P. v. Carroll CA1/4 filed 6/30/26

Filed 6/30/26 P. v. Carroll CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH CARROLL,
Defendant and Appellant.

A172493

(Alameda County
Super. Ct. No. 17CR031943)

A jury convicted defendant Joseph Carroll of three counts of murder, three counts of attempted murder, one count of assault with a firearm, three counts of possessing a firearm with a felony conviction, and one count of shooting at an occupied motor vehicle, and returned true findings on allegations regarding firearm use and infliction of great bodily injury as well as certain aggravating circumstances. The trial court found true other aggravating circumstances. It sentenced him to the maximum term of 207 years and four months to life in prison.
Carroll raises seven arguments for reversal of the judgment. First, he contends the trial court erred by excluding evidence of his belief in 2009 that a man named Sam Flowers had shot him in 2007, to rebut the prosecution’s evidence that he killed one of the victims, Andrew Henderson, because Carroll thought Henderson had been the shooter. Second, he argues the trial court improperly allowed the prosecution to play recordings of his phone calls from 2013, two years after the last murder, in which he advocated for violence and tried to arrange a shooting of a rival gang. Carroll contends the calls were not probative of his motive or intent, were cumulative, and were more prejudicial than probative. Third, Carroll maintains he should have been allowed to ask Gregg Fite, who participated in one of the murders and testified for the prosecution under a plea deal, whether Fite had provided information in any other cases. Fourth, Carroll contends the trial court improperly allowed the prosecution to call one witness, despite knowing the witness would refuse to testify, and instructed the jury that it could draw inferences from another witness’s refusal to answer questions. Fifth, Carroll argues the first four errors were cumulatively prejudicial. Sixth, Carroll points out that the great bodily injury findings under Penal Code section 12022.7, subdivision (a) for his murder convictions are unauthorized and must be reversed. Finally, Carroll contends the upper term on one attempted murder conviction must be reversed because his counsel provided ineffective assistance when he failed to object to the trial court’s dual use of firearm use and infliction of great bodily injury both to support a sentence enhancement under section 12022.53 and as an aggravating circumstance to justify the upper term.
The People concede that the firearm and great bodily injury findings on Carroll’s murder convictions must be reversed. We agree, but this reversal does not affect the length of Carroll’s sentence because the trial court did not impose the sentence enhancements based on those findings. We agree with Carroll that the trial court abused its discretion in excluding the evidence of Carroll’s belief about Sam Flowers having shot him, but we find that error to be harmless. Carroll is also correct that his counsel was ineffective for failing to object to the dual use of facts at sentencing, but we find no prejudice from the error. The trial court made clear it wanted to impose the maximum possible sentence, and the remaining aggravating circumstances are sufficient to support the upper term on the attempted murder count. Carroll’s other arguments are meritless. We therefore modify the judgment by reversing the jury’s findings under section 12022.7, subdivision (a) that Carroll personally inflicted great bodily injury when he committed the murders. We affirm the judgment as modified.
BACKGROUND
Background
For about 10years beginning in the early 2000s, a gang in Berkeley with groups called South Berkeley and Waterfront had a feud with a gang in North Oakland, one of whose groups was called ASAP. A child was killed, which sparked retaliatory violence between the gangs. Gregg Fite was running the Berkeley gang in the early 2000s, and Carroll was a member. Fite was 10 years older than Carroll and brought him under his wing. Carroll’s cousin Jermaine Davis and Carroll’s brother Coleon Carroll were associated with Waterfront. The Berkeley gang and Carroll specifically stored guns at the home of Carroll’s uncle in Richmond.
Around 2007, Fite told Carroll he wanted to squash the beef between Berkeley and North Oakland because Fite was getting into his early 30s and knew where things were headed. Carroll responded that the gang was not going to listen to Fite anymore, and Carroll took charge of the gang.
In July 2007, Carroll was driving in Oakland with his girlfriend named Kikhiesha Brookes. Shots were fired at the vehicle, killing Brookes and hitting Carroll multiple times. Carroll told police in July 2009 that he did not see who shot him.
April 2009 Shooting of Nguyen and Bao Ngo
In 2009, Fite was 34 years old, on parole with an ankle monitor, and trying to “smooth [his] life out.” The feud was still running. Fite knew of two members of North Oakland, brothers named Nguyen and Bao Ngo, although he did not know them personally. Fite was aware that Davis and Coleon had an issue with Bao. During the feud, any individual’s beef would become part of the feud. One day in April 2009, Fite was with Carroll at Carroll’s uncle’s house in Richmond. Carroll was angry and felt that Fite was not participating and helping out in the dispute with North Oakland. Carroll was holding an M16 machine gun, but he did not point it at Fite.
After Fite left, Davis called him and asked him to drive by 45th Street in Oakland to see if Bao was there. Fite agreed. He drove to the area in a blue Charger and met up with Davis and Carroll at a store. Davis was driving a Mercedes Benz with Carroll in the passenger seat. Fite then drove two laps, saw Bao with three or four other people and called Davis to tell him. Fite then looked behind him and saw the Mercedes, with Carroll leaning the top half of his body out of the rear passenger window on the driver’s side. Carroll was shooting a machine gun towards Bao and his companions on the sidewalk.
Surveillance video from a store near the scene of the shooting showed a blue Charger and gold Mercedes passing by.
Fite was arrested for the shooting a few months later and was charged with murder, in part based on his ankle monitor showing he was driving at or near the scene at the time of the shooting. That charge was dismissed at a preliminary hearing. Fite was arrested again in 2018 and gave a statement to the police after the police promised him immunity and to release him from custody immediately. A copy of that statement was posted to Instagram. Fite proposed to become a paid informant, meaning paid for information on different cases. The police told him that was not how things worked, and Fite said he did not want to help on other cases unless he was paid.
Fite testified at trial pursuant to an agreement with the prosecution. He pleaded guilty to voluntary manslaughter and someone else using a firearm in the course of the offense. He faced a maximum of 12 years in prison on that plea. By the terms of the plea agreement, if Fite participated in court proceedings and gave truthful testimony, he could withdraw his plea and his case would be dismissed. If he did not fulfill the terms of the agreement, he could be prosecuted for murder and his testimony could be used against him. He feared for his and his family’s safety, so he also received reimbursement for relocation expenses. He had received about $40,000 in reimbursements so far and expected to receive an additional $45,000. The FBI also paid Fite $2,000 in relocation expenses in May 2018 for making a statement.
D.D.O. and B.M. were walking down 45th Street near Market Street around the time of the shooting. B.M. saw Nguyen standing on the sidewalk next to a green Camaro. Nguyen was with two other Asian males and a young Black male. A tan sedan drove down the street and stopped. D.D.O. saw one driver and a passenger in the front seat. The driver had shoulder-length dreads. B.M. saw only one person in the car, the driver, but did not see the driver’s face and no one was in the backseat. B.M. saw a long rifle-like gun pointing out of the driver’s side window. D.D.O. saw the driver pull out a three-foot long gun and stretch his arm out towards the Camaro. They both heard multiple shots and saw Nguyen and another Asian male get hit.
L.C. was sitting in her car parked on the side of Market Street at the intersection with 45th Street. L.C. was Brookes’ sister, but L.C. had not met Carroll when the two were dating. She heard multiple gunshots. Many cars were making U-turns and trying to get away. When L.C. tried to leave, a gold Mercedes pulled up alongside her, waiting for another car to finish backing up. The driver was a Black male with dreadlocks. L.C. pulled out and was stopped at a stop sign when she saw a darker-colored Charger cross in front of her. She recognized the driver as Gregg Fite.
Before trial, L.C. told law enforcement she had seen Carroll in the backseat of the Mercedes. She had also identified the driver as Carroll’s brother Coleon. At trial, L.C. claimed she did not recognize the person in the backseat. She said she had identified him as Carroll solely based on something she had read in Fite’s statement. She said she identified the driver as Coleon only because she knew the two hung out together.
Nguyen was killed in the shooting. Bao had two gunshot wounds to his lower legs.
In June 2009, an Oakland police officer observed Carroll enter his uncle’s home in Richmond. In July 2009, police searched the home and found two handguns, an assault rifle, and an M15 machine gun with a drum magazine.
May 2010 Shooting of Deandre Ware
A.D. had a child with Carroll. She and Carroll broke up, and A.D. began dating Deandre Ware. Ware is from north Oakland. In May 2010, Ware was in A.D.’s apartment complex. He was with Nehemiah Lewis and Aaron Shaw. Lewis was from west Oakland, and Shaw was from north Oakland. The three were inside the complex’s gate when they heard gunshots from the street. Ware was shot once, and Shaw was shot as well. Nehemiah was unharmed. He helped Ware and rang A.D.’s doorbell. She and her daughter, Carroll’s child, came out, and A.D. helped tend to Ware. Ware later married and had a child with A.D., but they were no longer in a relationship by the time of trial.
June 2010 Shooting of Nehemiah Lewis
One day in June 2010, P. Green was in the area of San Pablo and Athens Avenues in Oakland and noticed the driver of one car was a handsome Black man. There were three or four people in the car. Green told the police before trial that she saw Carroll, who was about 5 feet, 10 inches tall and with dreads, get out of the backseat car and wrap his face in cut-up white T-shirts. It looked like Coleon was in the car. Carroll had a large gun in his hands and ran down the street. Green heard multiple shots and told the police before trial that she saw Carroll fire three to five shots. Green later claimed at trial that she did not see the person’s face and had identified the person as Carroll based on hearsay. She also claimed that she could not identify Carroll in the courtroom.
Y.A. was buying drugs from Lewis on a street corner in Oakland at this time. A gold car pulled up, and a man jumped out and began shooting at them with a machine gun. Y.A. went to the ground, but she could see the shooter was African-American and wearing a mask, hoodie, and beanie. Y.A. could not tell whether the shooter was male or female, but the shooter was short like Y.A., who was about 5feet, 2inches tall. There was a female and another male in the car.
E.B. was driving down the street and heard rapid-fire gunshots like an automatic weapon. He saw a person with a rifle. The person was wearing a puffy winter jacket and had something like a towel wrap on their face, so E.B. could not tell the person’s gender or ethnicity. The shooter was between 5feet, 8inches and 5feet, 10inches. The person hopped into one of the rear seats of the car that was adjacent to them, which looked like a light-colored Nissan Altima, and sped away.
Lewis died of multiple gunshot wounds.
April 2011 Shooting of Andrew Henderson
Andrew Henderson was affiliated with the ASAP group of North Oakland and had been close to Bao. Henderson was riding around Oakland with his friends D.M., D. Rodriguez and D.H. one day in April 2011, getting high on marijuana and cough syrup with codeine. D.M. was in the backseat with Henderson. They stopped in an area of East Oakland. A PT Cruiser approached from the opposite direction and stopped next to them. Rodriguez told the police before trial that D.H., who was driving, was talking to Semice Bell, known as Semi B., who was the front passenger in the PT Cruiser. Bell leaned over the driver to talk through the driver’s window. D.M. and Rodriguez then heard multiple shots fired from the other vehicle. Henderson was killed.
When the police brought him in for questioning a couple of months afterwards, D.M. described the shooter as dark-skinned with dreads and the passenger as dark-skinned with a fade. To George Phillips, the police officer who had interviewed D.M., D.M. seemed hesitant to identify anyone and uncomfortable being video recorded. The camera was an obvious, large round ball high in the room, not surreptitious. D.M. said he did not want to pick, but he also said that he saw the shooter’s face in a six-person photo array. According to Phillips, D.M. had indicated the shooter and driver were in separate six-person photo arrays the police had shown him. D.M. gestured to one specific photo in each array. Phillips remarked to the other police officer, “Did you see what he just did?” In a recording of D.M.’s interview played for the jury, Phillips pointed out the point when D.M. gestured to the photos. After D.M. made this gesture, Phillips took D.M. to a different room that was not video recorded and asked D.M. if the photos he had pointed to in the first room were the shooter and driver. D.M. confirmed that they were. The photo D.M. pointed to as the shooter was Carroll’s.
D.M. claimed at trial that he had not identified anyone specifically. D.M. said that the police had been pressuring and trying to coerce him during the interview and that he had never seen Carroll before trial. The police were not aware that D.M. had been smoking cannabis all day on the day of the shooting and drinking cough syrup with codeine. But D.M. had told the police the incident was etched in his mind and gave no reason for concern that he had been so high that he could not recall details.
Charges and Trial
Carroll was charged with three counts of murder for the deaths of Nguyen, Lewis, and Henderson; three counts of attempted murder of Bao, Ware, and Shaw; one count of assault with a firearm on Bao; three counts of possession of a firearm by a felon for the Nguyen, Lewis, and Henderson shootings; and one count of shooting at an occupied motor vehicle for the Henderson shooting. The information further alleged various enhancements to each of the counts, including, as relevant here, an enhancement to the murder counts under section 12022.7, subdivision(a) for inflicting great bodily injury and an enhancement to the count of attempted murder of Ware under section 12022.53, subdivision (d) based on Carroll discharging a firearm and causing great bodily injury. The information also alleged various aggravating circumstances to various counts, including allegations as to the count of attempted murder of Ware that Carroll used a firearm and inflicted great bodily injury and the victim was particularly vulnerable. (Pen. Code, § 1170, subd.(b)(2); Cal. Rules of Court, rule 4.421(a)(1)–(3).)
During trial, the prosecution called several witnesses to buttress the accounts of the eyewitnesses to the shootings.
A.D.
A.D. testified about various statements Carroll made. When the police spoke to A.D. on the night Ware was shot in May 2010, she told them that Carroll had been harassing her because she was dating Ware and he was from North Oakland. She also said that days earlier Carroll had called her and threatened to kill Ware. Two weeks after the Nguyen shooting, Carroll told A.D. that he would kill Ware like he had killed Nguyen. After the Ware shooting, Carroll called A.D. and asked why she had allowed their daughter outside at the scene of the shooting.
After Henderson was shot in April 2011, A.D. called the police and told them that Carroll had told her before the shooting that he would kill Henderson when Henderson got out of jail. She also said that two weeks after Henderson’s murder, Carroll had called her and said he had shot Henderson and would finish Ware off.
In February 2016, A.D. sat for an interview with Oakland police. She said that the day Nguyen was killed she saw Davis driving a gold Mercedes with Carroll in the backseat. It was unusual to see Carroll in North Oakland in daylight because a lot of people in North Oakland wanted him dead, so A.D. knew he was coming to do something.
A.D. told police that Carroll had said one of his techniques was to kill someone so that his real target would go to the funeral and could be killed. After Nehemiah Lewis was killed, Carroll told A.D. that Ware would be killed if he went to the funeral.
At trial, A.D. said that all of her prior statements to the police were lies. She said she only made the statements to try to get Carroll arrested so that she could get custody of her daughter back from Carroll and his family. She claimed that she learned about the details of the Nguyen murder from Fite, with whom she went to Kansas to commit fraud sometime between 2010 and 2013. She also claimed that Fite had bragged about being the shooter. But she admitted that she had never told Carroll, his lawyers, or anyone else before about the conversation with Fite. She also admitted that Carroll had hit her and that on various occasions she had made reports to the police that Carroll had pistol whipped her, kidnapped her, and threatened to kill her and her family members.
In 2024, before A.D. testified, Carroll told her in a recorded call that his lawyer had said that it would be better if witnesses refused to testify entirely. Caroll told her that if a witness testified, even if the witness denied making a prior statement to the police, the prior statement could still be used. The police told A.D. that she would go to jail if she did not come to court. She also spoke to Carroll’s counsel, who confirmed that she could be arrested and held in contempt of court if she did not testify.
Brandon Wallace
Brandon Wallace met Carroll in 2004 and later became good friends with Coleon. Wallace was not from Berkeley but was familiar with its gangs and gang members. He had been in custody since 2010 and had been sentenced to 118 years to life in prison for murder and attempted murder in a case in which Coleon was a codefendant. In 2016, Wallace sent a letter to law enforcement offering information about various people and groups, including Carroll and Coleon. The prosecutor had not promised him anything for his testimony. Wallace knew he was not going to escape full responsibility for his 118 years to life sentence, but he hoped to get some sort of partial benefit.
Wallace testified that before Nguyen was killed in April 2009 Carroll had said that Nguyen was the driver when Carroll was shot. After the shooting, Carroll told Wallace that a girl had called on the day of the shooting and told Carroll that Nguyen was sitting in his car in a certain location. Wallace claimed that Carroll also said that Nguyen was in a car when Carroll shot him. Wallace was not aware that others had said that Nguyen was standing outside the car.
According to Wallace, Carroll told him in 2008 or 2009 that Henderson had shot Carroll. Carroll also said that Carroll had killed the person who shot him. Carroll said that Bellwas there when Carroll killed Henderson. This was consistent with what Wallace had heard from Bell, which was that Bellhad set up Henderson to be killed.
In 2017, police placed Carroll and Wallace in the same cell in jail, to see if Carroll would talk. Wallace testified that Carroll then told him that Carroll had killed Nguyen, Lewis, Ware, and Henderson and shot Bao. Carroll again remarked that Henderson had shot Carroll earlier and that Nguyen had been the driver. Wallace was not familiar with Ware, but Carroll said the Ware shooting was because Ware was together with Carroll’s “baby mama.”
Wallace’s and Carroll’s cell was recorded. Wallace was not aware that the recording did not capture Carroll’s statements about killing each victim. But he explained that he and Carroll had assumed they were being recorded, so they put toilet paper on the box they thought was the recording device, whispered, and flushed the toilet repeatedly. The transcript of the recording captures one period in which the toilet was flushed for 56 seconds straight. At numerous other points the transcript shows there was a flushing followed by whispering, as well as water running from a faucet making it hard to hear.
E.R.
E.R. had known Carroll for over 20 years, as Carroll is the cousin of the woman with whom E.R. has a child. Oakland police took E.R. from the jail to the police department for an interview in 2011. E.R. told the police that Carroll had told him on the phone that he killed Henderson. Carroll said that Henderson had shot Carroll in 2007. He also said that the shooting of Lewis had something to do with Carroll’s “baby mama” and being disrespected.
At trial, E.R. denied that Carroll ever said these things to him. He did not recall telling the police the information and claimed the police had coerced him and told him on the way from the jail what to say. E.R. said he made up the statements to the police because he wanted to get out of custody to attend his son’s graduation. The police officers who conducted the interview said that E.R. was forthcoming and they denied telling him what to say.
D. Brown
In 2009, D. Brown spoke to the police and said he had known Carroll for five years and Carroll was his best friend. Brown told the police that Nguyen had been killed because he was from North Oakland and was thought to have shot a few guys. He told the police Nguyen had shot at him and Carroll in a car a couple years earlier. According to Brown, Carroll told him the day of the Nguyen shooting, “We got one.” Carroll said that Davis’s woman had called and said that Nguyen and Bao were on 45th Street at the time. Brown told the police that Coleon’s woman had a gold Mercedes Benz. Brown also told the police, consistent with Fite’s testimony, that Fite had been the leader but Carroll took over. Fite was no longer a shooter, just a spotter, and he sometimes drove a blue Charger.
At trial, Brown said he could not remember whether he spoke to the police because it had been 15 years since the interview and he had snorted a lot of cocaine in 2009. He also said the police tried to coerce him and made him say those things because he was fighting a case at the time. He also interjected “Free Joe” twice during his testimony.
Wiretapped Calls
The prosecution played for the jury 11 recordings of Carroll’s calls in September 2013, which the police obtained in a wiretap investigation. The recordings referred to a YouTube rap video associated with North Oakland gang members, which the prosecution also played for the jury. In the video, the rappers referred to shooting firearms and drive-by shootings. One rapper said at one point, “fuck Coleon and fuck . . . Little Joe,” the latter of which was Carroll’s nickname.
In the wiretapped recordings, Carroll referred to the video and asked one person why he had not “woke the North up” or “went through the North,” meaning gotten a firearm and driven through North Oakland to commit a violent crime. Carroll was upset that his cousin, Davis, had been killed and said that he was “ready to do life over mine[ ],” meaning he was willing to do a life term in prison to retaliate against North Oakland. Carroll told one person that he needed “soldiers” and the Waterfront gang was “soft.” In one call, he identified the location of a house in East Oakland where the rappers in the video had been spotted “grinding,” meaning selling drugs. Carroll and others mentioned Carroll having firearms, including large capacity firearms and assault rifles. In another call, Carroll asked someone whether she had a vehicle Carroll could use to go to the rappers’ location. Law enforcement sent officers to the rappers’ location, and, in a later call, Carroll was told about the police presence. In other calls, Carroll said he needed someone to do a drive-by shooting at the location of a North Oakland party.
Witness Cooperation
Many of the witnesses at trial did not want to testify, including D.D.O., B.M., and L.C., who witnessed the April 2009 shooting of Nguyen and Bao Ngo; Green, who witnessed the Lewis shooting; and D.M., who witnessed the Henderson shooting. L.C. said she was afraid to testify because she feared retaliation. Ware, E.R., and Brown also said they did not want to testify and did so only because they were subpoenaed and, in Ware’s and E.R.’s cases, arrested for failing to appear. Many police officers testified that it was common in Oakland for witnesses and people in the community not to want to cooperate with the police for fear of retaliation.
Several other witnesses refused to testify at all. The People called David Ward as a witness, who was associated with North Oakland and apparently knew something about the April 2009 shooting of Nguyen and Bao. In the presence of the jury, Ward did not raise his hand when the clerk tried to administer the oath. Similarly, when the People called Bao Ngo in the presence of the jury and the clerk tried to swear him in, Bao shook his head, did not take the oath, and stood silent. Bao repeated this behavior two more times outside the presence of the jury.
Shaw, who was shot with Ware, took the oath and answered a few preliminary questions. But when the prosecutor asked him about the events of the shooting, he said he refused to cooperate with the prosecution and invoked the Fifth Amendment. The People offered him immunity, and the trial court dismissed the jury for lunch. The trial court then appointed counsel for Shaw. Later, outside the presence of the jury, Shaw continued to refuse to speak. The court later instructed the jury that it could consider Shaw’s refusal to testify.
Verdict and Sentence
The jury acquitted Carroll of first degree murder of Nguyen but found him guilty of second degree murder for that killing. It found him guilty of first degree murder for the deaths of Lewis and Henderson, attempted murder of Bao and Ware, assault with a firearm on Bao, three counts of possession of a firearm by a felon, and shooting at an occupied motor vehicle. It acquitted Carroll of attempted murder of Shaw. It found true allegations of firearm use and great bodily injury, including the allegations on the three murder counts that he personally inflicted great bodily injury within the meaning of section 12022.7. The jury also found true various aggravating circumstances allegations, including the allegations on the count of attempted murder of Ware that Carroll inflicted great bodily injury, Carroll used a firearm, and the victim was particularly vulnerable. (Rule 4.421(a)(1)–(3).) In a bifurcated proceeding, the trial court found true that Carroll had a prior conviction and the three aggravating circumstances that Carroll engaged in violent conduct that indicated a serious danger to society, his prior convictions were numerous or of increasing seriousness, and he had served a prior prison term. (Rule 4.421(b)(1)–(3).)
The trial court sentenced Carroll to a determinate term of 10 years and four months and an indeterminate term of 197 years to life in prison. Despite the jury’s findings of great bodily injury on the murder counts, the court did not impose the three-year enhancements for those findings. The court imposed the upper term of nine years on count 10, the attempted murder of Ware, based on eight aggravating circumstances, including that Carroll used a firearm and caused great bodily injury. It also imposed a 25years to life enhancement to count 10 under section 12022.53, subdivision (d), based on Carroll’s use of a firearm to cause great bodily injury.
DISCUSSION
Exclusion of Testimony Regarding Sam Flowers
Carroll first contends the trial court erred by preventing him from offering evidence that he believed in 2009 that Sam Flowers had shot him in 2007. We agree but conclude the error was harmless.
Additional Background
Carroll’s counsel tried to ask Brown whether Carroll had told him that a man named Sam Flowers had shot him in 2007, but the trial court sustained the People’s objection. Brown nonetheless responded that Carroll had not told him anything. Brown did not recall talking to the police about who had killed his aunt, Brookes, and refused to read a transcript of his statement. The trial court also sustained relevance objections to some questions about Brown’s statements to police about the killing of Brookes. The prosecution later asked for Brown’s response to the question about Flowers to be stricken.
Outside the presence of the jury, Carroll read to the court a portion of a transcript of Brown’s police interview in May 2009 in which Brown said that Carroll had said that Flowers shot Carroll and Brookes. Carroll’s counsel said he sought to ask Brown about these statements and admit them into evidence under Evidence Code section 1250 to prove Carroll’s then-existing state of mind about who had shot him. He noted that the prosecution had introduced evidence from E.R. that Carroll believed Henderson had shot him. The prosecution responded that Carroll’s state of mind in 2009 was not relevant, only his state of mind during Henderson’s shooting (which was in April 2011). The trial court explained that it had sustained the objection because it did not see the relevance at that point, but allowed Carroll to revisit the issue later if the evidence became relevant.
A police officer testified that in 2007 and 2009 Carroll had said that he did not see who shot him. Carroll later asked the court to explain the rationale for excluding Brown’s statement that Carroll had said Flowers shot him. The prosecutor agreed that it was proceeding on the theory that Carroll’s motive in shooting Henderson in 2011 was Carroll’s belief that Henderson had shot him in 2007. But it maintained that Carroll’s state of mind in 2009 was not relevant, just his state of mind in 2011. The trial court said that Carroll’s statement to Brown would only be relevant if taken for its truth, to prove that Carroll actually believed Flowers shot him. Carroll’s counsel responded that the same would be true of every state of mind statement, so excluding the statement on that basis would eviscerate the hearsay exception. The court took the issue under submission. The next day, the trial court said Carroll’s statement to Brown did not explain Carroll’s state of mind as it related to the 2011 shooting. It said Carroll’s statement would only be relevant if offered for the truth of Carroll’s belief. It said the statement would be admissible and relevant if Carroll testified to it, but the court would not allow it into evidence under the state of mind hearsay exception.
During Wallace’s testimony later, the prosecutor asked whether Wallace had spoken to Carroll about Henderson before 2011. Wallace reported that Carroll had said that Henderson had shot him, with Nguyen driving. Wallace said Carroll had told him this both before and after Wallace went into custody in 2010. On cross-examination, Wallace affirmed that Carroll had said this in 2008 or 2009.
Carroll pointed out to the trial court that Wallace had testified to Carroll’s statements from the same timeframe that Brown covered and asked the court to reconsider its prior ruling. The trial court declined.
Carroll raised the issue once more in a new trial motion, which the trial court denied.
Analysis
We review a trial court’s evidentiary ruling, including one based on relevance and the state of mind exception to the hearsay rule, for abuse of discretion. (People v. Rowland (1992) 4 Cal.4th 238, 264.) “Under the abuse of discretion standard, ‘a trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v. Hovarter (2008) 44 Cal.4th 983, 1004.)
“Except as otherwise provided by statute, all relevant evidence is admissible.” (Evid. Code, § 351.) “ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) The hearsay rule in Evidence Code section 1200, subdivision (b) makes hearsay evidence inadmissible except as provided in various exceptions. (Evid. Code, § 1200, subd. (b).) One of those exceptions is Evidence Code section 1250, subdivision (a), which states, “Subject to Section 1252, evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.”
Carroll’s rationale for the relevance of the Flowers evidence is straightforward and persuasive. The People contended that Carroll was motivated to kill Henderson in part because Carroll believed Henderson had shot Carroll in 2007. To that end, the prosecutor presented evidence from E.R.’s statement to the police and Wallace’s testimony that Carroll thought that Henderson had shot him in 2007. E.R. was relaying a statement Carroll made in April or May 2011, after Henderson was killed. Wallace was relaying something Carroll had said in 2008 or 2009. While Carroll’s state of mind in 2011 was the ultimate issue to be established, Carroll’s state of mind before and after had some “tendency in reason to prove” his state of mind in 2011. (Evid. Code, § 210.) Evidence Code section 1250, subdivision(a) recognizes this, since it allows the admission of a declarant’s statement of state of mind “to prove the declarant’s state of mind. . . at that time or at any other time when it is itself an issue in the action.” (Italics added; see People v. Howard (1988) 44Cal.3d 375, 405 [statements made months before killing were admissible to show why defendant acted as he did in seeking victim’s death; “[n]o specific time frame is required.”]; People v. One 1948 Chevrolet Convertible Coupe (1955) 45 Cal.2d 613, 620–621 [“Ordinarily a declaration of a state of mind is admissible only to prove the declarant’s state of mind at the time of the declaration. [Citations.] It has been held in this state, however, that under certain circumstances declarations are admissible to prove a state of mind at a particular time although uttered before or after that time, apparently on the theory that under these particular circumstances ‘[the] stream of consciousness has enough continuity so that we may expect to find the same characteristics for some distance up or down the current.’ ”].)
The same rationale applies to Carroll’s statements to Brown in 2009. We can conceive of no rational reason why testimony from Wallace about Carroll’s statements in 2008 or 2009 would be relevant but testimony from Brown concerning the same time period would not. The trial court therefore acted arbitrarily and capriciously in excluding Brown’s 2009 statements to the police about Carroll’s remarks. Evidence of Carroll’s state of mind in 2008 or 2009, whether from Wallace or Brown, certainly had less probative value as to his 2011 state of mind, given the passage of time, but it was still relevant.
The trial court said at one point that Carroll’s statements would not be relevant unless they were offered for the truth of Carroll’s beliefs, in which case they would be hearsay unless Carroll testified to his belief. But as Carroll told the trial court, this reasoning cannot justify excluding a statement under Evidence Code section 1250. Implicit in the state of mind exception is the concept that the declaration of state of mind is offered for the truth of the declarant’s state of mind. This is evident in the statute, which allows the admission of a statement of the declarant’s state of mind “to prove the declarant’s state of mind. . . at that time or at any other time when it is itself an issue in the action.” (Evid. Code, § 1250, subd. (a)(1).) This language expressly allows for the admission of the statement to prove the truth of the declarant’s state of mind. Evidence Code section 1250, subdivision (b) does state that the statute “does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.” The fact believed here is that Flowers shot Carroll, so this would prevent Carroll from using his statement to Brown prove that Flowers did in fact shoot him. But Carroll conceded that this would be improper and did not seek to admit Brown’s statement for this purpose.
This leaves the question of whether the trial court’s ruling resulted in a miscarriage of justice, meaning whether it was prejudicial. Carroll argues for the federal standard of prejudice because the exclusion of his statement to Brown about Flowers violated his constitutional rights. To borrow language from our Supreme Court that applies equally here, Carroll’s “attempt to inflate garden-variety evidentiary questions into constitutional ones is unpersuasive. ‘As a general matter, the “[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense.” [Citations.] Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense. [Citation.] If the trial court misstepped, “[t]he trial court’s ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.” [Citation.] Accordingly, the proper standard of review is that announced in People v. Watson [(1956)] 46 Cal.2d 818, 836. . . , and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension (Chapman v. California (1967) 386 U.S. 18, 24).’ ” (People v. Boyette (2002) 29 Cal.4th 381, 427–428.)
As Carroll’s counsel explained in his closing argument, the trial turned essentially on the question of identity for all of the shootings involved—whether Carroll was the shooter. The question of whether Carroll had a motive to shoot Henderson was subsidiary to the question of whether the witnesses to the shooting correctly identified him. Carroll presented a capable defense, cross-examining various witnesses and attempting to show they were either coached or coerced by the police, such as Brown himself, or that they were lying to incriminate Carroll and benefit themselves, such as Wallace and Fite. Exclusion of the Flowers evidence did not deprive Carroll of his right to present a complete defense, so the state standard of prejudice applies. We therefore examine whether it is reasonably probable that the jury would have reached a result more favorable to Carroll in the absence of the error. (People v. Watson, supra, 46 Cal.2d at p.836.)
We find no such probability here, for the same reasons that we apply the state standard of prejudice: motive evidence relating to Henderson shooting Carroll in 2007 was a less important part of the mix of evidence relating to the Henderson killing. The prosecution argued two different theories of motive for Carroll to shoot Henderson. One was Carroll’s belief that Henderson had shot Carroll in 2007. But another, related theory was that Henderson was associated with the ASAP group of North Oakland and Carroll’s South Berkeley gang had a feud with North Oakland. Even if Carroll had succeeded in using Carroll’s statements to Brown about Flowers to raise a reasonable doubt about the prosecution’s motive theory based on a belief that Henderson had shot him in 2007, it would not have greatly altered the state of the motive evidence. The People still had a motive theory based on gang membership.
Moreover, the motive evidence was relatively weak compared to the direct evidence of Carroll’s culpability. D.M. identified Carroll as the shooter. That identification was somewhat irregular, consisting of D.M. gesturing to a photo in a video recorded interview and confirming to the police in an unrecorded interview that the photo he gestured to was the shooter. But the jury had ample reason to conclude that D.M.’s reluctance to identify the shooter was due to fear of retaliation rather than a lack of memory, since many witnesses testified that they did not want to testify and, in some cases, appeared only because of a subpoena. Many police officers told the jury that people in Oakland are commonly reluctant to cooperate with police due to fear of being injured or killed in retaliation. Three other witnesses also related that Carroll had directly admitted to shooting Henderson. A.D. told the police that Carroll told her after the shooting that he had killed Henderson. E.R. told the police that Carroll had said that he had killed Henderson. Wallace testified that Carroll had said that he had killed Henderson and Bellhad been there. Wallace added that Bellcorroborated this by telling Wallace that he had set up Henderson. Rodriguez in turn corroborated this latter point, since he told the police that Bellhad leaned across the driver of the PT Cruiser and spoke to D.H., the driver of Henderson’s car, right before the shooting. The consistent testimony of each of these independent witnesses supported the jury’s verdict. We see no reasonable probability that the testimony of one witness undermining the Henderson motive theory would have led to a result more favorable to Carroll.
Admission of Evidence of Wiretapped Conversations
Carroll argues the trial court erred by admitting recordings of his calls in 2013 concerning the death of Carroll’s cousin and planning a violent response to a YouTube video by North Oakland rappers. We are not convinced.
Additional Background
The People brought an in limine motion to admit Carroll’s wiretapped conversations from 2013, two years after the last charged crime. The prosecutor argued that the conversations were relevant to prove Carroll’s motive and intent to kill North Oakland gang members, since the conversations demonstrated the ongoing feud between the gangs. The trial court granted the People’s motion.
Carroll’s counsel revisited the issue during trial, arguing that the recordings were improper character evidence, more prejudicial than probative because the jury would find the calls scary and hyper-violent, and cumulative to other evidence of the ongoing feud. The prosecutor argued the wiretapped calls showed Carroll’s willingness to murder North Oakland individuals over a rap video, which was probative of his motive to shoot other North Oakland people, such as the victims. The trial court declined to revisit its prior ruling.
The prosecutor played 11 segments of the wiretapped recordings of Carroll’s calls. Before she did so, the trial court told the jury, in an instruction Carroll had requested, that the calls had been admitted for the limited purpose of the jury considering Carroll’s motive and intent and could not be considered for any other purpose. At Carroll’s request, the court admitted into evidence an abstract of judgment showing that Carroll was convicted of conspiracy to commit assault with a firearm based on the calls. The court also delivered CALCRIM Nos. 375 and 1403, which told the jury that it could consider evidence of Carroll’s other offenses or gang activity for the limited purpose of deciding whether he acted with the intent to kill or had the motive to commit the alleged offenses.
After the jury’s verdict, Carroll argued in his new trial motion that the wiretapped calls were improper character evidence prohibited by Evidence Code section 1101. The trial court denied the motion, ruling that the calls were extremely relevant and probative and clearly outweighed any prejudicial effect.
Analysis
“The rules governing the admissibility of evidence under Evidence Code section 1101[, subdivision] (b) are well settled. Evidence of defendant’s commission of other crimes, civil wrongs or bad acts is not admissible to show bad character or predisposition to criminality, but may be admitted to prove some material fact at issue such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. [Citations.] Because evidence of a defendant’s commission of other crimes, wrongs, or bad acts ‘ “may be highly inflammatory, its admissibility should be scrutinized with great care.” ’ ” (People v. Cage (2015) 62 Cal.4th 256, 273.)
“ ‘ “In cases in which the prosecution seeks to prove the defendant’s identity as the perpetrator of the charged offense by evidence he had committed uncharged offenses, admissibility ‘depends upon proof that the charged and uncharged offenses share distinctive common marks sufficient to raise an inference of identity.’ ” [Citation.] A somewhat lesser degree of similarity is required to show a common plan or scheme and still less similarity is required to show intent. [Citation.]’ [Citation.] Where other crimes or bad conduct evidence is admitted to show motive, ‘ “an intermediate fact which may be probative of such ultimate issues as intent [citation], identity [citation], or commission of the criminal act itself” ’ [citation], the other crimes or conduct evidence may be dissimilar to the charged offenses provided there is a direct relationship or nexus between it and the current alleged crimes.” (People v. Cage, supra, 62 Cal.4that pp.273–274.)
In cases that do not involve a gang enhancement, “evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.] But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
Even if gang or other crimes evidence “is otherwise admissible, an accused may still urge that [Evidence Code] section 352 should bar it from consideration. In the face of a timely objection (Evid. Code, § 353, subd. (a)), relevant evidence may still be excluded if its probative value is substantially outweighed by the probability that its admission will require undue time consumption, will confuse or mislead the jury, or poses a substantial risk of undue prejudice.” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 406–407, fn. omitted [other crimes evidence];People v. Hernandez, supra, 33 Cal.4th at p.1050 [gang evidence].)
As stated ante, we review a trial court’s evidentiary ruling for abuse of discretion and will not reverse unless the trial court exercised its discretion in an arbitrary or capricious manner that resulted in a manifest miscarriage of justice. (People v. Rowland, supra, 4 Cal.4th at p. 264.)
The recordings of Carroll’s wiretapped conversations were relevant to proving his motive and intent in shooting the victims of the charged offenses. The prosecution relied in part on a gang feud theory of motive for all of the crimes, in addition to more narrow revenge motives for certain individual offenses, such as a revenge motive for the Henderson shooting or jealousy motive for the shooting of Ware. The prosecution therefore needed to establish that the Berkeley and North Oakland gangs were feuding. The prosecution also needed to prove that the feud was serious enough that the groups would kill each other, in part to prove Carroll’s intent to kill when shooting at the victims. Carroll argues that the acts described in the wiretapped calls were not sufficiently similar to the charged crimes to prove this intent, since he was merely a conspirator on the calls but a direct perpetrator of the charged crimes. The wiretapped calls were more than sufficiently similar to the charged crimes, since the calls and charged crimes both related to drive-by shootings with assault weapons directed at the North Oakland gang. A lower degree of similarity is required to prove intent, and other crimes evidence used to prove motive may be dissimilar so long as there is a nexus or direct relationship. (People v. Cage, supra, 62Cal.4that pp. 273–274.)
Carroll complains that the calls could not be used to show his motive to kill North Oakland gang members because the prosecutor argued there was an additional motive for each of the killings. But Carroll admits that the Lewis shooting does not fit this pattern, since there was no evidence that Carroll had a grudge specifically against Lewis. The prosecutor was also entitled to argue that Carroll had multiple reasons to kill any specific victim, including the gang feud motive. Carroll similarly argues that the calls showed only that he wanted to take action against the rappers because of the killing of Carroll’s cousin and the rappers’ disrespect to Carroll and his brother, not the rappers’ North Oakland gang membership. But Carroll spoke about taking action against “the North” as a group, not just the rappers. The killing of Carroll’s cousin and disrespect to Carroll and Coleon are also related to the feud, not least because Carroll was the leader of the Berkeley gang.
Carroll goes further and argues that the prosecutor used the wiretapped calls to prove his propensity to kill North Oakland gang members, which is improper character evidence. The prosecutor did use the calls to show Carroll was willing to kill North Oakland gang members, but that is just another way of saying that he had the requisite motive and intent. The prosecutor was not showing that Carroll had a violent character as a whole, just that Carroll’s statements on the wiretapped calls showed his beliefs and reasons for killing North Oakland gang members.
As for motive, Carroll points out that calls occurred in 2013 and concerned events after the charged crimes. He argues the calls could not logically show his motive for the shootings years earlier. But just as Carroll argues that his state of mind in 2009 about Sam Flowers could be relevant to showing his state of mind in the Henderson shooting in 2011, the existence and extent of the feud in 2013 provides a basis from which a jury could reasonably inferCarroll’s motive in 2011 or earlier. While the rap video may postdate the shootings, the ongoing feud provides the thread that ties together the video, the calls, and the charged crimes.
Carroll finally accuses the trial court of not properly applying Evidence Code section 352. On the prejudicial side of the section 352 balance, Carroll says the wiretapped calls were likely to evoke an emotional response and prejudice the jury into thinking he had an offensive, violent character. He notes that our Supreme Court has said the risk of undue prejudice from gang-related testimony is “particularly high in cases where the prosecution has not charged a gang enhancement and the probative value of the gang evidence is minimal.” (People v. Flores (2020) 9 Cal.5th 371, 402.) Carroll also argues the trial court should have redacted the calls to remove references to Carroll’s willingness to serve a life sentence to avenge his cousin’s murder or to the plans to kill the two rappers. On the probative side of the balance, according to Carroll, the gang feud was already adequately established, so the introduction of the wiretapped calls was cumulative.
The propriety of the section 352 balancing is a closer call, since the calls did have the potential to unfairly prejudice Carroll. But we cannot say, on abuse of discretion review, that the trial court’s ruling was arbitrary or capricious. The trial court recognized the potential for prejudice and instructed the jury twice that the recordings were admitted for a limited purpose, first just before the recordings were played and again using CALCRIM Nos. 375 and 1403 during jury instructions at the end of trial. We must assume the jury followed these instructions, which mitigates the potential prejudice. (People v. Cage, supra, 62 Cal.4th at p. 275.) Carroll complains that CALCRIM No. 375 only told the jury that it could consider the evidence of other offenses to show motive and intent, rather than showing motive and intent based on the gang feud. It is debatable whether Carroll preserved this issue, since he proposed the first instruction read in advance of the playing of the recordings, which, like CALCRIM No. 375, did not limit the evidence to showing motive or intent based on the gang feud. He objected to CALCRIM No. 375 on certain grounds but never asked to modify it to refer to the gang feud. In any event, CALCRIM No. 375 told the jury that it could not use evidence of Carroll’s other offenses to prove Carroll’s bad character or disposition to commit crime, and CALCRIM No. 1403 said the same of the gang evidence. We find no likelihood that the jury understood the instructions to permit a wider-ranging motive or intent consideration of the wiretapped calls. The prosecutor only referred to them briefly in closing to argue that they showed the existence of the feud.
As for the probative value of the evidence, Carroll is correct that there was other evidence of the gang feud, but that does not necessarily mean the wiretapped calls were cumulative. Fite, for example, testified that the feud arose because a child was killed, which escalated into retaliatory violence. He also said that with the feud between the groups, it did not matter whether a “beef” was tied to a specific individual. This testimony did not capture the full extent of the feud or Carroll’s involvement in it. Moreover, Carroll impeached Fite because he was testifying on a plea deal. The prosecution was entitled to buttress Fite’s testimony with recordings of Carroll’s own voice demonstrating the depth of the feud and his own personal commitment to it. The trial court also invited Carroll to voice any specific objections to the calls that the prosecutor eventually played, but he simply objected to them all on a blanket basis. While another trial court perhaps might have taken a more limited approach to the calls, we cannot say the trial court’s admission of the calls was beyond the bounds of reason.
Exclusion of Testimony Regarding Fite’s Assistance in Other Cases
Carroll argues the trial court committed prejudicial misconduct when it prevented him from cross-examining Fite about whether he provided information in other cases. This argument is without merit.
Additional Background
When Carroll’s counsel was cross-examining Fite, he asked Fite whether Fite had provided information on any other cases after he received money from the FBI and changed his plea in this case in 2018. The trial court sustained the People’s relevance objection. Carroll’s counsel proceeded to impeach Fite by questioning him about the reimbursements he received for his relocation expenses as well as the terms of his plea agreement.
Analysis
Carroll contends that Fite’s provision of information in other cases was relevant because it would show his interest and motive for testifying against Carroll. According to Carroll, if law enforcement were pleased with the information Fite provided, they would be less likely to charge him with crimes other than those in this case. It would also show the extent to which Fite was willing to sacrifice other people’s freedom to benefit himself in the form of relocation expense reimbursements. He notes that relevant evidence is evidence that has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action,” including the credibility of a witness. (Evid. Code, § 210.)
Fite’s credibility was the proper subject of inquiry, since he was, by his own admission, an accomplice in Nguyen’s murder and Bao’s attempted murder who spotted the victims and relayed the information to Davis, who in turn drove the car while Carroll shot the victims. But the trial court did not act arbitrarily in concluding that Fite’s provision of information in other cases was beyond the limits of relevance. (See People v. Rowland, supra, 4Cal.4th at p. 264 [evidentiary rulings reviewed for abuse of discretion].) Whether Fite was cooperating in other cases to avoid being charged with other crimes had no bearing on his veracity in this case. Carroll offers no reason to think Fite’s plea bargain in this case was dependent on his testimony in the other cases. Rather, he could withdraw his plea in this case and have the charges dismissed so long as he testified truthfully in this case. If Fite were testifying against Carroll in other cases, that might have some bearing on his motive and interest for testifying against Carroll in this case. But Carroll does not suggest he was involved in any other cases. Similarly, Carroll already fully explored Fite’s receipt of reimbursement for relocation expenses, cross-examining him extensively on how much he received, for what expenses, and the terms of his plea agreement. Carroll offers no reason to think that Fite would receive more reimbursements or lenient treatment if Fite testified in other proceedings, so any other testimony Fite gave in exchange would not illuminate Fite’s motives in this case.
Even if Fite’s potential provision of testimony in other cases could be said to be relevant in some attenuated sense, the exclusion of the testimony was proper under Evidence Code section 352. (People v. Geier (2007) 41 Cal.4th 555, 582 [affirming exclusion of testimony under Evidence Code section 352 although trial court did not rely on it].) Section 352 broadly allows courts to exclude impeachment evidence “ ‘ “to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.” ’ ” (People v. Harris (2008) 43Cal.4th 1269, 1291.) The trial court could have reasonably decided that any minor impeachment value from exploring Fite’s provision of information in other cases would be cumulative and not worth the delay and distraction that would result from delving into such tangential issues.
Allowing Prosecutor to Call Witnesses Who Refused to Testify
Carroll faults the trial court for allowing the prosecution to call Ward as a witness, knowing he would not testify, and allowing the jury to consider Shaw’s refusal to answer questions. We find no error.
Additional Background
David Ward was associated with North Oakland and apparently had information about the April 2009 shooting of Nguyen and Bao. Early in the trial, counsel for David Ward told the court that Ward would categorically refuse to testify, without even reaching the point at which he could invoke the Fifth Amendment. Ward was in custody at the time, serving a 10-year prison sentence. Carroll’s counsel asked the court to hash out the issue outside the presence of the jury. Carroll’s counsel explained that he was worried the jury would speculate about what Ward’s testimony might have been or infer that Ward was fearful of Carroll. The prosecutor objected, stating that Ward did not have a Fifth Amendment right and that she wanted to call him as a witness. The trial court sided with the prosecutor, noting that the jury is told not to speculate about things they did not hear in court. The court saw no harm in having Ward called as a witness and having it play out in front of the jury. Carroll’s counsel later objected again, although he conceded that the record did not support an invocation by Ward of the Fifth Amendment. The People told the court that they intended to offer Ward immunity if he invoked the Fifth Amendment, and the trial court allowed the People to call Ward as a witness. When the People called Ward in the presence of the jury, he did not raise his hand when the clerk tried to administer the oath and did not speak. After an unreported conference in chambers, the trial court had Ward removed from the court room, and the People called their next witness.
The People called Ward again a few court days later. The trial court excused the jury. Outside the presence of the jury, Ward again refused to take the oath. At the request of Ward’s counsel, the trial court said it was clear that Ward would not testify, so the court removed him from the court’s custody and returned him to prison to serve the remainder of his sentence. The trial court only mentioned Ward in the jury instructions as one of the witnesses who testified in custody. The prosecutor did not mention Ward in her closing argument or rebuttal. Carroll’s counsel mentioned Ward as being present at Nguyen’s shooting.
Shaw, who was shot with Ware, took the oath and answered some preliminary questions. But when asked about the events of the shooting, Shaw said he refused to cooperate with the prosecution and invoked the Fifth Amendment. In the presence of the jury, the People said they were prepared to offer him immunity, and the trial court dismissed the jury for lunch. Later, outside the presence of the jury and after having counsel appointed, Shaw continued to refuse to speak. The court found him in contempt.
Following CALCRIM No. 320, the court instructed the jury, “Aaron Shaw did not have the right to refuse to answer questions in this case. You may consider that refusal during your deliberations.” In the prosecutor’s closing argument, the prosecutor noted in passing that they had not heard from Shaw but did not otherwise mention him.
Analysis
“When a ‘court determines a witness has a valid Fifth Amendment right not to testify, it is . . . improper to require him [or her] to invoke the privilege in front of a jury; such a procedure encourages inappropriate speculation on the part of jurors about the reasons for the invocation. An adverse inference, damaging to the defense, may be drawn by jurors despite the possibility the assertion of privilege may be based upon reasons unrelated to guilt. These points are well established by existing case law. [Citation.] But where a witness has no constitutional or statutory right to refuse to testify, a different analysis applies. Jurors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony.’ [Citation.] And where a witness receives immunity, that witness’s testimony is compelled and the witness no longer has a privilege against self-incrimination.” (People v. Morgain (2009) 177 Cal.App.4th 454, 466.)
Carroll admits that jurors can generally draw a negative inference from a witness’s refusal to testify when they do not have a Fifth Amendment right not to testify. He does not contend that Ward had a Fifth Amendment right or dispute that the prosecution’s grant of immunity dispelled Shaw’s Fifth Amendment rights. He nonetheless contends it was improper for the prosecutor to call Ward and for jurors to draw a negative inference about Shaw because any inference would be speculative. More specifically, he argues that it would be speculative to infer that Shaw or Ward feared retaliation or refused to cooperate from the fact that witnesses in Oakland are often uncooperative.
We do not see the inference as speculative at all. Many police officers testified that witnesses in Oakland frequently refuse to cooperate with law enforcement for fear of retaliation. One of the other witnesses, L.C., said she was afraid to testify because she feared retribution. It takes no great leap to conclude that Shaw or Ward would not want to testify against Carroll about a gang-related shooting for fear of retaliation. Drawing such an inference would not constitute improper character evidence. It concerns the credibility of the witnesses who refused to testify. (See People v. Sisneros (2009) 174 Cal.App.4th 142, 152 [evidence of gang’s penchant for witness intimidation was relevant to eyewitness credibility].) If Carroll believed the inference was weak or the witnesses’ refusals to testify were meaningless, as he contends here, he was free to argue that to the jury.
Carroll briefly argues that the calling of Ward and the instruction related to Shaw violated his Sixth Amendment rights because he had no opportunity to cross-examine them. But the only authorities he cites for this argument are cases that prohibited the prosecution from introducing to the jury prior statements by a witness who refuses to testify or honestly fails to recall a prior statement. (E.g., Douglas v. Alabama (1965) 380U.S. 415, 420;People v. Rios (1985) 163 Cal.App.3d 852, 864.) That is not what occurred here, since the prosecution did not seek to introduce any prior statements by Ward or Shaw.
Even if the trial court did err in some fashion in allowing the People to call Ward as a witness in front of the jury or allowing the jury to draw inferences from Shaw’s refusal to testify, any such error was unquestionably harmless here. The jury had little basis to understand how Ward was connected to the trial from the testimony, beyond stray references to him being associated with North Oakland and the police interviewing him in connection with the Nguyen shooting. It was Carroll’s counsel, not the People or any witness, who told the jury that Ward was present at Nguyen’s shooting. The prosecutor did not mention Ward in closing argument at all. Shaw was plainly a victim of the same shooting that injured Ware, but the prosecutor’s closing argument placed no emphasis on Shaw’s refusal to testify beyond a remark that the jury had not heard from him. Excluding them from the trial entirely would not have appreciably changed the state of the evidence. Allowing Carroll to cross-examine these witnesses would have been pointless, given their refusals to speak at all. Any error related to these two witnesses was harmless according to either the state or federal standards of prejudice. (People v. Watson, supra, 46Cal.2d at p. 836; Chapman v. California, supra, 386 U.S. at p.24.)
Cumulative Prejudice
Carroll argues that even if his preceding claims of error were not individually prejudicial, taken together they were cumulatively prejudicial. As we have found only a single, non-prejudicial error, there can be no cumulative prejudice.
Great Bodily Injury Findings
Carroll points out that the jury found he personally inflicted great bodily harm within the meaning of section 12022.7, subdivision (a) when he committed each of the counts of murder. He then cites section 12022.7, subdivision (g), which states that the three-year enhancement for inflicting great bodily injury in that statute does not apply to murder. He therefore argues that the great bodily injury findings on the murder counts must be reversed because they are unauthorized. The People agree, as do we. However, as Carroll himself points out, the trial court did not actually impose the three-year enhancements under section 12022.7 to the murder counts, so the reversal of these findings does not affect the length of Carroll’s sentence.
Ineffective Assistance of Counsel Regarding Dual Use of Facts
Carroll’s last argument seeks reversal of the trial court’s imposition of the upper term on count 10, the charge of attempted murder of Ware. He argues that his counsel provided ineffective assistance by failing to object to the trial court’s reliance on his firearm use and infliction of great bodily injury to impose both a 25years to life enhancement under section 12022.53 and the upper term on count 10.
To prevail on a claim of ineffective assistance of counsel, Carroll “ ‘must show that [his] counsel’s performance was deficient, and that the deficiency prejudiced the defense.’ [Citations.] On direct appeal, a finding of deficient performance is warranted where ‘(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.’ [Citation.] ‘[W]here counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.’ ” (People v. Johnsen (2021) 10 Cal.5th 1116, 1165.)
A trial court “may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” (§ 1170, subd. (b)(5); People v. Scott (1994) 9Cal.4th 331, 350; rule 4.420(g).) We agree with Carroll that there is no conceivable reason for his counsel to have failed to raise this point in the trial court. The law prohibiting the dual use of facts for an enhancement and to aggravate a sentence is clear, and the People do not dispute that it barred the court from relying on the firearm and great bodily injury aggravating circumstances to impose the upper term on count 10. Carroll had nothing to lose by raising this point and could only face a longer sentence by allowing the court to consider more aggravating circumstances than were proper.
However, Carroll has failed to demonstrate prejudice from his counsel’s deficiency. Establishing prejudice for a claim of ineffective assistance of counsel requires a defendant to “demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” (In re Gay (2020) 8Cal.5th 1059, 1086.) Carroll argues for an alternative standard of prejudice, urging that we should remand unless the record clearly indicates that the trial court would have imposed the same sentence had it been aware of the limitations of its discretion. (See People v. Lynch (2024) 16 Cal.5th 730, 771.) We are not convinced that Lynch applies here, but it does not matter. Even if we apply the Lynch standard as Carroll suggests, he still fails to establish prejudice because the record clearly indicates that the trial court could and would have imposed the same sentence even without the additional aggravating circumstances.
Carroll does not dispute that a trial court may impose an upper-term sentence based on even a single aggravating circumstance. (People v. Lynch, supra, 16 Cal.5th at p. 764.) This would have allowed the trial court to impose the upper term here, since the jury found that the victim, Ware, was particularly vulnerable (rule 4.421(a)(3)) and the trial court found that Carroll engaged in violent conduct that indicated a serious danger to society, his prior convictions were numerous or of increasing seriousness, and he had served a prior prison term (rule 4.421(b)(1)–(3)). We have no doubt that the trial court would have used that authority here, since the court made clear that it intended to impose the maximum possible sentence. When it announced its tentative sentence at the outset of the sentencing hearing, the court said that it did not find any mitigating circumstances that “would be compelling enough to impose anything other than the maximum sentence allowed by law.” It repeated that remark when it pronounced the actual sentence. The trial court’s sentencing decisions reflect this stated determination to impose the longest possible sentence. Most obviously, it sentenced Carroll to over 207 years in prison, a term which Carroll would not actually complete even over the course of multiple lifetimes. The court reached that result not just by imposing the upper term on count 10 or the enhancements, but also by running consecutively the sentences for the two counts of possession of a firearm by a felon. Running these terms consecutively served no possible purpose except to underscore the trial court’s expressed view that Carroll’s actions were extremely dangerous and posed an extreme danger to the community. Because the trial court made every possible choice to lengthen the term of Carroll’s sentence, well beyond the limit of what Carroll could be physically capable of serving, the trial court left no doubt that it would have imposed the same upper term on count 10 even without two of the aggravating circumstances.
DISPOSITION
The judgment is modified by reversing the jury’s findings under section 12022.7, subdivision (a) that Carroll personally inflicted great bodily injury when he committed the murders of Nguyen Ngo, Nehemiah Lewis, and Andrew Henderson. (§ 1260.) As so modified, the judgment is affirmed.

BROWN, P. J.

WE CONCUR:

STREETER, J.
SWEET, J.
People v. Carroll(A172493)