Opinion
D070158
02-14-2017
THE PEOPLE, Plaintiff and Respondent, v. ZACHARY COOK, Defendant and Appellant.
Law Office of Christine M. Aros and Christine M. Aros, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. SCD262433, SCE350229) APPEAL from a judgment of the Superior Court of San Diego County, Yvonne E. Campos, Judge. Affirmed. Law Office of Christine M. Aros and Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant Zachary Cook's appointed appellate counsel has filed a brief asking this court to independently review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm the judgment.
PROCEDURAL BACKGROUND
In early May 2015, the San Diego County District Attorney's office filed a felony complaint in case No. SCE350299, charging Cook with one count of resisting an executive officer (Pen. Code, § 69) on or about April 13 of that year. In early September 2015, Cook pleaded guilty to that charge.
All further statutory references are to the Penal Code.
In early July 2015, an information was filed in case No. SCD262433 charging Cook with committing robbery (§ 211; victim: Michael R.) on or about May 16 of that year. The complaint further alleged that in committing the robbery Cook personally used a deadly and dangerous weapon (a knife) within the meaning of section 12022, subdivision (b)(1). On August 14, 2015, the court granted the People's motion to amend the information to add, as count 2, a violation of section 245, subdivision (a)(4) (assault by means of force likely to produce great bodily injury). Thereafter, on that same date, Cook pleaded guilty in case No. SCD262433 both to a misdemeanor violation of section 484 (theft) as a lesser included offense of the robbery charged in count 1, and to the newly added felony assault charged in count 2.
Effective January 1, 2017, rule 8.90(b) of the California Rules of Court requires appellate courts to "consider referring to" certain individuals "by first name and last initial or, if the first name is unusual or other circumstances would defeat the objective of anonymity, by initials only," in order to protect those individuals' privacy. The list of people to whom this rule applies includes victims of crimes. (Rule 8.90(b)(4).) After consideration, we refer to the victims in this matter by their first names and last initials, and thereafter by their first names only, in order to provide some measure of anonymity. --------
On September 14, 2015, the court granted Cook formal probation in both cases and ordered him to serve concurrent sentences of 365 days in county jail.
On December 31, 2015, the probation officer filed reports in both cases informing the court that Cook had been rearrested for possible violations of his conditions of probation that he obey all laws and not unlawfully use force, threats, or violence on another person. In each case, the probation officer issued a notice to show cause why Cook's probation should not be revoked or modified. On January 6, 2016, at the hearing on the orders to show cause, Cook denied violating probation in both cases.
Cook's trial on the new misdemeanor case, case No. M210642, and the hearings on the probation violations in case Nos. SCE350299 and SCD262433, were heard simultaneously.
On February 4, 2016, a jury found Cook guilty in case number M210642 of misdemeanor corporal injury in violation of section 273.5, subdivision (a), and misdemeanor battery in violation of section 243, subdivision (e)(1). Thereafter, the court revoked Cook's probation in case Nos. SCE350299 and SCD262433.
On April 6, 2016, at the sentencing after revocation hearing in case Nos. SCD262433 and SCE350299, the court noted that the basis for the revocation of probation was the court's finding by a preponderance of the evidence, based on the testimony of the witnesses at Cook's misdemeanor trial, that Cook had violated the condition of his probation that he obey all laws. The court sentenced Cook to the middle term of three years for his count 2 conviction in case No. SCD262433 and to a concurrent middle term of two years in case No. SCE350299 for his conviction of resisting an executive officer. Cook's timely appeals in those two cases followed.
FACTUAL BACKGROUND
At around 9:45 a.m. on December 27, 2017, as Joe Sante was working as a security officer at the Village at Moreno Vista apartment complex and shopping center, Yolanda G. came into the area followed by Cook. Sante had seen Cook and Yolanda in the area before but did not know them. Cook and Yolanda were arguing, and Yolanda came up to Sante and asked whether she could stand next to him. Sante testified that Cook was mocking and demeaning Yolanda and she appeared scared. Cook and Yolanda then moved into the parking lot, and Cook grabbed her by the straps of her backpack and shook her, thereby causing her to fall down. When Yolanda got up, Cook continued to drag her by the backpack and then lowered his shoulder into her, using a tackle motion, and she fell down again
Keith Vian was sitting in his truck waiting to get a haircut when he saw, in his rear view mirror, Cook arguing and wrestling with a woman. The female tried to walk away but Cook kept grabbing her and pushing her back. Vian saw the woman fall to the ground. At first, Vian thought she had slipped, but after she got up, Cook tackled her back down to the ground. The delivery driver put his hand on Cook to try to assist the woman, but he backed away after Cook swung at him. Vian then grabbed Cook, who was on top of the woman, by his backpack, pulled him, and asked him to leave the woman alone. Cook turned, took a swing at Vian, and told him, "Get out of my fuckin' business." Vian told Cook, "Let her go," and Cook again told him to stay out of his business.
Sante approached and also told Cook to stop and to go away. The men were able to distract Cook and get him away from Yolanda. Yolanda walked into the Starbucks and Cook walked back near the apartment complex to gather their things and then followed her into the Starbucks. Vian followed Cook to the Starbucks, and Cook then left. Vian went back to his truck after asking Sante if he had the situation under control and whether the police were on their way. When Vian got to his truck, he saw Cook walking back to the Starbucks, so Vian also went back to the Starbucks. Cook was trying to force his way inside, and customers were trying to control the situation and telling Cook he could not come inside. Concerned about the safety of the other people, Vian grabbed Cook from behind, wrapped his arm around Cook's neck, and started pulling him backwards towards the sidewalk. Cook told Vian and the others that he would "knock them out" and that it was none of their business. Vian and two other men placed Cook, who was struggling, face down on the ground and held him down until the police arrived. Cook continued to struggle with them and said he was going to sue them and Starbucks.
San Diego Police Officer Michael Hayes arrived at the Starbucks and saw several people holding Cook down in the parking lot. Cook was yelling and resisting the group. Officer Hayes approached Cook, handcuffed him, and took him to the patrol car. Cook was animated, angry, yelling about suing people, and saying he had been choked. Cook resisted when Officer Hayes was trying to handcuff him, but the officer was able to handcuff Cook when the others held Cook down. Cook told the officer nothing had happened, and he denied that he had tackled or attacked Yolanda.
San Diego Police Officer Brian Kashouty spoke with Yolanda at the scene. Yolanda had a visible bruise on her upper chest, and she was upset, crying, and afraid.
Yolanda testified that she and her boyfriend, Cook, had been in an on-and-off relationship for two years. On December 27, 2015, she was homeless. That day she and Cook had gotten got into an argument on the trolley and she was ignoring him. Cook grabbed her by the backpack and she did not understand what it was about. He started acting combative and irritated, and Yolanda was nervous because she did not know what he wanted from her. She asked the security guard if she could stand near him because she did not want to be bothered by Cook and wanted him to leave her alone. Cook had a strong grip on Yolanda's backpack and was controlling her movements. Yolanda was frustrated and started to cry because Cook would not let her go and she was trying to get to the restroom. Yolanda testified that she fell while she and Cook were walking because she had balance issues. She stumbled and tripped, and Cook helped her get back up. According to Yolanda, she only fell once and then strangers came and tried to "break it up" between Cook and her. Yolanda went into the restroom at Starbucks, and Cook followed her into the bathroom and told her to hurry because they were leaving. When she came back outside, Yolanda saw that Cook was pinned to the floor by a bunch of people and then the police arrived.
DISCUSSION
Cook's appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738 (Anders), summarizing the proceedings below and indicating she was unable to find any reasonably arguable issues for reversal or modification of the judgment on appeal. Cook's counsel has identified the following issues that "might arguably support the appeal" (Anders, at p. 744): (1) "Was there sufficient evidence to support a finding that Cook violated the conditions of his probation?"; (2) "Should probation have been reinstated?"; and (3) "Did the trial court err in imposing the middle term" of three years for his count 2 conviction in case number SCD262433 and a concurrent middle term of two years in case number SCE350299 for his conviction of resisting an executive officer?
On October 27, 2016, we granted Cook permission to file a brief on his own behalf. He did not do so.
Our review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issues identified by Cook's counsel, has disclosed no reasonably arguable appellate issues. Accordingly, we affirm the judgment. Cook's appellate counsel has competently represented him in this appeal.
DISPOSITION
The judgment is affirmed.
NARES, J. WE CONCUR: BENKE, Acting P. J. IRION, J.