People v. Cole CA1/5 ( 2022 )

Filed 4/11/22 P. v. Cole CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for pur-
poses of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v. A163248
EDDIE COLE,
Defendant and Appellant.
(San Francisco City and County
Super. Ct. No. CT2107748, SCN
190013)
Eddie Cole appeals from the trial court’s order denying his
petitions for writ of coram nobis. Cole’s appointed appellate
counsel has filed a brief pursuant to People v. Wende (1979) 25
Cal.3d 436 (Wende). Our independent review of the record
reveals no arguable issues, and we affirm.
BACKGROUND
In 2004, a jury convicted Cole of second degree murder
(Pen. Code, § 187)1 and possession of a firearm by a felon (former
§ 12021, subd. (a)(1); see now § 29800, subd. (a)(1)). The jury also
found true an enhancement allegation that Cole “personally and
intentionally discharged a firearm,” which caused the victim’s
death. (§ 12022.53, subd. (d).) He was sentenced to an aggregate
1 Undesignated statutory references are to the Penal Code.
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prison term of 40 years to life. This Division affirmed the
judgment of conviction on appeal. (People v. Cole (Apr. 21, 2006,
A106946) [nonpub. opn.] (Cole).)
After Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Stats.
2018, ch. 1015) was enacted more than 10 years later, Cole filed a
series of petitions for writ of habeas corpus that sought
resentencing pursuant to section 1170.95. Counsel was
appointed to represent him in connection with his first petition.
The first few of these petitions were denied on the basis that Cole
was ineligible for relief because he was the actual killer and was
not convicted under a theory of imputed malice. Later petitions
were denied on procedural grounds.
Most recently, acting in propria persona, Cole filed two
identical petitions for writ of coram nobis. Each petition asserts
that Cole is entitled to resentencing because he could not now be
convicted of murder based on the amendments to sections 188
and 189 made by Senate Bill No. 1437. In support of his
petitions, Cole submitted this division’s opinion from his direct
appeal.
The prior opinion summarizes the evidence presented at
trial, including uncontradicted evidence that Cole, acting as the
sole gunman, fired a gun two or three times at the victim’s back.
(Cole, supra, A106946.) The prosecution also introduced medical
evidence that the victim died from a single gunshot wound to his
back. (Ibid.)
The trial court denied Cole’s petitions without appointing
counsel. The court explained that Cole’s petitions were
procedurally barred—because they are repetitive of prior
petitions wherein the court had rejected the same argument.
Furthermore, Cole failed to demonstrate how the changes to
sections 188 and 189 affect his second degree murder conviction.
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DISCUSSION
Cole’s appointed appellate counsel advised Cole of his right
to file a supplemental brief to bring to this court’s attention any
issue he believes deserves review. Cole filed such a brief, in
which he argues only that appointed appellate counsel rendered
ineffective assistance and requests appointment of new counsel.
There is no indication that Cole’s appellate counsel was
ineffective and we deny Cole’s request for substitution of counsel.
Our independent review of the record suggests that the
trial court did not err in concluding Cole’s petitions were
procedurally barred. (See Hagan v. Superior Court (1962) 57
Cal.2d 767, 769 [absent unusual or changed circumstances,
courts should not permit reconsideration of determinations long
since final]; In re Miller (1941) 17 Cal.2d 734, 735 [barring
repetitive habeas corpus claims previously denied on merits].)
Even if Cole’s petitions for a writ of coram nobis were not
procedurally barred, he failed to establish any new fact which,
had it been known at the time of his conviction, would have
prevented entry of the judgment. (People v. Kim (2009) 45
Cal.4th 1078, 1093 [writ of coram nobis is appropriate only to
review new facts, not new law].) Furthermore, the trial court did
not err by denying his petition without appointing counsel or
holding a hearing. Because Cole’s declarations do not
demonstrate that he is eligible for relief under section 1170.95,
subdivision (a), Cole’s petitions were properly denied for failure to
comply with the requirements of section 1170.95, subdivision
(b)(1)(A). (§ 1170.95, subds. (a), (b)(2); People v. Lewis (2021) 11
Cal.5th 952, 960, 962.) And Cole did not request appointment of
counsel below. (§ 1170.95, subd. (b)(3); Lewis, supra, at p. 963.)
Finally, we note that Cole may not be entitled to Wende
review in this appeal from an order denying postconviction relief.
(See Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537,
539 [Wende framework does not extend beyond first appeal of
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right from criminal conviction]; People v. Cole (2020) 52
Cal.App.5th 1023, 1028, review granted October 14, 2020,
S264278 [same].) Nonetheless, we have conducted an
independent review and found no arguable issues.
DISPOSITION
The trial court’s order denying Cole’s petitions for writ of
coram nobis is affirmed.
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_______________________
BURNS, J.
We concur:
____________________________
SIMONS, ACTING P.J.
____________________________
NEEDHAM, J.
A163248
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