People v. Carter CA2/1

Filed 11/10/21 P. v. Carter CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B309411

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA435752)
v.

KEITH CARTER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Gregory A. Dohi, Judge. Affirmed.
Aaron J. Schechter, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Nima Razfar, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________________
 Two years after Keith Carter was sentenced to an
aggregate term of 22 years four months in prison, the California
Department of Corrections and Rehabilitation (CDCR) notified
the superior court that the sentence was unlawful because one
component of it was short by eight months. The court thereafter
held a second sentencing hearing and added the eight months to
Carter’s sentence, bringing it to 23 years. On appeal, Carter
contended the court had no authority to increase a component of
his sentence without reevaluating the whole, and in any event
must be given an opportunity to exercise newly established
discretion to strike a recidivism enhancement. We agreed with
the second contention, declined to reach the first, and affirmed
with a direction to reevaluate Carter’s sentence.
At resentencing upon remand, the trial court declined to
strike prior serious felony enhancements and kept the sentence
unchanged.
Carter contends the court erred by (1) maintaining the
initial aggregate sentence increase of eight months, (2) failing to
reconsider all sentencing choices, and (3) imposing restitution
fines and fees without holding a hearing on his ability to pay
them. He also contends he received ineffective assistance after
counsel failed to request dismissal of a prior strike conviction.
We affirm.
BACKGROUND
In separate cases in 2015, Carter (1) pleaded guilty to
forcible rape (Pen. Code, § 261, subd. (a)(2))1 and (2) was
convicted by a jury of evading a peace officer causing injury (Veh.
Code, § 2800.3, subd. (a)). Division Two of this District affirmed

1 Undesignated statutory references will be to the Penal
Code.

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the evading judgment. (People v. Carter (July 27, 2017, B271107)
[nonpub. opn.].)
In 2015 in the rape case, case No. BA435752, Carter
admitted to a prior serious felony conviction and was sentenced
to state prison for the low term of three years, doubled to six
years as a second strike, plus five years for the prior serious
felony, for a total of 11 years.
In 2016 in the evading case, case No. BA424194, the trial
court found that Carter had suffered a prior strike conviction,
denied his motion to dismiss the strike, and sentenced him to a
total of 19 years in state prison, comprising the upper term of
seven years, doubled to 14 years as a second strike, plus five
years for the aforementioned prior serious felony conviction.
In selecting the high term, the court commented, “The
conduct was extremely reckless. It was captured on video. We
saw the defendant careening [through] three narrow streets in a
residential area at a time of day when you’d expect all kinds of
people, children, to be around. Driving was at such a high
velocity that he flipped an SUV. [¶] The injuries [suffered] by
Ms. Williams were severe. She was hospitalized for three days,
she was in extreme pain, and if I recall correctly, she testified
that she still is traumatized by what happened to her. [¶] . . . .
I’m also noting the defendant’s lengthy criminal history which
spans [four] states and goes back to 1986. [¶] It includes six
felony convictions and five misdemeanor convictions.”
After imposing the evading sentence the trial court
revisited the rape sentence pursuant to section 1170.1.2 It

2Section 1170.1 provides in pertinent part: “[W]hen any
person is convicted of two or more felonies, whether in the same
proceeding or court or in different proceedings or courts, . . . and

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subordinated the rape case to the evading case, and where
previously it had doubled the low term of three years in the rape
case, it now reduced that term to one-third of the six-year middle
term, doubled. The court calculated this modified component as
three years four months, which it ordered to run consecutive to
the evading sentence. The court also stayed the five-year serious
felony enhancement imposed in the rape case.
The trial court’s calculation of the subordinate prison term
was in error, as one-third of six years is two years, and double
that is four years, not three years four months, a discrepancy of
eight months.
Two years later, the CDCR informed the trial court of the
calculation error. The court then held another sentencing
hearing at which it corrected the error, which increased Carter’s
sentence by eight months.
Carter appealed from the resulting sentence, contending
the trial court erred in resentencing him by failing to reconsider
the propriety of all components of the aggregate sentence, and
instead merely tacking eight months onto one component. He
also contends that newly-enacted Senate Bill No. 1393 required
that the case be remanded for reconsideration of his recidivism
enhancements. We agreed with the second contention, which
essentially mooted the first, and remanded the matter and
directed the trial court to “reevaluate Carter’s sentence, including
by determining whether to strike” the serious felony prior for

a consecutive term of imprisonment is imposed . . . , the
aggregate term of imprisonment for all these convictions shall be
the sum of the principal term, the subordinate term, and any
additional term imposed for applicable enhancements for prior
convictions [or] prison terms . . . .” (§ 1170.1, subd. (a).)

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purposes of the five-year enhancement imposed under section
667, subdivision (a)(1). We further directed that “[i]f the court
strikes one or both of the enhancements or otherwise changes the
sentence it shall amend the abstract of judgment and forward the
amended abstract of judgment to the Department of Corrections
and Rehabilitation.” (People v. Carter (Feb. 28, 2019, B288591)
[nonpub. opn.].)
Upon remand, Carter’s defense counsel moved to (1) switch
the priority of the rape and evading sentences and (2) strike the
prior serious felony enhancement. The defense and prosecution
each informed the court that it had discretion to resentence
Carter anew.
After a lengthy discussion that included consultation with
court rules, the record, the probation report, and a reporter’s
transcript of proceedings from the rape case, the court observed
that the rape case was “extremely violent” and the evading case
was of an “egregious nature.” The court stated it was “declining
to modify the sentence in any way at this time,” and denied both
of Carter’s motions.
DISCUSSION
A. The Trial Court Properly Corrected the Aggregate
Sentence
Our Supreme Court has held that a court may correct an
unauthorized sentence “whenever the error [comes] to the
attention of the trial court or a reviewing court.” (People v.
Serrato (1973) 9 Cal.3d 753, 763.) An unauthorized sentence “is
subject to being set aside judicially and is no bar to the
imposition of a proper judgment thereafter, even though it is
more severe than the original unauthorized pronouncement.” (Id.
at p. 764.)

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 Here, the trial court initially imposed an aggregate
sentence of 22 years four months, which under the circumstances
was unauthorized under any available sentencing permutation,
i.e., no possible combination of sentencing components could have
resulted in such a sentence. Pursuant to Serrato, therefore, the
court was entitled to correct the sentence to 23 years after being
informed by the CDCR of the calculation error, even though the
correction added eight months to Carter’s sentence.
Carter argues that the eight-month increase ran afoul of
subdivision (d) of section 1170. We disagree.
Section 1170, subdivision (d), provides in pertinent part:
“When a defendant . . . has been sentenced to be imprisoned in
the state prison . . . and has been committed to the custody of
[CDCR] . . . the court may . . . upon the recommendation of the
[CDCR] . . . recall the sentence and commitment previously
ordered and resentence the defendant in the same manner as if
they had not previously been sentenced, provided the new
sentence, if any, is no greater than the initial sentence.” (§ 1170,
subd. (d)(1), italics added; see also People v. Hill (1986) 185
Cal.App.3d 831, 834.)
Relying on People v. Torres (2008) 163 Cal.App.4th 1420,
1432 (Torres), Carter argues that the trial court’s original
miscalculation resulted in an authorizable lenient term, which
section 1170 prevented the court from correcting if such a
correction resulted in a greater sentence.
Torres is inapposite. There, the trial court imposed what it
thought was the upper term of seven years for making criminal
threats, whereas the upper term was actually three years.
(Torres, supra, 163 Cal.App.4th at pp. 1421-1422, 1427.) After
the CDCR informed the trial court of the error, the court applied

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the proper upper term but also imposed gang enhancements it
had previously dismissed, resulting in a sentence of seven years
to life.
The appellate court reversed under section 1170 because
the sentence had increased. In doing so, it observed that the
original seven-year sentence was not strictly illegal because it
“could have been lawfully achieved by imposing the mid term of
two years [for criminal threats] plus the consecutive [gang]
enhancement term of five years.” (Torres, supra, 163 Cal.App.4th
at p. 1432.)
The difference between Torres and the instant case is that
in Torres the original sentence was lawful, whereas here the
original sentence was unlawful. Even Torres recognized in dicta
that a greater sentence would be proper in a scenario where the
trial court’s original sentence “demonstrated legally unauthorized
leniency that resulted in an aggregate sentence that fell below
that authorized by law.” (Torres, supra, 163 Cal.App.4th at pp.
1432-1433.)
That latter scenario is what happened here: The trial court
miscalculated the subordinate term, resulting in a reduced
sentence that was unauthorized under any permutation.
Accordingly, even under the Torres dictum such an error may be
corrected even if the resulting sentence is longer than the original
one. (Torres, supra, 163 Cal.App.4th at p. 1432.)
Torres also observed in dicta that the seven-year sentence
at issue there, which could have been achieved lawfully in a
permutation other than that upon which the trial court relied,
“did not fall below the mandatory minimum sentence and was
therefore not a legally unauthorized lenient sentence.” (Torres,
supra, 163 Cal.App.4th at p. 1432.) Characterizing this dictum

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as Torres’s “core holding,” Carter argues that an erroneous
sentence may be corrected upward only where the mistake “fall[s]
below the mandatory minimum sentence.”
This dictum was not Torres’s holding but even if it were, it
would run afoul of Serrato (which Carter materially ignores), in
which our Supreme Court held that an “unauthorized” sentence
may be corrected upward. The Supreme Court did not limit its
holding to a sentence that falls below some mandatory minimum.
B. The Scope of Resentencing Upon Remand Was
Proper
In our prior opinion we stated that the trial court “may
reconsider all sentencing choices” in reevaluating Carter’s
sentence, and in the disposition directed the court to “reevaluate
Carter’s sentence, including by determining whether to strike the
enhancements imposed under section 667, subdivision (a)(1).”
(People v. Carter, supra, B288591, at pp. 5-6.) We also directed
that “[i]f the court strikes one or both of the enhancements or
otherwise changes the sentence it shall amend the abstract of
judgment and forward the amended abstract of judgment to the
Department of Corrections and Rehabilitation.” (Id. at p. 6,
italics added.)
As noted above, after initially sentencing Carter in the
evading case, the court revisited the rape sentence, ultimately
subordinating the rape sentence to the evading sentence
pursuant to section 1170.1, which had the effect of taking one
year off the base sentence.
At the second resentencing, Carter’s defense counsel moved
to reverse the principal and subordinate terms, making the rape
term the principal sentence and the evading term the

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subordinate sentence, which would reduce the aggregate sentence
further. The court declined to do so.
The court then discussed resentencing pursuant to our
remand, stating “So my thought is basically the only issue that
remains is whether I should strike the five-year term, and that’s
basically what the Court of Appeals [sic] said. . . . So basically,
the only issue that remains is whether I should strike the five-
year prior.”
Carter argues that the trial court’s comment that the “only
issue” was the five-year enhancement suggest it limited itself to
reconsidering solely that enhancement, and failed to reconsider
all discretionary sentencing choices on remand, thus abusing its
resentencing discretion and violating our mandate to reconsider
every component of the sentence. We disagree, for several
reasons.
First, the fact that the trial court considered, at length,
switching the priority of the rape and evading cases establishes
that it was looking to the aggregate sentence, not only to the five-
year enhancement. Its comment that the five-year term was the
“only remaining issue” was not to limit consideration to that term
but to distinguish the next phase of the discussion from the
preceding discussion about principle versus subordinate terms.
Second, the defense and prosecution each informed the
court that it had discretion to resentence Carter anew, and
nothing in the proceedings suggested there was any limit to that
discretion. Third, the trial court was well conversant with
sentencing rules, and was armed with our direction on remand
that if the sentence changed with respect to the five-year
enhancement “or otherwise,” the court should so inform the
Department of Corrections and Rehabilitation. All of this

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suggests the court was well aware of its pan-sentencing
discretion, and nothing suggests the contrary.
C. Court-Imposed Assessments and Fines Did Not
Violate Due Process
The trial court imposed several fines and fees without a
hearing to determine Carter’s ability to pay them. Carter argues
that imposition of these fines and fees was unconstitutional
absent such a hearing pursuant to People v. Dueñas (2019) 30
Cal.App.5th 1157, 1168. We disagree.
Due process precludes a court from imposing fines and
assessments only if to do so would deny the defendant access to
the courts or if the defendant’s crimes were driven by poverty.
(People v. Hicks (2019) 40 Cal.App.5th 320, 329; see People v.
Caceres (2019) 39 Cal.App.5th 917 [declining to apply Dueñas’s
“broad holding” beyond its “unique facts”].)
Here, imposition of assessments and fees in no way
interfered with Carter’s right to present a defense at trial or to
challenge the trial court’s rulings on appeal; they were imposed
after trial. And Carter’s crimes—unlike Mrs. Duenas’s multiple
convictions for driving without a license she could not afford—
were not driven by poverty. The court therefore did not violate
his due process rights by imposing the assessments and
restitution fine without first ascertaining his ability to pay them.
D. Carter Fails to Establish Ineffective Assistance of
Counsel
As noted above, in the evading case Carter moved to
dismiss a prior strike, which the trial court denied. He did not
originally move to dismiss that same strike in the rape case, and
upon remand opted not to move to dismiss the strike as to either
case. Carter argues that his attorney’s decision not to move to

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dismiss the strike in either case upon remand constituted
ineffective assistance of counsel. We disagree.
“To prevail on a claim of ineffective assistance of counsel, a
defendant ‘ “must establish not only deficient performance, i.e.,
representation below an objective standard of reasonableness,
but also resultant prejudice.” ’ [Citation.] A court must indulge a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. [Citation.] Tactical
errors are generally not deemed reversible, and counsel’s
decisionmaking must be evaluated in the context of the available
facts. [Citation.] To the extent the record on appeal fails to
disclose why counsel acted or failed to act in the manner
challenged, we will affirm the judgment unless counsel was asked
for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation. [Citation.]
Moreover, prejudice must be affirmatively proved; the record
must 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.’ ” (People v. Maury
(2003) 30 Cal.4th 342, 389.)
Carter attaches to a companion petition for writ of habeas
corpus his remand counsel’s declaration that she had no tactical
reason not to move to dismiss his prior strike, but “simply did not
consider the option.”
But no objective reason exists to suppose a reasonable
attorney upon remand would have filed a motion to dismiss a
prior strike. The trial court had already denied such a motion in
2016, denied a similar motion to strike a prior serious felony

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enhancement in 2018, and stated it did not intend to modify the
sentence in any way.
Further, the record reflects no materially different
circumstances nor any indication that the court had changed its
mind. Carter argues that his prison record from the 2016
sentencing to the 2020 resentencing was exemplary, but there is
no indication that the trial court, which in 2020 denied Carter’s
motion to dismiss a prior serious felony enhancement, would
have considered four years of exemplary prison time to have
altered its original estimation that Carter fell within the spirit of
the Three Strikes laws.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.

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