Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Merced County No. MF45501. Carol Ash, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Harris, Acting P.J., Levy, J. and Dawson, J.
STATEMENT OF THE CASE
On February 7, 2007, a complaint was filed in the Superior Court of Merced County charging appellant James Adams Cummins with count I, second degree robbery (Pen. Code, § 211).
On February 26, 2007, the court granted the prosecution’s motion to amend the complaint to add count II, assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), with an enhancement that the offense was a serious felony (Pen. Code, § 969, subd. (f)). Thereafter, appellant pleaded no contest to count II and admitted the enhancement, and the court dismissed count I. Appellant waived a presentence report and requested immediate sentencing. Pursuant to the terms of a plea agreement, the court suspended imposition of sentence and placed appellant on probation for three years, on condition of serving six months in county jail subject to existing credits, issued a no-contact order as to the victims, and reserved the issue of restitution.
On October 9, 2007, the superior court issued an amended order which found appellant had 23 actual days and 11 days of conduct credits, for a total of 34 days of custody credits. The court also imposed a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $100 restitution fine (Pen. Code, § 1203.1), a $10 fine pursuant to Penal Code section 1202.5, and other penalty assessments.
On October 26, 2007, the court issued another amended order reflecting appellant’s custody credits were 24 actual days and 12 days of conduct credits, for a total of 36 days, and deleted the Penal Code section 1202.5 fine.
On April 19, 2007, appellant filed a timely notice of appeal.
FACTS
On February 3, 2007, Frank Perez was sleeping on a couch in an alley in Merced when a White male appeared. This person accused Perez of relieving himself in front of his children, and punched Perez in the face with a closed fist. Perez fell down, several other people punched and kicked him, they would not let him get up, and one person had a baseball bat. Perez thought the men were trying to kill him and just tried to survive. One man said he would stick a knife in Perez if he said anything, and that if Perez did not leave the area they would put him in the trunk. Perez thought the suspects lived across the street.
Dalen Hensley, a local transient, was riding his bicycle in the area with his girlfriend, Tammy Looney, and saw Perez as he staggered out of the alley. Hensley could tell Perez was seriously hurt. There were some men walking behind Perez who were shouting obscenities at him. The two suspects closest to Hensley were a Hispanic male, about 20 to 22 years old with a scraggily goatee, and a White male. Hensley dropped his bicycle and tried to help Perez, and called the two men “‘punks’” for assaulting Perez. The Hispanic male whistled and two more Hispanic males emerged from the alley. One of them handed a baseball bat to the Hispanic male. Perez and Hensley were walking away from the area, but the Hispanic male rushed at them with the baseball bat, swinging it in a threatening and aggressive manner. Hensley grabbed a tree branch, tried to defend himself and protect Perez. The White male yelled obscenities at them but both suspects backed away. The White male walked up to Hensley’s bicycle, threw Hensley’s jacket on the ground, took the bicycle, and both suspects left. Hensley and Perez thought the incident was over but the same two men returned and again challenged them. Hensley and Perez ran away, and Perez collapsed in a field from his injuries. Hensley’s girlfriend ran away and called the police.
The police responded to the area and found Perez collapsed in the field. Perez had suffered lacerations on his face and severe bruising on his left cheek. He was holding his chest and suffering convulsions. Perez was transported to the hospital, and needed at least 12 to 15 sutures in his cheek. Perez’s blood/alcohol level was .07 percent.
Hensley advised the officers about the incident. Hensley said the bicycle thief was one of the primary aggressors, and described him as a White male, about 18 to 20 years old. Hensley said he recognized this suspect as someone who lived in the neighborhood, his parents were “‘Sue’” and “‘Barry,’” and Hensley could show the officers where this person lived. Hensley said the other suspects were usually hanging around the area.
The officers broadcast Hensley’s description of the suspects, placed Hensley and Looney in a police car, and Hensley directed the officers to the location where he believed one suspect lived. Hensley’s bicycle was found abandoned in the backyard of a residence which adjoined a nearby alley. In the meantime, another officer detained appellant because he matched the description of the White male suspect. The officers drove Hensley and Looney past the area where appellant was detained, they positively identified appellant as one of the assault suspects, and Hensley later pointed out where this person lived. When appellant was booked, he said his parents were Susan and Barry.
DISCUSSION
Appellant’s appointed counsel has filed an opening brief which adequately summarizes the facts and adequately cites to the record, which raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) By letter of November 5, 2007, this court invited appellant to submit additional briefing and state any grounds of appeal he may wish this court to consider. Appellant has not done so.
Our independent review discloses no further reasonably arguable appellate issues. “[A]n arguable issue on appeal consists of two elements. First, the issue must be one which, in counsel’s professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment.” (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)
DISPOSITION
The judgment is affirmed.