Mares

David Brent Mares has appealed from his commitment to the Youth Authority after a jury found him guilty of conspiracy (Pen. Code, § 182, subd. 1) to commit the crime of robbery (Pen. Code, § 211) and of simple assault (Pen. Code, § 240), .an offense included within the original charge of assault with a deadly weapon. The jury fixed the degree of the intended robbery as first degree and found defendant used a firearm in the commission of the conspiracy and in the assault (Pen. Code, § 12022.5).

Those findings are set forth in the order of commitment except as to the use of a firearm in commission of the assault, which was stricken by the judge since the assault of which Mares was found guilty was adjudged a misdemeanor.

Mares does not attack the verdicts of guilty, and states his appellate contentions in this language: “The findings of weapon use in violation of Penal Code section 12022.5 and of first degree robbery must be stricken, because the use allegation is inapplicable under the statute, and the fixing of the degree is unsupported by the pleadings, instructions, and findings.”

Defendant’s brief contains no statement of the facts as they appear in the evidence at…