People v. Cole CA3

Filed 8/10/21 P. v. Cole CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C092523

Plaintiff and Respondent, (Super. Ct. No. 17FE018771)

v.

MALEAK COLE,

Defendant and Appellant.

Defendant Maleak Cole pleaded no contest to two counts of second degree robbery and admitted enhancements for use of a firearm in commission of a felony. Defendant contends the trial court abused its discretion in denying his motion to strike the firearm enhancements or impose an lesser uncharged enhancements. We find no error and affirm the judgment. BACKGROUND One evening, defendant and Marquiese Cheatham were riding in a vehicle when they spotted an elderly couple walking up to the couple’s home. Cheatham was armed

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with a loaded gun, while defendant carried an unloaded handgun. Defendant donned a mask, and Cheatham and defendant approached the elderly couple. While Cheatham robbed the male, defendant grabbed the female’s purse. Cheatham and defendant then fled in their vehicle. Defendant was charged with two counts of robbery of the second degree. (Pen. Code, § 211.)1 In connection with these counts, defendant was charged with having personally used a firearm in the commission of a felony. (§ 12022.53, subd. (b).) The probation report provided an analysis of factors in aggravation and mitigation. Specifically, the report identified in aggravation that the crime involved the threat of great bodily harm, defendant was armed with a weapon, the victims were particularly vulnerable due to their age, the manner of the crime indicated planning, defendant engaged in violent conduct indicating a serious danger to society, and the victims were robbed at gunpoint in front of their own home. For mitigation, the probation report noted defendant had no prior record. The court adopted these findings. Defendant filed a motion with the trial court to strike the firearm enhancements on the basis that doing so would serve the interests of justice. Defendant argued he was motivated by a desire to provide necessary items for his family, as he was unemployed and desperate at the time of the crime. Defendant pointed to the fact he had an insignificant record of criminal conduct, had voluntarily acknowledged wrongdoing upon arrest, and that he had a history of depression and paranoid thoughts. Defendant also argued his children would be negatively impacted by his incarceration. The People argued the crime showed planning, including removing the rear license plate from the car, parking it down the street from the victims’ home, using firearms without serial numbers, and wearing a mask to conceal defendant’s identity. The People