P. v. Cohoe

Filed 10/2/07 P. v. Cohoe 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. David Gottlieb, Judge.

William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Allen Larry Cohoe pleaded no contest to assault with a deadly weapon and admitted a prior strike conviction. He was sentenced to the lower term of two years, doubled to four years for the prior strike conviction, plus one year for a prior prison term enhancement. He has filed an opening brief which adequately summarizes the facts and adequately cites to the record, which raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) We will affirm.

FACTUAL AND PROCEDURAL HISTORY

At approximately 4:00 p.m. on December 1, 2006, Juan Brambilla was walking through Courthouse Park near the Sheriffs Department, when he noticed a man, later identified as appellant, walk towards him.^[1] Appellant approached Brambilla and said, in an angry voice, Give me the time. Brambilla replied that he did not have a watch. Appellant said, I said give me the fucking time or Im going to stab you mother fucker. Appellant pulled a knife out of his right front pants pocket, raised his right hand in an overhand motion, and stabbed Brambilla in the upper right side of his chest. Brambilla called for help and ran from appellant. Appellant was immediately arrested and he was still holding the knife in his hand. Brambilla said the knife had a four-inch blade.

Brambilla suffered a laceration above the right chest area that was one and one-half inches long, and not life-threatening. Brambillas wound was closed with two staples.

Appellant told the probation officer that he went to his cousins funeral on the day of the incident. He had consumed two-fifths of Yukon Jack, which is 100-proof whiskey, three pints of Mad Dog wine, and seven 12-ounce beers. Appellant said he blacked out and did not remember going to Courthouse Park. Appellant said the same thing happened in 1998, when he blacked out from drinking alcohol, committed a similar assault, and did not remember anything.

On December 5, 2006, a felony complaint was filed in the Superior Court of Fresno County charging appellant with count I, assault with a deadly weapon (Pen. Code,^[2] 245, subd. (a)(1)), with the enhancement that he personally inflicted great bodily injury on the victim ( 12022.7, subd. (a)). It was further alleged that appellant suffered a prior serious or violent felony conviction within the meaning of the three strikes law, in Fresno County Superior Court case No. 913059-2, for assault with a deadly weapon on November 9, 1998. ( 667, subds. (b)-(i), 1170.12, subd. (a)). The complaint did not allege that appellant suffered a prior serious felony conviction pursuant to section 667, subdivision (a), or that he served a prior prison term pursuant to section 667.5, subdivision (b). Appellant pleaded not guilty and denied the special allegations.

The Plea and Sentencing Hearings

On January 8, 2007, appellant withdrew his previous plea of not guilty and his denials of the special allegations. He signed a change-of-plea form, which stated he would plead guilty to count I, assault with a deadly weapon, and admit the prior strike conviction of November 1998, also as a valid prison prior. The form further stated the prosecutions offer was the midterm of three years, doubled as the second strike term, whereas the court indicated it would impose the mitigated term of two years, doubled to four years, plus a prison prior for an aggregate term of five years. The form stated the maximum sentence he would receive was five years in state prison.

At the hearing, the court acknowledged the prosecutions offer was six years, while the court indicated the term would be five years in state prison. The court advised appellant of his constitutional rights, and appellant stated he understood and waived those rights. The parties stipulated the police reports constituted the factual basis for the plea.

Thereafter, appellant pleaded no contest to count I, assault with a deadly weapon.

THE COURT: And to the allegation that you have a prior conviction, that having occurred in case ending 059-2, a violation of [section] 245(a)(1), do you admit or deny that prior conviction?

[APPELLANT]: Admit.

THE COURT: Do you also admit that as a result of that prior conviction you served a state prison term?

[APPELLANT]: Yes.

The court found appellants plea and admissions were knowing, intelligent, and voluntary, and granted the prosecutions motion to dismiss the great bodily injury enhancement.

On February 26, 2007, the court acknowledged appellant had filed a motion to recuse. Appellant advised the court that he withdrew that motion, and the court conducted the sentencing hearing. The court denied probation and stated it would deny any request to dismiss the prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, given the violence of the current offense and appellants continuing and ongoing criminal activity. The court noted appellant was convicted of assault with a deadly weapon in 1998 and sent to state prison. The court imposed the lower term of two years for count I, doubled to four years as the appropriate second strike term, and enhance[d] that term with an additional one year, for a total term of five years in state prison. The court awarded 88 days of actual credit and 44 days of conduct credits, for a total of 132 days. The court imposed a restitution fine of $1,000 pursuant to section 1202.4, and another fine of $1,000 pursuant to section 1202.45, and stayed the second fine pending successful completion of parole.

The minute order for the sentencing hearing states that the court imposed the lower term of two years for count I, doubled to four years, plus one year for a section 667.5, subdivision (b) prior prison term enhancement which appellant admitted, for an aggregate term of five years. The abstract of judgment similarly states the court imposed the lower term of two years, doubled to four years, plus one year pursuant to section 667.5, subdivision (b), for an aggregate term of five years.

On March 2, 2007, appellant filed a timely notice of appeal.

DISCUSSION

As noted ante, appellants appointed counsel has filed an opening brief pursuant to People v. Wende, supra, 25 Cal.3d 436. In his brief, appellant noted the complaint did not allege he served a prior prison term pursuant to section 667.5, subdivision (b), but acknowledged he admitted such an allegation pursuant to the negotiated disposition. By letter of May 14, 2007, this court invited appellant to submit additional briefing and state any grounds of appeal he may wish this court to consider. Appellant has not done so.

Our independent review discloses no other reasonably arguable appellate issues. [A]n arguable issue on appeal consists of two elements. First, the issue must be one which, in counsels professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment. (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)

DISPOSITION

The judgment is affirmed.

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^* Before Harris, Acting P.J., Dawson, J. and Kane, J.

^[1]Given appellants plea in this case, the following facts are taken from the probation report.

^[2] All further statutory references are to the Penal Code unless otherwise indicated.