People v. Cole CA2/1

Filed 8/10/21 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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, B310093
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA354746)
v.
TOMMY COLE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, David Herriford, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of
Appeal; Tommy Cole, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
________________________________
Tommy Cole appeals from an order denying his motion to
compel the District Attorney’s Office to correct a misstatement
made at sentencing. For the reasons explained below, we affirm the
order.
DISCUSSION
In 2013, Cole was convicted of murder with discharge of a
firearm and was sentenced to state prison for forty years to life. We
affirmed the conviction and sentence. (People v. Cole (Oct. 7, 2015,
B251500) [nonpub. opn.].)
At sentencing, the prosecutor filed a statement with the court
saying that Cole had suffered convictions in 1982 for robbery and
rape in Illinois. Cole wrote to the District Attorney’s Office in 2020,
stating he had been convicted only of robbery, not rape. He
subsequently filed a motion with the superior court to correct the
error. The court summarily denied the motion.
Cole appealed. His appellate counsel filed a brief raising no
issues on appeal and requesting that we independently review the
record pursuant to People v. Serrano (2012) 211 Cal.App.4th 496(Serrano) to determine if the lower court committed any error.
Counsel sent a copy of the brief and the record to Cole and informed
him that he may file a supplemental brief. On May 11, 2021, we
sent a letter to Cole informing him that he may submit by brief or
letter any grounds of appeal contentions, or argument that he
wished us to consider.
Cole responded with a short letter in which he states the
district attorney represented to the sentencing court that Cole had
been convicted in Illinois of unlawful restraint, but in fact that
conviction was “vacated on appeal.” Cole wants the district
attorney to correct the error to avoid any adverse influence on a
future parole board.
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“Where a defendant has been afforded all the constitutional
protections of a first appeal of right,” he is not entitled to our
independent review of the record pursuant to People v. Wende
(1979) 25 Cal.3d 436. (Serrano, supra, 211 Cal.App.4th at p. 503.)
But when Wende does not apply, an appellant in a criminal case has
the right to file a supplemental brief and to our review of his or her
contentions. (See Serrano, at p. 503.)
Even if a court had the power to compel the District
Attorney’s Office to correct a misstatement that was immaterial in
the moment, Cole offers no plausible scenario under which any
misstatement by the district attorney at sentencing could have an
impact at a future parole hearing. If the issue of Cole’s Illinois
convictions is raised at such a hearing, he need only correct the
record then.
We are satisfied that Cole’s counsel has fully complied with
the responsibilities that Serrano, imposes. Additionally, we have
considered and rejected the contention Cole raised in his
supplemental brief, and have reviewed the entire record and found
no arguable issues. We therefore affirm the order and conclude
there is no arguable issue.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
CRANDALL, J.*
*
Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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