People v. Carlson

THE PEOPLE, Plaintiff and Respondent, v. GUY E. CARLSON, Defendant and Appellant.

B269138

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

October 23, 2017

ORDER MODIFYING OPINION; PETITION FOR REHEARING DENIED; NO CHANGE IN JUDGMENT

The opinion filed October 23, 2017, and not certified for publication, is modified as follows:

1. On page 17, the first full paragraph reads as follows:

Carlson argues certain statements Wynn made to Hodges were admissible under Evidence Code section 1235 as prior statements that were inconsistent with Wynn's evasive trial testimony. The trial court did not rule on the admissibility of the statements as prior inconsistent statements under Evidence Code section 1235 because counsel for Carlson elected to proceed under Evidence Code section 1236 after the trial court forced him to take a position. Carlson now argues the trial court should have admitted Wynn's statements that he "was clear and certain that his identification was false and that [Carlson] was not the shooter" as prior inconsistent statements under Evidence Code section 1235.

As modified, the paragraph reads:

Carlson argues certain statements Wynn made to Hodges were admissible under Evidence Code section 1235 as prior statements that were inconsistent with Wynn's evasive trial testimony. The trial court did not rule on the admissibility of the statement that Carlson was not aiming at Wynn as a prior inconsistent statement under Evidence Code section 1235 because counsel for Carlson elected to proceed under Evidence Code section 1236 with regard to that statement after the trial court forced him to take a position. The trial court ruled the statements that Wynn's identification of Carlson was false and that he was "damn sure" Carlson was not the shooter were not admissible as prior inconsistent statements because those statements occurred after, not prior to, the statements Wynn made to Detective McGaughey. Carlson now argues the trial court should have admitted Wynn's statements that he "was clear and certain that his identification was false and that [Carlson] was not the shooter" as prior inconsistent statements under Evidence Code section 1235.

2. On page 18, the first full paragraph includes the sentence:

Carlson, however, does not argue the court erred by admitting the transcripts.

As modified, that sentence is deleted and replaced with the following sentence:

Much of the evidence concerning the shooter's identity introduced through the transcripts of Wynn's interviews with Detective McGaughey, however, was corroborated by testimony in court from neighborhood witnesses.

This order does not change the judgment. Appellant's petition for rehearing is denied.

/s/_________

PERLUSS, P. J.

/s/_________

SEGAL, J.

/s/_________

MENETREZ, J. *(Assigned)

NOT TO BE PUBLISHED IN THE 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.

(Los Angeles County Super. Ct. No. MA062794)

APPEAL from a judgment of the Superior Court of Los Angeles County, Frank M. Tavelman, Judge. Affirmed and remanded with directions.

Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

A jury convicted Guy Carlson of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, 187, subd. (a))¹ and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The People also proved Carlson had a prior conviction for a serious felony under sections 667, subdivision (a), and 1170.12. Carlson argues that the trial court erroneously excluded certain exculpatory hearsay evidence and that substantial evidence does not support the jury's findings Carlson acted deliberately and with premeditation. With regard to his sentence, Carlson argues that the People failed to adequately allege he suffered a conviction for a serious felony and that the trial court mistakenly believed section 667, subdivision (c)(6), mandated a consecutive sentence on the conviction for possession of a firearm by a felon.

We conclude the trial court did not abuse its discretion in ruling some of the hearsay statements were not admissible as prior consistent statements, and any error excluding some of the hearsay statements that may have qualified as prior inconsistent statements was harmless. We also conclude substantial evidence supports the attempted premeditated murder conviction, but the trial court imposed an unauthorized sentence on the conviction for possession of a firearm by a felon. Therefore, we remand to the trial court for resentencing with directions to impose a sentence on count 2 in accordance with the law and to exercise its discretion to impose a consecutive or concurrent sentence on that count because, contrary to the trial court's statements at theoriginal sentencing hearing, section 667, subdivision (c)(6), did not mandate a consecutive sentence.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Shooting

Carlson and Charles Wynn were pimps. Latia Peters was a prostitute who worked for and lived with Wynn and had known Carlson for about six months. Peters believed Carlson wanted her to live with and work for him instead of Wynn. While walking back to Wynn's apartment from a mini-mart on January 15, 2014, Peters encountered two other women who worked for Carlson. Peters called Wynn on her cell phone. One of the women grabbed Peters, took her purse, and emptied it on the ground. Wynn arrived to break up the ensuing fight.

As Peters and Wynn began walking back to their apartment, Carlson drove up beside them in a white Suburban. Carlson got out of the car and argued with Wynn in the street. He then went back to the Suburban and picked up a gun from the back seat. Peters had continued walking toward Wynn's apartment when she heard four gunshots. Wynn ran to avoid getting hit. When Peters got back to the apartment, she noticed a bullet hole in her purse, but no one was hurt.

B. The Investigation

1. Neighborhood Witnesses

Sheriff's deputies spoke with several people who witnessed the shooting. Twelve-year-old Seth C. was playing in his front yard near the intersection where the shooting occurred. Heheard screaming and saw a white or gray "van" approach the intersection, and an African-American man he later identified as Carlson got out of the van. Seth said the man wore jeans and a T-shirt and was bald or had thin braids in his hair. The man pulled "a few" women into the van and "drove off." Seth saw several people on the street begin running the opposite direction. He heard gunshots, but he could not see where they were fired.

Jacurie Daniels lived in a second-floor apartment near the same intersection. She said she was standing by a window inside her apartment when she saw a white Suburban approach a man on the street. The driver got out of the car and confronted the other man, who held up his arms in a "what's going on" gesture. Daniels said the two men appeared to be arguing, but she could not hear them. The driver went back to the Suburban, reached inside, and pulled out a gun. The other man ran away as the driver fired multiple shots at him, moving the gun slightly to the left and right. The driver got back in the Suburban and began chasing the other man with his right arm extended, pointing the gun out the passenger window. The driver never caught up to the other man, who ran fast, "zigzagging" back and forth. The runner disappeared into an apartment building, and Daniels called 911. She described the shooter as a light-skinned African-American wearing a white T-shirt and jeans.

Robert Hanna lived in a mobile home park near the same intersection. While walking to his mailbox, he heard yelling and screaming. Hanna said a man, later identified as Wynn, yelled "very bad language" as he was crossing a street on foot, while an older Suburban was "hauling bananas after [him]." The Suburban made a sharp U-turn, and the driver got out and started shooting at Wynn. While Wynn "zigzagg[ed] back andforth . . . trying to dodge the bullets," the driver shot multiple rounds at him. Hanna recalled the shooter "didn't do this like an amateur," and Hanna did not know how the shooter missed him.

2. Wynn's Interviews and Phone Calls

Two weeks after the shooting, Detective Robert McGaughey and his partner recorded an interview with Wynn. Wynn appeared nervous, but told the detectives the shooter's street name was "Wicked" or "Winky" or "something like that." Wynn said he did not know the shooter's actual name, but their kids went to the same school, and Wynn thought he was a member of a Crips street gang. After Detective McGaughey reminded Wynn he was on probation, Wynn told him there were "rumors floating around" he was a "snitch," and he felt like his "life is in danger." He nevertheless told the detectives the shooter was a slim, African-American male with braids and he drove a white Suburban.

Wynn said the shooter drove up to him, jumped out of his car, and started walking toward him. Wynn made a gesture asking, "What's the problem?" The shooter "[a]ll of a sudden . . . [went] behind the driver's seat," pulled out a gun, and fired four or five rounds. Wynn made various statements about the shooter's target. For example, he said, "I didn't even know he was even aiming at me." He said the shooter "shot at [his] feet" and "to the sides. . . . And that's when I was like zigzagging and started running, just back and forth. They taught me in boot camp, you know, don't run straight. Zig-zag. So I...