Filed 8/24/18 P. v. Mayers CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. David Wolf, Judge.

Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.

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INTRODUCTION

Appellant/defendant Markus Mayers, an inmate at a correctional facility, entered into a negotiated disposition and pleaded no contest to assaulting another inmate. He was sentenced to the stipulated second strike term of seven years.

On appeal, his 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 (Wende).) We affirm.

FACTUAL AND PROCEDURAL HISTORY

On or about February 10, 2017, defendant was an inmate at the California Department of Corrections and Rehabilitation—Shafter Modified Community Correctional Facility, when he committed an assault upon Paul Jeffries, another inmate.

On April 18, 2017, a felony complaint was filed in the Superior Court of Kern County charging appellant with count 1, felony assault by an inmate by any means of force likely to produce great bodily injury on Jeffries (Pen. Code, § 4501, subd. (b)).[1] It was further alleged that defendant personally inflicted great bodily injury on the victim (§ 12022.7) and had two prior strike convictions and two prior prison term enhancements.

On June 1, 2017, prior to the preliminary hearing being held, defendant signed a change-of-plea form and pleaded no contest to count 1, and admitted the great bodily injury enhancement and prior conviction allegations. The parties stipulated that defendant would be sentenced to seven years with the term fully consecutive to the prison term he was already serving.

At the hearing, the parties stipulated to a factual basis. Defendant indicated he went over the change-of-plea form with his attorney, and he did not need any more time to talk to his attorney about the case, possible defenses, or his constitutional rights.

The court advised defendant of his constitutional rights, and defendant waived his rights. The court granted defendant’s request to dismiss one of the prior strike convictions pursuant to section 1385, and granted the People’s motion to strike one of the prior prison term enhancements.

On June 29, 2017, the court denied probation and sentenced defendant to the lower term of two years for count 1, doubled to four years as the second strike term, plus three years for the great bodily injury enhancement, for an aggregate term of seven years to be served fully consecutive to the prison term he was already serving, consistent with the terms of the negotiated disposition.

On August 3, 2017, defendant filed a notice of appeal and requested a certificate of probable cause. Defendant asserted he wanted to withdraw his plea because there was no evidence to support the great bodily injury enhancement. The court denied his request for a certificate.

DISCUSSION

As noted above, defendant’s counsel has filed a Wende brief with this court. The brief also includes the declaration of appellate counsel indicating that defendant was advised he could file his own brief with this court. By letter on February 5, 2018, we invited defendant to submit additional briefing. To date, he has not done so.

After independent review of the record, we find that no reasonably arguable factual or legal issues exist.

DISPOSITION

The judgment is affirmed.