People v. Cole CA2/1

Filed 7/14/23 P. v. Cole CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B325953

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA076626) v.

LARRY WILLIAM COLE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Chet L. Taylor, Judge. Affirmed. James M. Crawford, under appointment by the Court of Appeal; Larry William Cole, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent. _______________________________

Larry Cole appeals from an order denying his petition for resentencing under Penal Code section 1172.6 (former section 1170.95).1 His appointed appellate counsel filed a brief raising no issues and asking this court to review the record independently to determine whether there are any arguable issues pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Cole filed a supplemental brief raising issues outside the scope of an 1172.6 resentencing proceeding. Accordingly, we affirm the order. BACKGROUND I. Charges, Trial, and Direct Appeal Cole was charged with the attempted murder of a police officer engaged in the performance of duty, and it was alleged he personally and intentionally discharged a firearm, acted willfully, deliberately and with premeditation, and committed the crime to benefit a criminal street gang. At trial, the prosecution’s theory was that Cole was the sole shooter. The trial court did not instruct the jury on aiding and abetting or the natural and probable consequences doctrine. The jury found Cole guilty of attempted murder and sustained the allegation that he personally used and discharged a firearm. (§§ 664/187, subd. (a), 12022.53, subds. (b) & (c).) The jury found not true the allegations that Cole committed the attempted murder to benefit a street gang and did so willfully, deliberately, and with premeditation. The trial court sentenced Cole to 46 years to life. Cole appealed from the judgment of conviction, contending among other things that the trial court erred in denying his motion to dismiss or bifurcate trial on the gang allegation. In an