Filed 5/1/18 P. v. Cook 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

STANLEY COOK,

Defendant and Appellant.


F075958

(Super. Ct. No. BF109521A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.
Michael Satris, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
Appellant Stanley Cook appeals from the court’s denial of his petition for recall of sentence (Pen. Code, § 1170.126). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 9, 2005, a jury convicted Cook of second degree burglary (§ 460, subd. (b)) and, in a separate proceeding, the court found true allegations that Cook had four prior convictions within the meaning of the “Three Strikes” law (§ 667, subds. (b)-(i)). On September 7, 2005, the court sentenced Cook to an indeterminate sentence of 25 years to life.
On November 6, 2012, the electorate passed the Three Strikes Reform Act which made prisoners serving a third strike sentence eligible for resentencing if none of his or her prior strike convictions was for one of several enumerated felonies that included assault with the intent to commit rape that was committed by force, violence, duress, menace, etc. (§§ 1170.126, 667, subd. (e)(2)(C)(iv), Welf. & Inst. Code, § 6600, subd. (b).)
On October 22, 2014, Cook filed a petition for recall of sentence pursuant to section 1170.126.
On December 15, 2014, the People filed a response arguing that Cook was not eligible for recall of sentence because he had a prior conviction for assault with the intent to commit rape.
On December 19, 2014, the court denied the petition.
On December 26, 2014, Cook appealed.
On February 8, 2017, in an unpublished opinion this court concluded that because it is possible for an assault to be completed before any force has been applied and also without the use of threats or fear, an assault with intent to commit rape is not necessarily committed with force or one of these other features. Thus, we further concluded that the trial court erred in denying Cook’s petition because it only considered the question of whether the offense of assault with intent to commit rape is always, as a matter of law, necessarily committed by force or fear for purposes of a petition to recall a sentence under section 1170.126. In reversing the court’s order and remanding for further proceedings, we also held that in considering a section 1170.126 petition the court could consult the record of conviction of each prior strike.
On April 27, 2017, the People filed points and authorities that included as an exhibit, a copy of the reporter’s transcript of the March 3, 1987, preliminary hearing for Cook’s assault with intent to commit rape offense. At this hearing, the victim testified that in the early morning of February 15, 1987, she was asleep in her bedroom when she awoke to find Cook in front of her telling her nothing would happen to her if she was quiet and did not move. The victim, however, stood up, tried to escape, and began screaming for help. Cook eventually got the victim on the ground and began choking her while telling her to be quiet or he would kill her. After the victim complied, Cook placed her on the bed, spread her legs, and started pulling his pants down. Using a ruse, the victim got Cook to take two steps backwards, which allowed her to get away from him and escape to a neighbor’s house.
On June 23, 2017, based on the victim’s preliminary hearing testimony, the court found Cook used force to commit the assault with intent to commit rape and it denied the petition.
On July 13, 2017, Cook filed a timely appeal.
Cook’s 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, supra, 25 Cal.3d 436.) Although Cook filed a letter dated November 6, 2017, in response to our letter inviting him to submit additional briefing, he does not raise any issues in the letter.
Following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.