Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR163151
NEEDHAM, J.
Appellant Lynn Gary Newton was tried before a jury and convicted of voluntary manslaughter as a lesser included offense of murder. (Pen. Code, § 192, subdivision (a).) His court-appointed counsel has filed a brief raising no issues, but seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). We find no arguable issues and affirm.
Further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
On the morning of September 10, 2002, officers from the Vallejo Police Department responded to a call and found a woman's body in a park wrapped in a blue plastic tarp. The woman, who was identified as 46-year-old Dianna Wan, had a laceration on her scalp and had died as the result of blunt force injury to her head, which caused hemorrhaging in the brain. This injury was consistent with being hit with the bottom of a boot. Other non-fatal injuries included bruises on the shoulder, chin, cheek and chest wall.
Nelson Rivera, who had been married to appellant's deceased sister, lived across the street from the park where Wan's body was found. The night before the body was discovered, appellant arrived at Rivera's house in his motor home. Rivera went out to the motor home unannounced and found appellant in the bathroom holding a large bag, which he dropped on the floor. Rivera thought appellant was dumping garbage and helped him move the bag outside. He dropped it and ran back to his house when he realized it might be a body. When he came back outside from his house, the motor home was gone. Rivera did not call the police, but he was interviewed by officers after the body was discovered.
One of appellant's sisters saw him on September 11, 2002, the day after the body was discovered. He seemed upset and suicidal. Appellant checked into a hotel in downtown San Francisco, where he was arrested by police on September 14. He attempted to cut his own wrists before they took him into custody, and a search of his duffle bag and room revealed a bus ticket, medication bottles, Drano, Pine Sol and rat poison.
The district attorney filed an information charging appellant with murder. Criminal proceedings were suspended in February 2004, when appellant was adjudged incompetent to be placed on trial pursuant to section 1368. Criminal proceedings resumed in December 2005, but were suspended again in January 2007. The court found appellant competent to stand trial in April 2007 and trial commenced in February 2008.
Appellant testified at trial that he met Wan during the summer of 2002 after he separated from his wife of many years. The first time appellant met Wan, she jumped into his arms and wrapped her legs around him, and after they spent the evening together, he had a difficult time getting her to leave. Although appellant told Wan he did not want to see her again, she would not take no for an answer and they began a sexual relationship. Once when Wan was visiting appellant he called 911 after she began throwing chicken bones and food and refused to leave. Appellant was arrested when the police responded. A few days later, Wan called appellant on the telephone 71 times. Appellant moved out of his family home and into a motel, where Wan called him repeatedly each day. He told her he just wanted to be friends but she insisted on continuing the relationship.
In August 2002, appellant moved into a trailer park. He saw Wan twice in September. The first time she came to his trailer for dinner and left after they argued. The second time, Wan arrived at appellant's trailer unexpectedly while appellant was sleeping. She wanted sex, but appellant could not obtain an erection and she became angry. She kicked him with her heels as they lay on the bed. When he reached across her to turn on the television, Wan grabbed his testicles and held on tightly. Appellant felt extreme pain and struggled to get away, but her grip held fast. He grabbed his boot and struck Wan on the head, which caused her to release her grip and slide onto the floor of the trailer. About 10 minutes later, after he recovered from his pain, appellant saw that Wan's head was slashed and that she was not moving.
Appellant panicked when he realized that Wan was dead. He drove the motor home to several locations and bought a tarp and cinder blocks. After wrapping the body in the tarp he drove to his brother-in-law Rivera's house, planning to put the body in the park across the street. Appellant was surprised when Rivera came out to the motor home.
The trial court gave the jury a standard instruction on the elements of second degree murder. (CALCRIM No. 520.) Instructions were also given on the lesser included offenses of voluntary manslaughter (based on theories of provocation and imperfect self-defense) and involuntary manslaughter, and on reasonable self-defense. (CALCRIM Nos. 500, 505, 522, 570, 571, 580.)
The jury found appellant not guilty of murder but guilty of voluntary manslaughter. The court sentenced him to prison for the aggravated term of eleven years, with credit for 2,041 actual days of presentence custody plus 220 days of conduct credit pursuant to section 2933.1. A restitution fine of $5,000 was imposed and a parole revocation fine of $5,000 was imposed but stayed pending successful completion of parole. The court additionally ordered appellant to pay $1,383.49 to the Victim Compensation Board. Appellant was sentenced to a concurrent two-year term for a drug possession conviction under Health and Safety Code section 11350 in an unrelated case.
II. DISCUSSION
As required by People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note that appointed counsel has filed a Wende/Anders brief raising no issues, that appellant has been advised of his right to file a supplemental brief, and that appellant did not file such a brief. We have independently reviewed the entire record for potential error and find none.
The jury was fully and correctly instructed on the charged crime of second degree murder, self-defense and the lesser included offenses of voluntary and involuntary manslaughter. (CALCRIM Nos. 500, 505, 520, 522.) The verdict of voluntary manslaughter was supported by substantial evidence because jurors could reasonably infer from the physical evidence and appellant's own testimony that he acted with either the intent to kill or the conscious disregard for human life that would otherwise constitute malice aforethought, even if he lacked malice due to provocation or imperfect self-defense. (See People v. Rios (2000) 23 Cal.4th 450, 461, fn. 7.)
The court properly limited appellant's presentence conduct credits under section 4019 to 15 percent pursuant to section 2933.1, subdivision (c), because voluntary manslaughter is a violent felony under section 667.5, subdivision (c)(1). Additionally, the court properly declined to award section 4019 credits for the time appellant was housed at Napa State Hospital while incompetent to stand trial. (People v. Callahan (2006) 144 Cal.App.4th 678, 686.)
Criminal proceedings were suspended while appellant was incompetent to stand trial. The court's determination in April 2007 that competency had been restored was supported by psychiatric reports prepared by Drs. Eiland and Pittavino, on which the parties submitted the issue. (See People v. Leonard (2007) 40 Cal.4th 1370, 1393.)
The trial court did not abuse its discretion or otherwise err when it imposed the eleven-year upper term. (People v. Black (2007) 41 Cal.4th 799, 812, 818; People v. Sandoval (2007) 41 Cal.4th 825, 846-848.) It noted and properly relied upon the severity of the beating as deduced from the physical evidence, on Wan's small stature relative to appellant's, and on appellant's efforts to discard the body and conceal the evidence of his crime.
Based on our review of the record, we are satisfied that appellant’s appointed attorney has fully complied with the responsibilities of appellate counsel and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 283.)
III. DISPOSITION
The judgment is affirmed.
We concur: SIMONS, Acting P. J., BRUINIERS, J.
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.