Filed 10/31/13 P. v. Cruz CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                       F065628
         Plaintiff and Respondent,
                                                                        (Super. Ct. Nos. F11907193 &
                   v.                                                            F11501645)

CHRISTOPHER JESUS CRUZ,                                                              OPINION
         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. John N.
Gallagher, Jr., Judge. (Retired Judge of the Fresno Sup. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.)
         Deborah Prucha, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-


*        Before Levy, Acting P.J., Cornell, J. and Franson, J.
                                   INTRODUCTION
       On June 12, 2012, appellant, Christopher Jesus Cruz, entered into a plea
agreement and executed a felony advisement, waiver of rights, and plea form in each case
setting forth the terms of the plea agreement and waiving his constitutional rights in the
plea form pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1
Cal.3d 122. The trial court advised appellant of the consequences of his change of plea.
The parties stipulated to a factual basis for appellant’s change of plea based on police and
investigative reports. Under the terms of the plea agreement, appellant would receive a
stipulated sentence of nine years in prison and in both cases multiple felony and
misdemeanor counts would be dismissed.
       In case No. F11501645, appellant pled no contest to one count of felony second
degree robbery (Pen. Code, § 211, count 1).1 Appellant admitted a prior serious felony
conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i) & 1170.12,
subds. (a)-(d)) and a prior prison term enhancement.2
       In case No. F11907193, appellant pled no contest to felony counts of identity theft
(§ 530.5, subd. (a), count 1), taking a vehicle (Veh. Code, § 10851, subd. (a), count 2),
evasion of pursuing officers (Veh. Code, § 2800.2, subd. (a), count 4), possession of
cocaine for sale (Health & Saf. Code, § 11351, count 21), and a prior serious felony
conviction within the meaning of the three strikes law.3

1      Unless otherwise designated, all statutory references are to the Penal Code.
2      There was no preliminary hearing. A formal probation report was waived by
appellant. The police reports were not included in the record. According to the criminal
complaint in case No. F11501645, appellant robbed Sean Thoeny on November 23, 2011.
3      Count 1 of the criminal complaint in case No. F11907193 alleged that on
November 24, 2011, appellant obtained personal identifying information from Marc
McWilliams without consent. Count 2 alleged that on November 6, 2011, through
November 24, 2011, appellant drove or took the vehicle of Ernest M. and Budget Car
Rental without permission. Count 4 alleged that on November 24, 2011, appellant

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       Appellant waived preparation of a formal probation report and agreed to
immediate sentencing. In case No. F11501645, the trial court sentenced appellant to the
midterm of two years, doubled to four years pursuant to the three strikes law. The court
added a consecutive term of one year for the prior prison term enhancement. In case No.
F11907193, the court sentenced appellant to prison on count 2 for a consecutive term of
one-third the midterm of one year, doubled to two years pursuant to the three strikes law.
The court imposed concurrent sentences on counts 1 and 4. On count 21, the court
imposed a consecutive term of one-third the midterm of one year, doubled to two years
pursuant to the three strikes law. Appellant’s total prison sentence was the stipulated
term of nine years. The court granted custody credits of 180 days and conduct credits of
27 days, for total custody credits of 207 days. The court imposed restitution fines in both
cases as well as a lab fee.
       Appellant did not obtain a certificate of probable cause. Appellate counsel has
filed a brief seeking independent review of the case by this court pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende).
                              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. (Wende, supra, 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 November 29, 2012, we invited appellant to
submit additional briefing. To date, he has not done so.



evaded police officers who were pursuing him in a marked police vehicle that had
deployed its red lamp and siren. Count 21 alleged that on January 17, 2009, appellant
transported cocaine for sale.


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       After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
                                     DISPOSITION
       The judgment is affirmed.




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