P. v. Coxe
Filed 1/8/09 P. v. Coxe 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)
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THE PEOPLE, Plaintiff and Respondent, v. SHAWN MICHAEL COXE, Defendant and Appellant. | C058786 (Super. Ct. No. 02F07609) |
This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436. In 2003, a jury found defendant Shawn Michael Coxe guilty of second degree robbery (Pen. Code, 211),[1]battery with serious bodily injury ( 243, subd. (d)) and misdemeanor assault ( 240), and the trial court found an allegation that he had a prior conviction for robbery ( 211) true. Defendant was sentenced to an aggregate term of 15 years in state prison, which included an upper term for the robbery charge. In support of the upper term, the court cited the fact that the crime involved great violence and acts disclosing a high degree of cruelty, viciousness, and callousness; and, in addition, . . . , the [d]efendant occupied a position of leadership . . . .
Defendant appealed the judgment to this court (C044506) arguing the sentence imposed for the misdemeanor assault should have been stayed pursuant to section 654. We rejected defendants claim and affirmed the judgment.
Defendant filed a petition for writ of habeas corpus in this court (C056737) requesting relief from sentencing errors arising out of the trial courts imposition of the upper term. We issued an order to show cause and returned the matter to the trial court for further proceedings.
Following a hearing, the trial court granted defendants petition and vacated the sentence previously imposed. At the resentencing hearing in April 2008, the court considered both the original probation report and an updated report, as well as statements made by and on behalf of defendant and argument from counsel. The court resentenced defendant to 15 years in state prison, comprised of the upper term of five years for the robbery charge, doubled pursuant to the prior felony conviction, plus one year (one-third the middle term) for the battery charge, doubled pursuant to the prior conviction but stayed pursuant to section 654, plus a consecutive five-year term for the prior serious felony conviction ( 667, subd. (a)). For the misdemeanor conviction, the court denied probation and sentenced defendant to six months in county jail, time served. Fees and fines were reimposed in the same amounts and on the same conditions as originally imposed. In support of imposition of the upper term, the court cited defendants prior conviction and his poor prior performance on parole, and noted that it could also properly consider defendants probationary status at the time of the crime. The court also noted that, in imposing the upper term, it was still persuaded by the fact that the crime involved great violence and acts disclosing a high degree of cruelty, viciousness, and callousness and because the defendant occupied a position of leadership in the crime.
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. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error in favor of defendant.
DISPOSITION
The judgment is affirmed.
CANTIL-SAKAUYE , J.
We concur:
BLEASE , Acting P. J.
SIMS , J.
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[1] Hereafter, undesignated statutory references are to the Penal Code.
