People v. Carter

• Docket Number: D082219
• Decision Date: 08 December 2023
• Citation: People v. Carter, 315 Cal.Rptr.3d 895 (Cal. App. 2023)
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Otto CARTER, Jr., Defendant and Appellant.
• Court: California Court of Appeals

315 Cal.Rptr.3d 895

The PEOPLE, Plaintiff and Respondent,

v.Robert Otto CARTER, Jr., Defendant and Appellant.

D082219

Court of Appeal, Fourth District, Division 1.

Filed December 8, 2023

APPEAL from an order of the Superior Court of Riverside County, Randall S. Stamen, Judge.Reversed and remanded.(Super. Ct.No. BAF1501107)

Christine M. Aros, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa A. Mandel, Warren J. Williams and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.

BUCHANAN, J.

Robert Carter, Jr. appeals the denial of his request for a full resentencing under recently enacted Penal Code section 1172.75.¹Although the trial court recalled Carter for resentencing under section 1172.75 and struck his one-year prior prison term from his sentence, the court declined to conduct a full resentencing under the new law.The court found that it did not have the authority to do so because Carter was originally sentenced pursuant to a plea agreement.Carter contends that this was in error.We agree that section 1172.75 required the trial court to conduct a full resentencing, and that the People are not entitled to withdraw them assent to the plea bargain if the trial court further reduces Carter’s sentence on resentencing.Accordingly, we reverse and remand the case to the trial court for a full resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2015, the People filed a complaint alleging that Carter committed two counts of attempted murder (§§ 664,187, subd. (a)) and one count of assault with a deadly weapon (§ 245, subd. (a)), specifically, a machete.The People further alleged that Carter served a prior prison term (§ 667.5, subd. (b)) and was convicted of a strike prior (§§ 667, subds. (c) and (e)(1),1170.12, subd. (c)(1)).

In April 2016, the complaint was amended to add a second count of assault with a deadly weapon (§ 245, subd. (a)) and a great bodily injury allegation (§ 12022.7, subd. (a)).At that time, Carter pled guilty to both counts of assault with a deadly weapon and admitted the great bodily injury allegation, the prison prior, and the strike prior.The parties stipulated to a 12-year sentence under the plea agreement, calculated as follows: for the first count of assault with a deadly weapon, the middle term of three years, doubled to six years due to the strike prior; for the second count of assault with a deadly weapon, one-third the middle term of three years (one year), doubled to two years due to the strike prior, run consecutively; for the great bodily injury enhancement, an additional and consecutive term of three years; and for the prison-prior enhancement, an additional and consecutive term of one year.In May 2016, the trial court accepted and imposed the stipulated sentence.

In October 2022, the California Department of Corrections and Rehabilitation referred Carter’s case to the trial court for recall and resentencing under newly enacted section 1172.75, subdivision (b).The People filed an opposition to resentencing under section 1172.75, arguing that although the court had to strike the one-year prison prior from Carter’s sentence, it had no discretion to conduct a full resentencing because there had been a stipulated sentence per the parties’ plea agreement.Carter filed a response to the People’s opposition, arguing that a full resentencing was mandatory under section 1172.75 and the court was required to apply all new sentencing laws that reduce sentences or provide for judicial discretion.Carter also filed a motion to strike his strike prior (People v. Superior Court(Romero)(1996)13 Cal.4th 497, 53 Cal. Rptr.2d 789, 917 P.2d 628), which the People opposed.

In March 2023, after holding a hearing, the trial court issued a written resentencing order.The court concluded that Carter’s prison prior under section 667.5, subdivision (b) was invalid and ordered it stricken.The court acknowledged that Carter “ha[d] taken advantage of the rehabilitative aspects of incarceration, earning several certificates of completion and letters of appreciation,” and stated that if Carter’s “conviction and sentencing were not the product of an accepted plea bar- gain, the court could take [his] achievements into account at a full resentencing hearing.”However, the court agreed with the People that it did not have the authority to modify the negotiated sentence beyond striking the prison prior.The court found that to do so where the “defendant’s sentence was the product of a plea bargain would divest the People of the benefit of their bargain.”For the same reason, the court concluded it did not have the authority to strike Carter’s strike prior, and it therefore denied his Romero motion.

At the resentencing hearing, the court ordered Carter’s prison prior stricken, stated that all other terms of his sentence would remain intact, and sentenced him to 11 years in state prison.

Carter timely filed a notice of appeal.

DISCUSSION

The parties agree that the trial court properly struck Carter’s prison prior from his sentence.The only issues before us are (1) whether the court erred in finding that it did not have discretion under section 1172.75 to fully resentence Carter because his sentence was imposed pursuant to a plea agreement, and (2) if so, whether the prosecution may withdraw its assent to the plea bargain if the trial court further reduces Carter’s sentence on resentencing.

A.Governing Law

Before January 1, 2020, section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a prior prison term and had not remained free of custody for at least five years.(People v. Burgess(2022)86 Cal.App.5th 375, 379–380, 302 Cal.Rptr.3d 461(Burgess).)Effective January 1, 2020, Senate BillNo. 136 (2019–2020 Reg. Sess.)(Senate Bill 136)amendedsection 667.5 by limiting the enhancement to only prior prison terms served for sexually violent offenses.(Stats. 2019, ch. 590, § 1.)Enhancements based on prior prison terms served for other offenses became legally invalid.(Burgess,at pp. 379–380, 302 Cal.Rptr.3d 461.)

In 2021, the Legislature enacted Senate BillNo. 483 (2021–2022 Reg. Sess.)(Senate Bill 483), which, among other things, made the changes implemented by Senate Bill 136 retroactive.(Burgess, supra,86 Cal.App.5th at p. 380, 302 Cal.Rptr.3d 461.)Senate Bill 483 added former section 1171.1, later renumbered as section 1172.75(Stats. 2022, ch. 58, § 12), to the Penal Code.²(Stats. 2021, ch. 728, §§ 1, 3.)Penal Code section 1172.75 provides that “[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.”(Pen. Code, § 1172.75, subd. (a).)It further provides that if a currently incarcerated defendant is serving a sentence that includes such a legally invalid enhancement, “the court shall recall the sentence and resentence the defendant.”(Id., subd. (c).)

The statute provides specific instructions for the resentencing under section 1172.75.(SeePeople v. Monroe(2022)85 Cal.App.5th 393, 399, 301 Cal.Rptr.3d 345(Monroe).)First, the resentencing “shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed.”(§ 1172.75, subd. (d)(1).)Second, the trial court“shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.”(§ 1172.75, subd. (d)(2).)Third, the court“may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.”(§ 1172.75, subd. (d)(3).)Fourth, “[u]nless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.”(§ 1172.75, subd. (d)(4).)Finally, the court“shall appoint counsel” for the resentencing, (§ 1172.75, subd. (d)(5).)

The Legislature declared in an uncodified statement of intent in Senate Bill 483 “that in order to ensure equal justice and address systemic racial bias in sentencing, it is the intent of the Legislature to retroactively apply Senate Bill 180 of the 2017–18 Regular Session and Senate Bill 136 of the 2019–20 Regular Session to all persons currently serving a term of incarceration in jail or prison for these repealed sentence enhancements.It is the intent of the Legislature that any changes to a sentence as a result of the act that added this section shall not be a basis for a prosecutor or court to rescind a plea agreement.”(Stats. 2021, ch. 728, § 1.)

B.Standard of Review

[1–6]We review issues of statutory...