People v. Cater CA1/3

Filed 6/28/22 P. v. Cater CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A163499 v. CLARENCE DESHAWN CATER, (Contra Costa County Super. Ct. No. 5-131405-3) Defendant and Appellant.

Defendant Clarence Deshawn Cater appeals from a trial court order at a resentencing hearing declining to dismiss or strike firearm enhancements pursuant to the recent changes to Penal Code section 12022.53.1 Defendant was convicted of murder (§ 187), second degree robbery (§§ 211, 212.5), and shooting at an occupied vehicle (§ 246). The jury found true certain gang and firearm enhancements (§§ 186.22, subd. (b)(1), 12022.53, subds. (c)–(d)), as well as felony-murder and gang-related special circumstances (§ 190.2, subd. (a)(17) & (22)). The court sentenced defendant to prison for life without the possibility of parole, plus 50 years, which included enhancements imposed pursuant to section 12022.53, subdivisions (c) and (d).

1 All further statutory references are to the Penal Code.

1

In 2019, a different panel of this court affirmed defendant’s convictions, but remanded for resentencing so the superior court could exercise its newly afforded discretion to strike or dismiss the firearm enhancements pursuant to a recent amendment to section 12022.53, subdivision (h). (People v. Cater (May 29, 2019, A146678) [nonpub. opn.].)2 On August 6, 2021, the trial court held a hearing and heard arguments concerning whether to strike the firearm enhancements. Both parties submitted the matter. On the same day, the court filed a written decision declining to dismiss or strike the firearm enhancements based on the particular facts of the case. The court indicated it had considered “all pleadings filed,” a recent memorandum addressing defendant’s mitigating factors for future parole hearings pursuant to People v. Franklin (2016) 63 Cal.4th 261, arguments by counsel, and the evidence presented at trial. While acknowledging that defendant had just turned 18 years old before the commitment offenses and had grown up in a violent and abusive environment, the court emphasized that defendant had a prior juvenile record and was the actual shooter and an active participant in the robbery, and that the evidence at trial showed the shootings were gang related and unprovoked. Defendant timely filed a notice of appeal. Defendant’s court-appointed appellate counsel filed a brief raising no issues and seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Accompanying that brief is a declaration from counsel indicating that he wrote to defendant stating his intent to file a Wende brief, “informed [defendant] the court might allow him to file a supplemental brief,” and sent him the transcripts of the record on