P. v. Stinnett
Appellant, Daniel Dale Stinnett, was charged in an information filed June 28, 2006, with attempted murder (Pen. Code, 664 & 187, subd. (a), count one), robbery in an inhabited dwelling acting in concert ( 211 & 213, subd. (a)(1)(A), count two), burglary ( 459, count three), and active participation in a street gang ( 186.22, subd. (a), count four). The information alleged as to counts one, two, and three that appellant personally discharged a firearm causing great bodily injury ( 12022.53, subd. (d)), personally inflicted great bodily injury on the victim ( 12022.7, subd. (a)), was personally armed with a firearm ( 12022, subd. (a)(1)), personally used a firearm in the commission of his offenses ( 12022.5, subd. (a)(1)) and committed his offenses in furtherance of a criminal street gang ( 186.22, subd. (b)(4)). On February 27, 2007, appellant entered into a plea agreement. Appellant agreed to plead guilty to counts three and four and to admit the section 12022.5, subdivision (a)(1) and section 12022.7, subdivision (a) allegations. Under the agreement, appellants sentence would be either 11 years 8 months in prison or 13 years in prison. The sentence would be contingent on facts from the probation officers report or a statement in mitigation. Under the agreement, appellant was giving up his right to a jury trial on the issue of aggravating circumstances justifying the upper term. Appellant expressly waived his right to a jury trial on the trial courts application of aggravating circumstances in applying the upper term to his burglary conviction. The court reviewed the consequences of the plea with appellant and his codefendants, including the fact that no defendant would receive probation. The court advised appellant of, and appellant waived, his constitutional rights pursuant to Boykin/Tahl. Appellant pled guilty to counts three and four and admitted the sections 12022.5 and 12022.7 enhancements. On March 27, 2007, the trial court sentence appellant to the upper term of six years on count three, a concurrent term of two years on count four, a consecutive term of three years for the great bodily injury enhancement, and a consecutive term of four years for the gun use enhancement. Appellants total prison term is 13 years. Appellant was awarded applicable custody credits, ordered to pay a restitution fine and victim restitution of $6,474.71. Appellants appointed appellate counsel has filed an opening brief,which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (Peoplev. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on September 10, 2007, Court invited appellant to submit additional briefing. To date, he has not done so.
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