People v. Simms CA5

Filed 12/27/24 P. v. Simms 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F087596 Plaintiff and Respondent, (Super. Ct. Nos. RF009213A, v. RF009030A)

MALIK MONTEL SIMMS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Kenneth G. Pritchard, Judge. Rex Williams, 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 Smith, Acting P. J., Snauffer, J. and DeSantos, J.

INTRODUCTION Appellant and defendant Malik Montel Simms (appellant) pleaded no contest to charges in two cases and entered waivers pursuant to People v. Cruz (1988) 44 Cal.3d 1247.1 He failed to appear for sentencing in both cases and bench warrants were issued. When he was returned to custody and sentenced, the court imposed an aggregate term of 11 years for the two cases. On appeal, appellate counsel has filed a brief that 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.) Appellant filed a letter brief. We will review his contentions and affirm. PROCEDURAL BACKGROUND Case No. RF009030A On July 26, 2022, a complaint was filed in the Superior Court of Kern County in case No. RF009030A charging appellant with count 1, second degree robbery of Jane Doe on or about December 2, 2021, (Pen. Code,2 § 212.5, subd. (c)); count 2, infliction of corporal injury resulting in a traumatic condition upon Jane Doe, with whom he was in a dating relationship, on or about December 2, 2021, (§ 273.5, subd. (a)); and count 3, misdemeanor resisting a peace officer and/or an emergency medical technician, on or about December 4, 2021, (§ 148, subd. (a)(1)). On September 20, 2022, appellant entered into a negotiated disposition and pleaded no contest to count 1, second degree robbery (§ 212.5, subd. (c)) for an indicated disposition of probation for three years on condition of serving one year in county jail, to

1 “A ‘Cruz waiver’ gives a trial court the power to ‘withdraw its approval of the defendant’s plea and impose a sentence in excess of the bargained-for term,’ if the defendant willfully fails to appear for sentencing.” (People v. Puente (2008) 165 Cal.App.4th 1143, 1146, fn. 3.) 2 All further statutory citations are to the Penal Code unless otherwise indicated.