People v. Coleman CA3

Filed 7/5/23 P. v. Coleman CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent, C095793

v. (Super. Ct. No. 19FE000404)

ARTAVIOUS DEYOUNG COLEMAN,

Defendant and Appellant.

A jury found defendant Artavious DeYoung Coleman guilty of assaulting a peace officer with a semiautomatic firearm and making criminal threats against the officer. The trial court found that defendant’s prior conviction in Oregon for rape qualified as a strike. Following our remand for resentencing and reversal of the strike finding, the trial court sentenced defendant to the upper term for assault based on (1) the criminal threats, (2) defendant’s numerous prior convictions, including the Oregon conviction, and (3) defendant’s commission of the assault while on probation. Defendant argues the trial court erred in imposing the upper term. Finding no prejudicial error, we affirm. We order the trial court to correct six clerical errors in the abstract of judgment. FACTUAL AND PROCEDURAL BACKGROUND A peace officer testified that defendant resisted arrest and threatened to shoot the officer. During the officer’s effort to subdue defendant, the officer heard a gun being fired without ammunition in the firing chamber. The officer then discovered defendant

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was armed. (People v. Coleman (Sept. 13, 2021, C090363) [nonpub. opn.] (Coleman).) A jury found defendant guilty of (1) assault upon a peace officer with a semiautomatic firearm (Pen. Code, § 245, subd. (d)(2); all further statutory references are to the Penal Code), (2) making criminal threats (§ 422), (3) possession of a firearm as a felon (§ 29800, subd. (a)(1)), and (4) resisting an executive officer (§ 69). The jury also found related firearm enhancements true. In a separate bench trial, the trial court found defendant’s Oregon conviction for first degree rape qualified as a strike under the three strikes law (§§ 667, subds. (b)-(i); 1170.12). On defendant’s first appeal, we modified the conviction for assault with a semiautomatic firearm to reflect a conviction for assault with a firearm (§ 245, subd. (d)(1)) and remanded the case for full resentencing. Concluding that the record of defendant’s no contest plea in the Oregon conviction did not satisfy the California rape statute, we also directed the trial court to dismiss the strike for that conviction if the People declined to retry it. (Coleman, supra, C090363.) Following remand, the People so declined, and the trial court dismissed the strike. At resentencing, which occurred on February 18, 2022, the trial court found three factors in aggravation under section 1170, subdivision (b), as amended by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731): (1) the assault involved a threat of great bodily harm (Cal. Rules of Court, rule 4.421(a)(1) [bodily harm factor]; further rule references are to the California Rules of Court); (2) defendant’s prior convictions are numerous (rule 4.421(b)(2) [prior conviction factor]); and (3) defendant was on probation when the crime was committed (rule 4.421(b)(4) [probation factor]). Concluding those factors outweighed any in mitigation, the court sentenced defendant to the upper term of eight years for assault. The court also imposed 10 consecutive years on the related firearm enhancement and eight consecutive months for possession of a firearm as a felon. The court further imposed but stayed sentences on the criminal threats and resistance convictions.