Filed 3/25/16 P. v. Carter CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069557
         Plaintiff and Respondent,
                                                                         (Kings Super. Ct. No. 13CM4318)
                   v.

LARRY TUDOR CARTER,                                                                      OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. Robert Shane
Burns, Judge.
         Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Gomes, Acting P.J., Kane, J. and Peña, J.
        Defendant Larry Tudor Carter was convicted by jury trial of robbery (Pen. Code,
§ 211)1 and he admitted having served a prior prison term (§ 667.5, subd. (b)). The trial
court sentenced him to the upper term of five years, plus a one-year enhancement for the
prior prison term, for a total term of six years. On appeal, he contends the trial court
abused its discretion by imposing the upper term. We affirm.
                                          FACTS
        Deputy Davis testified that on May 7, 2013, at about 7:15 p.m., he was dispatched
to the hospital to investigate a battery. He went to the emergency room and found the
victim, a 35-year-old man, sitting in a wheelchair. His face was swollen, his eyes were
bloodshot, and his left eye was almost swollen shut. He was calm under the
circumstances, but he seemed afraid to tell the officer what had happened. After
hesitating, the victim explained that he and another male went to the Stop N Shop to buy
some chips and a soda at about 5:15 p.m. He went outside and stood about 50 feet from
the store entrance while he ate his chips and drank his soda. At 5:23 p.m., a gray four-
door car pulled into the parking lot and three Black males got out of the car. The driver
was Lapries Harris. The victim called him “Mickey.” The second person he mentioned
only by the moniker “C Love.” This was defendant. The third person was William
Wharry. The victim said he had known them all of his life because he grew up with
them.
        The victim said Harris got out of the car first and said to C Love, “are you going to
get at him[?]” Harris approached the victim and said, “give me what you got,” as he tried
to reach into the victim’s pockets. The victim put his hands down at his pockets to
prevent Harris from getting into them. Harris punched him in the face twice with closed
fists. Harris told him he had a knife and he was going to stab him in the back. Defendant
then began punching the victim with closed fists in the body and the face. The victim

1       All statutory references are to the Penal Code.


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could see Wharry circling around him, carrying something. The victim tried to protect
his face as he was being hit. He did not try to fight back because he was scared. Harris
was known to carry a gun. At some point, the victim lost consciousness and fell to the
ground. When he regained consciousness, his cell phone and wallet were gone, as were
the three males and the gray car. The victim’s wallet, which had been in his right front
pants pocket, contained $60, a bank card, and some other items. His cell phone had been
in his left front pants pocket.
        The officer left the hospital and went to the Stop N Shop. He spoke to an
employee who refused to give his name. The employee showed the officer three excerpts
of security surveillance footage of the crime. When the officer showed it to the victim,
he said it was a “video of him getting jumped by a couple of guys.”
        The victim testified that he was 35 years old and had mental problems and cysts
on his brain. He claimed to remember nothing about being robbed and said it never
happened. He did, however, remember other facts about his life. He failed to respond to
his subpoena to testify and was brought to court by force.
                                        DISCUSSION
        Sentencing courts have wide discretion in weighing aggravating and mitigating
factors and may balance them against each other in qualitative as well as quantitative
terms. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) A trial court may base an
upper term sentence upon any aggravating circumstance the court deems significant.
(People v. Sandoval (2007) 41 Cal.4th 825, 848.) Absent a showing that the sentence is
irrational or arbitrary, it is presumed that the trial court acted to achieve legitimate
sentencing objectives. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831-
832.)
        Aggravating factors are factors that make a crime “distinctively worse than the
ordinary.” (People v. Moreno (1982) 128 Cal.App.3d 103, 110.) Accordingly, facts that
are more egregious than whatever is necessary to establish the offense may properly

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establish an aggravating factor or factors. (See People v. Miranda (1987) 196
Cal.App.3d 1000, 1003.) “Only a single aggravating factor is required to impose the
upper term.” (People v. Osband (1996) 13 Cal.4th 622, 728.)
       In this case, when the trial court was contemplating defendant’s sentence, the court
found the following: (1) the victim was particularly vulnerable in that he was
outnumbered three to one and also appeared to be cognitively or developmentally
disabled in terms of mental maturity or development; (2) defendant engaged in violent
conduct that indicated he was a serious danger to society in that his prior convictions
were numerous and increasing in seriousness and his criminal conduct had continued
from 1990, interrupted only by periods of incarceration; and (3) defendant had served
terms in both the Youth Authority and state prison, he was on parole when he committed
the current offense, and his prior performance on both probation and parole had been
unsatisfactory. The court was unable to identify any mitigating factors.
       Defense counsel argued that defendant seemed “to be at a point in his life when
he’s been kind of reflecting on his past and trying to pinpoint decisions that were made or
events from his past.” He had plans to relocate and get back in touch with his daughter,
whose supportive letter counsel found to be very touching. Defendant’s letter to the court
expressed his remorse and guilt over this offense. Counsel argued that while defendant’s
criminal history was lengthy, he had very little guidance as a child and his extensive
history did not mean he would be unsuccessful on probation.
       The prosecutor agreed with the court that the victim’s demeanor while on the
stand suggested he was mentally challenged. The prosecutor argued that because
defendant and the victim grew up in the same neighborhood and knew each other,
defendant was likely aware of the nature of the victim’s mental status. As for defendant’s
desire to change his life, he had a criminal history 25 years long and had received
numerous opportunities as a juvenile and as an adult to redirect his life and had failed to
do so, as the probation report stated.

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       Defendant now contends the trial court overstated factors in aggravation and failed
to recognize factors in mitigation, thereby abusing its discretion in choosing the upper
term. First, we note that defendant forfeited the error by not objecting at the sentencing
hearing. (People v. Scott (1994) 9 Cal.4th 331, 353, 356; People v. Brown (2000)
83 Cal.App.4th 1037, 1041-1042.) But even on the merits, defendant’s showing fails.
       Specifically, defendant disagrees with the trial court’s finding that the victim was
particularly vulnerable, and he proposes that the victim instead acted as he did to
manipulate the court and the prosecutor because he did not want to testify. This proposal
is mere speculation. The record does demonstrate that the victim did not want to testify
or be present at trial and that he had shown fear and hesitation when he reported the
crime to the officer. But the record also supports the trial court’s conclusion that the
victim had mental limitations. Furthermore, the court had the opportunity to observe the
victim on the witness stand, and we will not question the accuracy of the court’s
observations, particularly when supported by the evidence. (See, e.g., In re Valdez
(2010) 49 Cal.4th 715, 730 [“‘The deference accorded factual findings derives from the
fact the [trial court] had the opportunity to observe the demeanor of witnesses and their
manner of testifying.’”].) In any event, the trial court found two other factors in
aggravation, and any one of the three factors—two of which defendant does not
challenge—suffices to support imposition of the upper term. (People v. Osband, supra,
13 Cal.4th at p. 728.)
       We briefly address defendant’s remaining point—that the court failed to identify
three possible mitigating factors. First, he says he “was a passive participant or played a
minor role in the crime,” as provided by California Rules of Court, rule 4.423, because he
was not driving the car and there was no evidence that the robbery was his idea. He
argues that Harris’s statement to him, “are you going to get at him,” suggested defendant
was initially hesitant to participate in beating up the victim. He says Harris was
obviously the instigator of the group and defendant’s acts were secondary to his. The

                                             5.
record, however, is devoid of any evidence suggesting defendant’s participation in
attacking the victim was either passive or minor. Second, defendant says he appears to
have been a “throwaway child,” and his record shows that imprisonment was not helping
him become a different person and thus the upper term would not likely result in a better
outcome for him or society. The more accurate view of defendant’s record is that his
repeated and worsening crimes and bad performance on probation and parole show that
he cannot control his behavior when emancipated and that he has clearly failed to better
either himself or society during those periods. Third, defendant points out that although
he did not initially admit to participating in the crime, he later recognized that he should
admit responsibility and show remorse. He says his letter to the court and his daughter’s
letter to him show he was considering a different path. But in light of defendant’s
multitude of missed opportunities to choose a different path, this reluctant and belated
remorse for beating and robbing a vulnerable victim suggests nothing more than a
strategy to serve his own interests.
       In summary, the trial court did not abuse its discretion in imposing the upper term.
                                       DISPOSITION
       The judgment is affirmed.




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