Opinion
H043223
01-30-2017
THE PEOPLE, Plaintiff and Respondent, v. MITCHELL CRAIG POPE, JR., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. C1236612, C1245013)
Defendant Mitchell Craig Pope, Jr., pleaded no contest to assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and assault with a semiautomatic firearm (§ 245, subd. (b)). He also admitted that he personally used a firearm in the commission of the assaults (§ 12022.5, subd. (a)), and that he had served two prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to 25 years four months in prison.
All further statutory references are to the Penal Code unless otherwise indicated. --------
On appeal, defendant's appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 that states the case and facts, but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. That period has elapsed and we have received no response from defendant.
Pursuant to People v. Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme Court's direction in People v. Kelly, supra, at page 110, we provide a brief description of the facts and the procedural history of the case.
BACKGROUND
A. Charges and Pleas
On two different dates in 2012, defendant committed an assault with a firearm against the same victim.
In 2013, in case No. C1236613, defendant was charged by information with assault with a firearm (§ 245, subd. (a)(2); count 1) and discharging a firearm at an occupied motor vehicle (§ 246; count 2). The information further alleged that defendant personally used a firearm in the commission of the assault (§ 12022.5, subd. (a)), that he committed the offenses while on parole (§ 1203.085, subd. (b)), and that he had served four prior prison terms (§ 667.5, subd. (b)). The offenses allegedly occurred on or about March 6, 2012.
In case No. C1245013, defendant was charged by information with attempted premeditated murder (§§ 664, subd. (a), 187, 189; count 1), assault with a firearm (§ 245, subd. (a)(2); count 2), and misdemeanor exhibiting a firearm (§ 417, subd. (a)(2); count 3). The information further alleged that defendant personally discharged a firearm during the commission of the attempted murder (§ 12022.53, subd. (c)), that he personally used a firearm in the commission of the assault (§ 12022.5, subd. (a)), that he committed the offenses while on parole (§ 1203.085, subd. (b)), and that he had served four prior prison terms (§ 667.5, subd. (b)). The offenses allegedly occurred on or about November 9, 2012.
In 2015, the prosecution filed a motion to consolidate the actions because they contained the "same class of crimes." Defendant opposed the motion. If the motion was granted, defendant requested that the charges be severed and remain in separate actions.
On June 16, 2015, the trial court granted the motion to consolidate the actions, and denied defendant's motion to sever. The court observed that there was a common victim between the actions, that the offenses in the two cases occurred within months of each other, and that some of the same evidence would be admissible in both cases. The court also granted a motion by the prosecution to amend the information to add a count for attempted murder.
In the first amended consolidated information, defendant was charged with two counts of attempted premeditated murder (§§ 664, subd. (a), 187; counts 1 & 4), two counts of assault with a firearm (§ 245, subd. (a)(2); counts 2 & 5), discharging a firearm at an occupied motor vehicle (§ 246; count 3), and misdemeanor exhibiting a firearm (§ 417, subd. (a)(2); count 6). The information further alleged that defendant personally discharged a firearm during the commission of the attempted murders (§ 12022.53, subd. (c)), that he personally used a firearm in the commission of the assaults (§ 12022.5, subd. (a)), that he committed the offenses while on parole (§ 1203.085, subd. (b)), and that he had served four prior prison terms (§ 667.5, subd. (b)). Counts 1 through 3 allegedly occurred on or about March 6, 2012, and counts 4 through 6 allegedly occurred on or about November 9, 2012.
On June 18, 2015, the trial court granted the prosecution's motion to amend count 4 to allege assault with a semiautomatic firearm (§ 245, subd. (b)), and to allege that defendant personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)). Defendant pleaded no contest to the amended count 4, and to count 2, assault with a firearm (§ 245, subd. (a)(2)). He also admitted that he had personally used a firearm in the commission of the assaults (§ 12022.5, subd. (a)), and that had served two prior prison terms (§ 667.5, subd. (b)). Defendant entered his pleas and admissions with the understanding that he would receive a prison term of 25 years four months. The remaining counts and allegations were submitted for dismissal at the time of sentencing.
B. Sentencing and Appeal
On January 22, 2016, the trial court sentenced defendant to 25 years four months in prison. The sentence consists of the upper term of nine years on count 4 (assault with a semiautomatic firearm) with a consecutive term of 10 years for the firearm enhancement, four years four months (one-third the middle term plus the firearm enhancement) on count 2 (assault with a firearm), and two years for the prison priors (§ 667.5, subd. (b)). The court granted custody credits and ordered defendant to pay various fines and fees. The remaining counts and allegations were dismissed.
Defendant filed a timely notice of appeal and a request for request for certificate of probable cause, but the court denied the request for the certificate. We appointed counsel to represent defendant in this court.
DISCUSSION
Having carefully reviewed the entire record, we conclude that there are no arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d at pp. 441-443.)
DISPOSITION
The judgment is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.