Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Ralph Nunez (Retired Judge of the Fresno S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), and Jonathan Conklin, Judges. Super. Ct. No. F10901149
Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Dawson, J., and Kane, J.
PROCEEDINGS
Appellant, Briant Ruiz, was a juvenile charged as an adult in a criminal complaint filed March 9, 2010, with assault with a semi-automatic firearm (Pen. Code, § 245, subd. (b), counts one & two), shooting at an inhabited building (§ 246, count three) and street gang terrorism (§ 186.22, subd. (a), count four). Counts one and two alleged appellant personally used a firearm within the meaning of sections 12022.5, subdivision (a) and 12022.53, subdivision (c). Counts one, two and three alleged an enhancement for committing the offenses for the benefit of a criminal street gang.
Unless otherwise designated, all statutory references are to the Penal Code.
On May 20, 2010, appellant entered into a plea agreement. The prosecutor agreed to amend count one to allege a violation of section 245, subdivision (a)(2) and to reduce count four to a misdemeanor allegation. Appellant would also admit the section 12022.5, subdivision (a) gun use enhancement. Appellant executed a felony advisement, waiver of rights, and plea form waiving his constitutional rights pursuant to Boykin/Tahl and acknowledging that in return for his plea, he would receive an indicated sentence of two years on the base term plus ten years for the gun use enhancement.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl).
The court advised appellant of his constitutional rights pursuant to Boykin/Tahl, and appellant waived them. The court further advised appellant of the consequences of his plea. The parties stipulated to a factual basis for the plea. Appellant pled no contest to count one as a felony and to count four as a misdemeanor. Appellant also admitted the gun use enhancement.
According to the probation officer’s report, appellant and two accomplices were seen breaking into a vehicle. The victim and his friends chased the suspects. Appellant exited the vehicle he was in and fired three or four shots with a chrome, .25-caliber, semi-automatic handgun toward the victim before fleeing the scene.
On June 21, 2010, the court sentenced appellant to prison for two years plus a consecutive term of ten years for the gun use enhancement. The court granted appellant custody credits of 170 days plus conduct credits of 24 days for total credits of 194 days. Appellant obtained a certificate of probable cause.
Appellant is not entitled to receive additional custody credits pursuant to section 4019 as amended on January 25, 2010. Because appellant admitted using a gun in his assault with a deadly weapon, under sections 667, subdivision (c)(8) and 1192.7, subdivision (c)(31), he is not entitled to additional one-for-one custody credits under section 4019 even if this statute is found to apply retroactively. (§ 4019, subds. (b)(2) & (c)(2).)
APPELLATE COURT REVIEW
Appellant’s appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on January 13, 2011, we invited appellant to submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.