Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F08901804. Jonathan B. Conklin, Judge.
Oliver J. Northup, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Dawson, Acting P.J., Hill, J., and Kane, J.
On March 7, 2008, at approximately 4:00 p.m., appellant, Nicholas Ali Woods, and another man named Jerry argued with several other men in the courtyard of Woods’s ex-girlfriend’s apartment complex. Woods then walked away and stated, “I’ll be back to clear all of this up.” Approximately 15 minutes later, Woods and Jerry returned and again argued with the group of men. Woods then took out a chrome semiautomatic handgun from his waistline, stuck it through the window of his ex-girlfriend’s apartment, and asked for Deandre. Woods left after his ex-girlfriend told him several times she did not know where he was. A few minutes later, someone fired five to six gunshots at the apartment. Woods was arrested on March 13, 2008.
On March 17, 2008, the district attorney filed a complaint charging Woods with shooting at an inhabited dwelling (count 1/Pen. Code, § 246) and assault with a semiautomatic firearm (count 2/Pen. Code, § 245, subd. (b)). Count 2 also alleged a personal use of a firearm enhancement (Pen. Code, § 12022.5, subd. (a)(1)), and the complaint alleged that appellant had a prior conviction within the meaning of the three strikes law (Pen. Code, § 667, subd. (b)-(i) and 1170.12 subds. (a)-(d)).
Woods’s strike conviction was based on a 1997 juvenile adjudication for robbery. On April 15, 2008, Woods pled no contest to the two counts and admitted the firearm enhancement and the prior conviction allegation as a part of a plea bargain. The agreement also provided that if Woods’s juvenile robbery adjudication did not qualify as a strike, count two and the remaining allegations would be dismissed, and the court would impose an indicated term of 5 years. However, if it was determined that Woods’s robbery adjudication qualified as a strike, Woods would be allowed to withdraw his plea.
On May 13, 2008, the court granted Woods’s Marsden motion.
People v. Marsden (1970) 2 Cal.3d 118.
On June 24, 2008, Woods filed a motion to withdraw his plea.
On July 8, 2008, the court denied Woods’s motion to withdraw plea. The court then sentenced Woods on count 1 to the middle term of five years.
On February 13, 2009, the court dismissed count 2 and modified Woods’s presentence custody credit.
Woods’s appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Woods has not responded to this court’s invitation to submit additional briefing. However, we will dismiss the three strikes law allegation because our review of the record disclosed that, even though the parties agreed that Woods’s juvenile adjudication for robbery did not qualify as a strike, the court never dismissed the allegation.
Following independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The three strikes law allegation is dismissed. In all other respects, the judgment is affirmed.