Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD225532 and petition for writ of habeas corpus, Yvonne E. Campos, Jeffrey F. Fraser, Judges.
McDONALD, J.
This appeal arises out of Luis Vicente Cruz's conviction of being an ex-felon in possession of a firearm, driving under the influence of alcohol, driving with a blood alcohol level of.08 percent or higher and resisting arrest. He has filed an appellate brief in accordance with People v. Wende (1979) 25 Cal.3d 436. Cruz has also filed a petition for writ of habeas corpus, which we have, by separate order, consolidated with the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In the rainy evening of February 9, 2010, a police officer stopped Cruz as he left a Carl's Jr. Restaurant parking lot, after determining that the car he was driving had an expired registration. When asked to provide his driver's license, registration and proof of insurance, Cruz gave the officer his license, but indicated that he had purchased the car a few weeks earlier and did not have a current registration card. He did not provide any proof of insurance or any explanation about it, but began to eat his food, complaining that the restaurant had messed up his order.
Much to the officer's dismay, Cruz also made a number of "quick, sharp moves, " alternately reaching down under his seat and across to the passenger side floorboard; he continued to do so despite the officer's increasingly insistent requests that he stop moving around. As a result of Cruz's erratic behavior, his inability to maintain focus and his agitation and muscle rigidity, the officer, who had experience and training in dealing with those under the influence of alcohol or drugs, suspected that he was under the influence of drugs.
At about the same time, a back-up officer arrived and assisted in forcibly removing Cruz from the car. Yelling and resisting the officers, Cruz refused to comply with their demands that he drop the car keys he was holding and that he calm down, so one of the officers radioed for additional back-up. After two more officers arrived, three of them succeeded in handcuffing Cruz. The officers attempted to search Cruz, but had to get him on the ground and put restraints on him to keep him from kicking them.
After putting Cruz into their patrol car, the officers noticed that Cruz's pupils were dilated; they conducted a search of his car, finding a framer's hammer under the driver's seat, a small amount of marijuana in the center console, a small handgun on the passenger side floorboard and a backpack containing counterfeit currency in the back seat. Cruz refused to undergo a field sobriety test or to voluntarily submit to a blood test; the officers assisted in the performance of a forced blood draw from him. Testing showed that Cruz had a blood alcohol level of.10 percent, as well as marijuana in his system, at the time of the blood draw.
Cruz was charged with one count each of being an ex-felon in possession of a firearm (count 1), driving under the influence of alcohol (count 2), driving with a blood alcohol level of.08 percent or higher (count 3) and resisting arrest (count 4). The felony complaint also alleged that Cruz had suffered four probation denial priors, three prison priors and one strike prior.
Cruz filed a motion to suppress the evidence seized from the car and his statements to police as a result of the search. The prosecution opposed the motion, arguing that the police had a sufficient basis to stop his vehicle, to take him out of his car and to restrain him based on his "potentially dangerous and threatening behavior, " to protect their own safety. It also argued that the officers had probable cause to arrest Cruz and that the search of his car was lawful as incident to his arrest.
On the day scheduled for a hearing on Cruz's suppression motion, Cruz also made a request to have his appointed counsel relieved and replaced. (See generally People v. Marsden (1970) 2 Cal.3d 118, 124-125.) The court granted the latter, appointed new counsel for him and took the suppression motion off-calendar so that new counsel would have an opportunity to become familiar with the matter. For reasons that do not appear in the record, the suppression motion was never renewed.
At trial, a jury convicted Cruz of counts 2 through 4 (all misdemeanors), but was unable to reach a verdict on count 1, as to which the court granted a mistrial. After the prosecution elected to retry Cruz on count 1, he agreed to plead guilty to that count and admit that he had suffered one prior strike conviction, in exchange for a stipulated sentence of four years (with the terms for the remaining counts to be imposed concurrently to the principal term).
At the change of plea hearing, Cruz testified that he had not had any alcohol, drugs or medicines in the preceding 24 hours, and that, with the assistance of counsel, he had read and understood the terms of his plea. The court advised him of his constitutional rights to a speedy trial by jury, to remain silent, to present evidence in his defense and to confront the witnesses against him, and he agreed to waive those rights and enter the plea. The court also advised him of the penal consequences of his plea, including that (1) the sentence for the plea was four years, plus four years of parole, (2) he would be required to pay a maximum fine of $10,000 and other penalties, (3) he would be subject to deportation if he was not a United States citizen and (4) prison time was mandatory and he would be required to serve at least 80 percent of his sentence. Thereafter, Cruz, with the agreement of his counsel, entered into the plea and stipulated that the preliminary hearing transcript provided the factual basis for it.
The court accepted the plea and immediately sentenced Cruz in accordance with the agreement to a four-year term consisting of a middle term, doubled, on count 1, plus three concurrent six-month terms on counts 2 through 4. It ordered Cruz to pay various fees and fines, including a $1,000 restitution fine, a $1,000 parole revocation fine (suspended unless parole was later revoked), a $120 court security fee and a $120 criminal conviction assessment. It also awarded him 54 days of custody credits, consisting of 47 days of commitment plus seven days of conduct credits in accordance with Penal Code section 2933.1. Cruz appeals.
Based on Cruz's plea, the issues that can be raised on appeal are limited to matters relating to his misdemeanor convictions or those occurring after the plea (other than issues involving prior strike convictions). His appellate counsel has filed a brief indicating that he has been unable to identify any argument for reversal and instead asks this court to review the record for error as mandated by People v. Wende, supra, 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel's brief identifies the following issues as possible, but not arguable, on appeal: (1) whether the search of the vehicle was valid; (2) whether Cruz's guilty plea was constitutionally valid; and (3) whether he received the agreed-upon sentence.
We invited Cruz to file a brief on his own behalf, but he did not do so. He has, however, filed a separate petition for writ of habeas corpus challenging the warrantless search and seizure of his personal property and arguing that (1) his constitutional rights were violated by the felony being charged (an "infamous crime") by a felony complaint rather than an indictment by a grand jury; and (2) as a "common law citizen of the California Republic" and an individual, he is not subject to state legislation, which only applies to corporations.
DISCUSSION
We have reviewed the record in accordance with Wende and Anders and have not found any reasonably arguable appellate issues. We have also read and considered Cruz's petition for a writ of habeas corpus and deny it based on its failure to set forth any persuasive authority in support of its arguments (see, e.g., Cal. Const., art. I, § 14 [authorizing either felony complaint or grand jury indictment as a means of initiating a criminal prosecution]) and to establish that Cruz raised these contentions in the superior court in the first instance.
DISPOSITION
The judgment is affirmed. The petition for writ of habeas corpus is denied.
WE CONCUR: NARES, Acting P. J., HALLER, J.