People v. Carter

1

THE PEOPLE, Plaintiff and Respondent, v. SHARODNEY LASHAWN CARTER, Defendant and Appellant.

B326137

California Court of Appeals, Second District, Fifth Division

May 21, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA477466 Shelly Torrealba, Judge. Affirmed and remanded with directions.

Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews and Rama R. Maline Deputy Attorneys General for Plaintiff and Respondent.

MOOR J.

A jury found Sharodney Lashawn Carter guilty of lewd acts against a minor 15 years of age. (Pen. Code,^[1] § 288, subd. (c)(1).) In a bifurcated proceeding, the trial court found true the allegation that Carter suffered two prior strike convictions within the meaning of the Three Strikes law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The trial court denied Carter's motion pursuant to People v Superior Court (Romero) (1996) 13 Cal.4th 497 to strike his prior convictions, and sentenced Carter to 25 years to life in prison. Carter was awarded 458 days of presentence custody credit.

On appeal, Carter contends: (1) the trial court's admission of the victim's preliminary hearing testimony violated his constitutional right to confront witnesses; (2) the trial court's admission of uncharged prior sexual misconduct violated his right to due process; (3) the prosecutor committed misconduct in cross-examination and closing argument; (4) the trial court improperly considered Carter's decision to proceed to trial when it denied his Romero motion; and (5) the trial court miscalculated his conduct credits. The People concede that the trial court erred in its calculation of conduct credits, but argue that the claim should be dismissed because Carter failed to move the trial court to correct the error.

We remand the matter to the trial court for the limited purpose of recalculating Carter's conduct credits. In all other respects the judgment is affirmed.

FACTS

Prosecution

Jasmine the victim, testified that in December of 2018, when she was 15 years old, she had a sexual relationship with Carter.^[2] She met him in 2018 through her mother, Carol Castillo, with whom Carter also had a sexual relationship.

On New Year's Eve of 2018, Carter picked Jasmine up from her house and took her to a hotel. Jasmine told her mother that she was going to a friend's house. Carter kissed Jasmine on the mouth and she kissed him back. Jasmine set up her cell phone to record and then took a video of herself orally copulating Carter. Afterwards Jasmine and Carter showered together and had sexual intercourse. Carter slapped Jasmine twice that night while they were sitting in bed, which scared her. He took her home the next morning.

Jasmine's older sister, Alyssa, testified that she first saw Carter in 2013, when she was about 16 years old. Several times when she was walking home from school Carter "cat-called" at her and gestured to her to come to him. It made Alyssa feel like she needed to walk faster and get home.

In 2016, after Alyssa had left for college, she returned home to her mother's house to find Carter and Castillo watching television. Alyssa was surprised because her mother knew Carter had cat-called at Alyssa and that she did not like him. Alyssa did not know that Carter and her mother were friends. After that, Alyssa saw Carter at her mother's house on a regular basis, helping as a handyman. Carter also helped them move into another unit in the apartment complex.

In December 2018, Alyssa noticed a change in Jasmine. She became distant and antisocial, and started running away from home. Alyssa tried to talk to Jasmine about it, but Jasmine would not talk to her. Right before Christmas in 2018, Alyssa was woken up by a phone call at around 3:00 or 4:00 a.m. When she answered, she heard Carter's voice. He sounded very intoxicated. She heard Jasmine in the background screaming and crying for help. Jasmine said, "Let me go." and "Stop. I'm gonna tell my mom and sister what you're doing. You can't do this." Alyssa was very upset and went to her mother's house to see if she knew anything about Jasmine. Castillo told Alyssa that Jasmine said she was spending the night at a friend's house. Alyssa told her mother about the phone call. Castillo and Alyssa drove around looking for Jasmine, but could not find her. Jasmine came home at about 8:00 a.m. Alyssa confronted Jasmine about the phone call, but Jasmine denied it and told Alyssa she was crazy.

Alyssa's friend Brandan, who knew Jasmine well, testified that he also noticed a dramatic change in Jasmine in December 2018. Jasmine used to be happy, but she became cold and distant. In January 2019, Brandan called Jasmine and a man answered. Brandan recognized the man's voice as Carter's. Brandan knew Carter's voice because he had seen Carter around the neighborhood and at Castillo's house. When Brandan asked Carter where Jasmine was, Carter said, "She's busy right now. She's fucking." Brandan told Alyssa about the phone call.

A few days later, Castillo called Alyssa and told her Jasmine had run away again. Alyssa looked for Jasmine. Brandan stayed with Castillo to calm her. Jasmine eventually came home. Alyssa returned soon afterwards and confronted Jasmine. Jasmine had "attitude." Alyssa became frustrated and left the bedroom where they had been talking. Brandan then went into the bedroom to talk to Jasmine. Based on what Jasmine said to him, Brandan looked through Jasmine's phone with her permission. Brandan found text messages from an unsaved number that were "very derogatory" and "very threatening." Brandan looked for photos or videos associated with the text messages. He found photos and videos of Carter and Jasmine. One video showed Jasmine orally copulating Carter. Brandan forwarded the video to his own phone and told Alyssa about it.

Alyssa turned the video over to the police. Afterwards, she saw Carter outside of her mother's house, driving up and down the street and waiting in his truck. He was always smirking.

At trial, both Alyssa and Brandan identified Jasmine and Carter as the people in the video. The prosecution also introduced evidence that Carter had suffered convictions for rape and unlawful intercourse with a minor in 1992.

Defense

Carter testified that he became friends with Castillo and Alyssa in 2018. He did not meet Alyssa before she left for college, and had not ever cat-called to her. He and Alyssa kissed, but they never had a romantic relationship. Carter had never met Brandan.

Carter testified that he did not have a romantic relationship with Castillo. They were just friends. Carter did maintenance work at the apartment complex where Castillo and Jasmine lived. On cross-examination, Carter admitted he had sexual intercourse with Castillo.

Carter never had a sexual or romantic relationship with Jasmine. He denied that he was the man with Jasmine in the cell phone video.

DISCUSSION

Admission of Victim's Preliminary Hearing Testimony

At trial, the prosecution moved to admit Jasmine's preliminary hearing testimony pursuant to Evidence Code sections 1291 and 240. The trial court admitted the testimony, after finding that Jasmine was unavailable as a witness and that the prosecution had exercised due diligence in attempting to secure her presence at trial. Carter contends the trial court's admission of Jasmine's preliminary hearing testimony was error and violated his constitutional right to confront witnesses. We reject the contention.

Legal Principles

"The confrontation clauses of the state and federal Constitutions guarantee defendants the right to confront the witnesses against them. (U.S. Const., 6th Amend.; Cal. Const., art. 1 § 15.)

'The right of confrontation "seeks 'to ensure that the defendant is able to conduct a "personal examination and cross-examination of the witness." '"' [Citation.] Via the confrontation right, a defendant is able to compel prosecution witnesses to appear before the jury so their credibility may be assessed. [Citation.]" (People v. Wilson (2021) 11 Cal.5th 259, 289-290 (Wilson).)

"Although the constitutional right of confrontation is important, it is not absolute. [Citation.] If a witness is unavailable but had previously testified against the defendant and was subject to cross-examination at that time, that prior testimony may be admitted. [Citations.] Evidence Code section 1291 codifies this exception to the confrontation clauses, stating 'Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶] . . . [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing' (Evid. Code, § 1291, subd. (a)(2).) [The California Supreme Court has] held this exception permits an unavailable witness's preliminary hearing testimony to be admitted at trial. [Citations.]" (Wilson, supra, 11 Cal.5th at p. 290.)

The United States Supreme Court has held that"' "[a] witness is not 'unavailable' for purposes of . . . the exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his [or her] presence at trial."' (Ohio v. Roberts (1980) 448 U.S 56, 74.) California law is in accord. Evidence Code section 240 includes in its definition of unavailability a witness who is '[a]bsent from the hearing and the proponent of...