Filed 6/25/26 P. v. Carothers CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H052720
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. 23CR04910)
v.
FOREST BARTON CAROTHERS,
Defendant and Appellant.
Defendant Forest Barton Carothers appeals from a judgment entered after
he pleaded no contest to various charges related to driving under the influence
(DUI). Appointed counsel for Carothers filed an opening brief which provides the
procedural and factual background of the case but raises no legal challenge to the
disposition. Counsel asks this court to conduct an independent review of the
record to determine whether there are any arguable issues. (See People v. Wende
(1979) 25 Cal.3d 436.) Carothers was advised of the right to file written
arguments on his own behalf but has not responded.
By separate order, this court directed the trial court to augment the record to
include reporters’ transcripts and minute orders from resentencing proceedings
held on February 20, 2025, and July 9, 2025. We further ordered Carothers’
counsel to file a supplemental letter brief explaining what effect, if any, the
resentencing proceedings have on the instant appeal. Counsel submitted the
requested supplemental letter brief after the record was augmented.
We subsequently requested supplemental briefing from the parties
addressing: “1) whether the trial court had jurisdiction on February 20, 2025, to
recall appellant’s sentence, suspend imposition of sentence, and place appellant on
formal probation; and 2) assuming the trial court had such jurisdiction, given the
discrepancy between the 32-month probation term orally pronounced at the
February 20, 2025, resentencing hearing and the 36-month probation term
recorded in both the February 20, 2025 and the July 9, 2025 minute orders, what is
the appropriate remedy?” The parties agree, as do we, that the trial court had
jurisdiction to recall the sentence and place Carothers on probation. The parties
further agree that the term of probation must be modified to reflect the 32-month
term orally pronounced at the February 20, 2025 resentencing hearing.
After conducting our independent review of the augmented record and
supplemental briefing, we requested and received additional supplemental briefing
from Carothers on the application of People v. Kopp (2025) 19 Cal.5th 1 (Kopp)
and the relevance, if any, of Penal Code section 1237.2 to this matter. The parties
waived oral argument, and the matter was resubmitted.
We have identified no errors other than the term of probation. Accordingly,
we will modify the term of probation and affirm the order of probation, as
modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural background
On November 8, 2023, the Santa Cruz County District Attorney filed a
complaint charging Carothers with driving under the influence of alcohol within
2
10 years of a felony DUI conviction (Veh. Code,1 §§ 23152, subd. (a), 23550.5,
subd. (a); count 1); driving with a 0.08 percent or higher BAC within 10 years of a
felony DUI conviction (§§ 23152, subd. (b), 23550.5, subd. (b); count 2) and
driving with 0.01 percent or greater BAC while on probation (§ 23154, subd. (a);
count 3). The complaint also alleged that, as to counts 1 and 2, Carothers willfully
refused to submit to chemical tests. (§ 23577, subd. (a).)
On September 13, 2024, Carothers pleaded no contest to count 1 and count
2 in exchange for dismissal of count 3 and striking the enhancements alleged in
connection with counts 1 and 2 for refusing chemical testing. In addition,
Carothers was to be released from presentence custody to serve 364 days
probation in a residential treatment program.
On October 16, 2024, the trial court was informed that Carothers had been
discharged from the residential treatment program based on rules violations. On
the prosecutor’s motion, the trial court dismissed count 1 and sentenced Carothers
to the middle term of two years on count 2. The court imposed a $300 restitution
fund fine (§ 1202.4, subd. (b)), an identical $300 probation revocation fund fine,
suspended pending completion of parole (§ 1202.45), a $40 “court security
assessment fee” (now court operations assessment) (§ 1465.8), and a $30
conviction assessment (Gov. Code, § 70373).
On November 19, 2024, Carothers appealed and requested a certificate of
probable cause, which the trial court denied. On February 18, 2025, as Carothers
had failed to select any noncertificate grounds in his notice of appeal, this court
issued an order to show cause granting him 15 days to file an amended notice
stating that the appeal is based on the sentence or other matters occurring after the
plea. (Cal. Rules of Court, rule 8.304(b).) On that same date, the clerk of the
1
Unspecified statutory references are to the Vehicle Code.
3
Santa Cruz County Superior Court filed an augmented clerk’s transcript including
an amended notice of appeal filed by Carothers on December 16, 2024, which had
inadvertently not been provided to this court or the parties. As the amended notice
of appeal stated that his appeal is based on the sentence or other matters occurring
after the plea that do not affect the validity of the plea, this court recalled the order
to show cause.
On February 20, 2025, after the record on appeal was filed, but before
counsel filed his Wende brief, the trial court recalled Carothers’ sentence,2
suspended imposition of sentence, and placed him on a total of 32-months’
probation. The court explained that it was “impos[ing] a probationary term of
three years formal probation” but that it was also modifying that term to “32
months felony probation” based on the four months he had been in custody with
the California Department of Corrections and Rehabilitation (CDCR). The minute
order from this hearing however indicates that the term of probation is “36
Mo[nths].”
As to fines and fees, the court again imposed the $300 restitution fund fine
(§ 1202.4, subd. (b)), an identical $300 probation revocation fund fine, suspended
pending completion of parole (§ 1202.45), a $40 “court security assessment fee”
(now court operations assessment) (§ 1465.8), and a $30 conviction assessment
(Gov. Code, § 70373) However, the trial court noted that it was giving Carothers
“credit of 25 days against those fines” based on his time served in the CDCR. As
a result, the fines and fees were deemed paid.
On July 9, 2025, the trial court indicated that Carothers had failed to sign
his “conditional sentence form” after he was ordered to probation on February 20,
2
On February 5, 2025, Carothers requested that the trial court recall and
resentence him. The trial court granted the request and calendared the
resentencing hearing for February 7, 2025.
4
2025. After verifying that Carothers was in compliance with his probation
conditions, the trial court indicated that his term of probation was “36 months
starting 02/20/2025.” Carothers was late to court and was not present when the
trial court restated his term of probation. When he subsequently arrived, the trial
court explained: “[T]he clerk accidentally checked the wrong box on your
probation order. We have prepared a new order. The attorney is going to bring it
to you and go over it with you. [¶] Please sign it, that was the other problem.”
The court did not discuss the fines and fees at the hearing. The probation order
attached to the minutes indicates that no fines and fees are due based on the credit
for time served.
B. Factual background3
On October 12, 2023, Carothers, while on probation for a prior DUI, drove
a motor vehicle with a BAC in excess of 0.08 percent. Carothers refused a peace
officer’s request that he take a chemical test. Carothers had previously been
convicted of misdemeanor DUI in 2019 and felony DUI 2022.
At a hearing on October 16, 2024, the prosecutor informed the trial court
that Carothers had been discharged from his residential treatment program because
he gave “a false sample during testing and admitted to using while in treatment.”
The prosecutor also stated that, on October 13, 2024, police found Carothers
unconscious behind the wheel of his mother’s car, which he took without her
permission. According to the prosecutor, the vehicle’s engine was running and it
was in drive.
3
The facts are derived from the complaint and other documents in the
record on appeal. The record does not contain a probation report and Carothers
pleaded no contest before a preliminary examination.
5
II. DISCUSSION
A. The trial court had jurisdiction to recall and resentence
Under section 1172.1, a trial court may recall a sentence and resentence a
defendant “on its own motion” within 120 days of the date of commitment.
(§ 1172.1, subd. (a)(1).)
In this case, Carothers was sentenced to prison on October 16, 2024.
Carothers filed his request to recall and resentence pursuant to section 1172.1 on
February 5, 2025, 112 days after his initial sentencing. The trial court calendared
the resentencing hearing for February 7, 2024, which was 114 days after the
commitment. Because the CDCR did not produce Carothers for the February 7,
2025 hearing, the matter was continued to February 20, 2025 (127 days after the
commitment). Although the actual resentencing hearing fell outside the 120-day
window provided by section 1172.1, subd. (a)(1), the trial court calendared that
hearing within that window and thus retained jurisdiction.4
B. The probation order must be modified
The trial court must pronounce judgment in open court and on the record.
(People v. McGahuey (1981) 121 Cal.App.3d 524, 530; §§ 1193, 1202.) “The trial
court is generally required to include all aspects of a judgment in its oral
pronouncement of judgment. [Citation.] Any discrepancy between the judgment
as orally pronounced and as recorded in the clerk’s minutes or abstract of
judgment is presumed to be the result of clerical error. [Citation.] The abstract of
judgment ‘does not control if different from the trial court’s oral judgment and
may not add to or modify the judgment it purports to digest or summarize.’
[Citation.]” (People v. Leon (2020) 8 Cal.5th 831, 855.) We may correct a court’s
4
The Attorney General concedes the issue and, given that the record
reflects that Carothers was not responsible for any delay, we agree with the
concession.
6
written order or judgment that does not accurately reflect its oral pronouncement.
(See People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa (1975) 14
Cal.3d 466, 471.)
The parties agree that the court’s February 20, 2025 and July 9, 2025
minute orders mistakenly reflect a 36-month term of probation despite the trial
court expressly stating, at the February 20, 2025 sentencing, that it was ordering a
probation term of 32 months. We agree and will therefore modify the order of
probation to reflect the 32-month term pronounced by the trial court.
C. The fines and fees are moot
In his response to our request for supplemental briefing on the application
of Kopp, supra, 19 Cal.5th 1 and the possible relevance of section 1237.2 to this
matter, Carothers has noted that any potential issues relating to the fines and fees
imposed in this case were rendered moot when the trial court credited his 25 days
of CDCR custody against the amounts imposed. We agree.
III. DISPOSITION
The order of probation is modified to reflect a 32-month term of probation.
As modified, the order is affirmed.
7
____________________________
WILSON, J.
WE CONCUR:
____________________________
GROVER, ACTING P. J.
_____________________________
BROMBERG, J.
The People v. Carothers
H052720