Filed 3/14/16 P. v. Carter CA2/1

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B266075

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA136241)
         v.

LUTHER RAY CARTER,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Kelvin D. Filer, Judge. Affirmed.
         Laurel Simmons, under appointment by the Court of Appeal, for Defendant and
Appellant.
         No appearance for Plaintiff and Respondent.
                                             ——————————
       Luther Ray Carter (Carter) appeals from a judgment sentencing him to three years
in county jail for automotive burglary (Pen. Code, § 4591). We affirm.
                                       BACKGROUND
I.     The Burglary
       At approximately 5:15 p.m. on December 30, 2015, Laura Cruz (Cruz), the
manager of a Subway restaurant on East Compton Boulevard in Compton, left work to go
home. However, her car, a 2003 Chevy Malibu, would not start. As it was too late in the
day to have the car repaired, she locked the car and left it in the parking lot in front of the
restaurant.
       The next morning, at approximately 5:00 a.m., Claudia Fernandez (Fernandez),
one of Cruz’s shift supervisors/cashiers, arrived for work and observed that the front
passenger side window of Cruz’s car’s was broken. Fernandez replayed the video from
the restaurant’s security cameras, which showed a man wearing a “beanie and black
hoody” sweatshirt smashing the car window by throwing a rock at it. After breaking the
window, the man opened the car door, rummaged through the car’s interior, grabbed
something, stuffed it into a backpack, and then “took off.” After she had reviewed the
video, Fernandez saw Carter outside the restaurant; she recognized him as being the same
man in the video by his clothing. Fernandez first called the police and then called Cruz.
       When the police arrived, they detained Carter. Before questioning Carter, the
police spoke to Fernandez and reviewed the video. After studying the video, the police
reached the same conclusion as Fernandez—that is, Carter and the man on the video were
one and the same. The police arrested Carter, and, after reading him his Miranda2 rights,
began questioning him. When asked why he had broken the car window, Carter told the
police that “he was mad.” The police then asked Carter to make a written statement,
which he did: “I broke the window because I was mad, and I took papers out of the glove
compartment from the car.” Cruz, after she had a chance to examine her car, including

       1 All   further statutory references are to the Penal Code unless otherwise indicated.
       2   Miranda v. Arizona (1966) 384 U.S. 436.

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the contents of the glove compartment, determined that the car’s registration and some
bank receipts were missing.
II.    Trial and Sentencing
       On April 21, 2015, The People filed an information charging Carter with second
degree burglary. The information also alleged, pursuant to section 667.5, subdivision (b),
that Carter had suffered five prior convictions: April 15, 2014, case number TA132893
(second degree burglary, § 459); April 4, 2013, case number TA127545 (driving or
taking another person’s vehicle, Veh. Code, § 10851); January 13, 2012, case number
TA121586 (second degree burglary, § 459); September 8, 2010, case number TA114197
(dangerous weapons, § 12020, subd. (a)(1)); September 13, 2007, case number
VA089702 (accessory after the fact, § 32).
       On June 22, 2015, after deliberating for less than two hours, the jury returned a
guilty verdict. On July 29, 2015, Carter’s counsel submitted a sentencing memorandum
arguing that, at the time of the instant offense, Carter was suffering from the mental
anguish of a family tragedy—two months before the instant offense, Carter’s brother had
been convicted of murdering Mireya McCall (McCall), the 5-year-old niece of both
Carter and his brother, with Carter assisting law enforcement in gathering evidence
against his brother.3
       On July 30, 2015, the trial court sentenced Carter to the upper term of three years.
Each prior conviction was admitted or proven to the court. The trial court, however,
elected to strike the prior convictions for sentencing purposes in the interest of justice
pursuant to section 1385, subdivision (a). The trial court explained that while the Carter
family tragedy “doesn’t excuse [his] conduct in this case . . . it does somewhat put [his]
history in context.” In addition, the trial court observed that while the instant offense “is
a serious crime,” it “isn’t the worst offense that’s ever come before [the] court.”

       3 The  record is incomplete with respect to the details regarding the death of
McCall. The sentencing memorandum submitted by Carter’s counsel and the supporting
materials attached thereto focused on the effect that the murder and Carter’s brother’s
conviction had on Carter.

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       On August 4, 2015, Carter filed a timely notice of appeal. On October 19, 2015,
we appointed counsel to represent him, and, after examining the record, counsel filed an
opening brief raising no issues and asking this court to review independently the record in
this case. On January 20, 2016, we advised Carter that he had 30 days in which to submit
any contentions or issues that he wished us to consider. To date, we have received no
response.
       We have examined the entire record and are satisfied that Carter’s counsel has
fully complied with her responsibilities and that no arguable issues exist. (People v.
Kelly (2006) 40 Cal.4th 106, 109–110; People v. Wende (1979) 25 Cal.3d 436, 441.)
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.


                                          JOHNSON, J.


We concur:


              ROTHSCHILD, P. J.


              CHANEY, J.




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