P. v. Cruz

Filed 8/25/06 P. v. Cruz CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Appellant Cristian Cruz entered a no contest plea to charges of attempted murder and assault with a deadly weapon, and he admitted gang enhancement allegations. On appeal, he challenges his sentence on two grounds. First, appellant contends that the trial court's imposition of the upper term on the attempted murder charge violates his federal constitutional rights. Second, he argues that the court's assessment of a $6,400 restitution fund fine violates his plea bargain. For reasons explained below, we reject both of appellant's contentions and we affirm the judgment.

BACKGROUND

Because the sole issue in this appeal concerns sentencing, a brief recitation of the facts will suffice. As indicated in the probation report, the charges against appellant arose from two separate incidents, which occurred several days apart in October 2003.

On October 24, 2003, appellant and a co-defendant (Garcia) approached the 17-year-old victim, Jovanny G. Upon discovering that the victim was wearing a blue belt, Garcia swung a metal dumbbell at his head. The victim ducked, avoiding the blow, then ran toward a nearby high school campus. Appellant gave chase, striking the victim on his left wrist with a metal bat.

On October 27, 2003, appellant, together with Garcia and another co-defendant (Baez), attacked another victim, 16-year-old Jose R., who was dressed in blue. Garcia and Baez pushed the victim to the ground and then struck him with plastic milk crates. Appellant kicked and hit the victim with his feet and hands. The victim suffered a skull fracture and lacerations; he was transported to San Jose Hospital, where he underwent emergency surgery.

Charges

On October 30, 2003, a felony complaint was filed in Santa Clara County, charging appellant with one count of attempted premeditated murder for his part in the October 27th attack on Jose R. (Pen. Code, §§ 664, subd. (a)/187; further unspecified statutory references are to the Penal Code.) As sentence enhancements, the complaint specially alleged infliction of great bodily injury, perpetration of the crime for the benefit of a gang, and personal use of a weapon. (§§ 12022.7, subd. (a), 1203, subd. (e)(3) [great bodily injury]; 186.22, subd. (b)(1) [gang enhancement]; 12022, subd. (b)(1) [personal use of a weapon].)

On December 1, 2003, a first amended felony complaint was filed. The amended complaint added counts 2 and 3, charging appellant with assault for the October 24th attack on Jovanny G. (§ 245, subd. (a)(i).) Ten days later, a second amended felony complaint was filed, which added gang enhancement allegations to counts 2 and 3. (§186.22, subd. (b)(1)(B).) Third and fourth amended felony complaints were filed in 2004, which added criminal charges and sentence enhancement allegations against appellant's co-defendants, Garcia and Baez.

A felony information was filed in November 2004.

Change of Plea

On April 29, 2005, appellant entered a plea of no contest to counts 1 and 2, and he admitted the gang enhancement allegations as to both counts. (See § 186.22, subd. (b)(1)(B).) In exchange, the prosecution agreed to amend count 1 by removing the allegation of premeditation, by asserting a five-year rather than a 10-year gang enhancement, and by striking the other special allegations. The prosecution also agreed to dismiss count 3 altogether.

Before the court accepted the negotiated plea, it advised defendant about his possible prison term, stating: â€