P. v. Cruz 8/25/06 CA6

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: H029302

Case Date: 11/16/2006

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

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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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 THE PEOPLE, Plaintiff and Respondent, v. CRISTIAN CRUZ, Defendant and Appellant. H029302 (Santa Clara County Super. Ct. No. CC331753)

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 17year-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,

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