People v. Cokley CA3

Filed 9/18/14 P. v. Cokley CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C074205

Plaintiff and Respondent, (Super. Ct. No. 12F07946)

v.

JOHNNIE COKLEY,

Defendant and Appellant.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) FACTUAL AND PROCEDURAL BACKGROUND Defendant was riding his bicycle without a light when police officers stopped him and learned he was on parole for committing spousal abuse. He ran from the officers and surrendered after a brief pursuit. He was wearing a backpack and when asked if there was a firearm in the backpack, he answered yes. The officer found a loaded .38-caliber

1

revolver in the backpack. In addition to being on parole for domestic violence, defendant had two parole violations. He also had a prior conviction for carjacking. The victim of the carjacking was a 75-year-old woman, who tried to prevent defendant from taking the car and fell on the ground as defendant was driving away. She sustained bruises and abrasions. Defendant entered a plea of no contest to being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1))1 and admitted having a prior strike conviction for carjacking (§§ 215, 667, subd. (b)(i), 1170.12). In exchange, defendant agreed to a stipulated term of 16 months, doubled to 32 months because of the strike. Prior to sentencing, defendant filed a Romero motion2 arguing that the strike allegations should be dismissed in the interest of justice because his current offense was nonviolent and his first strike was committed approximately nine years earlier. The court denied the motion because the carjacking, which the court found was not remote, involved violence and the new offense involved a firearm. The court sentenced defendant to the stipulated term of 16 months, doubled because of the strike to 32 months. The trial court awarded defendant 412 days of presentence custody credits, ordered him to pay a $240 restitution fund fine, stayed imposition of a $240 section 1202.45 restitution fine pending successful completion of post release supervision, and imposed a $40 court facility fee and a $30 conviction assessment. Defendant appeals. He did not obtain a certificate of probable cause. (§ 1237.5.) We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d