People v. Cooke CA2/1

Filed 3/27/14 P. v. Cooke CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B246001

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA080565) v.

JEFFREY GLENN COOKE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Antonio Barreto, Jr., Judge. Affirmed as modified. ______ Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent. ______

An information, filed on June 21, 2012, charged Jeffrey Glenn Cooke with one count of first degree burglary under Penal Code section 459.1 The information alleged that the burglary constituted a violent felony within the meaning of section 667.5, subdivision (c)(21), “in that another person, other than an accomplice, was present in the residence during the commission of the . . . offense.” It also alleged that Cooke had a prior serious or violent felony conviction for assault with a deadly weapon (§ 245, subd. (a)(1)), that qualified as a strike for purposes of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and subjected him to a five-year enhancement under section 667, subdivision (a)(1). A jury found Cooke guilty of burglary and “true” the allegations that the burglary was of the first degree and that “there was another person present, other than an accomplice, during the commission of the [crime].” Cooke admitted his prior conviction for assault with a deadly weapon and agreed that it constituted a strike and a serious felony for the section 667, subdivision (a)(1), enhancement. The trial court sentenced him to a state prison term of nine years, consisting of the low term of two years for first degree burglary, doubled pursuant to the Three Strikes law, plus five years under section 667, subdivision (a)(1). Cooke appealed, contending that (1) the trial court committed reversible error by admitting evidence under Evidence Code section 1101, subdivision (b), and (2) the evidence is insufficient to support the jury’s finding that another person, other than an accomplice, was present in the residence during the burglary. The People ask us to modify the abstract of judgment to reflect the parole revocation fine assessed by the court. We reject Cooke’s contentions, modify the abstract of judgment to reflect the parole revocation fine and affirm the judgment as modified.