Opinion
A168702
04-11-2024
THE PEOPLE, Plaintiff and Respondent, v. BRANDON COCHRAN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Solano County Super. Ct. No. VCR230598)
GOLDMAN, J.
Brandon Cochran appeals from his resentencing following his conviction by jury of voluntary manslaughter with the use of a firearm. (Penal Code §§ 192, subd. (a), 12022.5, subd. (a).) His appointed appellate counsel filed a brief seeking our independent review of the record for arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel informed Cochran of his right to file a supplemental brief on his own behalf, which he has not done. We have conducted a review pursuant to Wende and find no meritorious arguable issues, although we note several errors in the amended abstract of judgment. We affirm with instructions to the clerk of the trial court to correct the amended abstract.
Undesignated statutory references are to the Penal Code.
BACKGROUND
Our prior unpublished opinion in this case is part of the record before us on appeal. In that opinion, we referred to people other than Cochran by their initials or first name and last initial, to protect their privacy. We adopt that convention here as well.
This case arises from a dispute between two sets of parents and neighbors whose children attended the same school. When the victim, Reginald J., and his wife confronted Cochran and his child's mother about the dispute, a physical scuffle ensued. Ultimately, Cochran shot and killed Reginald J. Cochran was charged with murder with a gun-use enhancement and argued at trial that he acted in self-defense. The jury found him guilty of voluntary manslaughter as a lesser-included offense of murder, and the trial court sentenced him to the middle term of six years for that offense, plus an upper-term sentence of 10 years for the gun-use enhancement. The trial court found and relied on two aggravating factors to impose the 10-year upper term: that when Cochran shot him, Reginald J. was (1) unarmed, and (2) turning away from Cochran.
Cochran appealed his conviction and sentence and, due to intervening changes in the law, we instructed the trial court on remittitur to resentence Cochran consistent with the changes to section 1170.1, subdivision (d). We also instructed the trial court to correct the abstract of judgment to reflect that the applicable gun-use enhancement was based on section 12022.5, subdivision (a), not section 12022.53, subdivision (b).
The trial court empaneled a new jury and held a new trial to determine if the prosecution had proven three facts, which the prosecution maintained were aggravating factors that could justify reimposing the upper-term sentence for the gun-use enhancement. Those facts were that: (1) Reginald J. was unarmed when Cochran shot him; (2) Reginald J. was turning away from Cochran when Cochran shot him; and (3) Cochran disposed of the gun after shooting Reginald J. The parties stipulated to the third fact, which Cochran also admitted in his testimony. The jury found that the prosecution did not prove the first two facts. Applying section 1170.1, subdivision (d), the trial court declined to find that the third, admitted fact was an aggravator, and given the jury's not-true findings as to the first two facts, imposed the middle-term sentence of four years for the gun-use enhancement. It reimposed the six-year term for the manslaughter conviction, for a total sentence of 10 years.
DISCUSSION
Cochran appeals from the resentencing. We are satisfied that Cochran's appellate attorney fully complied with the relevant obligations. (Wende, supra, 25 Cal.3d at p. 443.) Having independently reviewed the record, we have found no arguable errors that, if corrected, would result in a disposition more favorable to Cochran.
We do, however, direct the trial court to correct the amended abstract of judgment in several respects. As we directed in Cochran's first appeal, the gun-use enhancement applicable to Cochran's voluntary manslaughter conviction is found in section 12022.5, subdivision (a), not section 12022.53, subdivision (b), which applies to murder. Item 2 of the amended abstract of judgment still cites section 12022.53, subdivision (b) as the basis for the enhancement. We therefore again instruct the trial court to correct item 2 of the amended abstract so that it refers to section 12022.5, subdivision (a) as the basis for the enhancement.
Item 1 of the amended abstract leaves blank the boxes for "serious felony" and "violent felony." Both of those boxes should be checked or otherwise marked as applicable to Cochran's conviction. (See §§ 667.5, subd. (c)(1), 1192.7, subd. (c)(1).) The dates of the hearing and pronouncement of sentence in the caption and item 14 of the amended abstract, respectively, should be changed from July 16, 2020-the date of the original sentencing-to August 29, 2023, the date of Cochran's resentencing.
In item 14, the credit for time Cochran has spent in custody should be updated to reflect the court's calculations as of the date of the resentencing, rather than as of Cochran's initial sentencing in July 2020. (People v. Buckhalter (2001) 26 Cal.4th 20, 37, 41; People v. Rojas (2023) 95 Cal.App.5th 48, 53-54, 61.) The trial court was required at the August 2023 resentencing to recalculate" 'all actual time' [Cochran] has served," which, according to the transcript for the resentencing hearing, was 2,088 days. (People v. Dean (2024) 99 Cal.App.5th 391, 397.) "CDCR is [then] responsible for calculating [Cochran's] postsentence credits." (Ibid.)
DISPOSITION
The trial court is directed to correct the amended abstract of judgment as described ante, and to transmit the amended abstract of judgment, as modified, to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
WE CONCUR: BROWN, P. J. STREETER, J.