Opinion
C093248
04-07-2022
THE PEOPLE, Plaintiff and Respondent, v. RICHARD TYRELL CARTER, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 11F08121
HULL, J.The trial court sentenced defendant Richard Tyrell Carter, 17 years old at the time of his offense, to an aggregate term of 55 years to life in prison. Following an initial appeal in which this court remanded the case in light of recent changes in law relating to the prosecution of juveniles and the discretion of courts to strike or dismiss firearm enhancements, the trial court struck a prior strike conviction but not a firearm enhancement, resentencing defendant to 40 years to life. Defendant contends the trial court erred again by declining to strike or reduce the firearm enhancement. We affirm the judgment.
Facts and History of the Proceedings
In 2011, shortly after his 17th birthday and while on formal probation for second-degree robbery, defendant attended a gathering in the driveway of a house. He was armed, concerned that a drive-by shooting may occur. A pickup truck stopped nearby, and the driver, apparently looking for a friend, reached for the door handle. Defendant fired the gun at the driver several times, killing him.
In 2013, defendant was tried as an adult and sentenced to 55 years to life in prison for second-degree murder (Pen. Code, § 187; statutory section citations that follow are to the Penal Code), with personal use and discharge of a firearm causing death (§ 12022.53, subd. (d)), possession of a firearm by a felon (§ 12021, subd. (a)(1)), and a prior strike conviction for robbery (§§ 667, subds. (b)-(i), 1170.12).
Claiming cruel and unusual punishment, defendant appealed his sentence to this court. (People v. Carter (2018) 26 Cal.App.5th 985, 988 (Carter).) We vacated the sentence and conditionally reversed the conviction, remanding with directions based on three developments in law that occurred after the trial court rendered its sentence. (Ibid.)
First, in 2016, voters adopted Proposition 57, which was held retroactive in People v. Superior Court (Lara) (2018) 4 Cal.5th 299 and now requires juvenile courts to conduct a hearing before transferring a case to adult criminal court. (Welf. & Inst. Code, § 707.) We thus directed the trial court to transfer the case to the juvenile court to determine whether defendant would have been fit to be tried in adult criminal court at the outset. (Carter, supra, 26 Cal.App.5th at p. 1001.)
Second, the United States Supreme Court and California Supreme Court held that, with respect to juvenile offenders, the Eighth Amendment forbids mandatory life-without-parole (LWOP) sentences and functional equivalents. (Montgomery v. Louisiana (2016) 577 U.S. 190; People v. Gutierrez (2014) 58 Cal.4th 1354.) Applying these precedents, we held that a court determining a three-strikes sentence for an offense committed by a juvenile must consider (1) the sentence without a presumption in favor of LWOP and (2) factors associated with the "distinctive attributes of youth," as set forth in Miller v. Alabama (2012) 567 U.S. 460, 479. (Carter, supra, 26 Cal.App.5th at p. 1000.)
Third, and directly relevant to this appeal, the Legislature passed Senate Bill No. 620 (Stats. 2017, ch. 682 (Senate Bill 620)), which became operative January 1, 2018, and was held retroactive in People v. Woods (2018) 19 Cal.App.5th 1080. That bill granted trial courts the authority to dismiss or strike firearm enhancements in the interest of justice under section 1385. (§ 12022.53, subd. (h).) We thus instructed the criminal court, in the event the juvenile court transferred the case to it, to reinstate defendant's convictions and conduct a resentencing hearing, considering the Miller factors with respect to the prior strike, and, if defendant requested, exercising its newfound discretion with respect to the firearm enhancement. (Carter, supra, 26 Cal.App.5th at p. 1001.)
After the juvenile court held a transfer hearing and sent the case back to adult criminal court, a resentencing hearing was held in November 2020. Defendant and the People requested that the court strike defendant's prior strike conviction for robbery based on the court's authority under section 1385 and People v. Romero (1996) 13 Cal.4th 497. However, the People opposed defendant's request to strike or reduce the firearm enhancement, arguing that defendant's overall record and the circumstances of the killing showed that defendant was "an extreme danger to society" and there were "absolutely no factors in mitigation."
The court, which had sat as the juvenile court, considered evidence from the transfer hearing. Dr. Anne McBride, an associate professor of clinical psychiatry at the UC Davis Medical Center, testified that she had evaluated defendant, then 25 years old, spoken to his family, and reviewed various records from his youth. According to Dr. McBride, defendant was raised in an unstable, impoverished household in which he was exposed to substance abuse, gang activity, domestic violence, and chronic neglect. As a minor, he was diagnosed with a learning disorder and attention deficit hyperactivity disorder (ADHD). He later sought and engaged in therapy; however, services were suspended due to county budget cuts.
The record shows defendant had an extensive history of misconduct before his murder conviction. At age 12, defendant began using alcohol and drugs. At 13, he felt "pushed into a gang" and began "carrying a firearm, participating in fights and shootouts, robberies and opportunistic drug sales and sex trafficking." Around that time, he was disciplined for bringing ammunition to school. And at 15, he was charged as an adult and pleaded no contest to second-degree robbery, with an admitted arming enhancement. He was placed on five years formal probation and ordered to serve 365 days in juvenile hall. At 17, shortly after his release from custody on formal probation, he was arrested for the murder that led to this appeal.
Dr. McBride testified that at the time of the killing, defendant's behaviors "were reflective of his relative developmental immaturity and that he was engaging in a lot of risk-taking behaviors, was not thinking about his long term future, was more susceptible to peer influences at that time, and just not fully developed," factors exacerbated by his ADHD and substance use. But at age 25, he had matured: his cognitive ailments were responding to treatment, he had distanced himself from harmful influences, worked in prison, and participated in therapy and education. Dr. McBride acknowledged that defendant had several rule violations over the course of his imprisonment, as detailed in a probation report prepared for the sentencing hearing. Among these were battery on a prisoner, battery with a deadly weapon, felony conviction for possession of a weapon (§ 4502, subd. (a)), use of a controlled substance, participating in a prison riot, and gang-related assault. Nevertheless, Dr. McBride concluded defendant was a moderate risk for future violence.
The court granted defendant's request to strike the prior strike for robbery. Consistent with our directions, the court considered relevant evidence bearing on the "distinctive attributes of youth" discussed in Miller and how those attributes "diminish the penological justifications for imposing the harshest sentences on juvenile offenders." (See Carter, supra, 26 Cal.App.5th at p. 1001.) Factors weighing in favor of granting the request included: defendant was just 15 years old when he committed his prior strike, "the dysfunctional and dangerous environment in which he lived at that time," and "there had not been significant corrective intervention or seemingly any positive role models in his life at that time."
But the court declined to dismiss or reduce the firearm enhancement. In arriving to this decision, the court stated that it considered the same factors it considered with respect to the prior strike. The court also stated it considered the California Rules of Court applicable to sentencing, and it specifically identified relevant factors such as the defendant's age and other individual factors, the nature and circumstances of the murder, defendant's criminal history at the time of the murder, the severity of the penalty and proportionality of the impact if the court exercised its discretion, and defendant's dangerousness to society.
The court found "[t]here is no question that Mr. Carter's environment as a child, including at 17, led to this murder and this case. At the time of the murder, Mr. Carter was, and had been throughout his life at that point, living in a dysfunctional, harmful environment. And his social history, including his familial and community environments, and the childhood trauma intertwined therein, is a mitigating factor." "But there is also no question that aggravating circumstances exist as well." The victim "was an innocent stranger who was shot in the head while sitting in his truck . . ." at a time when defendant "was on formal felony probation, and he had just been released from custody only six or so days earlier." While the court found that defendant had "naturally grown as a person" and availed himself of beneficial programs while incarcerated, the court also pointed to a pattern of ongoing "violent criminal conduct," which left the court "without confidence that he has changed or even wants to change his ways."
The court found that on balance the aggravating factors significantly outweighed the mitigating factors. It stated that "striking the gun enhancement would frustrate rather than foster the interests of justice based on the totality of circumstances in this case." With respect to reducing the enhancement, the court stated "imposing anything short of the punishment in subdivision (d) of Penal Code section 12022.53 would ignore or distort an accurate reflection of the criminal conduct in this case. It would also minimize the significant danger he poses to society because it would significantly reduce his period of imprisonment."
The court sentenced defendant to 40 years to life based on a term of 15 years for second-degree murder, plus 25 years to life for the firearm enhancement, as well as a two-year concurrent term for possessing a firearm as a convicted felon.
Discussion
Defendant contends the trial court erred by declining to strike or reduce the firearm enhancement. Citing to case law generally recognizing the diminished culpability of juvenile offenders, defendant argues the court gave insufficient weight to his youth and associated mitigating factors. He also asserts his sentence is "contrary to the spirit of Senate Bill 620." Moreover, according to defendant, "[t]he present trend in felony sentencing is to acknowledge more factors which mitigate against the extremely long sentences which have been in vogue for about the last three decades," and thus "a reasonable balance could have been struck by a reduction of the firearm enhancement from 20 years to 10 years." (Italics added.) We see no abuse of discretion.
Section 12022.53, subdivision (d) provides that any person who, in the commission of an enumerated felony, personally and intentionally discharges a firearm and proximately causes great bodily injury or death must be punished by an additional and consecutive term of imprisonment for 25 years to life. One of the enumerated felonies is murder. (Id. at subd. (a)(1).) Senate Bill 620 amended section 12022.53, subdivision (h), which previously prohibited sentencing courts from striking a firearm enhancement found true under the statute. (Former § 12022.53, subd. (h); People v. McDaniels (2018) 22 Cal.App.5th 420, 424.) Now, subdivision (h) provides that a sentencing court "may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (§ 12022.53, subd. (h).)
We review a trial court's exercise of discretion under section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373-374, 376.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) In determining whether to dismiss enhancements, a trial court should consider the factors enumerated in the California Rules of Court relating to general sentencing objectives and aggravating and mitigating factors. (People v. Pearson (2019) 38 Cal.App.5th 112, 117.)
The record reflects the trial court's proper exercise of discretion. The court considered Dr. McBride's testimony, victim impact statements, the probation report, the parties' sentencing briefs, and arguments at the hearing. The court considered defendant's post judgment conduct. (See People v Yanaga (2020) 58 Cal.App.5th 619, 627.) The court also considered the factors enumerated in the California Rules of Court relating to sentencing. Based on those factors and the totality of the evidence, the court found circumstances in mitigation and aggravation and concluded that on balance the latter significantly outweighed the former. Likewise, the court considered the same factors in denying defendant's request to reduce the enhancement, stating that if the court had this power it would decline to exercise it because the 25-years-to-life punishment, unlike lesser firearms enhancements, "squarely fits the conduct in this case."
Defendant does not claim any of the factors relied on by the trial court were improper or that the determinations were unsupported by the record. Indeed, defendant acknowledges that the court followed the "basic paradigm of felony sentencing in California" by considering "pertinent factors in aggravation and in mitigation and then determining the appropriate sentence based on those considerations."
We reject defendant's contention that case law recognizing the diminished culpability of juvenile offenders in the context of the death penalty (Roper v. Simmons (2005) 543 U.S. 551) and LWOP sentences (Graham v. Florida (2010) 560 U.S. 48; Miller v. Alabama, supra, 567 U.S. 460) "supports a more lenient sentence." The People point out that, unlike the juvenile offenders in those cases, defendant will be eligible for parole after 25 years, at the age of 43, pursuant to legislation adopted to reconcile California's sentencing laws with that very line of cases. (§ 3051, subd. (b)(3), added by Stats. 2013, ch. 312; see People v. Franklin (2016) 63 Cal.4th 261, 268.) Moreover, during sentencing, the court considered factors relating to youth as set forth in Miller- including when it struck defendant's prior strike conviction.
Also lacking merit is defendant's bare assertion that his 40-year sentence "is contrary to the spirit of Senate Bill 620." In adopting Senate Bill 620, the Legislature preserved the punishments for firearm enhancements and entrusted trial courts, exercising their expansive discretion under section 1385 (see People v. Carmony, supra, 33 Cal.4th at pp. 376-378; People v. Giordano (2007) 42 Cal.4th 644, 659 [Legislature presumed aware of applicable decisional law when enacting legislation]), to adjudge when leniency is in the interest of justice. As the trial court observed: "There is no question that the firearm enhancement under Penal Code section 12022.53 subdivision (d) is a stiff penalty. And there is no question the Legislature intended it to be that way in an appropriate case. This is such a case."
We see no error.
Disposition The judgment is affirmed.
We concur: BLEASE, Acting P. J., RENNER, J.