Filed 3/17/22 P. v. Cole CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County, Lynne Hobbs, Judge. Affirmed.

Rodrick Cole, in pro. per.; and Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

________________________

Rodrick Cole appeals from the superior court’s order summarily denying his petition for writ of mandate directed to the California Department of Corrections and Rehabilitation (CDCR), challenging as illegal his 2008 sentence for assault with a firearm with prior serious felony and firearm-use enhancements, and the CDCR’s classification of his offenses as violent within the meaning of Proposition 57. No arguable issues were identified by Cole’s appointed appellate counsel after his review of the record. We also have identified no arguable issues after our own independent review of the record and analysis of the contentions presented by Cole in a supplemental brief. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Cole was convicted following a jury trial in 2008 on three counts of assault with a firearm involving different victims. (Pen. Code, § 245, subd. (a)(2).)[1] The jury found true the allegations Cole had personally used a firearm in each assault. (§ 12022.5, subd. (a).) In a bifurcated proceeding Cole admitted 12 prior serious or violent felony convictions (for robbery) under the three strikes law (§§ 667, subds. (b)-(i), 1170.12) and as serious felony convictions within the meaning of section 667, subdivision (a).

For sentencing purposes the court struck all but one of Cole’s prior convictions for robbery because they arose from one occasion and, after correction, imposed an aggregate determinate sentence of 29 years eight months in state prison: the upper term of four years on count 2 as the principal term, doubled under the three strikes law, plus the upper term of 10 years for the firearm-use enhancement, plus consecutive terms of three years four months on each of the two remaining counts of aggravated assault (one-third the middle term of three years, doubled, plus one third the middle term of four years for the firearm-use enhancement), plus five years for the prior serious felony conviction. We affirmed the judgment on appeal. (People v. Cole (Feb. 8, 2010, B211481) [nonpub. opn.].)

On June 22, 2021 Cole, representing himself, filed a petition for writ of mandate arguing under People v. Le (2015) 61 Cal.4th 416 (Le) his sentence unlawfully included both firearm-use enhancements and a prior serious felony conviction enhancement because his commitment offenses only qualified as serious felonies based on his use of a firearm. The petition also alleged the CDCR had wrongly classified his commitment offenses as “violent,” precluding him from early parole consideration under Proposition 57.

The superior court summarily denied the petition on July 13, 2021. The court first ruled it had no jurisdiction to issue a writ of mandate to the CDCR for denial of grievances filed by Cole and added, if it had jurisdiction, it found no justification to do so. Then, liberally construing Cole’s petition as requesting a writ of habeas corpus, the court noted Cole had filed a number of prior habeas petitions, some alleging the same facts, and denied the petition, explaining: “Courts cannot reasonably be expected to entertain claims that could have been raised in a prior habeas corpus petition. [Citations.] A defendant cannot ‘try out his contentions piecemeal by successive proceedings attacking the validity of the judgment against him’ because such litigation ‘prevents the positive value of deterrence, certainty and public confidence.’ In re Clark [1993] 5 Cal.4th [750] at 767-70.”

Cole filed a timely notice of appeal.

DISCUSSION

In accord with the procedures described in People v. Cole (2020) 52 Cal.App.5th 1023, review granted October 14, 2020, S264278, we appointed counsel to represent Cole on appeal. After reviewing the record, appointed counsel filed a brief raising no issues. Appointed counsel advised Cole on February 15, 2022 that he could personally submit any contentions or issues he wanted the court to consider. This court sent Cole a similar notice on the same date.

On March 3, 2022 we received a three-page handwritten supplemental letter brief from Cole in which he repeated the arguments presented in his petition. Cole contends it was the personal firearm-use element that made his assault with a firearm a serious felony, otherwise it would be a simple battery. Therefore, he argues, it was impermissible under Le, supra, 61 Cal.4th 416, to impose both a firearm-use enhancement and the prior serious felony conviction enhancement. With respect to his CDCR classification, Cole notes assault with a firearm without the personal use enhancement is a serious felony within the meaning of section 1192.7, subdivision (c), not a violent felony under section 667.5, subdivision (c), and argues an enhancement should not be considered for purposes of determining what is a violent felony under Proposition 57. Finally, in an argument not included in his superior court petition, Cole contends, if his commitment offense is a violent felony, then he should have received a three-year enhancement under section 667.5, subdivision (a), rather than the five-year enhancement under section 667, subdivision (a).

Even without considering various procedural deficiencies in Cole’s appeal of the superior court’s order denying his petition for writ of mandate, his contentions lack merit.

Section 1170.1, subdivision (f), prohibits imposition of more than one enhancement for being armed with or using a firearm for a single offense. In Le, supra, 61 Cal.4th 416 the Supreme Court held that provision precludes imposing both a firearm-use enhancement under section 12022.5, subdivision (a), and a gang enhancement under section 186.22, subdivision (b)(1)(B), for a single offense when that offense is a “serious felony” under the gang enhancement statute only because the defendant used a firearm (in the case before it, assault with a semiautomatic weapon). Cole argues, like the defendant in Le, his assault offenses were serious felonies for purposes of section 667, subdivision (a), only because he used a firearm. Thus, he contends, he was unlawfully subjected to duplicate firearm-use penalties when the court imposed both section 12022.5, subdivision (a), and section 667, subdivision (a), enhancements.

Cole’s argument, which he has previously presented to us in several petitions for writ of habeas corpus (e.g., In re Cole (Sept. 1, 2021, B314546)), fails to recognize the difference between conduct-based enhancements, which go to the nature of the offense and were at issue in Le, and status-based recidivist enhancements, which go to the nature of the offender. The enhancement prescribed for a prior serious felony in section 667, subdivision (a), unlike firearm-use enhancements or the provisions for escalation in the gang statute from “felony” to “serious felony” or “violent felony,” is a status-based enhancement. (See People v. Sasser (2015) 61 Cal.4th 1, 15; People v. Wilson (2016) 5 Cal.App.5th 561, 565-566.) It was added to Cole’s overall determinate sentence, rather than to an individual count (see Sasser, at p. 15; People v. Tassell (1984) 36 Cal.3d 77, 90), not to punish Cole because he used a firearm during the aggravated assaults for which was convicted in 2008, but because he was a repeat offender who had previously been convicted of a serious felony (robbery). (See Wilson, at p. 567.) As such, imposition of both enhancements was proper.

As to his challenge to his CDCR classification, Cole is correct that assault with a firearm is defined as a serious felony in section 1192.7, subdivision (c)(31), and is not a violent felony under section 667.5, subdivision (c). However, section 667.5, subdivision (c)(8), defines as a violent felony any felony in which it has been charged and proved that the defendant used a firearm as provided in section 12022.5, as it was in Cole’s case.

CDCR regulations, adopted pursuant to Proposition 57, exclude from the definition of an inmate who is a “determinately-sentenced nonviolent offender” for purposes of Proposition 57’s early parole release provisions any inmate “currently serving a term of incarceration for a ‘violent felony.’” (Cal. Code Regs., tit. 15, § 3490, subd. (a)(5).) The regulations define “violent felony” as “a crime or enhancement as defined in subdivision (c) of Section 667.5 of the Penal Code.” (Id., subd. (c).) The Supreme Court in In re Mohammad (2022) 12 Cal.5th 518 approved these definitions as within the CDCR’s authority. Accordingly, it was not error for the CDCR to classify Cole’s commitment offense as a violent felony.

Cole’s final argument—if his current offense was properly characterized as a violent felony, he should have received a three-year enhancement under section 667.5, subdivision (a), for having served a prior prison term for a violent felony, and not a five-year enhancement under section 667, subdivision (a), for having previously been convicted of a serious felony—was rejected nearly 30 years ago in People v. Jones (1993) 5 Cal.4th 1142, in which the Supreme Court observed, “If a prior felony is ‘violent’ enough to qualify for an enhancement under section 667.5, it will a fortiori be noxious enough to qualify as ‘serious’ under subdivision (a) of section 667.” (Id. at p. 1150.) Although nothing in the statutory scheme expressly precluded imposing both penalties, the Jones Court held enhancements under both sections 667 and 667.5 were not to be applied to the same prior offense; only the greater enhancement was to be imposed. (Jones, at p. 1152.) That is precisely what occurred here.

Because no cognizable legal issues have been raised by Cole’s appellate counsel or by Cole or identified in our independent review of the record, the order denying the petition for writ of mandate is affirmed. (See People v. Cole, supra, 52 Cal.App.5th at pp. 1039-1040, review granted; see also People v. Serrano (2012) 211 Cal.App.4th 496, 503; see generally People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d 436, 441-442.)

DISPOSITION

The postjudgment order is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J. FEUER, J.

[1] Statutory references are to this code.