Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. Super. Ct. No. 07CM1654 Thomas De Santos, Judge.
Elaine Forrester, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J. and Gomes, J.
A complaint filed May 11, 2007, charged appellant Martin Morales Cruz, Jr., with assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); count 1) and fighting in public with the specific intent to promote a criminal street gang of which Cruz was a member (§ 186.22, subd. (d); count 2). The complaint further alleged as to count 1 that the assault was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and as to both counts that Cruz had served a prior prison term (§ 667.5, subd. (b)), and had a prior conviction for a serious felony constituting a strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
All further statutory references are to the Penal Code.
On May 23, 2007, Cruz withdrew his previous not guilty plea and pled no contest to count 2 pursuant to People v. West (1970) 3 Cal.3d 595, and the remaining count and allegations were dismissed. As part of the plea, the parties stipulated to a three year prison sentence. Cruz waived preparation of a pre-sentence report and requested the court impose an immediate sentence with a section 1203, subdivision (c) report to follow. The court committed Cruz to prison for a three year term and awarded him 21 days credit for time served. The court ordered Cruz to pay a $20 court security fee and imposed a $200 restitution fine pursuant to section 1202.4, subdivision (b) and imposed but stayed a $200 restitution fine pursuant to section 1202.45.
On July 16, 2007, Cruz filed a notice of appeal in which he stated he was challenging the validity of the plea or admission and requested the court issue a certificate of probable cause (Pen. Code, § 1237.5). The court denied that request. On September 26, 2007, this Court granted Cruz’s application to construe the notice of appeal to include the language “This appeal is based on the sentence or other matters occurring after the plea.”
Cruz’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Cruz has not responded to this court’s invitation to submit additional briefing.
FACTS
During the evening hours of May 9, 2007, a Hanford police officer saw Cruz engaged in a fist fight. When the officer approached Cruz, he attempted to flee and subsequently was detained. Cruz stated he was a gang drop out and two men, who claimed to be Surenos, approached him and wanted to fight. Cruz claimed the men rushed at him and he was protecting himself when the officer arrived. Backup police officers found two men in the area who appeared to have been involved in the altercation. The men claimed no involvement and were described as uncooperative.
DISCUSSION
Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is affirmed.