Filed 6/30/26 P. v. Carroll CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A172493
v.
JOSEPH CARROLL, (Alameda County
Super. Ct. No. 17CR031943)
Defendant and Appellant.
A jury convicted defendant Joseph Carroll of three counts
of murder, three counts of attempted murder, one count of
assault with a firearm, three counts of possessing a firearm with
a felony conviction, and one count of shooting at an occupied
motor vehicle, and returned true findings on allegations
regarding firearm use and infliction of great bodily injury as well
as certain aggravating circumstances. The trial court found true
other aggravating circumstances. It sentenced him to the
maximum term of 207 years and four months to life in prison.
Carroll raises seven arguments for reversal of the
judgment. First, he contends the trial court erred by excluding
evidence of his belief in 2009 that a man named Sam Flowers had
shot him in 2007, to rebut the prosecution’s evidence that he
killed one of the victims, Andrew Henderson, because Carroll
1
thought Henderson had been the shooter. Second, he argues the
trial court improperly allowed the prosecution to play recordings
of his phone calls from 2013, two years after the last murder, in
which he advocated for violence and tried to arrange a shooting of
a rival gang. Carroll contends the calls were not probative of his
motive or intent, were cumulative, and were more prejudicial
than probative. Third, Carroll maintains he should have been
allowed to ask Gregg Fite, who participated in one of the murders
and testified for the prosecution under a plea deal, whether Fite
had provided information in any other cases. Fourth, Carroll
contends the trial court improperly allowed the prosecution to
call one witness, despite knowing the witness would refuse to
testify, and instructed the jury that it could draw inferences from
another witness’s refusal to answer questions. Fifth, Carroll
argues the first four errors were cumulatively prejudicial. Sixth,
Carroll points out that the great bodily injury findings under
Penal Code section 12022.7, subdivision (a) for his murder
convictions are unauthorized and must be reversed.1 Finally,
Carroll contends the upper term on one attempted murder
conviction must be reversed because his counsel provided
ineffective assistance when he failed to object to the trial court’s
dual use of firearm use and infliction of great bodily injury both
to support a sentence enhancement under section 12022.53 and
as an aggravating circumstance to justify the upper term.
The People concede that the firearm and great bodily injury
findings on Carroll’s murder convictions must be reversed. We
1 Undesignated statutory citations are to the Penal Code.
2
agree, but this reversal does not affect the length of Carroll’s
sentence because the trial court did not impose the sentence
enhancements based on those findings. We agree with Carroll
that the trial court abused its discretion in excluding the
evidence of Carroll’s belief about Sam Flowers having shot him,
but we find that error to be harmless. Carroll is also correct that
his counsel was ineffective for failing to object to the dual use of
facts at sentencing, but we find no prejudice from the error. The
trial court made clear it wanted to impose the maximum possible
sentence, and the remaining aggravating circumstances are
sufficient to support the upper term on the attempted murder
count. Carroll’s other arguments are meritless. We therefore
modify the judgment by reversing the jury’s findings under
section 12022.7, subdivision (a) that Carroll personally inflicted
great bodily injury when he committed the murders. We affirm
the judgment as modified.
BACKGROUND
I. Background
For about 10 years beginning in the early 2000s, a gang in
Berkeley with groups called South Berkeley and Waterfront had
a feud with a gang in North Oakland, one of whose groups was
called ASAP. A child was killed, which sparked retaliatory
violence between the gangs. Gregg Fite was running the
Berkeley gang in the early 2000s, and Carroll was a member.
Fite was 10 years older than Carroll and brought him under his
wing. Carroll’s cousin Jermaine Davis and Carroll’s brother
3
Coleon Carroll were associated with Waterfront.2 The Berkeley
gang and Carroll specifically stored guns at the home of Carroll’s
uncle in Richmond.
Around 2007, Fite told Carroll he wanted to squash the
beef between Berkeley and North Oakland because Fite was
getting into his early 30s and knew where things were headed.
Carroll responded that the gang was not going to listen to Fite
anymore, and Carroll took charge of the gang.
In July 2007, Carroll was driving in Oakland with his
girlfriend named Kikhiesha Brookes. Shots were fired at the
vehicle, killing Brookes and hitting Carroll multiple times.
Carroll told police in July 2009 that he did not see who shot him.
II. April 2009 Shooting of Nguyen and Bao Ngo
In 2009, Fite was 34 years old, on parole with an ankle
monitor, and trying to “smooth [his] life out.” The feud was still
running. Fite knew of two members of North Oakland, brothers
named Nguyen and Bao Ngo, although he did not know them
personally.3 Fite was aware that Davis and Coleon had an issue
with Bao. During the feud, any individual’s beef would become
part of the feud. One day in April 2009, Fite was with Carroll at
Carroll’s uncle’s house in Richmond. Carroll was angry and felt
that Fite was not participating and helping out in the dispute
with North Oakland. Carroll was holding an M16 machine gun,
but he did not point it at Fite.
2 We refer to Coleon by his first name to distinguish him
from appellant.
3 For clarity, we refer to the Ngo brothers by their first
names.
4
After Fite left, Davis called him and asked him to drive by
45th Street in Oakland to see if Bao was there. Fite agreed. He
drove to the area in a blue Charger and met up with Davis and
Carroll at a store. Davis was driving a Mercedes Benz with
Carroll in the passenger seat. Fite then drove two laps, saw Bao
with three or four other people and called Davis to tell him. Fite
then looked behind him and saw the Mercedes, with Carroll
leaning the top half of his body out of the rear passenger window
on the driver’s side. Carroll was shooting a machine gun towards
Bao and his companions on the sidewalk.
Surveillance video from a store near the scene of the
shooting showed a blue Charger and gold Mercedes passing by.
Fite was arrested for the shooting a few months later and
was charged with murder, in part based on his ankle monitor
showing he was driving at or near the scene at the time of the
shooting. That charge was dismissed at a preliminary hearing.
Fite was arrested again in 2018 and gave a statement to the
police after the police promised him immunity and to release him
from custody immediately. A copy of that statement was posted
to Instagram. Fite proposed to become a paid informant,
meaning paid for information on different cases. The police told
him that was not how things worked, and Fite said he did not
want to help on other cases unless he was paid.
Fite testified at trial pursuant to an agreement with the
prosecution. He pleaded guilty to voluntary manslaughter and
someone else using a firearm in the course of the offense. He
faced a maximum of 12 years in prison on that plea. By the
5
terms of the plea agreement, if Fite participated in court
proceedings and gave truthful testimony, he could withdraw his
plea and his case would be dismissed. If he did not fulfill the
terms of the agreement, he could be prosecuted for murder and
his testimony could be used against him. He feared for his and
his family’s safety, so he also received reimbursement for
relocation expenses. He had received about $40,000 in
reimbursements so far and expected to receive an additional
$45,000. The FBI also paid Fite $2,000 in relocation expenses in
May 2018 for making a statement.
D.D.O. and B.M. were walking down 45th Street near
Market Street around the time of the shooting. B.M. saw Nguyen
standing on the sidewalk next to a green Camaro. Nguyen was
with two other Asian males and a young Black male. A tan sedan
drove down the street and stopped. D.D.O. saw one driver and a
passenger in the front seat. The driver had shoulder-length
dreads. B.M. saw only one person in the car, the driver, but did
not see the driver’s face and no one was in the backseat. B.M.
saw a long rifle-like gun pointing out of the driver’s side window.
D.D.O. saw the driver pull out a three-foot long gun and stretch
his arm out towards the Camaro. They both heard multiple shots
and saw Nguyen and another Asian male get hit.
L.C. was sitting in her car parked on the side of Market
Street at the intersection with 45th Street. L.C. was Brookes’
sister, but L.C. had not met Carroll when the two were dating.
She heard multiple gunshots. Many cars were making U-turns
and trying to get away. When L.C. tried to leave, a gold
6
Mercedes pulled up alongside her, waiting for another car to
finish backing up. The driver was a Black male with dreadlocks.
L.C. pulled out and was stopped at a stop sign when she
saw a darker-colored Charger cross in front of her. She
recognized the driver as Gregg Fite.
Before trial, L.C. told law enforcement she had seen Carroll
in the backseat of the Mercedes. She had also identified the
driver as Carroll’s brother Coleon. At trial, L.C. claimed she did
not recognize the person in the backseat. She said she had
identified him as Carroll solely based on something she had read
in Fite’s statement. She said she identified the driver as Coleon
only because she knew the two hung out together.
Nguyen was killed in the shooting. Bao had two gunshot
wounds to his lower legs.
In June 2009, an Oakland police officer observed Carroll
enter his uncle’s home in Richmond. In July 2009, police
searched the home and found two handguns, an assault rifle, and
an M15 machine gun with a drum magazine.
III. May 2010 Shooting of Deandre Ware
A.D. had a child with Carroll. She and Carroll broke up,
and A.D. began dating Deandre Ware. Ware is from north
Oakland. In May 2010, Ware was in A.D.’s apartment complex.
He was with Nehemiah Lewis and Aaron Shaw. Lewis was from
west Oakland, and Shaw was from north Oakland. The three
were inside the complex’s gate when they heard gunshots from
the street. Ware was shot once, and Shaw was shot as well.
Nehemiah was unharmed. He helped Ware and rang A.D.’s
7
doorbell. She and her daughter, Carroll’s child, came out, and
A.D. helped tend to Ware. Ware later married and had a child
with A.D., but they were no longer in a relationship by the time
of trial.
IV. June 2010 Shooting of Nehemiah Lewis
One day in June 2010, P. Green was in the area of San
Pablo and Athens Avenues in Oakland and noticed the driver of
one car was a handsome Black man. There were three or four
people in the car. Green told the police before trial that she saw
Carroll, who was about 5 feet, 10 inches tall and with dreads, get
out of the backseat car and wrap his face in cut-up white T-shirts.
It looked like Coleon was in the car. Carroll had a large gun in
his hands and ran down the street. Green heard multiple shots
and told the police before trial that she saw Carroll fire three to
five shots. Green later claimed at trial that she did not see the
person’s face and had identified the person as Carroll based on
hearsay. She also claimed that she could not identify Carroll in
the courtroom.
Y.A. was buying drugs from Lewis on a street corner in
Oakland at this time. A gold car pulled up, and a man jumped
out and began shooting at them with a machine gun. Y.A. went
to the ground, but she could see the shooter was African-
American and wearing a mask, hoodie, and beanie. Y.A. could
not tell whether the shooter was male or female, but the shooter
was short like Y.A., who was about 5 feet, 2 inches tall. There
was a female and another male in the car.
8
E.B. was driving down the street and heard rapid-fire
gunshots like an automatic weapon. He saw a person with a
rifle. The person was wearing a puffy winter jacket and had
something like a towel wrap on their face, so E.B. could not tell
the person’s gender or ethnicity. The shooter was between 5 feet,
8 inches and 5 feet, 10 inches. The person hopped into one of the
rear seats of the car that was adjacent to them, which looked like
a light-colored Nissan Altima, and sped away.
Lewis died of multiple gunshot wounds.
V. April 2011 Shooting of Andrew Henderson
Andrew Henderson was affiliated with the ASAP group of
North Oakland and had been close to Bao. Henderson was riding
around Oakland with his friends D.M., D. Rodriguez and D.H.
one day in April 2011, getting high on marijuana and cough
syrup with codeine. D.M. was in the backseat with Henderson.
They stopped in an area of East Oakland. A PT Cruiser
approached from the opposite direction and stopped next to them.
Rodriguez told the police before trial that D.H., who was driving,
was talking to Semice Bell, known as Semi B., who was the front
passenger in the PT Cruiser. Bell leaned over the driver to talk
through the driver’s window. D.M. and Rodriguez then heard
multiple shots fired from the other vehicle. Henderson was
killed.
When the police brought him in for questioning a couple of
months afterwards, D.M. described the shooter as dark-skinned
with dreads and the passenger as dark-skinned with a fade. To
George Phillips, the police officer who had interviewed D.M.,
9
D.M. seemed hesitant to identify anyone and uncomfortable being
video recorded. The camera was an obvious, large round ball
high in the room, not surreptitious. D.M. said he did not want to
pick, but he also said that he saw the shooter’s face in a six-
person photo array. According to Phillips, D.M. had indicated the
shooter and driver were in separate six-person photo arrays the
police had shown him. D.M. gestured to one specific photo in
each array. Phillips remarked to the other police officer, “Did you
see what he just did?” In a recording of D.M.’s interview played
for the jury, Phillips pointed out the point when D.M. gestured to
the photos. After D.M. made this gesture, Phillips took D.M. to a
different room that was not video recorded and asked D.M. if the
photos he had pointed to in the first room were the shooter and
driver. D.M. confirmed that they were. The photo D.M. pointed
to as the shooter was Carroll’s.
D.M. claimed at trial that he had not identified anyone
specifically. D.M. said that the police had been pressuring and
trying to coerce him during the interview and that he had never
seen Carroll before trial. The police were not aware that D.M.
had been smoking cannabis all day on the day of the shooting and
drinking cough syrup with codeine. But D.M. had told the police
the incident was etched in his mind and gave no reason for
concern that he had been so high that he could not recall details.
VI. Charges and Trial
Carroll was charged with three counts of murder for the
deaths of Nguyen, Lewis, and Henderson; three counts of
attempted murder of Bao, Ware, and Shaw; one count of assault
10
with a firearm on Bao; three counts of possession of a firearm by
a felon for the Nguyen, Lewis, and Henderson shootings; and one
count of shooting at an occupied motor vehicle for the Henderson
shooting.4 The information further alleged various
enhancements to each of the counts, including, as relevant here,
an enhancement to the murder counts under section 12022.7,
subdivision (a) for inflicting great bodily injury and an
enhancement to the count of attempted murder of Ware under
section 12022.53, subdivision (d) based on Carroll discharging a
firearm and causing great bodily injury. The information also
alleged various aggravating circumstances to various counts,
including allegations as to the count of attempted murder of
Ware that Carroll used a firearm and inflicted great bodily injury
and the victim was particularly vulnerable. (Pen. Code, § 1170,
subd. (b)(2); Cal. Rules of Court,5 rule 4.421(a)(1)–(3).)
During trial, the prosecution called several witnesses to
buttress the accounts of the eyewitnesses to the shootings.
A. A.D.
A.D. testified about various statements Carroll made.
When the police spoke to A.D. on the night Ware was shot in May
2010, she told them that Carroll had been harassing her because
she was dating Ware and he was from North Oakland. She also
said that days earlier Carroll had called her and threatened to
4 At trial, Carroll stipulated that he had a 2007 felony
conviction for the purposes of the counts of possession of a
firearm by a felon.
5 Subsequent citations to rules are to the California Rules
of Court.
11
kill Ware. Two weeks after the Nguyen shooting, Carroll told
A.D. that he would kill Ware like he had killed Nguyen. After
the Ware shooting, Carroll called A.D. and asked why she had
allowed their daughter outside at the scene of the shooting.
After Henderson was shot in April 2011, A.D. called the
police and told them that Carroll had told her before the shooting
that he would kill Henderson when Henderson got out of jail.
She also said that two weeks after Henderson’s murder, Carroll
had called her and said he had shot Henderson and would finish
Ware off.
In February 2016, A.D. sat for an interview with Oakland
police. She said that the day Nguyen was killed she saw Davis
driving a gold Mercedes with Carroll in the backseat. It was
unusual to see Carroll in North Oakland in daylight because a lot
of people in North Oakland wanted him dead, so A.D. knew he
was coming to do something.
A.D. told police that Carroll had said one of his techniques
was to kill someone so that his real target would go to the funeral
and could be killed. After Nehemiah Lewis was killed, Carroll
told A.D. that Ware would be killed if he went to the funeral.
At trial, A.D. said that all of her prior statements to the
police were lies. She said she only made the statements to try to
get Carroll arrested so that she could get custody of her daughter
back from Carroll and his family. She claimed that she learned
about the details of the Nguyen murder from Fite, with whom she
went to Kansas to commit fraud sometime between 2010 and
2013. She also claimed that Fite had bragged about being the
12
shooter. But she admitted that she had never told Carroll, his
lawyers, or anyone else before about the conversation with Fite.
She also admitted that Carroll had hit her and that on various
occasions she had made reports to the police that Carroll had
pistol whipped her, kidnapped her, and threatened to kill her and
her family members.
In 2024, before A.D. testified, Carroll told her in a recorded
call that his lawyer had said that it would be better if witnesses
refused to testify entirely. Caroll told her that if a witness
testified, even if the witness denied making a prior statement to
the police, the prior statement could still be used. The police told
A.D. that she would go to jail if she did not come to court. She
also spoke to Carroll’s counsel, who confirmed that she could be
arrested and held in contempt of court if she did not testify.
B. Brandon Wallace
Brandon Wallace met Carroll in 2004 and later became
good friends with Coleon. Wallace was not from Berkeley but
was familiar with its gangs and gang members. He had been in
custody since 2010 and had been sentenced to 118 years to life in
prison for murder and attempted murder in a case in which
Coleon was a codefendant. In 2016, Wallace sent a letter to law
enforcement offering information about various people and
groups, including Carroll and Coleon. The prosecutor had not
promised him anything for his testimony. Wallace knew he was
not going to escape full responsibility for his 118 years to life
sentence, but he hoped to get some sort of partial benefit.
13
Wallace testified that before Nguyen was killed in April
2009 Carroll had said that Nguyen was the driver when Carroll
was shot. After the shooting, Carroll told Wallace that a girl had
called on the day of the shooting and told Carroll that Nguyen
was sitting in his car in a certain location. Wallace claimed that
Carroll also said that Nguyen was in a car when Carroll shot
him. Wallace was not aware that others had said that Nguyen
was standing outside the car.
According to Wallace, Carroll told him in 2008 or 2009 that
Henderson had shot Carroll. Carroll also said that Carroll had
killed the person who shot him. Carroll said that Bell was there
when Carroll killed Henderson. This was consistent with what
Wallace had heard from Bell, which was that Bell had set up
Henderson to be killed.
In 2017, police placed Carroll and Wallace in the same cell
in jail, to see if Carroll would talk. Wallace testified that Carroll
then told him that Carroll had killed Nguyen, Lewis, Ware, and
Henderson and shot Bao. Carroll again remarked that
Henderson had shot Carroll earlier and that Nguyen had been
the driver. Wallace was not familiar with Ware, but Carroll said
the Ware shooting was because Ware was together with Carroll’s
“baby mama.”
Wallace’s and Carroll’s cell was recorded. Wallace was not
aware that the recording did not capture Carroll’s statements
about killing each victim. But he explained that he and Carroll
had assumed they were being recorded, so they put toilet paper
on the box they thought was the recording device, whispered, and
14
flushed the toilet repeatedly. The transcript of the recording
captures one period in which the toilet was flushed for 56 seconds
straight. At numerous other points the transcript shows there
was a flushing followed by whispering, as well as water running
from a faucet making it hard to hear.
C. E.R.
E.R. had known Carroll for over 20 years, as Carroll is the
cousin of the woman with whom E.R. has a child. Oakland police
took E.R. from the jail to the police department for an interview
in 2011. E.R. told the police that Carroll had told him on the
phone that he killed Henderson. Carroll said that Henderson
had shot Carroll in 2007. He also said that the shooting of Lewis
had something to do with Carroll’s “baby mama” and being
disrespected.
At trial, E.R. denied that Carroll ever said these things to
him. He did not recall telling the police the information and
claimed the police had coerced him and told him on the way from
the jail what to say. E.R. said he made up the statements to the
police because he wanted to get out of custody to attend his son’s
graduation. The police officers who conducted the interview said
that E.R. was forthcoming and they denied telling him what to
say.
D. D. Brown
In 2009, D. Brown spoke to the police and said he had
known Carroll for five years and Carroll was his best friend.
Brown told the police that Nguyen had been killed because he
was from North Oakland and was thought to have shot a few
15
guys. He told the police Nguyen had shot at him and Carroll in a
car a couple years earlier. According to Brown, Carroll told him
the day of the Nguyen shooting, “We got one.” Carroll said that
Davis’s woman had called and said that Nguyen and Bao were on
45th Street at the time. Brown told the police that Coleon’s
woman had a gold Mercedes Benz. Brown also told the police,
consistent with Fite’s testimony, that Fite had been the leader
but Carroll took over. Fite was no longer a shooter, just a
spotter, and he sometimes drove a blue Charger.
At trial, Brown said he could not remember whether he
spoke to the police because it had been 15 years since the
interview and he had snorted a lot of cocaine in 2009. He also
said the police tried to coerce him and made him say those things
because he was fighting a case at the time. He also interjected
“Free Joe” twice during his testimony.
E. Wiretapped Calls
The prosecution played for the jury 11 recordings of
Carroll’s calls in September 2013, which the police obtained in a
wiretap investigation. The recordings referred to a YouTube rap
video associated with North Oakland gang members, which the
prosecution also played for the jury. In the video, the rappers
referred to shooting firearms and drive-by shootings. One rapper
said at one point, “fuck Coleon and fuck . . . Little Joe,” the latter
of which was Carroll’s nickname.
In the wiretapped recordings, Carroll referred to the video
and asked one person why he had not “woke the North up” or
“went through the North,” meaning gotten a firearm and driven
16
through North Oakland to commit a violent crime. Carroll was
upset that his cousin, Davis, had been killed and said that he was
“ready to do life over mine[ ],” meaning he was willing to do a life
term in prison to retaliate against North Oakland. Carroll told
one person that he needed “soldiers” and the Waterfront gang
was “soft.” In one call, he identified the location of a house in
East Oakland where the rappers in the video had been spotted
“grinding,” meaning selling drugs. Carroll and others mentioned
Carroll having firearms, including large capacity firearms and
assault rifles. In another call, Carroll asked someone whether
she had a vehicle Carroll could use to go to the rappers’ location.
Law enforcement sent officers to the rappers’ location, and, in a
later call, Carroll was told about the police presence. In other
calls, Carroll said he needed someone to do a drive-by shooting at
the location of a North Oakland party.
F. Witness Cooperation
Many of the witnesses at trial did not want to testify,
including D.D.O., B.M., and L.C., who witnessed the April 2009
shooting of Nguyen and Bao Ngo; Green, who witnessed the
Lewis shooting; and D.M., who witnessed the Henderson
shooting. L.C. said she was afraid to testify because she feared
retaliation. Ware, E.R., and Brown also said they did not want to
testify and did so only because they were subpoenaed and, in
Ware’s and E.R.’s cases, arrested for failing to appear. Many
police officers testified that it was common in Oakland for
witnesses and people in the community not to want to cooperate
with the police for fear of retaliation.
17
Several other witnesses refused to testify at all. The People
called David Ward as a witness, who was associated with North
Oakland and apparently knew something about the April 2009
shooting of Nguyen and Bao. In the presence of the jury, Ward
did not raise his hand when the clerk tried to administer the
oath. Similarly, when the People called Bao Ngo in the presence
of the jury and the clerk tried to swear him in, Bao shook his
head, did not take the oath, and stood silent. Bao repeated this
behavior two more times outside the presence of the jury.
Shaw, who was shot with Ware, took the oath and
answered a few preliminary questions. But when the prosecutor
asked him about the events of the shooting, he said he refused to
cooperate with the prosecution and invoked the Fifth
Amendment. The People offered him immunity, and the trial
court dismissed the jury for lunch. The trial court then appointed
counsel for Shaw. Later, outside the presence of the jury, Shaw
continued to refuse to speak. The court later instructed the jury
that it could consider Shaw’s refusal to testify.
VII. Verdict and Sentence
The jury acquitted Carroll of first degree murder of Nguyen
but found him guilty of second degree murder for that killing. It
found him guilty of first degree murder for the deaths of Lewis
and Henderson, attempted murder of Bao and Ware, assault with
a firearm on Bao, three counts of possession of a firearm by a
felon, and shooting at an occupied motor vehicle. It acquitted
Carroll of attempted murder of Shaw. It found true allegations of
firearm use and great bodily injury, including the allegations on
18
the three murder counts that he personally inflicted great bodily
injury within the meaning of section 12022.7. The jury also
found true various aggravating circumstances allegations,
including the allegations on the count of attempted murder of
Ware that Carroll inflicted great bodily injury, Carroll used a
firearm, and the victim was particularly vulnerable. (Rule
4.421(a)(1)–(3).) In a bifurcated proceeding, the trial court found
true that Carroll had a prior conviction and the three
aggravating circumstances that Carroll engaged in violent
conduct that indicated a serious danger to society, his prior
convictions were numerous or of increasing seriousness, and he
had served a prior prison term. (Rule 4.421(b)(1)–(3).)
The trial court sentenced Carroll to a determinate term of
10 years and four months and an indeterminate term of 197
years to life in prison. Despite the jury’s findings of great bodily
injury on the murder counts, the court did not impose the three-
year enhancements for those findings. The court imposed the
upper term of nine years on count 10, the attempted murder of
Ware, based on eight aggravating circumstances, including that
Carroll used a firearm and caused great bodily injury.6 It also
imposed a 25 years to life enhancement to count 10 under section
12022.53, subdivision (d), based on Carroll’s use of a firearm to
cause great bodily injury.
6 The trial court appears to have misspoken. The People
alleged eight aggravating circumstances, but only three were
presented to the jury, which it found true, and the court found
three to be true.
19
DISCUSSION
I. Exclusion of Testimony Regarding Sam Flowers
Carroll first contends the trial court erred by preventing
him from offering evidence that he believed in 2009 that Sam
Flowers had shot him in 2007. We agree but conclude the error
was harmless.
A. Additional Background
Carroll’s counsel tried to ask Brown whether Carroll had
told him that a man named Sam Flowers had shot him in 2007,
but the trial court sustained the People’s objection. Brown
nonetheless responded that Carroll had not told him anything.
Brown did not recall talking to the police about who had killed
his aunt, Brookes, and refused to read a transcript of his
statement. The trial court also sustained relevance objections to
some questions about Brown’s statements to police about the
killing of Brookes. The prosecution later asked for Brown’s
response to the question about Flowers to be stricken.
Outside the presence of the jury, Carroll read to the court a
portion of a transcript of Brown’s police interview in May 2009 in
which Brown said that Carroll had said that Flowers shot Carroll
and Brookes. Carroll’s counsel said he sought to ask Brown
about these statements and admit them into evidence under
Evidence Code section 1250 to prove Carroll’s then-existing state
of mind about who had shot him. He noted that the prosecution
had introduced evidence from E.R. that Carroll believed
Henderson had shot him. The prosecution responded that
Carroll’s state of mind in 2009 was not relevant, only his state of
20
mind during Henderson’s shooting (which was in April 2011).
The trial court explained that it had sustained the objection
because it did not see the relevance at that point, but allowed
Carroll to revisit the issue later if the evidence became relevant.
A police officer testified that in 2007 and 2009 Carroll had
said that he did not see who shot him. Carroll later asked the
court to explain the rationale for excluding Brown’s statement
that Carroll had said Flowers shot him. The prosecutor agreed
that it was proceeding on the theory that Carroll’s motive in
shooting Henderson in 2011 was Carroll’s belief that Henderson
had shot him in 2007. But it maintained that Carroll’s state of
mind in 2009 was not relevant, just his state of mind in 2011.
The trial court said that Carroll’s statement to Brown would only
be relevant if taken for its truth, to prove that Carroll actually
believed Flowers shot him. Carroll’s counsel responded that the
same would be true of every state of mind statement, so
excluding the statement on that basis would eviscerate the
hearsay exception. The court took the issue under submission.
The next day, the trial court said Carroll’s statement to Brown
did not explain Carroll’s state of mind as it related to the 2011
shooting. It said Carroll’s statement would only be relevant if
offered for the truth of Carroll’s belief. It said the statement
would be admissible and relevant if Carroll testified to it, but the
court would not allow it into evidence under the state of mind
hearsay exception.
During Wallace’s testimony later, the prosecutor asked
whether Wallace had spoken to Carroll about Henderson before
21
2011. Wallace reported that Carroll had said that Henderson
had shot him, with Nguyen driving. Wallace said Carroll had
told him this both before and after Wallace went into custody in
2010. On cross-examination, Wallace affirmed that Carroll had
said this in 2008 or 2009.
Carroll pointed out to the trial court that Wallace had
testified to Carroll’s statements from the same timeframe that
Brown covered and asked the court to reconsider its prior ruling.
The trial court declined.
Carroll raised the issue once more in a new trial motion,
which the trial court denied.
B. Analysis
We review a trial court’s evidentiary ruling, including one
based on relevance and the state of mind exception to the hearsay
rule, for abuse of discretion. (People v. Rowland (1992) 4 Cal.4th
238, 264.) “Under the abuse of discretion standard, ‘a trial
court’s ruling will not be disturbed, and reversal of the judgment
is not required, unless the trial court exercised its discretion in
an arbitrary, capricious, or patently absurd manner that resulted
in a manifest miscarriage of justice.’ ” (People v. Hovarter (2008)
44 Cal.4th 983, 1004.)
“Except as otherwise provided by statute, all relevant
evidence is admissible.” (Evid. Code, § 351.) “ ‘Relevant evidence’
means evidence, including evidence relevant to the credibility of a
witness or hearsay declarant, having any tendency in reason to
prove or disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, § 210.) The hearsay
22
rule in Evidence Code section 1200, subdivision (b) makes
hearsay evidence inadmissible except as provided in various
exceptions. (Evid. Code, § 1200, subd. (b).) One of those
exceptions is Evidence Code section 1250, subdivision (a), which
states, “Subject to Section 1252, evidence of a statement of the
declarant’s then existing state of mind, emotion, or physical
sensation (including a statement of intent, plan, motive, design,
mental feeling, pain, or bodily health) is not made inadmissible
by the hearsay rule when: [¶] (1) The evidence is offered to prove
the declarant’s state of mind, emotion, or physical sensation at
that time or at any other time when it is itself an issue in the
action; or [¶] (2) The evidence is offered to prove or explain acts or
conduct of the declarant.”7
Carroll’s rationale for the relevance of the Flowers evidence
is straightforward and persuasive. The People contended that
Carroll was motivated to kill Henderson in part because Carroll
believed Henderson had shot Carroll in 2007. To that end, the
prosecutor presented evidence from E.R.’s statement to the police
and Wallace’s testimony that Carroll thought that Henderson
had shot him in 2007. E.R. was relaying a statement Carroll
made in April or May 2011, after Henderson was killed. Wallace
was relaying something Carroll had said in 2008 or 2009. While
7 Evidence Code section 1252 states, “Evidence of a
statement is inadmissible under this article if the statement was
made under circumstances such as to indicate its lack of
trustworthiness.” The People have never contended that
Carroll’s statement to Brown in 2009 was made under
circumstances that indicate a lack of trustworthiness.
23
Carroll’s state of mind in 2011 was the ultimate issue to be
established, Carroll’s state of mind before and after had some
“tendency in reason to prove” his state of mind in 2011. (Evid.
Code, § 210.) Evidence Code section 1250, subdivision (a)
recognizes this, since it allows the admission of a declarant’s
statement of state of mind “to prove the declarant’s state of
mind . . . at that time or at any other time when it is itself an
issue in the action.” (Italics added; see People v. Howard (1988)
44 Cal.3d 375, 405 [statements made months before killing were
admissible to show why defendant acted as he did in seeking
victim’s death; “[n]o specific time frame is required.”]; People v.
One 1948 Chevrolet Convertible Coupe (1955) 45 Cal.2d 613, 620–
621 [“Ordinarily a declaration of a state of mind is admissible
only to prove the declarant’s state of mind at the time of the
declaration. [Citations.] It has been held in this state, however,
that under certain circumstances declarations are admissible to
prove a state of mind at a particular time although uttered before
or after that time, apparently on the theory that under these
particular circumstances ‘[the] stream of consciousness has
enough continuity so that we may expect to find the same
characteristics for some distance up or down the current.’ ”].)
The same rationale applies to Carroll’s statements to
Brown in 2009. We can conceive of no rational reason why
testimony from Wallace about Carroll’s statements in 2008 or
2009 would be relevant but testimony from Brown concerning the
same time period would not. The trial court therefore acted
arbitrarily and capriciously in excluding Brown’s 2009
24
statements to the police about Carroll’s remarks. Evidence of
Carroll’s state of mind in 2008 or 2009, whether from Wallace or
Brown, certainly had less probative value as to his 2011 state of
mind, given the passage of time, but it was still relevant.
The trial court said at one point that Carroll’s statements
would not be relevant unless they were offered for the truth of
Carroll’s beliefs, in which case they would be hearsay unless
Carroll testified to his belief. But as Carroll told the trial court,
this reasoning cannot justify excluding a statement under
Evidence Code section 1250. Implicit in the state of mind
exception is the concept that the declaration of state of mind is
offered for the truth of the declarant’s state of mind. This is
evident in the statute, which allows the admission of a statement
of the declarant’s state of mind “to prove the declarant’s state of
mind . . . at that time or at any other time when it is itself an
issue in the action.” (Evid. Code, § 1250, subd. (a)(1).) This
language expressly allows for the admission of the statement to
prove the truth of the declarant’s state of mind. Evidence Code
section 1250, subdivision (b) does state that the statute “does not
make admissible evidence of a statement of memory or belief to
prove the fact remembered or believed.” The fact believed here is
that Flowers shot Carroll, so this would prevent Carroll from
using his statement to Brown prove that Flowers did in fact shoot
him. But Carroll conceded that this would be improper and did
not seek to admit Brown’s statement for this purpose.
This leaves the question of whether the trial court’s ruling
resulted in a miscarriage of justice, meaning whether it was
25
prejudicial. Carroll argues for the federal standard of prejudice
because the exclusion of his statement to Brown about Flowers
violated his constitutional rights. To borrow language from our
Supreme Court that applies equally here, Carroll’s “attempt to
inflate garden-variety evidentiary questions into constitutional
ones is unpersuasive. ‘As a general matter, the “[a]pplication of
the ordinary rules of evidence . . . does not impermissibly infringe
on a defendant’s right to present a defense.” [Citations.]
Although completely excluding evidence of an accused’s defense
theoretically could rise to this level, excluding defense evidence
on a minor or subsidiary point does not impair an accused's due
process right to present a defense. [Citation.] If the trial court
misstepped, “[t]he trial court’s ruling was an error of law merely;
there was no refusal to allow [defendant] to present a defense,
but only a rejection of some evidence concerning the defense.”
[Citation.] Accordingly, the proper standard of review is that
announced in People v. Watson [(1956)] 46 Cal.2d 818, 836 . . . ,
and not the stricter beyond-a-reasonable-doubt standard reserved
for errors of constitutional dimension (Chapman v. California
(1967) 386 U.S. 18, 24).’ ” (People v. Boyette (2002) 29 Cal.4th
381, 427–428.)
As Carroll’s counsel explained in his closing argument, the
trial turned essentially on the question of identity for all of the
shootings involved — whether Carroll was the shooter. The
question of whether Carroll had a motive to shoot Henderson was
subsidiary to the question of whether the witnesses to the
shooting correctly identified him. Carroll presented a capable
26
defense, cross-examining various witnesses and attempting to
show they were either coached or coerced by the police, such as
Brown himself, or that they were lying to incriminate Carroll and
benefit themselves, such as Wallace and Fite. Exclusion of the
Flowers evidence did not deprive Carroll of his right to present a
complete defense, so the state standard of prejudice applies. We
therefore examine whether it is reasonably probable that the jury
would have reached a result more favorable to Carroll in the
absence of the error. (People v. Watson, supra, 46 Cal.2d at
p. 836.)
We find no such probability here, for the same reasons that
we apply the state standard of prejudice: motive evidence
relating to Henderson shooting Carroll in 2007 was a less
important part of the mix of evidence relating to the Henderson
killing. The prosecution argued two different theories of motive
for Carroll to shoot Henderson. One was Carroll’s belief that
Henderson had shot Carroll in 2007. But another, related theory
was that Henderson was associated with the ASAP group of
North Oakland and Carroll’s South Berkeley gang had a feud
with North Oakland. Even if Carroll had succeeded in using
Carroll’s statements to Brown about Flowers to raise a
reasonable doubt about the prosecution’s motive theory based on
a belief that Henderson had shot him in 2007, it would not have
greatly altered the state of the motive evidence. The People still
had a motive theory based on gang membership.
Moreover, the motive evidence was relatively weak
compared to the direct evidence of Carroll’s culpability. D.M.
27
identified Carroll as the shooter. That identification was
somewhat irregular, consisting of D.M. gesturing to a photo in a
video recorded interview and confirming to the police in an
unrecorded interview that the photo he gestured to was the
shooter. But the jury had ample reason to conclude that D.M.’s
reluctance to identify the shooter was due to fear of retaliation
rather than a lack of memory, since many witnesses testified that
they did not want to testify and, in some cases, appeared only
because of a subpoena. Many police officers told the jury that
people in Oakland are commonly reluctant to cooperate with
police due to fear of being injured or killed in retaliation. Three
other witnesses also related that Carroll had directly admitted to
shooting Henderson. A.D. told the police that Carroll told her
after the shooting that he had killed Henderson. E.R. told the
police that Carroll had said that he had killed Henderson.
Wallace testified that Carroll had said that he had killed
Henderson and Bell had been there. Wallace added that Bell
corroborated this by telling Wallace that he had set up
Henderson. Rodriguez in turn corroborated this latter point,
since he told the police that Bell had leaned across the driver of
the PT Cruiser and spoke to D.H., the driver of Henderson’s car,
right before the shooting. The consistent testimony of each of
these independent witnesses supported the jury’s verdict. We see
no reasonable probability that the testimony of one witness
undermining the Henderson motive theory would have led to a
result more favorable to Carroll.
28
II. Admission of Evidence of Wiretapped Conversations
Carroll argues the trial court erred by admitting recordings
of his calls in 2013 concerning the death of Carroll’s cousin and
planning a violent response to a YouTube video by North
Oakland rappers. We are not convinced.
A. Additional Background
The People brought an in limine motion to admit Carroll’s
wiretapped conversations from 2013, two years after the last
charged crime. The prosecutor argued that the conversations
were relevant to prove Carroll’s motive and intent to kill North
Oakland gang members, since the conversations demonstrated
the ongoing feud between the gangs. The trial court granted the
People’s motion.
Carroll’s counsel revisited the issue during trial, arguing
that the recordings were improper character evidence, more
prejudicial than probative because the jury would find the calls
scary and hyper-violent, and cumulative to other evidence of the
ongoing feud. The prosecutor argued the wiretapped calls
showed Carroll’s willingness to murder North Oakland
individuals over a rap video, which was probative of his motive to
shoot other North Oakland people, such as the victims. The trial
court declined to revisit its prior ruling.
The prosecutor played 11 segments of the wiretapped
recordings of Carroll’s calls. Before she did so, the trial court told
the jury, in an instruction Carroll had requested, that the calls
had been admitted for the limited purpose of the jury considering
Carroll’s motive and intent and could not be considered for any
29
other purpose. At Carroll’s request, the court admitted into
evidence an abstract of judgment showing that Carroll was
convicted of conspiracy to commit assault with a firearm based on
the calls. The court also delivered CALCRIM Nos. 375 and 1403,
which told the jury that it could consider evidence of Carroll’s
other offenses or gang activity for the limited purpose of deciding
whether he acted with the intent to kill or had the motive to
commit the alleged offenses.
After the jury’s verdict, Carroll argued in his new trial
motion that the wiretapped calls were improper character
evidence prohibited by Evidence Code section 1101. The trial
court denied the motion, ruling that the calls were extremely
relevant and probative and clearly outweighed any prejudicial
effect.
B. Analysis
“The rules governing the admissibility of evidence under
Evidence Code section 1101[, subdivision] (b) are well settled.
Evidence of defendant’s commission of other crimes, civil wrongs
or bad acts is not admissible to show bad character or
predisposition to criminality, but may be admitted to prove some
material fact at issue such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or
accident. [Citations.] Because evidence of a defendant’s
commission of other crimes, wrongs, or bad acts ‘ “may be highly
inflammatory, its admissibility should be scrutinized with great
care.” ’ ” (People v. Cage (2015) 62 Cal.4th 256, 273.)
30
“ ‘ “In cases in which the prosecution seeks to prove the
defendant’s identity as the perpetrator of the charged offense by
evidence he had committed uncharged offenses, admissibility
‘depends upon proof that the charged and uncharged offenses
share distinctive common marks sufficient to raise an inference of
identity.’ ” [Citation.] A somewhat lesser degree of similarity is
required to show a common plan or scheme and still less
similarity is required to show intent. [Citation.]’ [Citation.]
Where other crimes or bad conduct evidence is admitted to show
motive, ‘ “an intermediate fact which may be probative of such
ultimate issues as intent [citation], identity [citation], or
commission of the criminal act itself” ’ [citation], the other crimes
or conduct evidence may be dissimilar to the charged offenses
provided there is a direct relationship or nexus between it and
the current alleged crimes.” (People v. Cage, supra, 62 Cal.4th at
pp. 273–274.)
In cases that do not involve a gang enhancement, “evidence
of gang membership is potentially prejudicial and should not be
admitted if its probative value is minimal. [Citation.] But
evidence of gang membership is often relevant to, and admissible
regarding, the charged offense. Evidence of the defendant’s gang
affiliation — including evidence of the gang’s territory,
membership, signs, symbols, beliefs and practices, criminal
enterprises, rivalries, and the like — can help prove identity,
motive, modus operandi, specific intent, means of applying force
or fear, or other issues pertinent to guilt of the charged crime.”
(People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
31
Even if gang or other crimes evidence “is otherwise
admissible, an accused may still urge that [Evidence Code]
section 352 should bar it from consideration. In the face of a
timely objection (Evid. Code, § 353, subd. (a)), relevant evidence
may still be excluded if its probative value is substantially
outweighed by the probability that its admission will require
undue time consumption, will confuse or mislead the jury, or
poses a substantial risk of undue prejudice.” (People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 406–407, fn. omitted
[other crimes evidence]; People v. Hernandez, supra, 33 Cal.4th at
p. 1050 [gang evidence].)
As stated ante, we review a trial court’s evidentiary ruling
for abuse of discretion and will not reverse unless the trial court
exercised its discretion in an arbitrary or capricious manner that
resulted in a manifest miscarriage of justice. (People v. Rowland,
supra, 4 Cal.4th at p. 264.)
The recordings of Carroll’s wiretapped conversations were
relevant to proving his motive and intent in shooting the victims
of the charged offenses. The prosecution relied in part on a gang
feud theory of motive for all of the crimes, in addition to more
narrow revenge motives for certain individual offenses, such as a
revenge motive for the Henderson shooting or jealousy motive for
the shooting of Ware. The prosecution therefore needed to
establish that the Berkeley and North Oakland gangs were
feuding. The prosecution also needed to prove that the feud was
serious enough that the groups would kill each other, in part to
prove Carroll’s intent to kill when shooting at the victims.
32
Carroll argues that the acts described in the wiretapped calls
were not sufficiently similar to the charged crimes to prove this
intent, since he was merely a conspirator on the calls but a direct
perpetrator of the charged crimes. The wiretapped calls were
more than sufficiently similar to the charged crimes, since the
calls and charged crimes both related to drive-by shootings with
assault weapons directed at the North Oakland gang. A lower
degree of similarity is required to prove intent, and other crimes
evidence used to prove motive may be dissimilar so long as there
is a nexus or direct relationship. (People v. Cage, supra,
62 Cal.4th at pp. 273–274.)
Carroll complains that the calls could not be used to show
his motive to kill North Oakland gang members because the
prosecutor argued there was an additional motive for each of the
killings. But Carroll admits that the Lewis shooting does not fit
this pattern, since there was no evidence that Carroll had a
grudge specifically against Lewis. The prosecutor was also
entitled to argue that Carroll had multiple reasons to kill any
specific victim, including the gang feud motive. Carroll similarly
argues that the calls showed only that he wanted to take action
against the rappers because of the killing of Carroll’s cousin and
the rappers’ disrespect to Carroll and his brother, not the
rappers’ North Oakland gang membership. But Carroll spoke
about taking action against “the North” as a group, not just the
rappers. The killing of Carroll’s cousin and disrespect to Carroll
and Coleon are also related to the feud, not least because Carroll
was the leader of the Berkeley gang.
33
Carroll goes further and argues that the prosecutor used
the wiretapped calls to prove his propensity to kill North
Oakland gang members, which is improper character evidence.
The prosecutor did use the calls to show Carroll was willing to
kill North Oakland gang members, but that is just another way of
saying that he had the requisite motive and intent. The
prosecutor was not showing that Carroll had a violent character
as a whole, just that Carroll’s statements on the wiretapped calls
showed his beliefs and reasons for killing North Oakland gang
members.8
As for motive, Carroll points out that calls occurred in 2013
and concerned events after the charged crimes. He argues the
calls could not logically show his motive for the shootings years
earlier. But just as Carroll argues that his state of mind in 2009
about Sam Flowers could be relevant to showing his state of mind
in the Henderson shooting in 2011, the existence and extent of
the feud in 2013 provides a basis from which a jury could
reasonably infer Carroll’s motive in 2011 or earlier. While the
rap video may postdate the shootings, the ongoing feud provides
the thread that ties together the video, the calls, and the charged
crimes.
Carroll finally accuses the trial court of not properly
applying Evidence Code section 352. On the prejudicial side of
the section 352 balance, Carroll says the wiretapped calls were
8 Carroll notes that the prosecutor said in closing argument
that the recordings showed his “anger.” In context, the
prosecutor’s reference to anger was connected to the feud, not a
remark about Carroll’s character.
34
likely to evoke an emotional response and prejudice the jury into
thinking he had an offensive, violent character. He notes that
our Supreme Court has said the risk of undue prejudice from
gang-related testimony is “particularly high in cases where the
prosecution has not charged a gang enhancement and the
probative value of the gang evidence is minimal.” (People v.
Flores (2020) 9 Cal.5th 371, 402.) Carroll also argues the trial
court should have redacted the calls to remove references to
Carroll’s willingness to serve a life sentence to avenge his
cousin’s murder or to the plans to kill the two rappers. On the
probative side of the balance, according to Carroll, the gang feud
was already adequately established, so the introduction of the
wiretapped calls was cumulative.
The propriety of the section 352 balancing is a closer call,
since the calls did have the potential to unfairly prejudice
Carroll. But we cannot say, on abuse of discretion review, that
the trial court’s ruling was arbitrary or capricious. The trial
court recognized the potential for prejudice and instructed the
jury twice that the recordings were admitted for a limited
purpose, first just before the recordings were played and again
using CALCRIM Nos. 375 and 1403 during jury instructions at
the end of trial. We must assume the jury followed these
instructions, which mitigates the potential prejudice. (People v.
Cage, supra, 62 Cal.4th at p. 275.) Carroll complains that
CALCRIM No. 375 only told the jury that it could consider the
evidence of other offenses to show motive and intent, rather than
showing motive and intent based on the gang feud. It is
35
debatable whether Carroll preserved this issue, since he proposed
the first instruction read in advance of the playing of the
recordings, which, like CALCRIM No. 375, did not limit the
evidence to showing motive or intent based on the gang feud. He
objected to CALCRIM No. 375 on certain grounds but never
asked to modify it to refer to the gang feud. In any event,
CALCRIM No. 375 told the jury that it could not use evidence of
Carroll’s other offenses to prove Carroll’s bad character or
disposition to commit crime, and CALCRIM No. 1403 said the
same of the gang evidence. We find no likelihood that the jury
understood the instructions to permit a wider-ranging motive or
intent consideration of the wiretapped calls. The prosecutor only
referred to them briefly in closing to argue that they showed the
existence of the feud.
As for the probative value of the evidence, Carroll is correct
that there was other evidence of the gang feud, but that does not
necessarily mean the wiretapped calls were cumulative. Fite, for
example, testified that the feud arose because a child was killed,
which escalated into retaliatory violence. He also said that with
the feud between the groups, it did not matter whether a “beef”
was tied to a specific individual. This testimony did not capture
the full extent of the feud or Carroll’s involvement in it.
Moreover, Carroll impeached Fite because he was testifying on a
plea deal. The prosecution was entitled to buttress Fite’s
testimony with recordings of Carroll’s own voice demonstrating
the depth of the feud and his own personal commitment to it.
The trial court also invited Carroll to voice any specific objections
36
to the calls that the prosecutor eventually played, but he simply
objected to them all on a blanket basis. While another trial court
perhaps might have taken a more limited approach to the calls,
we cannot say the trial court’s admission of the calls was beyond
the bounds of reason.9
III. Exclusion of Testimony Regarding Fite’s Assistance
in Other Cases
Carroll argues the trial court committed prejudicial
misconduct when it prevented him from cross-examining Fite
about whether he provided information in other cases. This
argument is without merit.
A. Additional Background
When Carroll’s counsel was cross-examining Fite, he asked
Fite whether Fite had provided information on any other cases
after he received money from the FBI and changed his plea in
this case in 2018. The trial court sustained the People’s
relevance objection. Carroll’s counsel proceeded to impeach Fite
by questioning him about the reimbursements he received for his
relocation expenses as well as the terms of his plea agreement.
B. Analysis
Carroll contends that Fite’s provision of information in
other cases was relevant because it would show his interest and
motive for testifying against Carroll. According to Carroll, if law
9 Because we conclude the jury could draw permissible
inferences about Carroll’s motive and intent from the wiretapped
recordings, we reject Carroll’s argument that the admission of the
evidence violated his right to a fair trial. (See People v. Huynh
(2021) 65 Cal.App.5th 969, 985.)
37
enforcement were pleased with the information Fite provided,
they would be less likely to charge him with crimes other than
those in this case. It would also show the extent to which Fite
was willing to sacrifice other people’s freedom to benefit himself
in the form of relocation expense reimbursements. He notes that
relevant evidence is evidence that has “any tendency in reason to
prove or disprove any disputed fact that is of consequence to the
determination of the action,” including the credibility of a
witness. (Evid. Code, § 210.)
Fite’s credibility was the proper subject of inquiry, since he
was, by his own admission, an accomplice in Nguyen’s murder
and Bao’s attempted murder who spotted the victims and relayed
the information to Davis, who in turn drove the car while Carroll
shot the victims. But the trial court did not act arbitrarily in
concluding that Fite’s provision of information in other cases was
beyond the limits of relevance. (See People v. Rowland, supra,
4 Cal.4th at p. 264 [evidentiary rulings reviewed for abuse of
discretion].) Whether Fite was cooperating in other cases to
avoid being charged with other crimes had no bearing on his
veracity in this case. Carroll offers no reason to think Fite’s plea
bargain in this case was dependent on his testimony in the other
cases. Rather, he could withdraw his plea in this case and have
the charges dismissed so long as he testified truthfully in this
case. If Fite were testifying against Carroll in other cases, that
might have some bearing on his motive and interest for testifying
against Carroll in this case. But Carroll does not suggest he was
involved in any other cases. Similarly, Carroll already fully
38
explored Fite’s receipt of reimbursement for relocation expenses,
cross-examining him extensively on how much he received, for
what expenses, and the terms of his plea agreement. Carroll
offers no reason to think that Fite would receive more
reimbursements or lenient treatment if Fite testified in other
proceedings, so any other testimony Fite gave in exchange would
not illuminate Fite’s motives in this case.
Even if Fite’s potential provision of testimony in other cases
could be said to be relevant in some attenuated sense, the
exclusion of the testimony was proper under Evidence Code
section 352. (People v. Geier (2007) 41 Cal.4th 555, 582
[affirming exclusion of testimony under Evidence Code section
352 although trial court did not rely on it].) Section 352 broadly
allows courts to exclude impeachment evidence “ ‘ “to prevent
criminal trials from degenerating into nitpicking wars of attrition
over collateral credibility issues.” ’ ” (People v. Harris (2008)
43 Cal.4th 1269, 1291.) The trial court could have reasonably
decided that any minor impeachment value from exploring Fite’s
provision of information in other cases would be cumulative and
not worth the delay and distraction that would result from
delving into such tangential issues.10
10 Carroll’s additional argument that the trial court’s
exclusion of testimony regarding Fite’s assistance to law
enforcement in other cases violated his Sixth Amendment rights
fails as well. “ ‘ “[N]ot every restriction on a defendant’s desired
method of cross-examination is a constitutional violation. Within
the confines of the confrontation clause, the trial court retains
wide latitude in restricting cross-examination that is repetitive,
prejudicial, confusing of the issues, or of marginal relevance.” ’ ”
39
IV. Allowing Prosecutor to Call Witnesses Who Refused
to Testify
Carroll faults the trial court for allowing the prosecution to
call Ward as a witness, knowing he would not testify, and
allowing the jury to consider Shaw’s refusal to answer questions.
We find no error.
A. Additional Background
David Ward was associated with North Oakland and
apparently had information about the April 2009 shooting of
Nguyen and Bao. Early in the trial, counsel for David Ward told
the court that Ward would categorically refuse to testify, without
even reaching the point at which he could invoke the Fifth
Amendment. Ward was in custody at the time, serving a 10-year
prison sentence. Carroll’s counsel asked the court to hash out the
issue outside the presence of the jury. Carroll’s counsel explained
that he was worried the jury would speculate about what Ward’s
testimony might have been or infer that Ward was fearful of
Carroll. The prosecutor objected, stating that Ward did not have
a Fifth Amendment right and that she wanted to call him as a
witness. The trial court sided with the prosecutor, noting that
the jury is told not to speculate about things they did not hear in
court. The court saw no harm in having Ward called as a witness
and having it play out in front of the jury. Carroll’s counsel later
objected again, although he conceded that the record did not
support an invocation by Ward of the Fifth Amendment. The
(People v. Harris, supra, 43 Cal.4th at p. 1292.) Carroll had
ample opportunity to impeach Fite and demonstrate his bias.
40
People told the court that they intended to offer Ward immunity
if he invoked the Fifth Amendment, and the trial court allowed
the People to call Ward as a witness. When the People called
Ward in the presence of the jury, he did not raise his hand when
the clerk tried to administer the oath and did not speak. After an
unreported conference in chambers, the trial court had Ward
removed from the court room, and the People called their next
witness.
The People called Ward again a few court days later. The
trial court excused the jury. Outside the presence of the jury,
Ward again refused to take the oath. At the request of Ward’s
counsel, the trial court said it was clear that Ward would not
testify, so the court removed him from the court’s custody and
returned him to prison to serve the remainder of his sentence.
The trial court only mentioned Ward in the jury instructions as
one of the witnesses who testified in custody. The prosecutor did
not mention Ward in her closing argument or rebuttal. Carroll’s
counsel mentioned Ward as being present at Nguyen’s shooting.
Shaw, who was shot with Ware, took the oath and
answered some preliminary questions. But when asked about
the events of the shooting, Shaw said he refused to cooperate
with the prosecution and invoked the Fifth Amendment. In the
presence of the jury, the People said they were prepared to offer
him immunity, and the trial court dismissed the jury for lunch.
Later, outside the presence of the jury and after having counsel
appointed, Shaw continued to refuse to speak. The court found
him in contempt.
41
Following CALCRIM No. 320, the court instructed the jury,
“Aaron Shaw did not have the right to refuse to answer questions
in this case. You may consider that refusal during your
deliberations.” In the prosecutor’s closing argument, the
prosecutor noted in passing that they had not heard from Shaw
but did not otherwise mention him.
B. Analysis
“When a ‘court determines a witness has a valid Fifth
Amendment right not to testify, it is . . . improper to require him
[or her] to invoke the privilege in front of a jury; such a procedure
encourages inappropriate speculation on the part of jurors about
the reasons for the invocation. An adverse inference, damaging
to the defense, may be drawn by jurors despite the possibility the
assertion of privilege may be based upon reasons unrelated to
guilt. These points are well established by existing case law.
[Citation.] But where a witness has no constitutional or
statutory right to refuse to testify, a different analysis applies.
Jurors are entitled to draw a negative inference when such a
witness refuses to provide relevant testimony.’ [Citation.] And
where a witness receives immunity, that witness’s testimony is
compelled and the witness no longer has a privilege against self-
incrimination.” (People v. Morgain (2009) 177 Cal.App.4th 454,
466.)
Carroll admits that jurors can generally draw a negative
inference from a witness’s refusal to testify when they do not
have a Fifth Amendment right not to testify. He does not
contend that Ward had a Fifth Amendment right or dispute that
42
the prosecution’s grant of immunity dispelled Shaw’s Fifth
Amendment rights. He nonetheless contends it was improper for
the prosecutor to call Ward and for jurors to draw a negative
inference about Shaw because any inference would be
speculative. More specifically, he argues that it would be
speculative to infer that Shaw or Ward feared retaliation or
refused to cooperate from the fact that witnesses in Oakland are
often uncooperative.
We do not see the inference as speculative at all. Many
police officers testified that witnesses in Oakland frequently
refuse to cooperate with law enforcement for fear of retaliation.
One of the other witnesses, L.C., said she was afraid to testify
because she feared retribution. It takes no great leap to conclude
that Shaw or Ward would not want to testify against Carroll
about a gang-related shooting for fear of retaliation. Drawing
such an inference would not constitute improper character
evidence. It concerns the credibility of the witnesses who refused
to testify. (See People v. Sisneros (2009) 174 Cal.App.4th 142,
152 [evidence of gang’s penchant for witness intimidation was
relevant to eyewitness credibility].) If Carroll believed the
inference was weak or the witnesses’ refusals to testify were
meaningless, as he contends here, he was free to argue that to
the jury.
Carroll briefly argues that the calling of Ward and the
instruction related to Shaw violated his Sixth Amendment rights
because he had no opportunity to cross-examine them. But the
only authorities he cites for this argument are cases that
43
prohibited the prosecution from introducing to the jury prior
statements by a witness who refuses to testify or honestly fails to
recall a prior statement. (E.g., Douglas v. Alabama (1965)
380 U.S. 415, 420; People v. Rios (1985) 163 Cal.App.3d 852, 864.)
That is not what occurred here, since the prosecution did not seek
to introduce any prior statements by Ward or Shaw.
Even if the trial court did err in some fashion in allowing
the People to call Ward as a witness in front of the jury or
allowing the jury to draw inferences from Shaw’s refusal to
testify, any such error was unquestionably harmless here. The
jury had little basis to understand how Ward was connected to
the trial from the testimony, beyond stray references to him
being associated with North Oakland and the police interviewing
him in connection with the Nguyen shooting. It was Carroll’s
counsel, not the People or any witness, who told the jury that
Ward was present at Nguyen’s shooting. The prosecutor did not
mention Ward in closing argument at all. Shaw was plainly a
victim of the same shooting that injured Ware, but the
prosecutor’s closing argument placed no emphasis on Shaw’s
refusal to testify beyond a remark that the jury had not heard
from him. Excluding them from the trial entirely would not have
appreciably changed the state of the evidence. Allowing Carroll
to cross-examine these witnesses would have been pointless,
given their refusals to speak at all. Any error related to these
two witnesses was harmless according to either the state or
federal standards of prejudice. (People v. Watson, supra,
44
46 Cal.2d at p. 836; Chapman v. California, supra, 386 U.S. at
p. 24.)
V. Cumulative Prejudice
Carroll argues that even if his preceding claims of error
were not individually prejudicial, taken together they were
cumulatively prejudicial. As we have found only a single, non-
prejudicial error, there can be no cumulative prejudice.
VI. Great Bodily Injury Findings
Carroll points out that the jury found he personally
inflicted great bodily harm within the meaning of section
12022.7, subdivision (a) when he committed each of the counts of
murder. He then cites section 12022.7, subdivision (g), which
states that the three-year enhancement for inflicting great bodily
injury in that statute does not apply to murder. He therefore
argues that the great bodily injury findings on the murder counts
must be reversed because they are unauthorized. The People
agree, as do we. However, as Carroll himself points out, the trial
court did not actually impose the three-year enhancements under
section 12022.7 to the murder counts, so the reversal of these
findings does not affect the length of Carroll’s sentence.
VII. Ineffective Assistance of Counsel Regarding Dual Use
of Facts
Carroll’s last argument seeks reversal of the trial court’s
imposition of the upper term on count 10, the charge of attempted
murder of Ware. He argues that his counsel provided ineffective
assistance by failing to object to the trial court’s reliance on his
firearm use and infliction of great bodily injury to impose both a
45
25 years to life enhancement under section 12022.53 and the
upper term on count 10.
To prevail on a claim of ineffective assistance of counsel,
Carroll “ ‘must show that [his] counsel’s performance was
deficient, and that the deficiency prejudiced the defense.’
[Citations.] On direct appeal, a finding of deficient performance
is warranted where ‘(1) the record affirmatively discloses counsel
had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide
one, or (3) there simply could be no satisfactory explanation.’
[Citation.] ‘[W]here counsel’s trial tactics or strategic reasons for
challenged decisions do not appear on the record, we will not find
ineffective assistance of counsel on appeal unless there could be
no conceivable reason for counsel’s acts or omissions.’ ” (People v.
Johnsen (2021) 10 Cal.5th 1116, 1165.)
A trial court “may not impose an upper term by using the
fact of any enhancement upon which sentence is imposed under
any provision of law.” (§ 1170, subd. (b)(5); People v. Scott (1994)
9 Cal.4th 331, 350; rule 4.420(g).) We agree with Carroll that
there is no conceivable reason for his counsel to have failed to
raise this point in the trial court. The law prohibiting the dual
use of facts for an enhancement and to aggravate a sentence is
clear, and the People do not dispute that it barred the court from
relying on the firearm and great bodily injury aggravating
circumstances to impose the upper term on count 10. Carroll had
nothing to lose by raising this point and could only face a longer
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sentence by allowing the court to consider more aggravating
circumstances than were proper.
However, Carroll has failed to demonstrate prejudice from
his counsel’s deficiency. Establishing prejudice for a claim of
ineffective assistance of counsel requires a defendant to
“demonstrate ‘a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.’ ” (In re Gay (2020)
8 Cal.5th 1059, 1086.) Carroll argues for an alternative standard
of prejudice, urging that we should remand unless the record
clearly indicates that the trial court would have imposed the
same sentence had it been aware of the limitations of its
discretion. (See People v. Lynch (2024) 16 Cal.5th 730, 771.) We
are not convinced that Lynch applies here, but it does not matter.
Even if we apply the Lynch standard as Carroll suggests, he still
fails to establish prejudice because the record clearly indicates
that the trial court could and would have imposed the same
sentence even without the additional aggravating circumstances.
Carroll does not dispute that a trial court may impose an
upper-term sentence based on even a single aggravating
circumstance. (People v. Lynch, supra, 16 Cal.5th at p. 764.)
This would have allowed the trial court to impose the upper term
here, since the jury found that the victim, Ware, was particularly
vulnerable (rule 4.421(a)(3)) and the trial court found that Carroll
engaged in violent conduct that indicated a serious danger to
society, his prior convictions were numerous or of increasing
47
seriousness, and he had served a prior prison term (rule
4.421(b)(1)–(3)). We have no doubt that the trial court would
have used that authority here, since the court made clear that it
intended to impose the maximum possible sentence. When it
announced its tentative sentence at the outset of the sentencing
hearing, the court said that it did not find any mitigating
circumstances that “would be compelling enough to impose
anything other than the maximum sentence allowed by law.” It
repeated that remark when it pronounced the actual sentence.
The trial court’s sentencing decisions reflect this stated
determination to impose the longest possible sentence. Most
obviously, it sentenced Carroll to over 207 years in prison, a term
which Carroll would not actually complete even over the course of
multiple lifetimes. The court reached that result not just by
imposing the upper term on count 10 or the enhancements, but
also by running consecutively the sentences for the two counts of
possession of a firearm by a felon. Running these terms
consecutively served no possible purpose except to underscore the
trial court’s expressed view that Carroll’s actions were extremely
dangerous and posed an extreme danger to the community.
Because the trial court made every possible choice to lengthen
the term of Carroll’s sentence, well beyond the limit of what
Carroll could be physically capable of serving, the trial court left
no doubt that it would have imposed the same upper term on
count 10 even without two of the aggravating circumstances.
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DISPOSITION
The judgment is modified by reversing the jury’s findings
under section 12022.7, subdivision (a) that Carroll personally
inflicted great bodily injury when he committed the murders of
Nguyen Ngo, Nehemiah Lewis, and Andrew Henderson. (§ 1260.)
As so modified, the judgment is affirmed.
BROWN, P. J.
WE CONCUR:
STREETER, J.
SWEET, J.
People v. Carroll (A172493)
Judge of the Superior Court of Marin County, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
49