1 Filed 4/30/14 P. v. Cook CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. EVANS R. COOK, Defendant and Appellant. A140510

(Humboldt County Super. Ct. No. CR1300946)

I. INTRODUCTION In August 2013, appellant entered a pl ea of guilty to attempted second degree murder and admitted two charged special allegations as part of an agreement intended to secure—and which did secure—a state pr ison term of 20 years. Pursuant to People v.

Wende (1979) 25 Cal.3d 436, he appeals from the sentence imposed or other matters occurring after the plea which do not affect the validity of th e plea. We find no issues deserving of further briefing regarding either the sentence imposed or any other matters occurring after the entry of appellant’s guilty plea and hence a ffirm the judgment, including the sentence imposed.

II. FACTUAL AND PROC EDURAL BACKGROUND Starting in 2007, appellant and his sister , Teresa, lived in adjacent properties in Petrolia, Humboldt County. Li ving with the sister was the vi ctim in this case, Charles Hower. There was, and apparently had been for some time, tension between appellant and Hower because, in 2008, Hower’s son had died in “an alcohol related automobile collision after he left” appellant’s residence. Additionally, appellant’s sister and Hower2 were, at the time of the offense to be descri bed, apparently attempting to evict appellant

from his residence. In the early afternoon of February 23, 2013, 1 Hower went out of his residential area to feed his horses, and then drove away from the barn housing them. As he did so, appellant appeared on the ro adway near Hower’s residence and began shooting at Hower with a 30/30 caliber rifle from approximately 50 feet away. Appellant admitted to firing three shots at Hower, one of which resulted in a wound to Hower’s chest and another resulted in severing the little finger of his left hand. Other evidence, however, suggested he fired five rifle shots at Hower. Appellant told one of the inve stigators that “he had wanted the victim dead.” (Id., 176.) On March 21, an information was filed charging appellant with attempted murder in the first degree, along with a special alle gation of intentional di scharge of a firearm causing great bodily injury. (P en. Code, §§ 187, subd. (a); 664; 12022.53, subd. (d).) On August 7, appellant entered a cond itional plea of guilty to attempted second degree murder and admitted the amended speci al allegation charged under Penal Code section 12022.53, subdivision (b), plus another special a llegation under Penal Code section 12022.7, subdivision (a ) (causing great bodily injury). This conditional plea was entered for a “stipulated term of 20 years in state prison,” calculated as a midterm of seven years for attempted murder, three years for the bodily injury enhancements and 10 years for the firearm use enhancement. On September 27, victim Hower wrote a letter to the trial court urging that appellant “should have to pay for this for th e rest of his life,” i.e., the time he, Hower, would be suffering from the injuries he incurred in the shooting. In response, a statement in mitigation was filed on behalf of appellant urging the cour t to accept the stipulated term of imprisonment rather than extend ing that term as Ho wer had urged. On October 30, the trial court sentenced appellant to the stipulated 20 years in state prison. He received a total of 287 days of conduct and custody credits.

1 All subsequent dates noted are in 2013.3 On December 13, a notice of appeal was filed by appellant regarding the sentence imposed or other matters occurri ng after the entry of his plea. Appellant did not request

the issuance of a certificat e of probable cause.

III. DISCUSSION Where, as here, an appellant has pled guilty or no contest to an offense, the scope

of reviewable issues is restricted to matte rs based on constitutional, jurisdictional, or other grounds going to the le gality of the proceedings l eading to the plea; guilt or innocence is not included. ( People v. DeVaughn (1977) 18 Cal.3d 8 89, 895-896) In his brief to this court (see id. pp. 5-6), appellant submitted the “following items ‘in the record that might arguably support the appeal.’ ( Anders v. California [(1967) 386 U.S. 738,] 744.): [¶] 1. Du ring his probation interview appe llant stated that he did not know if the 20 year prison term to which he had agreed was fair and hoped that his

sentence would be reduced to 10 years. Was the sent ence properly imposed in accordance with the plea bargain? [¶] 2. And, if appellant’s concern that the sentence should be reduced below the stipulated term was waived due to failure to object or otherwise bring appellant’s request to the se ntencing court’s attention, did appellant

receive ineffective assistance of counsel for failure to obje ct, and is there a reasonable possibility of a more favorable resu lt had an objection been made? ( Strickland v. Washington (1984) 466 U.S. 668.)” We have no difficulty in concluding that neither of these issues is deserving of further briefing. First of all, in the trial court appella nt’s counsel wrote that “[t]he 20 year resolution is a fair and just re solution of this case. . . . [¶] Mr. Cook is asking the court to uphold the joint r ecommendation of 20 years. It is a se rious sentence that is appropriate

to the serious nature of Mr. Cook’s actions. . . . [¶] Because of these mitigating factors we are asking the court to sentence Mr. Cook to 20 years in state prison rather than withdrawing the plea and seek ing a greater sentence as suggested by Mr. Hower’s statement.” That counsel made essentially th e same point in his verbal statement to the trial court at the time of appellant’s sentencing.4 The prosecutor promptly agre ed with this statement; she re plied: “It is in part by grace of the victim that the Peop le agreed to the 20-year sti pulated sentence. They were supportive of that disposition. They unders tood that Mr. Cook was facing a life sentence. They understood that Mr. Cook, I believe, was facing 40-to-life, I think. Certainly life sentence. So they understand that. So when the People convey ed the offer to the defense, it was with a lot of consideration for the victim and what th ey went through.” Appellant’s statement that “he hopes his sentence can be reduced to 10 years” was explained by the following sentence in th e probation officer’s report thusly: “He explained that the men in his family generally die around age 60, and he is concerned that he is going to die while imprisoned.” (App ellant was 53 at the time of his plea.) The probation officer assigned to th e case concluded that: “Considering the damage defendant has inflicted upon the victim and the potential risk he poses to the community, the prison term sti pulated by defendant’s conditio nal plea is appropriate and

such is recommended.” The admonitions given appellant at the time he entered his plea fully conformed with the requirements of Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122, and his waiver wa s knowing and voluntary. The sentence imposed was clearly consistent with the plea bargain, and what that sentence was going to be was clearly understo od by both appellant a nd his counsel at the hearing at which he entered his plea and the later sentencing hearing. The record provides a factual basis fo r the plea and the sentence imposed is authorized by law. Appellant was at all times represented by competent counsel who protected his rights and interests. Based on this record, th ere clearly was and is no possible ineffective assistance of counsel regarding the senten ce imposed on appellant . Nor, especially considering the record quoted above, was there “a reas onable possibility of a more favorable result had an objection been made.” The sentence imposed is authorized by law.5 IV. DISPOSITION Our independent review having revealed no arguable issues that require further briefing, the judgment of convi ction, which includes the se ntence imposed, is affirmed.

_ ____________ ____________ Haerle, J.

We concur:

_____________ ____________ Kline, P.J.

_____________ ____________ Richman, J.