that was telling me about Todd getting picked after the police dog found him running or hiding on 73rd and Hoover. After the police took him to jail, they let him go. I don’t remember whether it was Andre or Tracey that said they threw the gun after they ran from the liquor store.”

On direct examination, Davenport testified that he and Moore were members of the 7-4 Hoover Crips, while defendant was a member of the 84 Kitchen Crips. The 7-4 Hoover Crips and the Kitchen Crips would hang out together. Sometimes Davenport would hang out at 70th Street and Bonsallo Avenue with other 7-4 Hoover Crips, and defendant and Moore were sometimes present. Davenport denied having made substantial portions of his extrajudicial statement. Davenport recalled having a conversation, prior to the Thompson murder, with Moore, Lavera and someone named Black concerning the killing of Otis Jones, a member of the 7-4 Hoover Crips, and how Black had had a fight with a member of the East Coast Crips who may have had something to do with Jones’s death. Davenport first denied telling the police defendant was present during that conversation, then said he did not remember whether he told them that. Davenport denied telling the police the conversation angered Lavera, or that Lavera said he had a “gat” (i.e., a gun) and wanted to go “bust” on the “East Coast,” although he recalled that Lavera went home at that point and later returned with a small gun with a nail holding the cylinder in place. Davenport claimed not to recognize People’s exhibit No. 6, the gun found by Jose Alvarado, but acknowledged that during Lavera’s trial he had testified the gun looked similar to the one Lavera had possessed during their conversation. The day after the conversation, Davenport testified, he spoke with Moore in the driveway of Moore’s residence on Bonsallo Avenue. Moore told Davenport “some Mexicans had got killed.” Davenport denied telling the police that Moore told him he tried to “jack” (i.e., rob) them and when he put the gun to the window “the guy tried to roll the window up on his hand.” Davenport further denied telling the police that Moore had told him he dropped the gun and, when he picked it up, he started shooting at both the Mexicans. Davenport denied telling the police that, as Moore was telling him about the Mexicans at the liquor store, defendant came up to them; or that, after Moore finished telling him about shooting the Mexicans, Moore and defendant both started to tell him about how they had “jacked a preacher.” Davenport denied telling the police that defendant said the preacher was at the phone booth and that defendant shot the preacher after demanding that he give defendant his money. Davenport denied telling the police that Moore said they got “the lady” out of the car and “jetted out,” then parked the car and threw the keys onto the roof. He denied telling the police he didn’t remember whether it was Moore or defendant who said they threw the gun after they ran from the liquor store. The prosecutor showed Davenport a three-page statement, marked as People’s exhibit No. 31; Davenport acknowledged that the first time he had seen the statement was at the police station in 1987 and that the initials on various lines, as well as the signature at the bottom of each page, were his own. He acknowledged traveling to Lavera’s trial by helicopter, accompanied by Detective Duff. He denied, however, telling Duff that everything contained in the statement was true but he could not say so in court because he had to live in the prison system.

On cross-examination, Davenport testified he was first contacted by the police two or three days after the incidents when at least five officers, including Detective Duff, came to his house, handcuffed him and drove him in an unmarked car to the Newton Community station. There he was uncuffed and placed in a small room where he was interviewed by Duff and another officer. Davenport testified the officers had told him something to the effect that they had information that he was with Moore on the day of the crimes, although on redirect examination he acknowledged the officers might have said they had information he and Moore had been talking about the killings. The officers talked with Davenport for six to seven hours, with breaks. At first, he told them nothing, but after they told him they knew he had information about the incident and that he was going to stay in jail until he told them something, he lied to them. Duff wrote down Davenport’s statements. Davenport was then released. The following day, officers again picked him up and brought him to Newton station, telling him they knew everything he had said was a lie. Davenport feared they would charge him with the murders, too. Because the officers said his first statement was not good enough, Davenport gave them another statement, like the first “almost all of it” lies. As Duff wrote down Davenport’s statement, he altered it, putting in names where Davenport was omitting them. After the statement was complete, Duff allowed Davenport to read the statement and told him to sign it. Davenport complied because he “figured at the time that was the only way for me to get out of jail.”

On redirect, however, Davenport acknowledged he had testified at the preliminary hearing in this case that he was not afraid because he knew he had had nothing to do with the murders. He testified further on redirect that he did not remember giving the statement in People’s exhibit No. 31, or parts of it, to Detective Duff; that he had not read the whole statement, but knew that any names it contained were added by Duff because he did not name any names; and that he did tell Duff the matters set forth on the first page, but not the second or third page, of the statement. Davenport acknowledged that if he admitted the matters contained in his statement, he would get a “snitch jacket” in prison, but denied that this caused him any concern.

Detective Duff testified about the circumstances of his interviews with Davenport. Davenport was not a suspect in the two murders and was told he had been named as a person present when the crimes were being discussed. The first interview with Davenport lasted about 30 to 45 minutes. Davenport was asked if it was true he had been present during a discussion of the homicides; he disclaimed being present or knowing anything about it. Duff testified Davenport had lied when he testified the first interview lasted six or seven hours, the second interview lasted seven or eight hours, and that Duff had told him he would be kept in custody until he told the officers what Duff wanted to hear. Duff had heard Davenport lie on other occasions, including once under oath. Duff testified that People’s exhibit No. 31 was a summary of what Davenport had told the police. Following the interview Davenport was given an opportunity to read the statement. Apart from adding the word “Andre” to the third line of the statement, Davenport indicated he had no additions or corrections or anything he wanted to delete from the statement. Duff also testified that Davenport told him everything contained in his statement was true, but that he could not testify to it because he was in prison and if he testified the statement was true he would be a dead man. On cross-examination, Duff acknowledged that, although the police station had equipment capable of surreptitiously recording a witness’s statement, he chose not to use it while interviewing Davenport.

2. Defense case

The defense presented no witnesses. Defense counsel argued, in closing, that the prosecution had failed to prove its case beyond a reasonable doubt in view of the questionable identification evidence, Davenport’s credibility problems and the assertedly poor police practices in certain aspects of the investigation.

B. Penalty Phase

1. Prosecution case

The prosecution presented evidence that defendant had previously been convicted of possessing cocaine (§ 190.3, factor (c)) and that he had engaged in other violent criminal activity, namely the attempted murder of two rival gang members while in pretrial custody in April 1989 and a September 1985 grand theft and robbery (§ 190.3, factor (b)).

a. Jailhouse stabbing

On April 3, 1989, Joevone Elster and Mark Oropeza were incarcerated in the Los Angeles County jail and enrolled in the “Honor Row,” a voluntary school program for inmates. Defendant was also enrolled in the Honor Row. All enrollees had cells on the same row. On that date, Elster and Oropeza were attacked as they were returning from school to their cell row. Elster received a five- or six-inch stab wound on his left arm and a laceration to the top of his head. Oropeza suffered multiple wounds on his left arm and hand, a puncture wound behind his ear and another puncture wound to the temple. Elster testified he did not know who had stabbed him or how many people had attacked him. Oropeza likewise testified he did not know who had wounded him. Elster denied being an East Coast Crip; Oropeza admitted he and Elster were East Coast Crips, but denied telling Los Angeles Sheriffs Deputy Frank Plass, who administered the Honor Row program, or jail Deputies Reppucci and Weinman, of his gang affiliation. Elster admitted talking with Deputy Weinman immediately after the attack, but denied telling him that someone had yelled “East Coast Killers” at him. Oropeza denied talking with any jail deputies about the incident and even claimed he did not know what a “shank” was.

Deputy Mark Reppucci testified that around 1:00 p.m. on April 3, 1989, after he had just finished escorting inmates back from school and was closing the gate leading to their row, he saw four men—defendant, an inmate named Paul Brown, Elster and Oropeza—fighting. Reppucci and his partner, Deputy Weinman, told the inmates to stop fighting. When the backup summoned by Weinman arrived, the deputies broke up the fight. Reppucci searched all the inmates involved in the fight and found a shank, a “jail-made stabbing device,” in Brown’s front pocket. Although he found nothing on defendant, defendant admitted he had thrown something down the row. Elster and Oropeza had no weapons on them. Elster told Reppucci that as he was coming back from school, Brown approached him and started shouting “East Coast Killers,” which Elster understood to mean that Brown and defendant killed East Coast Crips. Reppucci testified that based on his independent knowledge and defendant’s tattoos with the letters “K” and “C,” defendant was a Kitchen Crip, and Elster and Oropeza were East Coast Crips.

Deputy Plass testified that he interviewed and screened inmates, including defendant, who volunteered for the Honor Row program. Plass testified he made it clear to all interested inmates that participants would be required to set aside any anger and resentment towards members of rival gang-sets who might be participating in the program. He informed them that any violation of the rules would be enough to remove them from the program. When defendant was selected, he had no significant disciplinary problems and appeared eager to get into the program.

In the course of investigating the assault on Elster and Oropeza, Plass interviewed defendant. After being advised of and waiving his Miranda rights, defendant told Plass that he and Paul Brown, a fellow Kitchen Crip, had heard rumors that members of the East Coast Crips were going to “get up at” or attack the Kitchen Crips. Because defendant and Brown felt insecure in being the only Kitchen Crips on the Honor Row, they decided to strike first. Accordingly, defendant made a shank by melting an underarm deodorant container, rolling it to a desired length and thickness, and sharpening it to a point with a cutting edge. The completed weapon was four to six inches in length, with a two- to three-inch blade. The day before the attack, defendant packed all his belongings in his cell and removed the pictures from his cell walls, as if—Plass testified—he anticipated leaving the module. Then, when he, Brown, Elster and Oropeza walked onto the row after returning from school on April 3, 1989, defendant put the shank in the palm of his hand and began to punch with his fist and stab with the shank, yelling “East Coast Killers.” After defendant used the shank, he threw it down the “freeway” or corridor leading to the back of the row. Plass testified that the module was searched for the shank, without success. For deputies to fail to find such items was not uncommon, as they can easily be placed in a toilet and flushed into the main sewer system. Defendant’s attitude as he told Plass what happened was “cavalier”; he showed no remorse and told Plass he had wanted to get as many East Coast members as he could.

b. Robbery of pickup truck

On September 24, 1985, Margarito Gomez was sitting with his daughter Yadira in his green 1976 Chevrolet pickup truck in the parking lot of a junior high school. Two men approached the driver’s side of the truck. One pulled out a gun and asked for Gomez’s keys. Gomez gave him the keys. The man then asked Gomez to get out of the truck, and Gomez complied. The other man had gone to the passenger’s side of the truck and asked the daughter to get out; she did so. The men then got into the truck and drove away.

The next day, Gomez reported the robbery to the police. Deputy Sheriff Anthony Pachot testified that when he showed Gomez a photo lineup, Gomez tentatively identified defendant’s picture as that of the person who had pointed the gun at him. Pachot testified further that Gomez’s daughter was unable to identify anyone from the same photo lineup, but she did provide descriptions of the suspects, one of which fit defendant almost “to a