People v. Carter CA5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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