People v. Cater CA1/3 ( 2022 )

Filed 6/28/22 P. v. Cater CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 THREE
THE PEOPLE,
Plaintiff and Respondent,
A163499
v.
CLARENCE DESHAWN CATER, (Contra Costa County
Super. Ct. No. 5-131405-3)
Defendant and Appellant.
Defendant Clarence Deshawn Cater appeals from a trial court order at
a resentencing hearing declining to dismiss or strike firearm enhancements
pursuant to the recent changes to Penal Code section 12022.53.1
Defendant was convicted of murder (§ 187), second degree robbery
(§§ 211, 212.5), and shooting at an occupied vehicle (§ 246). The jury found
true certain gang and firearm enhancements (§§ 186.22, subd. (b)(1),
12022.53, subds. (c)–(d)), as well as felony-murder and gang-related special
circumstances (§ 190.2, subd. (a)(17) & (22)). The court sentenced defendant
to prison for life without the possibility of parole, plus 50 years, which
included enhancements imposed pursuant to section 12022.53,
subdivisions (c) and (d).
1 All further statutory references are to the Penal Code.
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In 2019, a different panel of this court affirmed defendant’s convictions,
but remanded for resentencing so the superior court could exercise its newly
afforded discretion to strike or dismiss the firearm enhancements pursuant to
a recent amendment to section 12022.53, subdivision (h). (People v. Cater
(May 29, 2019, A146678) [nonpub. opn.].)2
On August 6, 2021, the trial court held a hearing and heard arguments
concerning whether to strike the firearm enhancements. Both parties
submitted the matter. On the same day, the court filed a written decision
declining to dismiss or strike the firearm enhancements based on the
particular facts of the case. The court indicated it had considered “all
pleadings filed,” a recent memorandum addressing defendant’s mitigating
factors for future parole hearings pursuant to People v. Franklin (2016) 63
Cal.4th 261, arguments by counsel, and the evidence presented at trial.
While acknowledging that defendant had just turned 18 years old before the
commitment offenses and had grown up in a violent and abusive
environment, the court emphasized that defendant had a prior juvenile
record and was the actual shooter and an active participant in the robbery,
and that the evidence at trial showed the shootings were gang related and
unprovoked. Defendant timely filed a notice of appeal.
Defendant’s court-appointed appellate counsel filed a brief raising no
issues and seeking our independent review of the record pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende). Accompanying that brief is a
declaration from counsel indicating that he wrote to defendant stating his
intent to file a Wende brief, “informed [defendant] the court might allow him
to file a supplemental brief,” and sent him the transcripts of the record on
2 The facts underlying the offenses are set out in our prior opinion, and
so we will not restate them here.
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appeal. A proof of service accompanying the brief indicates it was served on
defendant by mail on April 15, 2022. More than 30 days has elapsed, and
defendant has not filed a supplemental brief.
A threshold question in this case is whether Wende requires our
independent review of the record. Under established case law, Wende review
is not required “other than in the first appeal of right from a criminal
conviction.” (People v. Serrano (2012) 211 Cal.App.4th 496, 500 (Serrano);
Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536–537.) Here, defendant
acknowledges this limitation, but urges us to undertake a Wende review in
light of a review-granted case pending in the Supreme Court that will
address the issue of Wende procedures in appeals from orders denying
postconviction relief. (People v. Delgadillo (Nov. 18, 2020, B304441) [nonpub.
opn.], review granted Feb. 17, 2021, S266305).)
Of course, an order granting review does not reflect the views of the
justices concerning the merits of a case. But though we could have dismissed
the appeal given defendant’s failure to personally file a supplemental brief
(see Serrano, supra, 211 Cal.App.4th at p. 503), in an abundance of caution
we have exercised our discretion to independently review the record for
potentially arguable issues. Based on our review, we requested the parties to
address what impact, if any, People v. Tirado (2022) 12 Cal.5th 688 (Tirado)
has on this case and whether defendant is entitled to another resentencing
hearing in which the trial court may exercise its discretion as clarified by
Tirado.
In short, Tirado was a Supreme Court decision issued several months
after defendant’s August 2021 resentencing hearing and while this appeal
was pending. Tirado settled a split among the Courts of Appeal by holding
that a trial court has the discretion to not just strike a greater charged
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section 12022.53 enhancement, but also to impose a lesser uncharged
section 12022.53 enhancement where the facts supporting that lesser
enhancement were alleged in the accusatory pleading and admitted or found
true by the jury. (Tirado, supra, 12 Cal.5th at pp. 696, 699–700.)
In response to our request for supplemental briefing, defendant filed a
brief arguing that the trial court’s statements at his resentencing hearing
suggest it did not understand that aside from striking a section 12022.53
enhancement completely, it could instead impose one of the lesser
enhancements. Defendant contends he is entitled to a remand for
resentencing so the court can decide whether to strike the firearm
enhancements with a full understanding of the scope of its discretion.
The People acknowledge Tirado was filed after defendant’s
resentencing hearing and does not dispute that the record suggests the trial
court did not understand the full scope of its discretion as clarified in Tirado.
Nonetheless, the People contend that defendant forfeited his claim by failing
to seek imposition of a lesser enhancement given the split in authority that
precipitated Tirado at the time of the resentencing hearing.
Generally, “[a] party in a criminal case may not, on appeal, raise
‘claims involving the trial court’s failure to properly make or articulate its
discretionary sentencing choices’ if the party did not object to the sentence at
trial.” (People v. Gonzalez (2003) 31 Cal.4th 745, 751.) “In determining
whether the significance of a change in the law excuses counsel’s failure to
object at trial, we consider the ‘state of the law as it would have appeared to
competent and knowledgeable counsel at the time of the trial.’ ” (People v.
Black (2007) 41 Cal.4th 799, 811.)
At the time of defendant’s 2021 sentencing hearing, the vast majority of
appellate decisions held that a trial court had no authority to impose a lesser
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enhancement. (See, e.g., People v. Hoang (2021) 66 Cal.App.5th 1020, 1024,
review granted Sept. 29, 2021, S270553; People v. Delavega (2021) 59
Cal.App.5th 1074, 1087, review granted April 14, 2021, S267293; People v.
Valles (2020) 49 Cal.App.5th 156, 166–167, review granted July 22, 2020,
S262757; People v. Garcia (2020) 46 Cal.App.5th 786, 790–794, review
granted June 10, 2020, S261772; People v. Yanez (2020) 44 Cal.App.5th 452,
459, review granted Apr. 22, 2020, S260819; People v. Tirado (2019) 38
Cal.App.5th 637, 643, review granted Nov. 13, 2019, S257658.) Thus, we
would not have expected competent and knowledgeable counsel to ask the
court to impose a lesser enhancement. But even assuming the claim was
forfeited, we exercise our discretion to address it. (People v. Anderson (2020)
9 Cal.5th 946, 963.)
“ ‘Defendants are entitled to sentencing decisions made in the exercise
of the “informed discretion” of the sentencing court. [Citations.] A court
which is unaware of the scope of its discretionary powers can no more
exercise that “informed discretion” than one whose sentence is or may have
been based on misinformation regarding a material aspect of a defendant’s
record.’ [Citation.] In such circumstances, we have held that the appropriate
remedy is to remand for resentencing unless the record ‘clearly indicate[s]’
that the trial court would have reached the same conclusion ‘even if it had
been aware that it had such discretion.’ ” (People v. Gutierrez (2014) 58
Cal.4th 1354, 1391.) Here, the record does not clearly indicate that the trial
court understood its discretion as later illuminated by Tirado, supra, 12
Cal.5th 688. Moreover, despite the People’s contention otherwise, we see no
clear indication in the record that the trial court would not have considered
reducing the enhancements. Because we cannot say with confidence what
action the court would have taken with full knowledge of its discretion, we
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believe a remand for resentencing is appropriate. We express no opinion as
to how the trial court should exercise its discretion on remand.
DISPOSITION
The order of the trial court declining to dismiss or strike the firearm
enhancements in this case is conditionally reversed. This matter is
remanded for resentencing so that the trial court may exercise its full
discretion as recently clarified by the California Supreme Court in Tirado,
supra, 12 Cal.5th 688. Should the court decline to strike or modify an
enhancement under section 12022.53, then the court’s prior order shall be
reinstated and stand affirmed. Should the court order a firearm
enhancement stricken and/or modified, the court shall resentence defendant
accordingly and forward a new abstract of judgment to the Department of
Corrections. In all other respects, the judgment is affirmed.
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_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Tucher, P.J.
_________________________
Petrou, J.
A163499/People v. Cater
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