Filed 11/29/18 P. v. Kose CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. WANI JUMA KOSE, Defendant and Appellant.

D073737 (Super. Ct. No. SCD261804)

APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed.

Stephen M. Hinkle, under apportionment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

We independently review the record in this case consistent with our obligations under People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). Finding no arguable issues, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant Wani Juma Kose appeals after a jury convicted him of one count each of robbery (Pen. Code, § 211, count 1)1, attempting to dissuade a witness (§ 136.1, subd. (b)(2), count 2), and bribery of a witness (§ 138, subd. (a), count 3). Kose later admitted a prior strike conviction (§§ 667, subds. (b)–(i), 1170.12) and allegations that the second and third counts were committed while he was released on bail (§ 12022.1, subd. (b)).

The court initially sentenced Kose to: (1) the middle term of three years in prison on the robbery count, doubled to six years by the strike prior; (2) a consecutive two-year term on the dissuading a witness count, doubled to four years by the strike prior; and (3) a consecutive two years for the out-on-bail enhancement, for a total determinate term of 12 years.2

This is Kose's second appeal. On the first, we affirmed his conviction but remanded the matter for resentencing because the record appeared to reflect a misunderstanding on the part of the trial court that it had no discretion to impose a concurrent sentence on count two. (People v. Kose (Nov. 27, 2017, D071219) [nonpub. opn.].)

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1. All statutory references are to the Penal Code.
2. Sentence on count 3 (bribery) and the attached allegation were stayed pursuant to section 654.

On remand, the trial court expressly acknowledged its understanding that a consecutive sentence on count two was discretionary and not mandatory. Exercising its discretion, the court concluded that a consecutive sentence was most appropriate:

"The attempt to dissuade a witness from testifying goes to the heart and soul of our justice system . . . . [I]t cries out for consecutive sentencing. It's a different time, a different date, a different place, and a different motivation. I think to thwart the justice system, to sabotage is a better term . . . is a very serious offense. That was not some spur of the moment, unplanned event. . . . [¶] [T]his was a calculated, thought out, intentional attempt to impact the justice system by trying to dissuade this witness . . . . [¶] I do accept that I have discretion, but I think I would be grossly abusing my discretion and the intent of the law if I didn't impose consecutive sentencing."

DISCUSSION

Appellate counsel filed a brief pursuant to Wende, supra, 25 Cal.3d 436 indicating he identified no reasonably arguable issue for reversal on appeal. Counsel asks this court to review the record as mandated by Wende. He directs the court to the only reasonable topic for possible evaluation: Whether the trial court abused its discretion in deciding to impose a consecutive sentence on count 2—dissuading a witness? We offered Kose the opportunity to file a supplemental brief on his own behalf. He has not responded.

Our review of the record as mandated by Wende and Anders has disclosed no reasonably arguable appellate issues. In the sentencing context, "a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.) Here, the