P. v. Carter
Filed 7/20/12 P. v. Carter CA4/1
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL,
FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff
and Respondent,
v.
LARRY KINKADE CARTER,
Defendant
and Appellant.
D058172
(Super. Ct.
No. RIF135374)
THE PEOPLE,
Plaintiff
and Respondent,
v.
JONATHAN JAPHETH NORTON,
Defendant
and Appellant.
D058660
(Super. Ct.
No. RIF135374)
CONSOLIDATED
APPEALS from judgments of the Superior
Court of
County, Eric G. Helgesen, Judge. Affirmed in part, reversed in part, and
remanded for further proceedings.
INTRODUCTION
A
jury convicted Larry Kinkade Carter and Jonathan Japheth Norton of
subd. (a); count 1)
title="">[1]
and active gang participation (§ 186.22, subd. (a); count 3). The jury additionally convicted Norton of
being a felon in possession of a firearm
(Former § 12021, subd. (a)(1), repealed and reenacted without substantive
change as § 29800, subd. (a)(1), by Stats. 2010, ch. 711, §§ 4
[repeal] & 6 [reenactment], eff. Jan.
1, 2012; count 2.)
As
to count 1, the jury found true allegations Norton personally and intentionally
discharged a firearm causing death (§ 12022.53, subd. (d)) (subdivision (d)
firearm enhancement), and Norton and Carter were principals and at least one
principal personally and intentionally discharged a firearm causing death (§
12022.53, subd. (e)(1)) (subdivision (e)(1) firearm enhancement). The jury also found true allegations Norton
committed the offenses in counts 1 and 2 and Carter committed the offense in
count 1 for the benefit of, or at the direction of, or in association with a
criminal street gang with the specific intent to promote, further, or assist in
any criminal conduct by gang members
(§ 186.22, subd. (b)) (gang benefit enhancement). The trial court additionally found true
allegations Norton had two prior strike convictions (§§ 667, subds. (b)-(i),
1170.12) and one prior prison conviction (§ 667.5, subd. (b)).
The
trial court sentenced Carter to a determinate term of three years in prison for
count 3 followed by an indeterminate term of 25 years to life in prison for
count 1, plus a consecutive term of 25 years to life for the subdivision (e)(1)
firearm enhancement. The court stayed
the gang benefit enhancement for count 1.
The
trial court sentenced Norton to an indeterminate term of 25 years to life for
count 1, tripled to 75 years to life due to Norton's prior strike convictions,
plus a consecutive term of 25 years to life for the subdivision (d) firearm
enhancement. The trial court did not
impose any additional sentence for the count 1 gang benefit enhancement. For count 2, the trial court sentenced Norton
to a consecutive term of 25 years to life, plus four years for the gang benefit
enhancement. For count 3, the trial
court sentenced Norton to a consecutive term of 25 years to life. Lastly, the trial court imposed a consecutive
one-year sentence for Norton's prior prison conviction.
Norton
and Carter both appeal.
name="_ftnref2" title="">[2] Norton contends we must reverse his
convictions because the trial court erroneously denied his pretrial motion to
sever the trial of the active gang participation count and bifurcate the trial
of the gang benefit enhancement allegations.
In addition, he contends we must reverse his convictions because the
trial court erroneously denied him the opportunity to represent himself during
closing argument.
Norton
also contends we must reverse his active gang participation conviction because
there is insufficient evidence to support it.
contend we must reverse the gang benefit enhancements and the count 1
subdivision (e)(1) firearm enhancement, which depends upon the existence of a
valid gang benefit enhancement.
Norton
further contends the trial court should have stricken the count 1 gang benefit
enhancement since it imposed a sentence for the subdivision (d) firearm
enhancement
title="">[4]
and both Norton and Carter contend the trial court should have stayed
imposition of the sentences for their active gang participation convictions
under section 654.
Lastly,
Norton contends we must modify the abstract of judgment to reflect restitution
and parole revocation fines of $200, rather than $5,000, because the record
indicates the trial court did not intend to impose fines of $5,000. Alternatively, Norton contends the record is
ambiguous as to the trial court's intent and we must reverse the fines and
remand the matter to the trial court for clarification.
We
conclude the trial court should have stayed imposition of Carter's and Norton's
sentences for their active gang participation convictions and order the trial
court to modify the abstracts of judgment accordingly. We additionally conclude the trial court's
intent regarding the amount of Norton's restitution and parole revocation fines
is not clear from the record. We,
therefore, reverse the fines and remand the matter to the trial court for
further proceedings. We also direct the
trial court to modify the abstract of judgment to reflect imposition of the
alternate penalty provided in section 186.22, subdivision (b)(5), for Norton's
count 1 gang benefit enhancement. In all
other respects, we affirm the judgments.
BACKGROUND
Prosecution Evidence
Jonathan
Fuller lived in an apartment complex in the Edgemont area of Moreno
Valley. Joyce Lopez lived in the same
apartment complex. At around 9:30 p.m.
on June 10, 2006, Lopez heard footsteps and then two voices arguing loudly
at the entrance of Fuller's apartment.
One of the voices was Fuller's.
She heard someone yell, "Get that nigga." A few seconds later, she heard two or three
gunshots and footsteps running past her door.
She heard a car door slam on the street in front of the complex and then
she heard a car leave.
Around
the same time, Gianna McComb drove to her grandmother's apartment, which was in
the same complex where Lopez and Fuller lived.
She parked her car in front of the gate to the complex. There were some Young Paperchasers gang
members hanging out near the mailboxes.
A white car pulled up and parked about a car length behind her, but away
from the curb. Its lights were on and
its engine was running.
After
sending a text message, McComb got out of her car to go to her grandmother's
apartment. As she did, she saw two
African-American men outside Fuller's apartment and heard them yelling.
Before
she reached the gate to the complex, she saw a flash and heard four to six
gunshots fired in rapid succession.
While the shots were firing, she ran back to her car, got in it and
ducked down. She looked up seconds later
and saw two men run through the gate toward the street. Meanwhile, the white car had moved in front
of her car and was inching away. The two
men flagged the car down and it stopped.
One man jumped into the front passenger seat, the other jumped into the
back passenger seat, and the car drove away.
She did not see either man with a gun.
She could not identify either Carter or Norton as the men she saw that
night.
When
Riverside County Sheriff's Investigator Edwin Baeza arrived at Fuller's
apartment, he found Fuller lying on the kitchen floor. There was blood pooling around Fuller's head
and he had a gunshot wound below his right eye.
There were bullet holes in his clothes near his left hip and leg and
money laying on the floor near him.
There was a baggie of a white rocklike substance that appeared to be rock
cocaine on the kitchen counter. In the
living room, there was a baggie with a green leafy substance that appeared to
be marijuana on a table and a letter scale on top of a stereo.
There
was a spent .380-caliber casing near Fuller's body and another in the
entryway. Two other bullets traveled
through a common wall into the adjacent apartment. A few days later, Fuller's aunt found two
more casings while cleaning Fuller's apartment.
One was on the kitchen counter behind the microwave and one was on an
egg carton on top of the refrigerator.
The
parties stipulated Fuller's body had five gunshot wounds: one in the right side of his face, one in the
back of his head, one in his left thumbnail, one in his left hip, and one in
the upper part of his left leg. He died
from the gunshot wounds.
After
the shooting, Fuller's cell phone and $2,000 were missing from the
apartment. Several outbound calls were
made from his cell phone after his death.
One of the calls was made to Fuller's cousin, Mario Fuller (Mario). The calls utilized a cell tower located
approximately one mile from Norton's home in Perris.
On
the day of Fuller's murder, Mario's sister heard Mario's cell phone receive a
direct connect alert. She answered the
phone and the voice on the other end said, "Help, help. These niggas just shot me. I'm in Edgemont." The caller used Fuller's cell phone and said
he was Fuller, but the caller's voice was not Fuller's.
Julio
Jefferson, an extended family member of Fuller's, was at a liquor store in
Perris a few days after the shooting. He
saw a white Pontiac Grand Am parked outside the store and three
African-American men inside the store, including Norton and Carter. Norton was wearing a T-shirt with the words
"Mafia IV Life" on the back.
Carter was talking on a cell phone and Jefferson heard him say, "No
it ain't. You know me. I don't be in Edgemont like that, so it
couldn't have been me." Jefferson
realized then that the men might be connected to the shooting. He called someone and had the person write
down the Grand Am's license plate number, which he then gave to police along
with a description of the three men.
Norton was the registered owner of the vehicle and he was the one
driving it.
Riverside
County Sheriff's investigators searched Norton's home in Perris. In the master bedroom, they found a large
T-shirt with the initials "MSMC" printed on the front and the phrase
"Mafia IV Life" printed on the back.
It appeared to be the same T-shirt Norton was wearing when Jefferson saw
him at the liquor store.
Michelle
Luckey knew Carter by the nickname "Killa" and Norton by the nickname
"Tiny Mafia." Norton told her
he was a member of the Main Street Mafia Crip gang (Main Street gang). In mid-or late June 2006, Luckey met with Norton
and Carter at her home to braid one or both men's hair. Earlier in the day, she had received a call
from someone who told her Carter had been involved in a shooting in the
Edgemont area and had killed someone.
She asked Norton and Carter about it.
Carter denied being the shooter.
Norton, however, bragged that he "noodled" a person because
the person "was talking shit."
Carter and a third person unknown to Luckey were present at the time of
the shooting. Luckey asked what
"noodled" meant and Norton explained that it was when someone is shot
in the head and noodle-like brain fragments come out. Luckey had previously seen Norton with a
handgun, which she thought he told her, was a .380-caliber gun.
According
to Fuller's aunt, Norton, whom she knew as "J Rock," used to be
Fuller's friend. Norton became angry
with Fuller because Fuller lost some of Norton's furniture. After that, their friendship ended.
Riverside
County Sheriff's Detective Randall Thomas interviewed Norton. Norton told Thomas he goes by the moniker
"Tiny Mafia" and was a member of the Main Street gang, but was not
active in the gang.
Thomas
also interviewed Carter. Carter told
Thomas he goes by the monikers "Little Larry" and
"Killer." He said he thought
there was going to be a shooting the night Fuller was killed, and he was
sitting in the driver's seat of Norton's car when he heard the gunshots. He told Thomas a .380-caliber handgun had
been used in the shooting. He also said
Fuller's phone had been taken and used.
After the shooting, Carter received $100. The money had blood on it.
On
the morning of July 24, 2006, approximately one and a half months after
Fuller's murder, James Jones was driving his wife's gray Ford Escort through an
alley near his home when a red Toyota with three people inside, including a
large man in the back seat, drove toward him from the opposite direction and
pulled up beside him. The driver, a
African-American man in his late teens or early twenties, with a little
mustache, asked him if he needed anything and he replied, "Nope[,] I don't
do drugs." Then, the man in the front
passenger seat, later identified as Terrence White, jumped out of the Toyota,
pointed a black automatic gun at Jones, and told him to get out of the
Escort. Jones grabbed his cell phone and
got out of the car. White took the
Escort and drove away with it. The men
in the Toyota also drove away.
While
patrolling the area with his partner, Riverside County Sheriff's Deputy Jaime
Morales encountered and pursued the fleeing Escort. At that time, Norton was driving it. Norton drove the car to April Staton's home
and crashed it into another car. Norton
and another African-American male got out of the Escort and ran into the
home. Morales and other officers started
checking the doors to the home and Morales heard someone say, "I have a
gun, and there is people in here."
At
the time of the carjacking, Staton was one of Carter's girlfriends. She knew him by the names Larry, "Little
Larry," and "Killer." He
sometimes drove around in a red car. He
told her he was a member of the Farm Dog Compton Crip gang (Farm Dog gang), but
he had not been involved with the gang since he was teenager. She had never seen him involved in gang
activities, although she knew he sold drugs.
The
evening before the carjacking, White, who is an Orange County Crip, stayed at
Staton's home with his girlfriend, Lorretta Turner. White left the next morning. Early that morning, Norton, Carter, and
another African-American male stopped by and left within minutes of White. The men talked outside before leaving.
Sometime
later, Staton heard sirens and went outside.
Norton pulled up in a silver or gray car with White and someone he
referred to as Mike. They all ran
inside. Neither Norton nor White were
carrying a gun. White jumped in the
shower. Norton told Staton to act as if
they were a couple and gave her his full name and birth date. He told Staton to take her clothes off, so it
would appear he had been there the whole time.
He took his clothes off and tried to rub his penis in her vagina to make
it smell as if they had been having sex.
He kept threatening to kill Carter if she did not do as he had asked.
Eventually,
Staton and the others came out of the home.
Staton lied to police and said, as Norton had directed her to, that
Norton was her boyfriend, they had slept together the night before, and were
just about to have sex when two men, one African-American and one Hispanic,
broke into the home. She also said one
of the men had a gun and held them hostage.
She later recanted these statements.
Riverside
County Sheriff's detective Eric Holland and investigator Jon Wade were assigned
to search Staton's home and the Escort.
However, neither of them or anyone working with them searched the
Escort.
After
the Escort was returned to Jones, he found an extra-large T-shirt in the
backseat that did not belong to him or his wife. In addition, he found the gun used to carjack
him under the driver's seat wrapped in a green handkerchief.
The
gun was a Lorcin .380. A firearm
examiner determined the cartridge casings and projectiles found in Fuller's
body, Fuller's apartment and the adjacent apartment, were fired from the gun
found in the Escort. There were no
comparable fingerprints on the gun or the ammunition magazine.
Los
Angeles Police Officer Samuel Marullo, a senior training officer in the Los
Angeles Police Department's gang unit, testified the Main Street gang is one of
the most organized gangs and has a clearly defined hierarchy. There is a kingpin, five or six lieutenants,
street soldiers, and frontline members.
The Main Street gang is also one of the more monetarily successful gangs
and sustains itself chiefly through marijuana and cocaine sales. In addition to drug sales, the Main Street
gang also engages in robbery, embezzlement and extortion activities.
Although
the Main Street gang's primary territory is in Los Angeles, the gang's
activities and influence extend to other states. At the time of Fuller's murder, the gang had
approximately 300 active members.
Members identify themselves using two different hand signs and the
initials MSC for Main Street Crips, MSMC for Main Street Mafia Crips, and MSM
for Main Street Mafia. In addition, they
identify themselves by wearing blue and gold clothing. They also wear clothing
with the slogan Mafia IV Life, which is associated with a rap record label
owned by the gang's kingpin.
Gang
members are required to "put in work" for the gang. This means doing things that will bring in
money for the gang, such as committing robberies and selling narcotics, and
doing things that will instill fear and raise the level of respect for the
gang, such as shooting rivals and intimidating witnesses. The primary activities of the gang are
selling narcotics; committing shootings, robberies, and burglaries; and
possessing weapons.
The
Main Street gang has numerous alliances with other gangs, including some Blood
gangs. One of the Main Street gang's
strongest allies is the Grape Street Crip gang (Grape Street gang).
Norton
had tattoos referring to the Grape Street gang.
He did not have any tattoos referring to the Main Street gang. However, the month following Fuller's murder,
Norton admitted to a booking deputy that he was affiliated with the Main Street
gang. He also had multiple items
referring to the Main Street gang in his jail property box, including a thin
piece of cardboard with the words "J. Norton aka Tiny Mafia" on it, a
Bible with the words "Norton" and "Mafia" written in it,
and other documents referring to the Main Street gang.
Answering
a hypothetical question based on the facts of this case, Marullo opined a
person similarly situated to Norton would have been an active participant in
the Main Street gang at the time of Fuller's murder. The existence of Norton's Grape Street
gang-related tattoos did not change Marullo's opinion because of the strong
alliance between the Main Street and Grape Street gangs.
Los
Angeles County Sheriff's Detective Rick Sullivan testified the Farm Dog gang
was a small gang of roughly 30 members.
They joined up with two other Crip gangs, Acacia Blocc and Spooktown, to
increase their numbers and dominance within the community. The combined gang refers to itself as ATF,
with A standing for "acacia," T for "town," and F for
"farm." The Farm Dog gang is
synonymous with the ATF gang. The ATF
gang had approximately 200 members at the time of Fuller's murder. Although the ATF gang's territory is in
Compton, the gang has expanded into other areas as its members have moved away
from Compton. At the time of Fuller's
murder, the primary activities of the ATF gang were homicides, assaults with
deadly weapons, home invasion robberies, burglaries, car thefts, sales of
marijuana and crack cocaine.
Between
1999 and 2006, Carter admitted to being a member of the Farm Dog gang nine times. His most recent admission occurred a few
months after Fuller's murder. He has
also admitted going by the monikers "Little Larry" and
"Killer."
Carter
has the initials FDC, which stands for Farm Dog Crips, tattooed on his right
shoulder. He also has other tattoos
associated with the Farm Dog gang.
Answering a hypothetical based on the facts of this case, Sullivan
opined a person similarly situated to Carter would have been an active member
of the Farm Dog gang at the time of Fuller's murder.
Riverside
Sheriff's Deputy George Reyes testified that the predominant gangs in the
Edgemont area of Moreno Valley are the Edgemont Criminals, the Young
Paperchasers, and the Dorner Blocc Crips gang, which have joined forces with
one another. He further testified it is
common for gang members from Los Angeles or other areas to come into Moreno
Valley and continue to represent their gangs.
These transplant gang members will join forces with one another, even if
they are from rival gangs, to accomplish common objectives, including illegal
drug sales. Joining forces and
continuing to commit crimes are indications transplant gang members are still
active.
Answering
a hypothetical based on the facts of this case, Reyes opined persons similarly
situated to Norton and Carter were acting for the benefit of, at the direction
of, or in association with the Crips because the men were active gang members
and they committed Fuller's murder in association with one another.
Defense Evidence
Carter's Evidence
Carter
testified and admitted that at the time of Fuller's death he was a member of
the Farm Dog gang and went by the nicknames "Little Larry" and
"Killer." He joined the gang
when he was nine or 10 years old for protection. His dad was also a member of the gang. He moved to Moreno Valley for a short time
when he was 13 and then returned just before he was 15. When he moved to Moreno Valley, he did not
join a local gang. Although he testified
that he did not necessarily consider himself a member of the Farm Dog gang any
longer, he admitted getting a gang-related tattoo while he was in prison
awaiting trial in this case. He also
acknowledged that people associated him with the gang when he responded to
questions about where he was from. The
association kept people from trying to get him to join a local gang.
Carter
did not know any other Farm Dog gang members in Moreno Valley and denied being
involved in any gang activity in Moreno Valley.
He admitted, however, he had sold rock cocaine in Moreno Valley for
seven years, including in the Edgemont area.
According to him, the Farm Dog gang did not know he was selling drugs
and he never gave a percentage of his drug sales to the gang. He also did not pay a "tax" on his
drug sales to any of the Moreno Valley gangs.
He
met Fuller through Fuller's uncle. He
liked Fuller and there was no animosity between them. At the time of Fuller's murder, Carter was a
transient. He owned a .357-caliber
revolver for protection, but he never fired it.
Carter admitted having two prior convictions for selling rock cocaine,
one prior misdemeanor conviction for domestic violence, and one prior
misdemeanor conviction for possessing a gun.
Carter
had known of Norton since 1998, but he did not start hanging around with Norton
until shortly before Fuller's murder. He
did not know Norton well, although he knew Norton was a gang member and Norton
knew Carter was a gang member. According
to Carter, Norton currently claimed to be from the Main Street gang and went by
the nickname "Tiny Mafia."
However, he had previously been a member of the Playboy Hooride gang,
formerly known as the Grape Street gang that migrated from Los Angeles to
Moreno Valley. Carter denied there was
any connection between the Farm Dog gang and Norton's gang. He also denied being involved in any gang
business with Norton.
On
the night of Fuller's murder, Carter was with Norton, Nicholas Gayton, who also
claims to be from the Main Street gang, and a juvenile known to Carter as Mike.
Carter's gun. They went to Riverside to
try to buy some marijuana. When the
person they tried to buy it from would not sell them any, Gayton got out of the
car and fired Norton's gun in the air in an ineffectual effort to change the
person's mind. They then went to Moreno
Valley. Norton was driving and Carter
was in the passenger seat.
When
they arrived at Fuller's apartment complex, Carter saw six men loitering near
some mailboxes. He recognized three of
them as members of the Edgemont Criminals gang.
They knew him as a member of the Farm Dog gang.
Norton
pulled up near the mailboxes and introduced himself to the men. After Norton told them he was "Tiny
Mafia" from the Main Street gang, "they was cool. They shook his hand, and everything was,
like, straight from that point."
Norton asked where he could buy some marijuana and the men told him
Fuller might have some. Norton then
said, "I was going to holler at [Fuller]" because Fuller "is
supposed to be reimbursing me."
Until
then, there was no mention of Fuller by Norton or anyone else in Norton's
car. The group did not go to the
apartment complex with the intention of buying drugs from or having anything to
do with Fuller. Carter testified he did
not even know Fuller lived there.
Nonetheless,
Norton's remark about getting reimbursed by Fuller concerned Carter. Norton had previously told Carter he might do
something to Fuller because Fuller had broken into his house and stolen
something from him. Although, Norton
subsequently told Carter he and Fuller had talked and "everything was
cool," Carter thought there might be a shootout between the two men.
At
some point, Gayton pulled out Norton's gun and cocked it. Norton went to Fuller's door and Carter got
out of the car and stood on the sidewalk talking to Mike. Fuller let Norton in. After Norton had been in Fuller's apartment
awhile, Carter became nervous about the gang members by the mailboxes and he
and Mike went to the apartment to see what was taking so long.
Fuller
embraced Carter and everything seemed to be fine in the apartment. The group smoked some marijuana and talked
for a while. Then, Carter and Mike left
the apartment, went back to Norton's car, and drove to the store. When they returned, they parked near the
mailboxes again and went to Fuller's apartment.
Carter saw Fuller with a scale weighing some rock cocaine. Norton indicated it was time for them to
go. Carter shook Fuller's hand and then
he and Mike went back to the car to wait for Norton. Carter got into the driver's seat and Mike
got into the back. Five to 10 minutes
later, Carter heard two gun shots. He
thought Norton had gotten into an altercation with the gang members that had
been by the mailboxes when they first arrived.
Carter
started driving away and saw Norton running through the apartment complex
gate. Norton yelled for him to
wait. He stopped, Norton and Gayton got
into the car, and then he drove off.
Carter
asked Norton what happened. Norton told
Carter he had shot Fuller because Fuller "started talking shit." A cell phone and some money were taken from
Fuller's home. At some point after the
shooting, the group went to Norton's home and Norton used the phone to make a
call. He pretended to be Fuller, saying,
"I'm hit, I'm hit" and "[t]hese niggas just shot me."
Also
at some point after the shooting, Norton said to Gayton, "Give me the
money." Gayton handed Norton some
money. Norton then gave Carter and Mike
each $100. The money had blood on
it. Carter took the money because he was
afraid that if he did not, Norton would think he was going to report the matter
and retaliate by harming Carter's kids.
When
Carter went to Luckey's house with Norton, she was not going to let Carter in
because she had heard he killed somebody in Edgemont. When Carter denied this, Norton admitted he
had "noodled" Fuller.
Although,
Carter acknowledged going to Staton's house on the morning of the carjacking,
he denied having anything to do with the carjacking. The prosecution also had
not charged him with the carjacking.
Norton's Evidence
Dionne
Leaks lived with Norton and his family around the time of Fuller's murder. Norton never did anything that caused her to
believe he was involved in gang activities.
In addition, the Main Street gang never came up and she never saw any
gang graffiti at the house. She
acknowledged on cross-examination, however, that she was "not usually at
the house."
Norton's
wife, Catherine Delions, testified Norton primarily associated with their
neighbors and their family. She never
saw him "gang-bang" or use gang hand signs. In the first part of 2006, Norton stayed home
to be with their newborn and their other children. He then found a job and started working. He did not take trips to Los Angeles.
Delions
vaguely knew Carter. Carter came to
their house once or twice. She knew
Gayton, who was their neighbor. Norton
and Gayton did not get together often.
In the first part of 2006, Norton drove many different cars, including a
1999 Pontiac Grand Am.
Delions
had heard of, but did not know anything about the Main Street gang. She did not use a nickname for Norton, and
Norton did not have gang paraphernalia or writings in their home. The Mafia IV Life T-shirt referred to a Mafia
IV Life car club.
Norton
testified he met Carter in high school, but did not begin associating with him
until the month before Fuller's murder.
They got together to smoke marijuana.
Sometimes, when Norton had business to take care of near Compton, he
took Carter to Compton.
Norton
knew Carter was affiliated with the Farm Dog gang. While Carter was in Moreno Valley, Norton saw
Carter with gang-related clothing. He
also saw Carter hang out with other gang members from Compton and engage in
gang business with them. Norton
initially knew Carter by the nickname "Little Larry." When they became reacquainted in 2006, Carter
went by the nickname "Killer."
Norton
met Fuller in 1996 or 1997 through one of Fuller's cousins. In 1999 Norton was convicted of first degree
burglary and assault with the intent to commit a specific sex offense. He went to prison and was released in
2004. He met Gayton that same year.
Norton
grew up in Los Angeles. He moved to
Moreno Valley in 1996, but regularly visited Los Angeles because his family
lived there. He admitted being
gang-affiliated as he associates with gang members; however, he only associates
with gang members from Los Angeles as he does not respect the gang members in
Moreno Valley. The gang with whose
members he associates includes the Main Street and Grape Street gangs.
Norton
denied ever being a member of the Grape Street gang. His tattoo of flames with the words
"Watts ES" refers to the Watts riots in the 1960s. His tattoos of the initials GST and of grapes
with the word "street" refer to a deceased relative who was a member
of the Grape Street gang. Moreover,
according to him, Playboy Hooride is not a gang. It is just a crew of approximately 10 men,
primarily from the Edgemont area, who can fight.
Norton
does not have any tattoos referring to the Main Street gang and denied ever
being initiated into the Main Street gang, although he admitted he would have
become a member of the gang had he not moved away from Los Angeles. He also acknowledged the Main Street gang is
large and has branched out beyond its initial neighborhood territory.
Norton
denied telling Staton he was a member of the Main Street gang. He also denied telling a booking deputy he
was a member of the Main Street gang.
Rather, he told the deputy he could be housed with Main Street gang
members. He admitted he probably told
Carter he was a member of the Main Street gang.
He also admitted he told Thomas he was a member of the Main Street gang.
Norton
acquired the Mafia IV Life T-shirt at a low-rider car club event. Every person who participated in the event
received a T-shirt regardless of whether the person was a member of the Main
Street gang. He denied the Main Street
gang-related items in his jail property box were his. He also denied knowing how they got
there. He admitted, however, writing his
name and "Tiny Mafia" on the piece of cardboard.
He
denied going by any particular nickname, but admitted that in 2006 he jokingly
told Luckey his nickname was "Mafia."
He has also used this nickname in jail and with Staton. He told detective Thomas his nickname was
"Tiny Mafia." He explained he
did not want to say his nickname was "Mafia," which is the nickname
of his neighbor and Main Street gang member, Reginald Sanders,
and he could not think of anything else fast enough. He further explained his nickname is
"whatever I tell you it is that day."
He used different nicknames to make it more difficult for people to
identify him.
While
Norton was in prison for his prior burglary and assault convictions, Sanders
paid Norton's mortgage. After Norton got
out of prison, Norton delivered drugs and collected money for Sanders to pay
Sanders back. Carter also worked for
Sanders, but had different tasks. The
day of the shooting Norton picked up Carter at a park in Perris. He drove his white Pontiac Grand Am. They went to Norton's house, picked up a
package of drugs from Sanders, and waited for instructions.
They
then went to Murrieta and delivered the package. It was the second or third time they had run
drugs together. Norton trusted Carter to
accompany him. The people with whom
Norton transacted business also knew Carter and trusted him.
After
that, they went to an apartment in Riverside.
Carter picked up something at the apartment. They drove back to Perris and Carter
delivered his acquisition to Sanders.
Later in the evening, Norton, Carter, and Gayton went to Edgemont where
Norton had to deliver more drugs. Mike
was not with them.
None
of them had a gun. Carter was supposed
to have a gun and on other occasions Norton had seen him with a revolver and
two semiautomatic weapons. Norton denied
having a gun and further stated he was not supposed to have a gun because he
would be sent to jail if he was caught carrying a gun and that would put
Sanders at risk.
Norton
parked by some men, three or four of whom he knew. Norton got out of his car and stated his
business, indicating he wanted to see somebody who stayed in the area. He never told them he was from the Main
Street gang. Rather, he stated that in
Edgemont, he is known as "J Rock" from Playboy Hooride and Carter is
known as "Killer" from the Farm Dog gang. Consequently, he believes Gayton must have
claimed to be from the Main Street gang.
Norton
went through the apartment complex to the alley and conducted a drug
transaction. He then went back through
the apartment complex and got into his car.
Gayton and Carter were no longer in the car.
Norton
pulled his car up and parked in front of Fuller's apartment complex. He got out of the car and went to Fuller's
apartment. He denied having any
animosity toward Fuller. Fuller greeted
Norton using the word "nigga" and invited Norton in. Carter and Gayton were already inside
Fuller's apartment. Carter was smoking
marijuana and Gayton was sitting on the couch.
A
few minutes later, Norton left and went into the alley to conduct another drug
transaction. While there, he saw some
men grouping up in the alley. After
concluding his transaction, he went through Fuller's complex back to his car to
put away the proceeds. Carter and Gayton
were still in Fuller's apartment.
As
he was putting the proceeds away, he heard gunshots. They came from the alley where the men had
been grouping up. He heard a second set
of gunshots that appeared to come from the courtyard of the apartment
complex. Norton got into the car and
pulled forward. He contacted Carter and
told him to come out. A few minutes
later Carter and Gayton came out and Norton drove away.
The
next day, at Sanders's house in front of Sanders and other Main Street gang
members, Carter told Norton he killed Fuller because Fuller gave him "some
bad dope." Norton and Carter ran
drugs together a couple more times after Fuller's murder.
On
the morning of the carjacking, Norton, Carter, White, Staton, Turner and
another person left Staton's apartment in two cars: a white car and a red car. Norton was in the white car. The group was supposed to go to a convenience
store, where an employee was going to assist them in stealing the store's
money. Norton, himself, was not supposed
to be directly involved in the theft. He
explained at trial he was "distinctly told [by Sanders] what I'm supposed
to do and what I'm not supposed to do."
The
people in the red car, which included Carter, White, and Staton, deviated from
the plan and carjacked a Ford Escort.
Norton and the others in the white car returned to Staton's
apartment. Staton and White subsequently
arrived in the Escort and ran into Staton's apartment.
Norton
made some phone calls in an effort to extricate himself from the
situation. At some point, White left the
apartment and told law enforcement officers that the man with the gun was still
inside. Norton and Staton then worked
out a story about being a couple held hostage.
Although they took their clothes off, he denied attempting to put his
penis into Staton's vagina. Eventually,
everyone came out of the apartment.
After
White and Norton were arrested for the carjacking, Norton wrote White a
note. In the note, Norton asked White to
lie and say he did not know Norton and Norton was not with him during the
carjacking. He staled "on Main
Street Crip" that if White helped him the carjacking victim would never
make it to trial. The reference to
"on Main Street Crip" was intended to be an assurance Norton's word
was good and to provide White recourse through the Main Street gang if Norton
did not, in fact, take care of the carjacking victim.
Norton
admitted he knew Luckey and had a sexual relationship with her. He denied telling Luckey he was a member of
the Main Street gang, although he did tell her his name was Mafia. He denied he and Carter ever went to her
house together to get their hair braided by her. He denied ever telling her anything about a
.380-caliber handgun or that he "noodled" Fuller or anybody
else.
Detective
Thomas testified Carter told him Norton
"needed . . . to stop at Edgemont because he need[ed]
to be reimbursed." In addition,
Carter said Gayton went into Fuller's apartment with Norton "to spot"
Norton. He also said he thought there
was going to be a shootout and either Norton or Fuller would be killed. He confirmed the gun used in the carjacking
was the same gun used to kill Fuller.
At
the time Luckey told Thomas about Norton's "noodled" remark, the
location of Fuller's gunshot wounds had not been released to the public or to
Fuller's family.
DISCUSSION
I
Charge and
A
Norton
made a pretrial motion to sever the trial of the active gang participation
charge and bifurcate the trial of the gang enhancement allegations. The People opposed the motion, arguing the
gang evidence was relevant and admissible as to the other charges on the issues
of motive and intent. The trial court
denied the motion. Norton contends the
trial court prejudicially erred in doing so.
We conclude there is no merit to this contention.
B
Charge
A
prosecutor may join charges connected together in their commission in the same
accusatory pleading. (§ 954.) The active gang participation and other
charges against Norton were connected together in their commission and,
therefore, properly joined because they arose out of single course of
conduct. (People v. Burnell (2005) 132 Cal.App.4th 938, 946.) Nevertheless, the trial court had the
discretion to order the active gang participation charge tried separately from
the other charges against Norton in the interests of justice and for good cause
shown. (§ 954.)
We
review a trial court's decision to deny severance for abuse of discretion. (People
v. Vines (2011) 51 Cal.4th 830, 855.)
"When the statutory requirements are met, joinder is error only if
prejudice is clearly shown.
[Citations.] [¶] ' "In determining whether a trial court
abused its discretion under section 954 in declining to sever properly joined
charges, 'we consider the record before the trial court when it made its
ruling.' " [Citations.] "The relevant factors are whether (1)
the evidence would be cross-admissible in separate trials, (2) some charges are
unusually likely to inflame the jury against the defendant, (3) a weak case has
been joined with a strong case, or with another weak case, so that the total
evidence may unfairly alter the outcome on some or all charges, and (4) one of
the charges is a capital offense, or joinder of the charges converts the matter
into a capital case."
[Citation.] "[I]f evidence
underlying the offenses in question would be 'cross-admissible' in separate trials of other charges, that
circumstance normally is sufficient, standing alone, to dispel any prejudice
and justify a trial court's refusal to sever the charged offenses." '
" (People v. Scott (2011) 52 Cal.4th 452, 469-470.)
Here,
the evidence related to the murder and firearm possession charges was
admissible as to the active gang participation charge to show Norton willfully
promoted, furthered, or assisted felonious criminal
conduct by gang members. Similarly,
the evidence related to the active gang participation charge was admissible to
show Norton had a gang-related motive for possessing a firearm and murdering
Fuller. Although there was evidence of
another possible motive, the existence of other motive does not preclude the
evidence of a gang-related motive from being relevant and admissible.
Even
if the evidence had not been cross-admissible, severance was not required
because the factors weighing in favor of severance were absent. (People
v. Scott, supra, 52 Cal.4th at p. 473.)
The evidence supporting Norton's guilt of the charged crimes was of
comparable strength and the evidence relating to Norton's active gang
participation was no more distressing than the evidence related to his firearm
possession and Fuller's murder. In
addition, joinder of the active gang participation charge did not convert the
murder charge into a capital case.
"A fortiori, defendant has not shown actual prejudice amounting to
a denial of fundamental fairness and due process." (Ibid.)
Notwithstanding
our conclusion the trial court's denial of Norton's motion for severance was
correct when made, we must still determine whether, considering the same
factors in hindsight, the joinder of the active gang participation charge with
the other charges prejudiced Norton and deprived him of due process of
law. (People v. Soper (2009) 45 Cal.4th 759, 783-784.) Norton has not persuaded us it did.
The
relevance and cross-admissibility of the evidence became more apparent as the
trial court progressed. Both Norton and
Carter testified they were affiliated with Los Angeles-based gangs and knew
each other's gang affiliation and nickname.
Their friends and family members also knew their gang affiliations and
nicknames. Neither Norton nor Carter
knew one another well and they had no apparent common interests except for
their work for Sanders, a Main Street gang member engaged in illegal drug
transactions. According to Norton,
Sanders specifically directed him to go to Fuller's apartment complex on the
night of Fuller's murder. Carter, who
also worked for Sanders, and Gayton, who is affiliated with Sanders and the
Main Street gang, accompanied Norton to the complex. This evidence, along with the evidence Norton
introduced himself as a Main Street gang member upon arriving at the apartment
complex, one of his companions went with him to Fuller's apartment to
"spot" him, and one of his companions stayed in the car to be a
getaway driver, showed both that Norton actively participated in the Main
Street gang and that he likely possessed a weapon and murdered Fuller for a
gang-related motive.
The
gang evidence adduced at trial did not alter the relative strength of the
prosecution's case on the charges against Norton nor did it cause one charge to
become more inflammatory than the other.
It also did not convert the murder charge into a capital case. Thus, even reviewing the matter in hindsight,
we conclude the trial court did not abuse its discretion and deprive Norton of
due process of law by denying his motion to severe the active gang
participation charge.
C
Allegations
Just
as the trial court had the discretion to sever the trial of the active gang
participation charge under section 954, it had the discretion to bifurcate the
trial of the gang benefit enhancement allegations under section 1044.
v. Hernandez (2004) 33 Cal.4th 1040, 1049 (Hernandez).) We review the
trial court's decision to deny bifurcation for abuse of discretion. (Id.
at pp. 1048, 1050) To establish an abuse
of discretion, a defendant must show there was a substantial danger of
prejudice necessitating bifurcation. (
Generally,
there is less need to bifurcate the trial of gang benefit enhancement
allegations because they are inextricably intertwined with the charged offense
to which they are attached. (
supporting the gang enhancement would be admissible at a trial of guilt, any
inference of prejudice would be dispelled, and bifurcation would not be
necessary." (Id. at pp. 1049-1050.)
In
this case, Norton injected his gang status into the case by identifying himself
as a Main Street gang member when he arrived at Fuller's apartment complex and
using his status to gain unimpeded access to Fuller's apartment. In addition, the evidence showed Fuller's
murder was a coordinated effort among three gang members: two who confronted Fuller and one who acted
as the getaway driver. The gang experts'
testimony helped the jury understand the significance of Norton's
self-identification as a gang member, which was relevant to his motives for possessing
a firearm and shooting Fuller. The gang
experts' testimony about the alliances among Los Angeles-based gang members
also helped explain why Norton and Carter were acting together and further
supported the existence of a gang motive for their crimes. The other evidence provided by the gang
experts was not so minimally probative or comparatively inflammatory that it
created a risk of swaying the jury to convict Norton regardless of his actual
guilt. Thus, we conclude Norton has not
met his burden of establishing there was a substantial risk of prejudice
necessitating bifurcation. (
Cal.App.4th 214, upon which Norton relies, is distinguishable. The issue in Albarran was whether the trial court properly admitted gang
evidence under Evidence Code section 352, not whether the trial court properly
denied severance of gang charges under section 954 or bifurcation of gang
enhancement allegations under section 1044.
(Albarran,
the gang evidence because the evidence was highly prejudicial and largely
irrelevant as, apart from defendant's gang-affiliation, there was no indication
the defendant's crimes were gang motivated.
(Id. at p. 227.) In this case, however, there was evidence of
a gang motive for Norton's crimes beyond just his gang affiliation. He announced his gang status shortly before
committing the crimes. Two other gang
members, whom he knew primarily from their common dealings with another Main
Street gang member, accompanied him to the crime scene and assisted him. Shortly after the crimes, in Carter's
presence, he bragged about shooting Fuller to Luckey, who knew him and Carter
by their gang personas. Thus,
different result in this case.
II
A
Just
before closing arguments were to commence, Norton's counsel informed the court
Norton wanted to address the court. When
the court inquired of Norton, Norton stated, "I was wondering if it would
be possible for me to give my own closing when I was going pro per, because it
wouldn't take me no hour and 30 minutes or whatever that they're setting for
their selves." Norton explained he
felt the prosecutor and Carter's counsel had "struck a final blow" by
suggesting during their cross-examinations of him that he was having sex with
Luckey's 16-year old sister.
name="_ftnref8" title="">[8] He felt this suggestion, in light of his
prior conviction for assault with the intent to commit a specified sexual
offense, poisoned the jury against him.
He further stated he wanted "the jury to hear me to prove that I'm
not running around killing people and sexing underage girls and raping people
and stuff like this."
The
trial court responded, "At this point in the proceedings, the evidence is
closed. We heard the evidence. And it sounds to me like you're wanting to
present new evidence to the jury in argument, I think, and I'm going to deny
your request to address the jury personally at this point."
Norton's
defense counsel then interjected, "Once again I have advised [Norton]
against doing it, but he is inquiring whether or not or how it would work if he
could go pro per potentially at closing argument stage." Norton explained, "I've seen it be done
to where you go pro per with counsel or something like that." He further explained, "I'm not trying to
introduce no new evidence. I just want
to speak for myself. Because basically,
the man struck a final blow with what he said.
And it's right here that¾I got it right here (indicating). I think that the prosecution should not, you
know, strike hard blows or final blows at liberty. I got it right there. And that's exactly what they did. Nothing about this case involved no 16-year
old girl, that is all they talked about, basically."
The
trial court gave the prosecutor and Carter's counsel an opportunity to
respond. After clarifying the context
for the statements about the 16-year-old-girl and indicating he was not going
to include anything about the statements in his closing argument, the
prosecutor remarked, "[I]f [Norton] is saying he wants to get up and
further clarify what he meant by that, that is new evidence. That is not closing argument. That is what should have been done when he
was on the stand. He didn't do
that. He didn't take advantage of
that. So he can't get up now in closing
argument and say, hey, this is other stuff that you didn't hear. That is not what
precluded by law from doing that."
Carter's counsel joined in the prosecutor's remarks, agreeing Norton
likely wanted to use closing argument to talk about matters not in evidence.
Norton's
counsel responded, "First of all, you know, it's not my recommendation,
obviously, for [Norton] to go pro per at this time. I think the Court needs to address the issue
whether or not he has the right to go pro per at this stage and whether or not
he wants to. And if he wants to and he
has the¾and
the Court would be willing to allow it, then the issue is whether or not
[Norton] can follow the procedures during closing argument, not what could
potentially happen."
The
prosecutor then pointed out "[Norton] hasn't formally asked to be pro per
yet, and I know he is being advised not to.
All he has requested at this point is to give a statement, and I think
he wanted [his defense counsel] to also give a statement. So I don't know what his formal request is at
this point."
The
court then asked, "What is your formal request, [Norton]." Norton responded, "My formal request is
I would like to know how do I go about being pro per"
The
court indicated it was not allowed to give Norton legal advice as it had to
remain impartial. Norton's counsel
interjected, "I think what he is asking is whether or not the Court will
allow him to go pro per."
The
court responded, "I think the first step is he¾I have not heard a formal
request yet that he wants to be pro per and fire you. Because I think that is what that would¾that
is what that would be, really, is taking you off the case at that point."
The
court continued, "I think it's fairly safe to say you would not be allowed
to address that by talking about how it was.
All you could refer to is what was said on the stand, what the evidence
was. That is what argument is, is to
argue the evidence that has been presented, not to present new evidence."
Norton
responded, "I just want to talk about what was said while I was on that
stand. That's—I'm not trying to bring in
an investigation."
The
court explained, "But you can't say, 'But what I meant
was . . . .' That is
not evidence."
Norton
replied, "No, not what I meant was.
The D.A. just said that he was trying to clarify something because it
sounded a certain way in the record. And
that's clearly not what the man was doing.
I know that you got to be impartial, but the man sit there and said¾I
can't even say his exact words, but he basically was implying that I was
messing with a 16-year-old girl. First
[Carter's counsel] started it, and then [the prosecutor] got involved in
it. [¶]
When I asked my attorney about it, he said to him, it sounds like
this. But I know to the jury it didn't
sound like that, because to me it didn't sound like that. It's no way they could have got that from
that one little clip of the report that they read. There is no kind of way they could have got
that. And that¾the only reason they did
that is because of my prior first-degree burglary with assault with intent to
commit a sex act. That is the only
reason they did that."
The
court concluded, "Again, I don't know reasons why anybody did anything at
this point. But based on what I've
heard, I'm going to bring the jury in and proceed, and I'm going to deny his
right to argue at this point. I don't
believe he can take over now as representing himself and follow the rules of
the Court because he is indicating what he wants to do are things he can't
do."
B
Norton
contends we must reverse his convictions because his remarks to the trial court
constituted an unequivocal and timely request for self-representation that the
trial court had no discretion to deny.
The People counter that Norton's request for self-representation was
neither unequivocal nor timely and the trial court properly exercised its
discretion to deny the motion. We agree
with the People.
1
"A
criminal defendant may waive the right to counsel and represent himself at
trial. [Citation.] The right of self-representation is absolute,
but only if a request therefor is knowingly and voluntarily made and is
asserted a reasonable time before trial begins.
[Citation.] Otherwise, requests
for self-representation are addressed to the trial court's sound
discretion." (People v. Bradford (2010) 187 Cal.App.4th 1345, 1353.)
On
appeal, we examine the record de novo to determine whether a defendant's
request for self-representation was unequivocal. (People
v. Stanley (2006) 39 Cal.4th 913, 932.)
For a defendant's request for self-representation to be unequivocal, the
defendant must have evinced a true desire for self-representation. (People
v. Marshall (1997) 15 Cal.4th 1, 23 (Marshall).) "[A]n insincere request or one made
under the cloud of emotion may be denied."
(Id. at p. 21.)
A
"court faced with a motion for self-representation should evaluate not
only whether the defendant has stated the motion clearly, but also the
defendant's conduct and other words.
Because the court should draw every reasonable inference against waiver
of the right to counsel, the defendant's conduct or words reflecting
ambivalence about self-representation may support the court's decision to deny
the defendant's motion. A motion for
self-representation made in passing anger or frustration, an ambivalent motion,
or one made for the purpose of delay or to frustrate the orderly administration
of justice may be denied." (Marshall,
supra, 15 Cal.4th at p. 23.)
"[T]he
court's duty goes beyond determining that some of defendant's words amount to a
motion for self-representation. The
court should evaluate all of a defendant's words and conduct to decide whether
he or she truly wishes to give up the right to counsel and represent himself or
herself and unequivocally has made that clear." (Marshall,
supra, 15 Cal.4th at pp. 25-26.)
After
reviewing the record in this case, we cannot conclude Norton's statements
represented "an unequivocal and sincere invocation of the right of
self-representation." (
He never indicated he desired to represent himself during closing
argument because he was displeased with his defense counsel. He never indicated he wanted to take over any
other representation tasks remaining in the case. Rather, he indicated he wanted cocounsel
status so he could personally address the jury during closing argument. His desire to do this was an impulsive
response to his frustration at what he perceived were attempts by the
prosecutor and Carter's defense counsel to turn the jury against him by
portraying him as someone who had sexual relations with a minor. Moreover, he intended to counter this
perceived strategy not by means defense counsel failed or refused to consider,
but by impermissibly referring to facts not in evidence, which defense counsel
procedurally and ethically could not do.
Under these circumstances, we have no difficulty concluding Norton's
desire to represent himself was equivocal rather than genuine and,
consequently, he never invoked his right of self-representation. (Id.
at p. 21; People v. Valdez (2004) 32
Cal.4th 73, 99.)
2
Even
if Norton had invoked his right of self-representation, his invocation was
untimely. "[I]n order to invoke the
constitutionally mandated unconditional right of self-representation a
defendant in a criminal trial should make an unequivocal assertion of that
right within a reasonable time prior to the commencement of trial." (People
v. Windham (1977) 19 Cal.3d 121, 127-128.)
The absence of a pretrial request amounts to a waiver of the
unconditional right of self-representation.
(Id. at p. 129.) Instead, "once a defendant has chosen to
proceed to trial represented by counsel, demands by such defendant that he be
permitted to discharge his attorney and assume the defense himself shall be addressed
to the sound discretion of the court."
(Id. at p. 128.) Among the factors pertinent to determining
whether to grant a midtrial request for self-representation "are the
quality of counsel's representation of the defendant, the defendant's prior
proclivity to substitute counsel, the reasons for the request, the length and
stage of the proceedings, and the disruption or delay which might reasonably be
expected to follow the granting of such a motion." (Ibid.) " '[A] reviewing court must give
"considerable weight" to the court's exercise of discretion and must
examine the total circumstances confronting the court when the decision is
made.' " (People v. Bradford, supra,
187 Cal.App.4th at p. 1353.)
In
this case, we cannot find fault with the representation Norton's counsel
provided to him. Although there are
numerous indications in the record Norton was a difficult client, Norton's
counsel was able to form a respectful work
| Description | A jury convicted Larry Kinkade Carter and Jonathan Japheth Norton of first degree murder (Pen. Code, § 187, subd. (a); count 1)[1] and active gang participation (§ 186.22, subd. (a); count 3). The jury additionally convicted Norton of being a felon in possession of a firearm (Former § 12021, subd. (a)(1), repealed and reenacted without substantive change as § 29800, subd. (a)(1), by Stats. 2010, ch. 711, §§ 4 [repeal] & 6 [reenactment], eff. Jan. 1, 2012; count 2.) As to count 1, the jury found true allegations Norton personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)) (subdivision (d) firearm enhancement), and Norton and Carter were principals and at least one principal personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (e)(1)) (subdivision (e)(1) firearm enhancement). The jury also found true allegations Norton committed the offenses in counts 1 and 2 and Carter committed the offense in count 1 for the benefit of, or at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members (§ 186.22, subd. (b)) (gang benefit enhancement). The trial court additionally found true allegations Norton had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) and one prior prison conviction (§ 667.5, subd. (b)). The trial court sentenced Carter to a determinate term of three years in prison for count 3 followed by an indeterminate term of 25 years to life in prison for count 1, plus a consecutive term of 25 years to life for the subdivision (e)(1) firearm enhancement. The court stayed the gang benefit enhancement for count 1. |
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