P. v. Carter

Filed 3/30/06 P. v. Carter CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

A jury convicted Ivan Ray Carter, Jr., of first degree murder for the shooting death of his former neighbor, Michael White. Defendant contends that the jurors engaged in prejudicial misconduct by considering a juror's extraneous comment that the neighborhood in which the crime took place was drug-ridden, and by discussing the fact that defendant did not testify. We uphold the trial court's finding that no prejudicial misconduct took place, and affirm the judgment

I. BACKGROUND

Defendant was charged by information with first degree murder. (Pen. Code, § 187, subd. (a).) The information alleged that during the commission of the offense defendant had personally and intentionally discharged a firearm causing death. (Pen. Code, § 12022.53, subd. (d).) Defendant pleaded not guilty. A jury trial commenced on August 18, 2003.

A. Prosecution Case

The victim, Michael White, and his girlfriend, Tiffany Vollmer, lived together in an upstairs apartment unit at 267 Reis Avenue in Vallejo. Defendant and his girlfriend, Diniel Jaramillo, lived in an adjoining upstairs unit at 265 Reis Avenue. In late December 2001 or early January 2002, White and Vollmer slammed the door to their apartment during an argument. The slamming of the door caused Jaramillo's new clock to fall off the wall and break. Jaramillo testified that the clock cost $45, and that White promised her three or four times that he would replace it as soon as he had the money.

In January 2002, Vollmer overheard defendant discussing the broken clock with White at the door of their apartment. Defendant sounded angry. Another time, Vollmer heard defendant in the hallway telling White that there was a $50 debt to be paid. According to Vollmer, defendant sounded very irate.

On February 22, 2002, Jaramillo and defendant moved out of the Reis Avenue apartment. They moved in with Jaramillo's cousin, Christina Maxwell, and her husband, Jason Maxwell, at 218 Carolina Street. Jaramillo returned to the Reis Avenue building with defendant and Christina on February 27, 2002, about 2:30 p.m. Jaramillo saw White in front of the building talking to the mother of his two children, Delores Henderson. She approached White and angrily told him that he owed her $50 for the clock. Henderson heard Jaramillo say that if White did not have the money by the end of the day, he would â€