People v. Kimber CA5

Filed 6/18/21 P. v. Kimber CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F080889 Plaintiff and Respondent, (Kern Super. Ct. No. BF176735A) v.

TYRELL DESHAWN KIMBER, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. John S. Somers, Judge. Larenda R. Delaini, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P.J., Levy, J. and Poochigian, J.

INTRODUCTION Appellant and defendant Tyrell Deshawn Kimber was convicted after a jury trial of attempted residential burglary and sentenced to three years in prison. On appeal, his appellate counsel has filed a brief that summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We affirm. FACTS Around 8:30 p.m. on May 7, 2019, Robin Sellers and her young child were in their first-floor apartment in Bakersfield when someone rang the doorbell. Ms. Sellers did not answer the door. She looked through the front door’s peephole and saw a person with a “manly shape.” She watched the person from a window next to the front door, and he walked away. A few minutes later, Ms. Sellers was in her living room and heard “wrestling” in the backyard, “like somebody walking around and moving stuff.” She went into the kitchen and saw a shadow through the large screened window. Ms. Sellers testified the shadow belonged to a man, and she saw him reach for the kitchen window as if he was trying to push it open. Ms. Sellers panicked and grabbed her phone, believing the man was about to break into the home. She ran to her child’s bedroom and called her husband at work. He told her to call 911, and she did so. Ms. Sellers testified she stayed on the phone with the 911 operator for about 10 to 12 minutes while waiting for the police to arrive. While she waited, she ran between the kitchen window and the bedroom, and tried to get her child to hide under the bed. She also kept watching the man to make sure he did not get in the residence. As she continued to wait, Ms. Sellers heard something fall, and was afraid the man was about to get inside. Ms. Sellers grabbed her child, and they ran out the front door and went to a neighbor’s house. The police arrived a few minutes later.