Filed 4/23/18 P. v. Herrick CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

BRANDON LEE HERRICK,

Defendant and Appellant.
C084620

(Super. Ct. No. CM043806)




Appointed counsel for defendant Brandon Lee Herrick has filed an opening brief setting forth the facts of the case and asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
In February 2016 defendant pleaded no contest to oral copulation of a person under 18 years old (Pen. Code, § 288a, subd. (b)(1)), possession of child pornography (Pen. Code, § 311.11, subd. (a)), and sodomy of a person under 18 years old (Pen. Code, § 286, subd. (b)(1)). The trial court sentenced defendant to four years four months in state prison but suspended execution of the sentence and placed defendant on three years of formal probation. Defendant waived his right to custody credits and the court admonished him that this was his only opportunity to avoid prison, should he violate probation, the court would execute his sentence and defendant would go to prison.
In October 2016 defendant moved the court to modify the terms of his probation. Defendant advised the court he had recently married a man and they were expecting a child. He asked the court to modify the terms and conditions of his probation to allow him to be around “his family members, their children, his future step daughter and friends he has grown up with and who trust him to be around their children.” The court denied his motion.
On December 7, 2016, defendant and his husband went to the Feather River Health Center with a newborn child. The facility contacted local police because the men, in their opinion, were acting suspicious. Defendant told police he lived with his sister, his husband, and his husband’s newborn child. He and his husband were at the facility to get breast milk for the baby. Officers learned defendant was on probation and was prohibited from having contact with minors. Accordingly, they arrested defendant
Days later, the probation department filed a petition alleging defendant violated his probation by having contact with a minor. Defendant admitted the violation. Defendant asked to have his probation reinstated. He argued that while he did not “use proper judgment,” he was “concerned for the welfare and well-being of [his] husband’s child.”
The trial court was not persuaded, refused to reinstate defendant’s probation, and lifted the stay on the previously imposed term of four years four months in state prison. The court affirmed the fines and fees previously imposed, imposed and stayed a $300 parole revocation fine pursuant to Penal Code section 1202.45, and found no ability to pay the probation supervision and presentence investigation report fees. The court also awarded defendant 277 days of custody credit.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days from the date the opening brief was filed. To date, defendant has not filed a supplemental brief. Having undertaken an examination of the entire record pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant. We affirm the judgment.
DISPOSITION
The judgment is affirmed.



RAYE , P. J.



We concur:



ROBIE , J.



BUTZ , J.