190 Cal. App. 4th 475
Cal. Ct. App.2010Background
- Carr was convicted by jury of two counts of first-degree murder and one felony firearm count, with two special circumstances true.
- The jury found true the gang-related and firearm-use enhancements tied to the murders.
- Prosecutor allegedly violated Griffin by commenting on Carr’s lack of alibi witnesses; defense sought curative admonition.
- The murders occurred March 17, 2007; evidence included eyewitness identification and surveillance video linking Carr to the shooting.
- Gang expert linked the crime to Rollin’ 20 Outlaw Bloods; evidence showed gang rivalry with Eastside 20’s 13.
- The trial court stayed count 3, imposed life without parole plus 25-to-life and related fines; appellate court later striked the parole revocation fine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Griffin error cure on closing argument | Carr argues prosecutor’s alibi-silence comment was prejudicial. | People claims harmless or cured by admonition. | Admonition cured any potential prejudice. |
| Validity of 190.2(a)(22) gang special circumstance | Knowledge of gang activity was not required. | Knowledge is required under CALCRIM 736 and 190.2(a)(22). | Knowledge requirement is constitutionally required; nevertheless sufficient evidence supported finding. |
| Substantial evidence shootings were gang-related | Evidence showed defendant’s gang affiliation and purpose to benefit the gang. | No direct proof of knowledge or gang-related motive is necessary under statute. | There was substantial evidence the murders benefited and were committed with gang purposes. |
| Parole revocation fine accuracy | Fine should be upheld as imposed. | Fine unauthorized where life sentence without parole was imposed. | Strike of the parole revocation fine affirmed; adjusted abstract of judgment required. |
Key Cases Cited
- Griffin v. California, 380 U.S. 609 (1965) (prohibition on prosecutorial comment on silence)
- People v. Lewis, 25 Cal.4th 610 (2001) ( Griffin guidance on fair response to evidence)
- People v. Johnson, 3 Cal.4th 1083 (1992) (comment on state of evidence not Griffin error)
- People v. Hughes, 27 Cal.4th 287 (2002) ( Griffin error and admonition effectiveness)
- People v. Castenada, 23 Cal.4th 743 (2000) (guilty knowledge and intent in gang context)
- People v. Robles, 23 Cal.4th 1106 (2000) (gang participation elements in 186.22)