P. v. Carter
Filed 11/5/13 P. v. Carter CA2/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THREE
>
THE PEOPLE, Plaintiff and Respondent, v. Will Scott Carter, Defendant and Appellant. | B246024 (Los Angeles County Super. Ct. No. TA121573) |
APPEAL from
a judgment of the Superior Court
of
County, Pat Connolly, Judge.
Affirmed.
Heather J.
Manolakas, under appointment by
the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
Defendant and appellant, Will Scott
Carter, appeals from the judgment entered following his plea of no contest to
inflicting corporal injury on a spouse, cohabitant or child’s parent (Pen.
Code, § 273.5, subd. (a))
name="_ftnref1" title="">[1]
and his admissions he previously had been convicted of a serious felony within
the meaning of section 667, subdivision (a)(1) and the Three Strikes law (§
667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served a prior prison
term within the meaning of section 667.5, subdivision (b). The trial court sentenced Carter to 14 years
in prison. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Gwendolyn
Moore had dated and lived with Carter for “[f]ive or six months.†However in December 2011, Moore
ended the relationship, moved out of Carter’s home and into an apartment on South
Central Avenue in Los Angeles. Carter did not move with Moore
and never lived with her at the South Central Avenue
address.
On the
evening of January 9, 2012, Moore
was at home with her daughter’s boyfriend, a man named Jesse Hendley. Hendley was living with Moore and Moore’s
daughter at the time.
At approximately 9:00 p.m., Carter went to Moore’s
South Central Avenue
apartment. When Moore
opened the door and saw Carter she was surprised. He had told Moore
he would be coming to visit on another day.
Carter, who was still dressed in his work clothes and had his “rolling
bag†with him, asked Moore why she
had not returned his calls. Carter then
entered the apartment, sat down and began to talk about why he and Moore should
“get[] back together.†Moore
responded, “ ‘No, we still need a break.
We still need to take time to get . . . things together. You need to get yourself together, and I need
to get myself together.’ †Moore’s
comment upset Carter and he asked if he could use Moore’s
phone. Carter then called his sister and
asked her, “ ‘How many times did I try to call [Moore]?’ â€
When he finished speaking with his
sister, Carter looked “mad†or “sad.†He
got up and went to the restroom and, when he returned, he asked Moore who else
was at home. Moore, who “felt like [she]
didn’t owe [Carter] an explanation [regarding] why [or whether anyone] was
there,†told Carter she was home alone.
Carter got up and began to pace
back and forth, then stopped and “stood over†Moore who was sitting on the
couch and “playing with [her] phone.†Carter, who still sounded upset, told Moore
she was going to help him take his things home.
Moore stated she was not going to help Carter. Moore continued, “ ‘What does it look
like[.] [M]e getting on the bus taking
your things home, helping you?’ â€
Carter, who had moved to the middle
of the room, was pacing back and forth, looking for a box. He told Moore, “ ‘You put all my stuff in a
box. Find [the] box.’ †At that point, Carter moved toward Moore,
stood over her and again told her she was going to help him. When he was standing within inches of Moore, Carter
made his hands into fists and “moved them sort of back and forth left to right,
just a few inches at a time.†Carter
then retrieved a screwdriver from his back pocket and hit Moore with it on the
left side of her face. Although he
struck her only once with the screwdriver, Carter continued to hit Moore on the
left side of her face. Moore screamed,
called out for help and attempted to get up from the couch, but Carter kept
pushing her back.
When Hendley heard Moore screaming,
he came out from the bedroom where he had been sleeping and into the living
room. Moore, who was sitting on the
couch, was crying and acting as though she wanted Carter to “get away from her.†When Carter saw Hendley, he backed up and
stopped beating Moore. While the two men
were then “saying something to each other,†Moore got up from the couch, ran to
the door, opened it and ran outside.
Carter ran after Moore, caught up with her and told her to stop
“screaming and hollering.†When Hendley
then came outside, Moore was able to get away from Carter and go back inside
the house. Hendley prevented Carter from
going back inside the apartment and Moore did not see Carter after that. Once they were both inside, Hendley helped
Moore find her phone, which had fallen underneath the couch, and she called
911.
Both police and paramedics
responded to Moore’s call. Carter’s
attack with a screwdriver left what paramedics indicated was “like a paper cut
up under [Moore’s] eye†and they recommended she put an ice pack on it to stop
the bleeding and swelling. As a result
of Carter’s actions, Moore still suffers from soreness around the injury on her
face and at times has a ringing in her ear.
2.
Procedural history.
Following the preliminary hearing,
on February 14, 2012 a two-count information was filed alleging Carter had
committed assault with a deadly weapon (§ 245, subd. (a)(1)) and the
infliction of corporal injury to a spouse, cohabitant or child’s parent (§ 273.5,
subd. (a)).
At proceedings held on March 13,
2012, Carter made a Marsden
motion. Outside the presence of the
prosecutor, Carter indicated that in 1978 he had entered a plea to second
degree murder in violation of section 187.
In 1988, he had been convicted of another “strike†case. However, it was Carter’s understanding the
Three Strikes law did not go into effect until much later, in the early 1990’s,
and he did not understand why it was being applied to him. The trial court explained the Three Strikes
law was retroactive and applied to all qualifying prior convictions. Although under some circumstances a trial
court had the ability to “strike†a prior, particularly if it was very old,
since Carter’s 1978 conviction had been for murder, it was unlikely any court
would strike that conviction. Moreover,
the trial court pointed out Carter had a second strike from “just . . .
a couple [of] years ago.†He had
willfully threatened to commit a crime which would result in death or great
bodily injury to another in violation of section 422. Carter, however, insisted that as part of his
plea agreement the violation of
section 422 was not to be considered a strike.
Carter asserted the transcript of the plea proceedings indicated “ ‘and
no strike.’ †Defense counsel, who
had reviewed the transcript of both the plea and sentencing proceedings,
disagreed with Carter. When the trial
court then reviewed the transcript of the plea and sentencing proceedings, it
too concluded Carter was mistaken. The
trial court indicated there was nothing in the record to indicate Carter’s
prior conviction of section 422 was not to be considered a strike.
In addition to the misunderstanding
regarding strikes, Carter indicated that on two occasions his counsel had told
him she would come to see him. She,
however, had failed to “show up†either time. Carter also felt there was a “conflict of
interest†because the victim in this matter was a female and he believed his
counsel, who was also female, was working “against [him], instead of trying to
help [him.]â€
In response, defense counsel
explained that, before the Marsden
hearing, Carter had asked her to make a motion to strike his prior
convictions. Counsel had explained to
Carter that such a motion was to be dealt with at sentencing or if he decided
to negotiate a plea. In addition, Carter
had asked counsel to “file a 995 [motion] regarding the screwdriver.†Counsel had informed Carter she did not believe
such a motion would be appropriate.
The trial court addressed Carter
and indicated it had known defense counsel for several years. The court then noted “the one thing that she
does do is protect her clients.†The
court continued: “And it doesn’t matter
if you’re a male. It doesn’t matter if
you’re a female. I’ve never seen
[counsel] do anything that would make me think . . . she is sexist,
or because of the nature of these charges believes that you’re a bad guy . . . . [¶] As
a matter of fact, the exact opposite is true. . . . [¶] . . . [¶]
As far as her not showing up, I don’t know if that was a
miscommunication, but I can tell you this.
[Counsel] handles a lot of cases just in this court alone, let alone
what she has outside. And if I were sitting in your seat right now . . . not
only would I feel very comfortable . . . [I would recognize] [s]he
knows the court. She knows how to handle
her cases.†The trial court then
indicated that, when it referred to “this court,†it was referring to himself
“and the other judges in [the] building.
She understands what the DA’s office will do and won’t do. She understands what is in your best interest . . . .â€
The trial court then indicated, no
matter how old it was, Carter’s murder conviction would likely never be
stricken. With regard to his conviction
of threatening to commit a crime in violation of section 422, even if the court
were to strike the conviction under the Three Strikes law, both the murder and
the threat to commit a crime were “five year priors that ha[d] to be imposed.†The trial court, accordingly, informed Carter
he was “not talking about a little bit of time.†The court then denied Carter’s
to come back inside the courtroom.
After an unreported discussion was
held at the bench, the trial court addressed Carter and informed him the People
had made an offer which was less than the court would give him. The trial court continued: “Beyond that, though, you also have a
situation where the People are going to be filing an amended information, and
they’re also going to be, I would assume, having that offer go up.†The trial court then told Carter the People’s
offer was for 14 years in prison. The
court also informed Carter that, if he were to go to trial, all things
considered he was “going to be looking at 35 years to life.â€
Defense counsel indicated, although
they intended to file an amended information, the People would “allow [their]
offer [of 14 years] to remain open until [the following] Tuesday,†March 20. The trial court then addressed Carter and
stated: “Mr. Carter, I expect you
to think about these things. When I
bring you back on March 20th, we’re not going to spend a half hour on
it. We’re going to spend a minimum amount
of time, and you’re either going to take that deal or . . . we’ll be putting it
over for trial.â€
On March 20, 2012, the People filed
an amended information. In count 1, it
was alleged Carter had committed the serious felony of assault with a deadly
weapon (§ 245, subd. (a)(1)) and in count 2 it was alleged he had
committed the felony of inflicting corporal injury on a spouse, cohabitant or
child’s parent (§ 273.5, subd. (a)). It
was further alleged as to both counts that they were serious, violent or required
registration pursuant to section 290, subdivision (c) and that time spent in
custody for the offenses was required to be served in state prison (§ 1170,
subd. (h)(3)). It was also alleged that
in the commission or attempted commission of the two offenses, Carter had
personally used a deadly and dangerous weapon, a screwdriver, causing the
offenses to be serious felonies within the meaning of section 1192.7,
subdivision (c)(23). With regard to both
counts, the information alleged Carter had suffered prior convictions for two
serious felonies within the meaning of section 667, subdivision (a)(1), and had
served prison terms for the offenses within the meaning of section 667.5,
subdivision (b). In addition, as to
count 1 the information alleged Carter had suffered two prior serious or
violent felony convictions or juvenile adjudications within the meaning of the
Three Strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)).
After hearing the charges alleged
in the amended information, Carter decided to enter a plea. Before doing so, Carter indicated he wished
to, over defense counsel’s adamant objection, address the trial court and present
to the trial court a letter. Carter then
indicated that, after he had been released from jail in 2009, he was required
to go to the morgue to identify his daughter’s body. She had been murdered by her husband and,
after having had this experience, Carter indicated he “wouldn’t dare hurt
anybody, another lady.†The trial court
indicated, after hearing Carter state he would never commit any of the crimes
he had been charged with, the court was not going to accept his plea. The court stated it would recall the case at a
later time.
Later that day, the trial court
again called Carter’s case. After
determining Carter had been given the opportunity to confer with his counsel,
the trial court indicated it would accept his plea. Carter waived his right to a trial by a court
or jury, his right to confront and cross-examine the witnesses against him, his
right to subpoena witnesses to testify in his defense at no cost to him and his
right “against self-incrimination,†then pled no contest to count 2, inflicting
corporal injury to a spouse, cohabitant or child’s parent in violation of
section 273.5, subdivision (a). Carter
then admitted, pursuant to the Three Strikes law (§§ 1170.12, subds.
(a)-(d), 667, subds. (b)-(i)) and section 667, subdivision (a)(1), having
suffered a prior conviction for murder (§ 187) and, pursuant to section 667.5,
subdivision (b), having suffered a prior conviction and prison term for willfully
threatening another within the meaning of section 422 (§ 667.5, subd.
(b)). The trial court, joined by defense
counsel, found there was a factual basis for the plea and admissions, that each
waiver had been “knowingly, understandingly, and explicitly made†and that
Carter had been “convicted†of the offenses. After dismissing all remaining counts and
allegations, the trial court set sentencing and, if necessary, a restitution
hearing for July 11, 2012.
At a hearing held on April 3, 2012,
defense counsel addressed the trial court and indicated Carter had earlier told
her he wished to withdraw his plea.
However, that morning he had informed counsel he no longer wished to do so. Counsel “just wanted to make sure . . .
[Carter] had the opportunity, since he [was there] in court, to address the
court if he so chose . . . .†Carter
then indicated the victim, Moore, had spoken to Carter’s mother and told her
she “was going to come and be honest about what [had] happened. [¶]
[Carter] tried to explain this to [his] lawyer, that if it’s like that,
[he] would stand by withdrawing [his] plea.
[However, when he did so, counsel] got [heated] at [Carter].†Carter indicated his counsel would not “let [him] talk.â€
The trial court indicated it was
not that counsel would not let Carter speak, she was just “telling [him] to be
careful. . . . Even though there [was]
an agreed upon disposition, she [did not] want [Carter] to say anything [that
was] going to hurt [him].†Carter stated
he understood the things his counsel did not want him to say, but he had
nothing to hide. Carter indicated he
“didn’t do it.†The trial court replied,
“Mr. Carter, I’m going to ask you this very simply. Are you making a motion to withdraw your plea
at this time?†Following a discussion
regarding, in particular, the sentence Carter could receive if he were to go to
trial, Carter indicated he was “not going to make the motion.â€
At proceedings held on October 3,
2012, Carter made a second Marsden
motion. Counsel explained Carter had
again indicated to her he wished to withdraw his plea. However, after consulting with the appellate
department at her office, as well as the head deputy, it was counsel’s position
she did “not have a good faith belief that there [was] an appropriate reason to
[file such] a motion.†Neither did
counsel believe she had been ineffective.
Had she thought there had been a genuine conflict, she would have asked
the court to remove her from the case and appoint new counsel.
When Carter addressed the court, he
indicated he believed the district attorney had originally made an offer of
nine years in prison and that his counsel, in collusion with the People, had
agreed they should raise the offer to 14 years in prison. Carter indicated he had then told his counsel
to “get [her] Ku Klux Klan ass out of [t]here†and that he was not taking nine years, much less 14. Carter stated: “I disrespected her. I am being honest about it. I was upset.†Carter asserted his counsel spoke with his
mother and sister, then came back into the courtroom and told him his mother
had said if he did not take “the deal,†he was not going to be able to see her
anymore.
After Carter made a few additional
comments, the trial court told him to “make [his] point because [he had] played
games with [the] court for [too] long.†The trial court told Carter to simply tell it
why he wanted counsel off his case and the court would then make a ruling based
on what Carter had said. Carter
responded: “I really don’t want her off
the case. I want her to fight for
me. That’s all I want her to do. [¶] . . . [¶] [I] [d]on’t want her to sell me out.†After stating his counsel had not “sold [him]
out,†the trial court denied Carter’s motion.
After the district attorney
returned to the courtroom, the trial court indicated the parties were there for
sentencing. Defense counsel informed the
trial court Carter was at that time enrolled in two programs, an anger
management course and a program called “Finding the Way.†Counsel requested the court to “take those
into consideration.†When the prosecutor
then indicated Carter was to be sentenced to 14 years as he had “pled to . . .
count 2 [and] admitted the five-year prior and [one] strike[],†Carter commented,
“I admitted?†The trial court responded,
“You admitted to a five-year prior and one strike.†When Carter stated he did not remember that,
the court indicated, “Well, I do, and so you did[.]â€
The trial court sentenced Carter to
the upper term of four years for his conviction of inflicting corporal injury
on a spouse, cohabitant or child’s parent in violation of section 273.5, subdivision (a),
then doubled the term to eight years pursuant to the Three Strikes law. For Carter’s admission the offense was a
serious felony within the meaning of section 667, subdivision (a)(1), the court
imposed an additional five years.
Finally, for his service of a prior prison term pursuant to section
667.5, subdivision (b), the court imposed an additional one year, for a total
sentence of 14 years in state prison. The court then ordered Carter to pay a $960
restitution fine (§ 1202.4, subd. (b)), a stayed $960 parole
revocation restitution fine (§ 1202.45), a $40 court operations assessment (§ 1465.8,
subd. (a)(1)), a $30 criminal conviction assessment (Gov. Code, § 70373)
and restitution “in an amount that may be determined.†The trial court signed a “Criminal Protective
Order†under which Carter was precluded from having any contact with the
victim, Gwendolyn Moore, for the next 10 years, then awarded Carter presentence
custody credit for 267 days actually served and 40 days of conduct credit.
On November 26, 2012, Carter filed
a timely notice of appeal and request for a certificate of probable cause. In support of his request for a certificate
of probable cause, Carter asserted the trial court improperly denied his
request to withdraw his plea, appointed trial counsel failed to inform him his
“ ‘wobbler’ †assault charge required a finding of an injury amounting to a battery
to qualify as a felony, his prior conviction was not originally deemed a “strikeâ€
and his sentence was “excessive.†Then,
in a letter filed December 19, 2012, Carter asserted his sentence was improper
in that the statutes which permit enhancements may be “unconstitutional,†the
allegations of priors could be “ ‘invalid,’ †and some enhancements may have
been improperly imposed “based upon multiple use of the same facts.†At proceedings held on December 19, 2012, the
trial court indicated it had read and considered the two letters submitted by
Carter and, as they failed to show a prima facie case for relief, his request for a certificate of probable
cause was denied. The trial court added:
“The burden is on the defendant to
establish ground[s] for his release. The
defendant[’s] [contentions are] patently frivolous and/or lack[] merit on
[their] face. The defendant’s sentence
was an agreed upon disposition between the parties. The defendant has abused [use of] the
motion[s] by filing piecemeal and repetitious claims.â€
CONTENTIONS
After examination of the record,
appointed appellate counsel filed an opening brief which raised no issues and
requested this court to conduct an independent review of the record. By notice filed July 22, 2013, the clerk of
this court advised Carter to submit within 30 days any contentions, grounds of
appeal or arguments he wished this court to consider.
On August 6, 2013, Carter filed a response in which it appears he
is asserting he had ineffective assistance of trial counsel. “In assessing claims of ineffective
assistance of trial counsel, we consider whether counsel’s representation fell
below an objective standard of reasonableness under prevailing professional
norms and whether the defendant suffered prejudice to a reasonable probability,
that is, a probability sufficient to undermine confidence in the outcome [Citations.]â€
(People v. Carter (2003) 30
Cal.4th 1166, 1211; see Strickland v.
Washington (1984) 466 U.S. 668, 694.)
Here, nothing in the record indicates counsel’s representation fell
below an objective standard of reasonableness.
Counsel made appropriate motions, arguments and recommendations. This is particularly apparent when one
considers that, had Carter gone to trial, he faced a prison term of 35-years-to-life. By entering into the plea agreement, as
recommended by his counsel, Carter was sentenced to a term of 14 years in
prison. Carter’s contention his counsel
refused to help him with his case is unsupported by the record. Counsel’s actions were reasonable and assisted
Carter in receiving a fair and favorable outcome.
We have examined the entire record
and are satisfied counsel has complied fully with counsel’s
responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING,
J.
We concur:
KLEIN, P. J.
ALDRICH, J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code
unless otherwise indicated.
name="_ftn2" title="">[2] The facts have been taken from the transcript of the
preliminary hearing.
