People v. Cox CA3

Filed 5/6/16 P. v. Cox CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C079266

Plaintiff and Respondent, (Super. Ct. No. 14F04909)

v.

MICHAEL JOSEPH COX,

Defendant and Appellant.

Defendant Michael Joseph Cox entered a negotiated plea of no contest to negligent discharge of a firearm (Pen. Code, § 246.31) in exchange for no state prison at the outset and 150 days in county jail as a condition of probation. Prior to sentencing, defendant requested that the court reduce the offense to a misdemeanor pursuant to section 17, subdivision (b). At the hearing scheduled for sentencing and defendant’s motion, the court denied the motion, suspended imposition of sentence, and granted probation for a term of five years with various conditions, including 150 days in county jail.

1 Undesignated statutory references are to the Penal Code in effect at the time of the charged offense.

1

The trial court granted defendant’s request for a certificate of probable cause. (§ 1237.5.) Defendant contends the trial court abused its discretion in refusing to reduce the offense to a misdemeanor. In the alternative, he requests that this court remand to the trial court for reconsideration. We affirm. FACTUAL AND PROCEDURAL BACKGROUND2 On July 7, 2014, at 8:55 p.m., an officer responded to a call of shots fired and contacted defendant who claimed he had fired gunshots so the police would respond. Defendant appeared to be intoxicated and was belligerent and yelling. In defendant’s front yard, the officer found a double-barrel shotgun containing two expended shells. Defendant told the officer he had observed two boys climb over a nearby fence and confronted them about stealing. They admitted having done so and defendant became angry. One boy pulled out a knife and defendant grabbed the boy’s arm in self- defense. The boy threw the knife to the other boy who defendant grabbed as well. Both boys left. About 10 minutes later, five men arrived in one or more cars, got out, and stood on defendant’s sidewalk, wanting to fight defendant. Defendant did not believe they would fight fairly so he went into his house to get his shotgun. When he went back outside, the men were driving away. Defendant fired two shots into the air when the men were about a block away. According to one of the boys, he and his friend were walking past defendant who accused them of stealing. The boy sarcastically responded and defendant grabbed the boy’s friend, saying he was going to “kick his ass.” The boy warned defendant not to “mess[] with his friend” and defendant punched the boy in the face and kicked him in the