People v. Cruz CA5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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