Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Shari K. Silver, Judge, No. PA054745
Kathleen M. Redmond, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ALDRICH, J.
Kimberly Carter appeals from the judgment entered following her plea of no contest to voluntary manslaughter (Pen. Code, § 192, subd. (a)), during which she personally used a firearm (§ 12022.5, subd. (a)), and her admission that she previously had been convicted of a serious felony within the meaning of section 667, subdivision (a)(1) and the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced Carter to 27 years in prison. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The facts have been taken from the probation report and the transcript of the preliminary hearing.
In 2006, Carter’s mother, Linda Simancek, lived with Carter at a house in Northridge. Carter’s boyfriend at the time, Harry Phillips, Jr., also spent a significant amount of time at the house.
In March of 2006, Simancek received a telephone call from Carter in which Carter told Simancek that Phillips was going to be coming over to the house so that the two could talk. After speaking with Carter, Simancek decided not to go home that night. She wished to give Carter and Phillips “their privacy” and she spent the night with relatives. The following day, a Monday, Simancek went by the house but did not see anyone. The next day, a Tuesday, Simancek went to the house to take a shower. Simanchek knocked on Carter’s bedroom door and, when no one answered, Simancek decided to be “nosy” and opened the door to look inside. From the doorway, Simanchek saw a body on the floor. Simanchek screamed and ran from the house. She went to a nearby phone booth, telephoned one of her sons and told him to come to the house quickly. She then telephoned the police. Police officers arrived at the house almost immediately. Simancek’s son arrived a short time later. Simanchek did not see Carter that day.
Loranne Dirks is Phillips’s sister. She stated that Phillips and Carter had lived together as boyfriend and girlfriend for approximately two years. However, in January of 2006, Phillips had moved out of the Northridge house and moved in with Dirks. Dirks believed Phillips and Carter had broken up around Christmas. Phillips had told Dirks that he and Carter had not been getting along. They argued and neither one trusted the other. Carter had spoken with Dirks on a couple of occasions and had indicated that she believed Phillips was cheating on her and selling drugs from the house. Carter no longer wanted Phillips to live in the Northridge house with her.
Phillips had served a five-year sentence in federal prison for selling drugs.
Meylinda West-Payne dated Phillips from May 2005 to March 6, 2006. West-Payne did not know Carter, but knew “of her.” On and around December 24, 2005, Carter had telephoned West-Payne approximately 20 times. Carter had told West-Payne that she was “ ‘nothing’ ” and that Phillips had been lying to her. On another occasion, Carter told West-Payne that she didn’t know who she was dealing with and that she, Carter, would “ ‘shoot [West-Payne] in the back of the head when [she left] the parking lot.’ ” West-Payne had also heard Carter and Phillips argue on the telephone. West-Payne knew Phillips was speaking with Carter because she could hear Carter’s voice.
Carter had apparently been driving Phillips’s truck for several months and he wished to get it back. West-Payne had overheard the two arguing about the truck that evening during a telephone conversation. Phillips left West-Payne at her home at approximately 1:00 a.m. on March 6, 2006. He told her that he was going to Carter’s to retrieve his truck and that he would be right back. However, West-Payne did not see Phillips again.
At approximately 7:00 p.m. on March 6, 2006, Los Angeles Police Officer Michael Nalborczyk and his partner, Officer Hill, responded to a call directing them to a house in Northridge where a body had been found. The officers entered the house, went up to the bedroom and found Phillips’s body on the floor, next to the bed. There was a “small puncture wound” to the chest. A search of the bedroom revealed a shell casing from a.45 caliber round.
The autopsy report indicated Phillips suffered a fatal gunshot wound to his chest, a gunshot wound to his right hand and a gunshot wound at the end of the third finger to the right hand. The fatal wound was to his chest. The wound was “rapidly fatal” in that it had perforated his lung, heart and liver.
Leon Meade is Carter’s brother. After his mother, Simanchek, called him to tell him that she had discovered a body at the house in Northridge, Meade called his sister, Carter. Meade told Carter that Phillips body had been found at the house. In response, Carter stated, “ ‘I know. I did it.’ ”
On March 9, 2006, Carter was staying at the Palm Springs Spa Resort Casino. She contacted “the media” and indicated that she wished to turn herself in to law enforcement authorities. That morning, Palm Springs police officers detained Carter at the spa, then took her into custody. In Carter’s purse, police found an invoice for Room No. 568. A search of the room revealed “a.45 casing” on the nightstand between the two beds. Secreted in the drop ceiling between the bathroom and the closet, officers discovered a “.45 caliber Glock semiauto handgun.” In addition, police found a magazine for the firearm. Inside the magazine were 10 additional live rounds of ammunition.
2. Procedural history.
In an information filed August 16, 2006, Carter was charged with the murder of Phillips (§ 187, subd. (a)). It was further alleged that Carter personally and intentionally discharged a firearm which proximately caused great bodily injury and death to Phillips within the meaning of section 12022.53, subdivision (d), that she personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c), and that she personally used a firearm within the meaning of section 12022.53, subdivision (b). Finally, it was alleged Carter previously had been convicted of a serious felony, bank robbery, within the meaning of section 667, subdivision (a)(1) and the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
An amended information was filed on February 20, 2007. In addition to the charges filed in the original information, it was alleged that on or between December 24, 2005 and March 6, 2006, Carter made criminal threats against Meylinda West-Payne in violation of section 422.
The information was amended yet again on July 28, 2008. In addition to the charges already made, it was alleged the bank robbery previously committed by Carter was accomplished “by force and violence” and occurred in the “central,” rather than the “western,” district. Then, on September 4, 2008, the information was amended by interlineation to add a third count alleging a violation of section 192, subdivision (a), voluntary manslaughter.
At proceedings held on September 4, 2008, the prosecutor indicated that an agreement had been reached. The information would be amended once again to add, not only the charge of voluntary manslaughter, but the allegation that, as to that count, Carter personally used a firearm pursuant to section 12022.5, subdivision (a). In exchange for a no contest plea to the charge of voluntary manslaughter and admission of the personal use of a firearm allegation, “as well as an admission to the strike prior and the serious prior under... section 667[,] [subdivision] (a)(1),” the sentence would be a total of 27 years in prison. The trial court would impose the mid-term of six years for the conviction of voluntary manslaughter, then double the term to 12 years pursuant to the Three Strikes law. As to the personal use of a firearm, the court would impose the upper term of 10 years. For the allegation Carter previously had been convicted of a serious felony, the trial court would impose a sentence of five years.
After waiving her right to a jury trial, her right to a court trial, her right to confront and cross-examine the witnesses against her, her right to subpoena witnesses and present an affirmative defense and her privilege against self-incrimination, Carter pled no contest to “a violation of... section 192[,] sub[division] (a), felony voluntary manslaughter.” She then admitted having personally used a firearm during the offense and that she previously had been convicted of bank robbery by force or violence.
After imposing sentence, the trial court awarded Carter presentence custody credit for 876 days actually served and 15 percent, or 131 days, of good time/work time, for a total of 1,007 days. The trial court ordered Carter to pay a $200 restitution fine (§ 1202.4, subd. (b)), a stayed $200 parole revocation restitution fine (§ 1202.45) and a $20 court security fee (§ 1465.8, subd. (a)(1)). The trial court then dismissed all remaining counts and allegations. As to actual restitution, the trial court informed Carter that it wished to hold a later hearing after hearing from the victim’s family. Carter waived her appearance with regard to that proceeding.
A restitution hearing was held on September 9, 2008. After reviewing the relevant documents, the trial court awarded Harry Phillips, Sr., $2,267.20 for his out-of-pocket expenses and directed that Carter pay $7,500 to the Victim’s Compensation Board.
Carter filed a timely notice of appeal on September 29, 2008.
This court appointed counsel to represent Carter on appeal on December 11, 2008.
CONTENTIONS
After examination of the record, appointed appellate counsel sought and obtained correction of Carter’s presentence custody credits in the trial court. Carter was initially given credit for 876 days actually served and 15 percent, or 131 days, of good time/work time, for a total of 1,007 days. However, she was entitled to credit for 882 days actually served and 132 days of good time/work time, or a total of 1,014 days. In its minute order correcting the presentence custody credits, the trial court directed that an amended abstract of judgment be sent to the Department of Corrections.
After obtaining correction of Carter’s presentence custody credits, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record. By notice filed June 12, 2009, the clerk of this court advised Carter to submit within 30 days any contentions, grounds of appeal or arguments she wished this court to consider. No response has been received to date.
APPELLATE REVIEW
We have examined the entire record and are satisfied that Carter’s counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.