People v. Carter CA1/5

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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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. 1

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-