Opinion
A131824
11-17-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ALAN COEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Humboldt County
Super. Ct. No. CR1003863)
Michael Alan Coen appeals from a judgment and sentence following his no contest plea and admission to two enhancements. His court-appointed counsel has filed a brief requesting our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 to determine whether there are any arguable grounds for appeal. On November 2, 2011 Coen filed a supplemental brief. We conclude there are no issues that warrant review, and affirm.
PROCEDURAL AND FACTUAL BACKGROUND
Coen was charged in an amended information with one count of attempted murder pursuant to Penal Code sections 664 and 187, subdivision (a); one count of assault with a firearm pursuant to section 245, subdivision (a)(2); one count of possession of a firearm by a felon pursuant to section 12021, subdivision (a)(1); and misdemeanor resisting a peace officer pursuant to section 148, subdivision (a)(1). The amended information also charged a variety of enhancements on various counts due to Coen's personal use of a firearm, his infliction of great bodily injury, his commission of prior serious or violent felonies and his service of a prior prison term.
Unless otherwise indicated, all further statutory references are to the Penal Code.
According to the probation officer's report, the charges arose out of an incident the morning of July 2, 2010, when Coen woke his sleeping victim, accused the victim of providing drugs to Coen's girlfriend and shot him. Coen and his girlfriend fled the scene, and were apprehended later that day. When he was arrested Coen was wearing two bullet-proof vests.
When the case was called for trial, Coen and the district attorney reached an agreed disposition of the charges as well as charges in two other pending cases, which arose out of other incidents. In this case, Coen entered a no contest plea to one count of assault with a firearm (§ 245, subd. (a)), involving the personal infliction of great bodily injury and personal use of a firearm (§§ 12022.7, subd. (a), 12022.5, subd. (a)(1) & 1203.06, subd. (a)(1)). He acknowledged the offense was a serious and violent felony as described in sections 667.5, subdivision (c)(8), and 1192.7, subdivision (c)(8). He also admitted the special allegation under section 667, subdivision (b), that he was previously convicted of the serious and violent felony of assault with a deadly weapon with the infliction of great bodily injury.
The amended information and reporter's transcript are somewhat ambiguous, but the probation report shows that when Coen entered his guilty plea to this prior assault charge he also admitted an allegation pursuant to section 12022.7 that it was committed with the infliction of great bodily injury, thus making clear that this prior crime was a serious and violent felony.
Coen also entered pleas pursuant to negotiated dispositions in two other felony cases. In case number 1004076, he entered a no contest plea to willful evasion of a peace officer in violation of Vehicle Code section 2800.2. In case number 1004488, he entered a no contest plea to theft or unauthorized use of a vehicle in violation of Vehicle Code section 10851.
Coen was represented by counsel throughout the proceedings. The court advised him of his constitutional rights, verified that he understood the nature of the charges against him, and the consequences of his pleas and admissions. The court also ensured that Coen's pleas were free and voluntary, and that they had a basis in fact. Before accepting his pleas, the court also advised Coen that as a result of the agreement he could face a maximum prison term of 21 years.
When Coen appeared for sentencing, the court recited as aggravating factors Coen's escalating criminality and prior convictions, his service of prior terms in state prison, that he was on probation or parole when the crimes were committed, and that his parole or probation terminated unsuccessfully. The court found no factors in mitigation. Coen was sentenced pursuant to section 245, subdivision (a)(2) to the upper term of four years for the charge of assault with a firearm, doubled pursuant to section 667 due to his admission of a prior felony conviction. He was assessed a consecutive three-year enhancement for his admitted infliction of great bodily injury pursuant to section 12022.7, subdivision (a). He was also given the upper term of 10 years as an enhancement due to his admitted personal use of a firearm pursuant to section 12022.5, subdivision (a)(1). Thus, his total prison sentence in this case was 21 years. In each of the other two cases, Coen was given a midterm sentence of two years, to run concurrently to the 21 year sentence in this case. He was awarded 310 days of presentence credits pursuant to section 2933.1.
Coen also reached negotiated dispositions in two misdemeanor cases. We need not address those judgments.
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DISCUSSION
In light of the record of the negotiated disposition of these charges, the notice of appeal filed in this case, and Coen's supplemental brief, we are particularly mindful that grounds for appeal are limited to those occurring after entry of the pleas. (Cal. Rules of Court, rule 8.304(b).) Accordingly, we have closely reviewed Coen's sentence for possible error.
Initially, the enhancement for Coen's personal use of a firearm, pursuant to section 12022.5, upon the conviction for assault with a firearm pursuant to section 245, subdivision (a)(2) is expressly permitted by statute. (§ 12022.5, subd. (d); see also People v. Rodriguez (2009) 47 Cal.4th 501, 505.) There was no error in imposing the personal use enhancement upon the conviction for assault with a firearm.
Neither was there error in the court's imposition of aggravated terms for both the assault charge and the personal use enhancement. When the court imposed sentence, it identified four factors in aggravation. Coen had a lengthy prior record of increasing seriousness, he was on probation or parole when the crimes were committed, he served prior terms in prison, and his performance on parole or probation was unsatisfactory. (Cal. Rules of Court, rule 4.421(b)(2) through (5).) The presence of one aggravating factor is sufficient to support an upper term sentence. (See People v. Black (2007) 41 Cal.4th 799, 813; People v. Osband (1996) 13 Cal.4th 622, 728.) Here, the court referred to four specific aggravating factors when it imposed a single sentence enhancement for Coen's personal use of a firearm and one aggravated term for assault with a firearm. There was no error in imposing upper terms for both Coen's assault with a firearm and the personal use enhancement.
Appellate counsel has represented that she advised Coen of her intention to file a Wende brief in this case and of his right to submit supplemental written argument on his own behalf. On November 2, 2011 Coen filed his supplemental brief. Coen was advised of his right to request that counsel be relieved. This court has reviewed the entire record on appeal. No issue requires further briefing.
DISPOSITION
The judgment is affirmed.
Siggins, J.
We concur:
McGuiness, P.J.
Pollak, J.