People v. Carter CA3

Filed 2/4/25 P. v. Carter CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sutter) ----

THE PEOPLE, C101181

Plaintiff and Respondent, (Super. Ct. No. CRF090001084) v.

DEWAYNE NORMAN CARTER,

Defendant and Appellant.

Defendant Dewayne Norman Carter appeals from the denial of his resentencing petition brought pursuant to Penal Code1 section 1172.6. Carter’s primary contention is that the trial court improperly relied on the preliminary hearing transcript to find him ineligible for resentencing. We conclude the trial court erred in relying on the preliminary hearing transcript to deny Carter’s petition at the prima facie stage. Because

1 Undesignated statutory references are to the Penal Code.

1

nothing else in the record establishes his ineligibility for resentencing as a matter of law, we remand for the trial court to issue an order to show cause. Following proceedings on remand, the trial court is directed to correct the abstract of judgment to delete the indication that Carter was sentenced pursuant to section 667, subdivisions (b) through (i), or section 1170.12. BACKGROUND In 2014, Carter pled guilty to a first degree murder (§ 187, subd. (a)(1)) that was committed willfully and with premeditation and deliberation. Carter also admitted that the murder was committed while he was engaged in, or was an accomplice in, the commission of or attempted commission of a burglary. (§ 190.2, subd. (a)(17)(G).) Carter offered the transcript of his preliminary hearing as the factual basis for the plea. The trial court sentenced him to life without the possibility of parole. The abstract of judgment indicates that Carter was sentenced pursuant to section 667, subdivisions (b) through (i), or section 1170.12. In 2023, Carter petitioned for resentencing under section 1172.6, claiming that he could not presently be convicted of murder due to recent legislative changes to murder liability. At the prima facie hearing, counsel for Carter stated that, after having reviewed the record, he did not believe Carter was eligible for relief under section 1172.6. The trial court ultimately denied Carter’s petition at the prima facie stage: “Mr. Carter’s petition is contradicted by the record of conviction in this case. The factual basis for his plea was the Preliminary Hearing transcript, and the Preliminary Hearing transcript establishes that Mr. Carter was convicted in this case as the actual killer and the only killer; therefore, he is not entitled to relief pursuant to the change in the law, and he is ineligible for relief under that law as a matter of law.” Carter filed a timely notice of appeal in May 2024. His opening brief was filed in September 2024, and this case became fully briefed on November 13, 2024.