People v. Small CA3

Filed 5/25/16 P. v. Small CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C079795
Plaintiff and Respondent, (Super. Ct. No. 14F03913)
v.
HISHIMA SMALL,
Defendant and Appellant.
This case comes to us pursuant to People v. Wende (1979) 25 Cal. 3d 436 (Wende).
Having reviewed the record as required by Wende, we affirm the judgment.
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal. 4th 106, 110, 124.)
FACTUAL AND PROCEDURAL BACKGROUND
On June 13, 2014, defendant agreed to meet with Michael Nelson to repay a debt.
Nelson and Kareem Johnson picked up defendant and parked in a parking stall. After a
short time, defendant left to go get the money to repay Nelson. While he was gone,
Nelson and Johnson discussed defendant’s trustworthiness. Johnson decided he did not
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trust defendant so he took a small handgun and hid it underneath his armpit, in case
something went wrong. Defendant returned to the car and, once inside, opened fire on
Nelson and Johnson. The first shot hit the ground. The second shot was aimed at
Nelson, who had fled the car. The third shot killed Johnson. It was theorized that
perhaps defendant had seen that Johnson had a gun and possibly reacted to that.
Defendant was charged with the murder of Johnson and the attempted murder of
Nelson. (Pen. Code, §§ 187, subd. (a), 664.)1 It was also alleged that he had personally
discharged a firearm in the commission of each offense. (§ 12022.53, subds. (b)-(d).)
Finally, defendant was charged with unlawful possession of a firearm, having two prior
felony convictions. (§ 29800, subd. (a)(1).)
On the third day of trial, defendant changed his plea and pleaded no contest to
voluntary manslaughter (§ 192, subd. (a)), and attempted murder, and admitted he
personally used a firearm in the commission of each offense (§ 12022.5, subd. (a)). He
also pleaded no contest to unlawful possession of a firearm (§ 29800, subd. (a)(1)). The
agreed sentencing range was 19 years 4 months to 27 years 4 months.
On June 26, 2015, the trial court imposed the term of 27 years 4 months,
calculated as follows: the upper term of 11 years for voluntary manslaughter plus the
upper term of 10 years for the firearm enhancement, two years four months (one-third the
midterm) for attempted murder plus three years four months (one-third the upper term)
for the firearm enhancement, and eight months (one-third the midterm) for unlawful
possession of a firearm. The trial court also imposed various fines and fees, and awarded
defendant with 419 days of presentence custody credit.
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and
1 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.
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determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal. 3d
436.) Defendant was advised by counsel of the right to file a supplemental brief within
30 days of the date of filing of the opening brief. More than 30 days elapsed, and we
received no communication from defendant.
WENDE REVIEW
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
MURRAY , J.
We concur:
BLEASE , Acting P. J.
HULL , J.
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