Filed 7/7/21 P. v. Carter CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B305863
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. PA054745
v.
KIMBERLY CARTER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael Terrell, Judge. Reversed and remanded
with directions.
Tanya Dellaca, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr. and Eric J. Kohm,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 2008, defendant Kimberly Carter pled no contest to
voluntary manslaughter and was sentenced to 27 years in prison.
In 2020, the Secretary of the Department of Corrections and
Rehabilitation (CDCR) asked the trial court to recall and reduce
Carter’s sentence because her conduct in prison had been
exemplary. During her 12 years of confinement, Carter had never
violated prison rules. To the contrary, she had participated in a
variety of educational, occupational, and self-help programs;
earned her GED and started college; and received several
commendations, including for coming to the aid of a correctional
officer during a medical emergency. After the court summarily
rejected the Secretary’s recommendation, Carter’s attorney
requested a hearing and the opportunity to present additional
information relevant to the court’s decision. The court denied
both requests, and Carter appeals. We conclude that the court
abused its discretion by declining Carter’s request to submit
additional evidence. We therefore reverse and remand for further
proceedings.
BACKGROUND
1. Underlying Facts and Sentencing
In his letter to the trial court, the CDCR Secretary
described the underlying facts of this case as follows:
“On March 7, 2006, Carter’s mother returned home and
found the victim lying on the floor of the master bedroom,
motionless and unresponsive. The victim appeared dead and
Carter was not in the area, which prompted Carter’s mother to
call the police. Carter’s mother informed police that [Carter told
her] to not come home the night before because [Carter] wanted
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some alone time to work out some personal problems with the
victim. While her mother was talking to officers, Carter’s sister
called their brother and was told that he had spoken with Carter,
who admitted she knew of the death because she ‘did it’ and was
going to kill herself.
“On March 9, 2006, an investigating officer received a call
from KNBC News and informed them that Carter wanted to turn
herself in to the station in front of the camera. Officers escorted
the news crew to a hotel, where Carter met with a reporter.
Carter was taken into custody without incident. It was
determined the victim died of a single gunshot wound to the
chest.”
By second amended information dated July 28, 2008,
Carter was charged with one count of murder (Pen. Code,1 § 187,
subd. (a); count 1) and one count of criminal threats (§ 422;
count 2). As to count 1, the information alleged Carter personally
used a handgun, personally discharged a handgun, and
personally discharged a handgun causing death. (§ 12022.53,
subds. (b)–(d).) The information also alleged Carter had been
convicted of bank robbery in 2002, and that the conviction
constituted both a strike prior (§§ 667, subds. (b)–(i), 1170.12,
subds. (a)–(d)) and a serious-felony prior (§ 667, subd. (a)(1)).
On August 4, 2008, the information was amended by
interlineation, and Carter pled no contest to one count of
voluntary manslaughter (§ 192, subd. (a); count 3) and admitted
the use of a firearm (§ 12022.5, subd. (a)) and her prior
conviction. The court sentenced Carter to an aggregate term of 27
years in state prison: the mid-term of six years, doubled for the
1 All undesignated statutory references are to the Penal Code.
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prior strike, plus 10 years for the firearm enhancement and five
years for the serious-felony prior. The remaining counts and
allegations were dismissed. Carter was later ordered to pay
$9,767.20 in victim restitution.
2. The Secretary’s Recommendation to Recall Carter’s
Sentence and Resentence Her
On January 9, 2020, the CDCR Secretary sent a letter to
the trial court. After describing the letter’s purpose as
“provid[ing] the court with the authority to resentence [Carter]
pursuant to Penal Code section 1170, subdivision (d)(1),” the
Secretary explained: “As Secretary of CDCR, I take my obligation
to public safety very seriously and choose only to make
exceptional conduct referrals when an inmate’s behavior, while
incarcerated, demonstrates a sustained compliance with
departmental rules, regulations and requirements as well as
prolonged participation in rehabilitative programming. These
inmates have not only exhibited exceptional conduct through
their ability to obey rules and regulations, but have also
demonstrated a commitment to their rehabilitation through
voluntary participation in self-help programs.”
Carter, the letter continued, “is commended for remaining
disciplinary free since her arrival to CDCR on August 12, 2008.
Carter is currently assigned to the California Prison Industry
Authority Career Technical Education—Computer Coding.
Inmate Carter also participates in voluntary e-learning, College
(onsite and correspondence) and The Urban Ministry Institute.
Carter has taken advantage of various self-help and self-
awareness group programs available to her and has attained a
Choice Theory and Addiction Coaching certification. She has also
received four Laudatory Chronos, from staff and self-help
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sponsors, including assisting a Correctional Officer during a
medical emergency. Inmate Carter met the standards of the
General Educational Development (GED) and received her High
School Equivalency Certificate at the California Institution for
Women.” Accordingly, the Secretary recommended “the inmate’s
sentence be recalled and [s]he be resentenced.”
The Secretary included five pages of additional
information, including three single-spaced pages detailing
Carter’s many educational, vocational, and mental health
achievements during her incarceration—starting the moment she
arrived in prison. The letter also noted that Carter had 17
relatives and associates, of whom 15 were approved for visits.
3. The Trial Court’s Ruling on the Secretary’s
Recommendation
In a minute order dated February 28, 2020, the court2
responded to the Secretary’s letter: “The court is in receipt of a
letter dated January 9, 2020 from the Office of the Secretary of
the Department of Corrections [and Rehabilitation]. The
correspondence states that inmate Carter received a Penal Code
section 12022.5(a) and a Penal Code section 667(a) sentence
enhancement attached to her Penal Code section 192(a) offense,
resulting in a total sentence of 27 years in state prison. The
correspondence further states that the court may want to re-
consider the sentence pursuant to Penal Code section 1170(d),
especially in light of inmate Carter’s stellar record while
incarcerated. The court has reviewed defendant’s file and
2Although the Secretary sent the letter to the judge who had taken the
plea and sentenced defendant in 2008, that judge had since retired,
and the matter was assigned to a different bench officer.
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concluded that defendant’s sentence will not be modified. The
court thanks the Department of Corrections [and Rehabilitation]
for its input.”
Early the next week, at defense counsel’s request, the court
placed the matter on calendar to create a more complete record.
At the proceeding, the court explained its view that CDCR’s letter
did not trigger the right to a hearing, the right to resentencing, or
“any sort of obligation by the court to get input from counsel.”
Instead, the court’s view was that the “only obligation the court
has when one of these letters comes in is to carefully review the
file and determine whether a resentencing is appropriate.” To do
that, the court’s practice was to “go back and look at the facts of
the case [and] determine whether the sentencing was somehow
outside the normal bounds of what should have occurred.”
The court noted that the victim had suffered more than one
gunshot wound and that Carter had hidden the firearm, then fled
the scene. Carter subsequently confessed to her brother and
surrendered to the news media rather than to the police. The
court summarized its view that “27 years for this kind of crime is
not outside the range of normal standards. Certainly, the mid-
term for the base offense is not outside any sort of thing that’s—
that typically would be done.”
Although the law had changed since 2008 to allow the court
the discretion to strike the section 12022.5 enhancement, the
court explained that “even with the change of law, all that does is
give the court discretion not to impose it; it doesn’t make the
imposition of it illegal. And here, because a firearm was shot
more than one time, because it was hidden, I think that is
appropriate to include that firearm enhancement.” Finally, “the
last five years [of Carter’s sentence] was for the prior, so overall,
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[the court] did not view this case as a case in which a
resentencing was appropriate even given Ms. Carter’s stellar
record while she’s been incarcerated.”
After again emphasizing that it was not holding a hearing,
the court gave defense counsel an opportunity to make a record
for appellate review. Defense counsel made two requests. She
asked the court to allow her to submit a brief on the issue of
whether Carter was entitled to a hearing, and she asked the
court to allow her to provide additional context that might change
the court’s mind about recalling Carter’s sentence.
Defense counsel, who had represented Carter in 2008,
explained that “the reason there was the ability to have a plea
agreement to the voluntary manslaughter at that time based on
some of the facts the court recited is because of some of the
supplemental information that [counsel had] provided to the
District Attorney’s Office at that time.
“Had this case gone to trial, [counsel] expected to call
witnesses and to present evidence that [Carter] was a victim of
domestic violence at the hands of the victim in this case—alleged
victim—and that, in fact, [Carter] was a victim of sexual assault
the day of the shooting. And so this is evidence [counsel had]
presented to the prosecutor, which allowed for the offering of a
determinat[e] sentence in this case.”
Counsel acknowledged that Carter surrendered to a
television station rather than to the police, but explained that
Carter was “an African-American woman, who, at the time,
stated her reason for surrendering to a T.V. station was because
she was afraid of being harmed by the police during the
surrender.”
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Notwithstanding these mitigating circumstances, Carter
had shown remorse. She had used all of her prison earnings and
gifts from her family to pay off the $9,767 in victim restitution
awarded in the case. Despite “the very troubled relationship she
had with the victim in this case,” it was important to Carter “to
make amends in that way … .”
But Carter’s self-reflection and accountability were only
parts of a much larger rehabilitative effort. So, in addition to
placing the facts of Carter’s underlying offense in context, counsel
emphasized that “since [Carter’s] entry into the prison, she’s not
had a single disciplinary write-up. And not only that, she has
[also] done every amount of programming that she possibly could
have done given her sentence and the institution she’s in.”
Indeed, the reason Carter was “asking for the court’s mercy on”
the serious-felony prior—which had also been used to double her
sentence under the Three Strikes law—was that the
enhancement foreclosed “the ability to do further programming—
enhanced programming—in the institution where she currently
resides.”
In short, counsel explained that “in this case, we have
somebody who is doing her level best to rehabilitate herself while
within the confines of the state prison. She’s doing it. She’s
proving it. She’s still able to be connected to her family, and there
are literally classes, educational and self-improvement classes—
particularly as a woman with a trauma history—that she cannot
take advantage of while in state prison with the [section] 667(a)
prior still as part of her sentence.”
Counsel sought the opportunity to present the court with
evidence supporting her representations. In response, the
prosecutor said only that he agreed with the court that
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section 1170, subdivision (d)(1) did not require the court to hold a
hearing and he “would submit with the court’s earlier
statements.”
The court concluded: “As I said before, I’m not even sure
that the defendant is entitled to this proceeding this morning. I
did it out of respect for [defense counsel], and we have a record. I
have let everyone make their record. The court is confident or
comfortable with its determination and its conclusion that no
further hearing is necessary, so that’s the ruling of the court, but
there is a record now if [defense counsel] wishes to proceed with
it.”
Carter filed a timely notice of appeal.
DISCUSSION
Carter contends the court abused its discretion by rejecting
her request to provide it with additional information relevant to
the Secretary’s recommendation to recall her sentence. We agree.
1. Legal Principles and Standard of Review
“ ‘Section 1170(d) is an exception to the common law rule
that the court loses resentencing jurisdiction once execution of
sentence has begun.’ [Citations.]” (People v. McCallum (2020) 55
Cal.App.5th 202, 210 (McCallum).) The statute provides in
relevant part: “When a defendant … has been sentenced to be
imprisoned in the state prison … the court may … at any time
upon the recommendation of the [S]ecretary or the Board of
Parole Hearings in the case of state prison inmates … recall the
sentence and commitment previously ordered and resentence the
defendant in the same matter 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).)
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Administrative regulations, in turn, set out the
circumstances under which the secretary may exercise his or her
discretion to recommend that the court recall an inmate’s
sentence. (Cal. Code Regs., tit. 15, § 3076.1.) One such
circumstance is when there is a change in the sentencing law.
(Id., § 3076.1(a)(3).) But despite this authority—and indeed, since
Carter’s sentencing, 15 years’ worth of formerly-mandatory
sentence enhancements in her case have become discretionary—
that was not the basis for the recommendation here. Instead, the
Secretary recommended recall and resentencing based on
Carter’s “exceptional conduct” while incarcerated. (Id.,
§ 3076.1(a)(1).)
“An inmate may be considered for referral” for “exceptional
conduct” “if their behavior while incarcerated demonstrates
sustained compliance with departmental regulations, rules, and
requirements, as well as prolonged participation in rehabilitative
programming.” (Cal. Code Regs., tit. 15, § 3076.1(b)(1).) Inmates
are not eligible until they have “served 10 continuous years or
50% of their current commitment, whichever comes first.” (Id.,
§ 3076.1(b)(2)(B).) The Secretary must elect whether to
recommend an inmate for recall and resentencing by exercising
his or her “broad discretion” and, if so recommending, must
forward a recommendation letter and cumulative case summary
to the sentencing court and provide a copy to the inmate. (Id.,
§§ 3076.1(e)(2), 3076.1(e)(4).)
“In deciding whether to recall a sentence under
section 1170, subdivision (d)(1), the trial court may exercise its
authority ‘for any reason rationally related to lawful sentencing.’
[Citation.]” (McCallum, supra, 55 Cal.App.5th at p. 210.) The
statute instructs the court, when resentencing a defendant, to
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“apply the sentencing rules of the Judicial Council so as to
eliminate disparity of sentences and to promote uniformity of
sentencing. The court resentencing under this paragraph may
reduce a defendant’s term of imprisonment and modify the
judgment, including a judgment entered after a plea agreement,
if it is in the interest of justice.” (§ 1170, subd. (d)(1).) That is, the
court must reevaluate the previously-imposed sentence to ensure
it is still just.
The statute encourages the court to look at justice
holistically by emphasizing that in this context, a sentence
should reflect not just the criminal behavior that sent the inmate
to prison but also how she has spent her time since she arrived.
Thus, it authorizes the court in resentencing a defendant to
consider “postconviction factors, including, but not limited to, the
inmate’s disciplinary record and record of rehabilitation while
incarcerated, evidence that reflects whether age, time served, and
diminished physical condition, if any, have reduced the inmate’s
risk for future violence, and evidence that reflects that
circumstances have changed since the inmate’s original
sentencing so that the inmate’s continued incarceration is no
longer in the interest of justice.” (§ 1170, subd. (d)(1).)
We review the trial court’s decision whether to recall an
inmate’s sentence under section 1170, subdivision (d)(1), for
abuse of discretion. (McCallum, supra, 55 Cal.App.5th at p. 211.)
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2. The court abused its discretion by denying defendant’s
request to present evidence in support of the
Secretary’s recommendation.
Defendant argues the court abused its discretion by
denying defense counsel’s request to present additional
information relevant to its decision. We agree.3
In McCallum, our colleagues in Division 7 held that
although the statutory language of section 1170, subdivision (d),
does not “require a trial court to hold a hearing before acting on a
recommendation by the [S]ecretary for recall and resentencing,”
“in light of [the] substantial right to liberty implicated by the
[S]ecretary’s recommendation to recall [the defendant’s] sentence
[citation], the trial court abused its discretion in denying [him] an
opportunity to present information relevant to the Secretary’s
recommendation.” (McCallum, supra, 55 Cal.App.5th at p. 206.)
Here, as in McCallum, the CDCR Secretary recommended that
the trial court exercise its discretion to recall the defendant’s
sentence. Here, as in McCallum, the defendant sought to present
information relevant to that choice. And here, as in McCallum,
the court denied the defendant’s request and rejected the
Secretary’s recommendation. On these facts, McCallum held that
3 To the extent Carter is requesting a hearing in addition to the ability
to submit additional information, we deny the request. (See McCallum,
supra, 55 Cal.App.5th at pp. 211–216.) And to the extent Carter invites
us to disagree with McCallum and People v. Frazier (2020) 55
Cal.App.5th 858 or to reach her constitutional argument, we decline
the invitation. (See California State Electronics Assn. v. Zeos Internat.
Ltd. (1996) 41 Cal.App.4th 1270, 1274 [courts should avoid
constitutional questions where other grounds are available to dispose
of the case].)
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the trial court abused its discretion. Accordingly, like our
colleagues did in McCallum, we will reverse and remand to allow
the defendant and the prosecution “an opportunity to present
additional information relevant to the [S]ecretary’s
recommendation, and for the trial court in light of this
information and any briefing provided by the parties to exercise
its discretion whether to recall [the defendant’s] sentence.” (Id. at
p. 207.)
In the two paragraphs they devote to the issue, the People
do not argue that McCallum was wrong on this point. Instead,
they maintain that McCallum does not apply to this case because
its “procedural posture … is materially distinguishable from that
here.” The People’s material distinction is that in McCallum,
defense counsel requested a case management conference before
the court summarily rejected the Secretary’s recommendation
whereas in this case, defense counsel asked to submit further
information two court days after the court summarily rejected the
Secretary’s recommendation. Thus, the People insist, defendant’s
request was untimely. The People are mistaken.
To the extent McCallum addresses timeliness at all, it is to
note its irrelevance. On June 4, 2019, McCallum’s attorney
lodged in the trial court a notice of appearance and separate
motion for a case management conference. (McCallum, supra, 55
Cal.App.5th at p. 209.) Although it’s unclear whether those
documents were ever actually filed—and if so, when—they were
both marked “received” on July 8, 2019.4 (Id. at p. 209, fn. 4.) In a
minute order issued the same day—the opinion does not reveal
4The opinion does not reveal the basis for its conclusion that these
documents were lodged over a month before they were received.
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whether it was before or after the documents were received—the
court declined the Secretary’s recommendation. (Id. at p. 209.)
Further complicating matters, and notwithstanding the court’s
service of the order on defense counsel, the minute order noted
that the defendant was not present in court and was not
represented by counsel. (Ibid.)
Presumably, if our colleagues in Division 7 had been
concerned about the temporal relationship between the court’s
minute order and the defendant’s request to submit additional
information, it would have addressed this issue. Instead, the
court demonstrated the timing’s irrelevance by observing in a
footnote: “whether the trial court at the time of its denial of the
Secretary’s recommendation believed McCallum was represented
by counsel does not affect our analysis.” (McCallum, supra, 55
Cal.App.5th at p. 209, fn. 5.) That statement is important
because the notice of appearance and the motion for a case
management conference were lodged on the same day—so if it
doesn’t matter when the trial court learned the defendant had a
lawyer (the notice of appearance), it also doesn’t matter when the
defendant sought the opportunity to submit additional evidence
(the motion).
Ultimately, despite the People’s efforts to obscure its
holding and insert caveats where none exist, McCallum could not
be clearer: “Once [the defendant] requested an opportunity to
respond to the [S]ecretary’s recommendation by requesting a case
management conference and possible briefing and presentation of
evidence, the trial court’s decision simply to ignore [the
defendant’s] request to provide input on the Secretary’s
recommendation was an abuse of discretion.” (McCallum, supra,
55 Cal.App.5th at p. 216, fn. omitted.) And again: “[U]pon a
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request by [the defendant], the trial court was required to
consider evidence in support of the Secretary’s recommendation.”
(Id. at p. 217.)
In short, there is only one meaningful difference between
this case and McCallum: Here, defense counsel painted a detailed
picture of the evidence she would offer if given the chance; in
McCallum, the court was forced to speculate about what that
evidence might show. (McCallum, supra, 55 Cal.App.5th at
pp. 207, 217–218.) But either way, the court abused its discretion.
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DISPOSITION
The trial court’s order declining to recall Carter’s sentence
is reversed. The matter is remanded to allow the parties to
submit information relevant to the circumstances of the crime
and the Secretary’s recommendation and to provide briefing on
whether the court should follow the Secretary’s recommendation.
Upon receipt of this information, the court is to exercise its
discretion whether to recall and resentence Carter. We express no
opinion about how the court should exercise that discretion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
KALRA, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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