P. v. Fullmer

Filed 7/17/07 P. v. Fullmer CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court for the County of Los Angeles, George Genesta, Judge. Affirmed.

Law Offices of John F. Schuck, John F. Schuck for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

INTRODUCTION

Defendant and appellant Scott Fullmer (defendant) entered into a plea agreement pursuant to which he pleaded nolo contendere to one count of battery. His appeal purports to challenge the validity of the plea. His appointed counsel filed an opening brief in accordance with People v. Wende (1979) 25 Cal.3d 436 requesting this court to conduct an independent review of the record to determine if there are any arguable issues on appeal. After reviewing the record, we affirm the judgment.

FACTUAL BACKGROUND[1]

In the late afternoon of April 28, 2006,Patricia Joyce (victim) was sitting at a picnic table in Big Tree Park in Glendora talking to a male friend. Defendant, whom the victim had seen at the park before but did not know, walked up to the table and told the victim to get out of the park. Defendant picked up drinks that were on the table, and poured them on the victim, soaking her from head to foot. When the victim stood up, defendant grabbed her left arm and tried to pull her out of the park. Defendant then punched the victim in the left arm with a closed fist and she fell to the ground. The victim suffered a broken left arm. The victim asked a man whose house was next door to the park to call the police. The police responded and arrested defendant.

PROCEDURAL BACKGROUND

The Los Angeles County District Attorney filed an amended information charging defendant in Count 1 with a violation of Penal Code section 242/243, subdivision (d),[2] battery with serious bodily injury, and in Count 2 with a violation of section 245, subdivision (a)(1), assault by means likely to produce great bodily injury. The amended information alleged that defendant inflicted great bodily injury within the meaning of section 12022.7, subdivision (a).

On the day of trial, defendant made a Marsden[3] motion that the trial court denied. Defendant then requested that he be allowed to proceed in propria persona, but subsequently withdrew that request. Defendant ultimately entered into a plea agreement and executed a plea form. Pursuant to the agreement, defendant pleaded nolo contendere to Count 1. The trial court granted the Peoples motion to dismiss Count 2 and the special allegations, pursuant to the plea agreement. Defendant waived time for sentencing and, pursuant to the plea agreement, the trial court sentenced defendant on Count 1 to the mid-term of three years, to run concurrently with any other sentence. Defendant was awarded 154 days of custody credit, comprised of 103 days of actual credit and 51 days of conduct credit.

Defendant filed a notice of appeal based on a denial of a motion to suppress under Penal Code section 1538.5 and to challenge the validity of the plea. He also filed a request for a certificate of probable cause based on the trial courts denial of his Marsden motion and a claim of ineffective assistance of counsel. The trial court found that there was not a motion pursuant to section 1538.5 of the Penal Code heard or denied in this case. It also declined to issue a certificate of probable cause.

DISCUSSION

On February 8, 2007, appointed counsel filed an opening brief in accordance with People v. Wende (1979) 25 Cal.3d 436. We gave notice to defendant that his appointed counsel had not found any arguable issues, and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wanted this court to consider. Defendant did not file a supplemental brief. We have examined the entire record with respect to the judgment entered against defendant, including the record of his plea of nolo contendere to Count 1. Based on that independent review, we are satisfied that defendants appointed counsel has fully complied with his responsibilities and that no arguable issues exist.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

ARMSTRONG, Acting P. J.

KRIEGLER, J.

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[1] Because this case was resolved by a plea, the following facts are taken from the testimony presented at the preliminary hearing.

[2] All further statutory references are to the Penal Code unless otherwise indicated.

[3]People v. Marsden (1970) 2 Cal.3d 118.