THE PEOPLE v. MARK ANTHONY TRAPP JR (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS

Appellants Mark Anthony Trapp, Jr., Anthony Eugene Foley, and Azteca Samone Nutt, were each charged with the following felonies, arising out of the events of November 10, 2009:  first degree robbery in concert with two or more other persons (Pen.Code, §§ 211, 212.5, subd. (a), 213, subd. (a)(1)(A) ¹ , count 1);  active participation in a criminal street gang (§ 186.22, subd. (a), count 2);  and second degree robbery (§§ 211, 212.5, subd. (c), count 3).   It was also alleged that each appellant committed the count 1 offense for the benefit of, at the direction of, or in association with, a criminal street gang with the specific intent to promote, further, or assist in, criminal conduct by gang members (§ 186.22, subd. (b)(1)).   Finally, it was alleged that Trapp and Foley had served, respectively, two and three separate prison terms for prior felony convictions (§ 667.5, subd. (b).)

Trapp, Foley and Nutt each entered into a plea agreement, pursuant to which each pled no contest to second degree robbery as alleged in count 3, and Trapp and Foley each admitted one prior prison term enhancement allegation.   Also pursuant to each plea agreement, the court dismissed the remaining charges and special allegations.

Trapp and Foley were each sentenced to a term of four years, consisting of the three-year midterm on the substantive offense and one year on the prior prison term enhancement.   The court sentenced Nutt to the three-year midterm.

Trapp, Foley and Nutt each filed a timely notice of appeal and requested that the court issue certificate of probable cause (§ 1237.5).   The court denied each appellant's request.

Appointed appellate counsel for each appellant has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record.  (People v. Wende (1979) 25 Cal.3d 436.)   Neither Trapp, Foley or Nutt has responded to this court's invitation to submit additional briefing.   We will affirm as to each.

At the combined preliminary hearing for Trapp, Foley and Nutt, Jermaine Bailey testified to the following:  As he was preparing to leave an apartment on November 10, 2009, he was “attacked or hit” by “a lot of people,” including Trapp, Foley and Nutt. Bailey was in the living room, putting on his coat, when Foley “sucker punched” him.   Approximately one second later Nutt punched him, followed by Trapp.   Trapp, Foley and Nutt, as well as “other people” were punching him at the same time, as he “kind of got into a fetal position to try to protect [himself].”

Bailey had his wallet in his possession as he was being hit.   He “made it outside” and heard “somebody” say “Get his wallet.”   Shortly thereafter, “Somebody ripped [Bailey's] pocket and took [his] wallet.”

DISCUSSION

Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.

DISPOSITION

As to each appellant, the judgment is affirmed.

FOOTNOTES

FN1. All statutory references are to the Penal Code..  FN1. All statutory references are to the Penal Code.

THE COURT