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People v. Carr

November 23, 2010


APPEAL from a judgment of the Superior Court of Los Angeles County, Curtis B. Rappe, Judge. Affirmed as modified. (Los Angeles County Super. Ct. No. BA320703).

The opinion of the court was delivered by: Perluss, P. J.


Marquise Daniel Carr appeals from the judgment entered following his conviction by a jury on two counts of first degree murder and one count of being a felon in possession of a firearm. The jury also found true two special circumstances allegations related to the murder counts--that Carr had committed multiple murders and was an active participant in a criminal street gang at the time of the murder. (Pen. Code, § 190.2, subd. (a)(3), (22).)*fn1 In addition, the jury found true associated criminal street gang and firearm-use enhancement allegations.

Carr contends the prosecutor committed prejudicial error under Griffin v. California (1965) 380 U.S. 609, 615 [85 S.Ct. 1229, 1233, 14 L.Ed.2d 106] (Griffin), which forbids comment by the prosecution on an accused's silence, when she criticized Carr's failure to call an alibi witness in his defense. Carr also argues the special circumstance of murder by an active participant in a criminal street gang was improperly imposed because the People failed to prove Carr knew the gang was engaged in illegal activities. Finally, Carr contends there was insufficient evidence the shootings were gang-related. We affirm.

Factual And Procedural Background

1. The Crime

In the late morning of March 17, 2007 Rafael Rivera parked a blue car in front of the home of his girlfriend, Nelli Rodriguez, near the corner of East 31st Street and Stanford Avenue in Los Angeles. He walked to the front door and entered the home. Shortly thereafter, a young African-American man left the house next door, mounted a bicycle and began circling on the bicycle in the street near the car. Rivera, followed by Rodriguez, came out of Rodriguez's home and walked toward the car. Rivera, who carried a large white teddy bear, opened the car door for Rodriguez and placed the bear in the back seat. As he walked around to the driver's side of the car, the young man on the bicycle approached, bumped into the front door of the car and fired numerous rounds at Rivera and Rodriguez. He then rode the bicycle around the corner and south on Stanford Avenue. Rivera and Rodriguez each died of multiple gunshot wounds.

2. Carr's Identification and Arrest

Carr was placed at the murder scene by two witnesses, Jose Sanchez and Fredy Vinces. Sanchez, who was 15 years old on the day of the shooting, did not know Carr's name but had seen him before in the neighborhood. Sanchez testified he was standing on the sidewalk outside his apartment and saw Carr riding his bicycle on 31st Street. Carr was wearing a black T-shirt and black shorts with white stripes. Sanchez returned to his apartment to get something and then came back outside. At this point, he saw Carr riding his bicycle toward Stanford Avenue and heard gunshots. According to Sanchez, Carr was holding a large black handgun shooting at a blue car. After the shooting Sanchez saw Carr ride his bicycle around the corner and go south on Stanford Avenue.

Vinces, who was 13 years old at the time of the shooting, also lived near the intersection of Stanford Avenue and 31st Street. Between 10 and 20 minutes before the shooting, Vinces saw Carr sitting on a bicycle in the front yard of his house.*fn2 Vinces testified at trial Carr had been wearing a white shirt. At the preliminary hearing Vinces testified the bicycle was green and black, although at trial he said he did not recall the bicycle's color. Vinces went into the backyard of his house but returned to the street when he heard shots. He saw Rivera lying next to the blue car and recognized Rodriguez lying in the passenger seat of the car.

Officers investigating the shooting discovered black rubber marks on the driver-side door of the blue car, with a green paint-transfer mark in the center. Los Angeles Police Detective Julio Benavides obtained several videotapes recorded at the time of the shooting from local businesses. One showed Rivera parking his car and walking into Rodriguez's home, walking out with the teddy bear, opening the door for Rodriguez and placing the bear in the back seat and then walking to the driver's side of the car. It also showed a young African-American man circling on his bicycle shortly before the couple emerged, approaching and bumping his bicycle into the car, firing shots into the car and then riding south on Stanford Avenue. Because of his distance from the camera and the poor quality of the recording, the young man was not recognizable. Another videotape showed a young African-American man on a bicycle wearing a white T-shirt and black basketball shorts with a distinct design approach the blue car. A third, recorded an hour before the shooting at a nearby liquor store, showed a young African-American man recognizable as Carr wearing black basketball shorts with a distinctive design and riding a green bicycle. A white T-shirt was hanging around his shoulders. A photograph taken inside the store showed Carr wearing the same distinctive basketball shorts with a white shirt draped over his shoulder. Another showed Carr standing in front of the cash register wearing the same shorts and a white tank top. Based on the video recordings, Benavides prepared a photographic lineup containing a photograph of Carr; and Sanchez identified Carr as the shooter. Carr was arrested in May 2007.*fn3

The evidence detailed in the previous paragraphs was admitted at trial. In addition, Detective Benavides played a recording of several telephone calls made by Carr while he was in his holding cell. In calls to his girlfriend and grandmother Carr told them the police had asked him about a green bicycle and ordered them to get rid of "DeJean's bike" and to make sure the police did not find it.

3. The Gang Expert Testimony

Los Angeles Police Officer Ronald Berdin testified about gang activity in the area around the shooting. According to Berdin, the shooting occurred within territory claimed by the Rollin' 20 Outlaw Bloods (Rollin' 20's or Rollin' 20 Outlaws), a predominantly African-American gang whose primary activities were robberies, narcotic sales, assaults and murders.*fn4 Between January 25, 2007 and March 17, 2007, the date of the murders, Berdin twice contacted Carr at the liquor store close to the site of the shooting; and Carr confirmed he was a member of the Rollin' 20's. In one instance, Carr was accompanied by a member of the Rollin' 30 Pirus, another Bloods' gang allied with the Rollin' 20's. Berdin took a photograph of the gang tattoo on Carr's right arm, which depicted a crossed-out "ES20" (representing a rival gang known as the Eastside 20's 13, a predominantly Hispanic gang), topped by an inscription of "Bloods." Berdin explained the shooting had occurred in a part of Rollin' 20's territory that bordered territory claimed by Eastside 20's 13, and nearby graffiti reflected the gangs' ongoing rivalry. According to Berdin, the Rollin' 20's and Eastside 20's 13 had begun feuding in 2005 when a member of the Rollin' 30's had been killed. Because the Bloods-related gangs believed the killing had been committed ...

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