Opinion
E073263
11-27-2019
THE PEOPLE, Plaintiff and Respondent, v. AARON TAMBA COFFEY, Defendant and Appellant.
Michaela Dalton, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1807794) OPINION APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III, Judge. Affirmed. Michaela Dalton, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant, Aaron Tamba Coffey, entered a plea of guilty to the court to first degree burglary (Pen. Code, § 459; count 1) and resisting or delaying a peace officer (§ 148, subd. (a)(1); count 2). Defendant additionally admitted another person was present when he committed the burglary. (§ 667.5, subd. (c)(21).) The court sentenced defendant to two years of imprisonment.
All further statutory references are to the Penal Code.
After defense counsel filed a notice of appeal, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the facts, a statement of the case, and one potentially arguable issue: whether the court abused its discretion in denying defendant probation. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
An officer was dispatched to a residence in response to a reported burglary. The victim reported that her son had gone into the garage to get his bicycle; he found the side door to the garage open and his bicycle missing. The victim said that although the side door was locked, it had a large dog door which she suspected defendant of using to access the garage. The victim noticed that in addition to the missing bicycle, a BB gun was also missing.
The victim was walking around the neighborhood looking for the bicycle when she observed defendant riding it. Defendant greeted her. The victim called the police and informed them of the address at which she last saw defendant. The responding officer later saw defendant leave that residence on the bicycle. The officer followed defendant and ordered him to stop. Defendant rode away. Officers conducted a search of the overgrown wash area where defendant fled utilizing a K-9 unit; the K-9 unit was able to locate defendant, who was taken into custody.
Defendant apologized for "the hassle" and said he ran "because he grew up believing that was what he needed to do." Defendant reported that an individual named "Oscar," who he alleged lived at the victim's residence, had given him permission to use the bicycle whenever he needed it. Defendant denied taking a BB gun.
Officers transported defendant to a parking lot, where the victim positively identified defendant as the person she saw riding her son's bicycle. She later provided officers surveillance footage from her residence showing an individual resembling defendant at her residence.
Prior to entering his plea, the court informed defendant: "You can receive anything from probation up to six years in prison. This is not a negotiated disposition with the People." Defendant entered an open plea of guilty to the sheet as described above. The factual basis for defendant's plea consisted of defendant's affirmative responses to the court's inquiries regarding whether he had committed the offenses and allegation as alleged in the information. The court continued the sentencing hearing for the preparation of a probation report.
The probation officer recommended that the court deny probation and sentence defendant to the low term of two years of imprisonment on the count 1 offense and a concurrent term of one year in jail on the count 2 offense. The probation officer noted that defendant was statutorily ineligible for probation unless the court found the case to be unusual. Among the factors in aggravation the probation officer found applicable were that the manner of the offense indicated "planning, sophistication, or professionalism";defendant's criminal convictions were numerous or of increasing seriousness; and defendant's prior performance on probation had been unsatisfactory Among the factors in mitigation cited by the probation officer were that "defendant voluntarily acknowledged wrongdoing at an early stage of the criminal process" and suffered "from a mental or physical condition that significantly reduced culpability for the crime."
Defendant's criminal record reflected prior convictions for eight misdemeanors and one felony. Defendant had been placed on formal probation for his prior conviction of receiving stolen property, a bicycle, which was revoked for a violation on October 9, 2018, "for violating several drug-related terms." Nonetheless, the probation officer's report reflects defendant's probation was terminated one month later. Defendant had a misdemeanor conviction for domestic violence for what he described as "getting into an argument with his ex-girlfriend . . . ." Defendant estimated he had been arrested 10 times in his life, including once for misdemeanor assault in Washington.
Defendant had apparently been released from jail and had his probation terminated six days before committing the instant offenses.
As noted in the factual recitation, defendant contended someone named "Oscar," who he alleged lived at the residence, had given him permission to use the bicycle at any time. The court found defendant had "voluntarily acknowledged wrongdoing at a relatively early stage of the criminal process in the sense that before we actually had to pick the jury in this case he acknowledged what he did and he pled guilty." Defendant pled guilty on the day set for trial. During his postconviction interview, defendant informed the probation officer he was advised not to speak about the instant offenses. Defendant said he was under the influence of methamphetamine during the commission of the offenses and that "'it should've never happened.'" He said he wanted to apologize personally to the victims. Defendant "stated that had no one had the right to take the property of others without permission." Furthermore, "defendant acknowledged it must have been 'scary' to be home when the incident happened . . . ." At the sentencing hearing defendant apologized to the victims. Defendant noted: "Even with the negative things that I've done . . . I have done ten times as much positive things to others and put that much good back out into the world."
The probation officer failed to specify from what "mental or physical condition" defendant suffered. The only "condition" suffered by defendant supported by the record would be drug addiction. Defendant had five prior misdemeanor drug convictions; had his probation revoked for testing positive for drugs; admitted having used alcohol, marijuana, heroin, cocaine, methamphetamine, LSD, ecstasy, and mushrooms; and admitted being on methamphetamine when he committed the instant offenses. --------
The People filed a sentencing memorandum recommending imposition of a four-year term of imprisonment. Defense counsel filed a sentencing memorandum requesting a grant of probation or, in the alternative, imposition of the low term of two years of imprisonment. During the sentencing hearing, the court noted: "I think there's enough here to sentence you to the upper term, and I think it would be affirmed on appeal." "I looked at the factors in aggravation and mitigation , it's difficult to imagine me giving you the low term let alone probation." The court found that it was "not an unusual case—in fact, it's not even a close call—so probation is going to be denied. The court sentenced defendant to the low term of two years of imprisonment on the count 1 offense and three months concurrent on the count 2 offense.
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. RAPHAEL
J.