P. v ONeal

Filed 5/28/10 P. v ONeal 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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Defendant Gary Troy ONeal was accused of two counts of violating Penal Code section 288.5, subdivision (a),[1] with each count alleging a separate victim.

Defendant pled no contest to each count in return for a stipulated midterm state prison sentence as to each count, the two terms to run consecutively. The People agreed not to file charges in a third matter that was under investigation and not to file an enhancement pursuant to section 667.61. Defendant was advised that his convictions exposed him to potential commitment under the Sexually Violent Predator Act.

According to the probation report, the factual basis for defendants plea is as follows:

On or about September 8, 2008, the mother of a seven-year-old female contacted the Butte County Sheriffs Office. She informed the officer that over the past several months she had observed her daughter touching herself inappropriately. The child had reportedly told her grandmother that the childs grandfather, defendant, had taught her to touch herself that way. The child told the officer that defendant started touching her inappropriately in the vaginal area when she was five years old. She later told a child abuse response team that this inappropriate touching had gone on for two or three years.

On March 17, 2009, the victims 14-year-old half sister informed law enforcement that defendant had touched her inappropriately from the time she was seven years old until she was nine or 10 years old.

The trial court denied probation and sentenced defendant to two consecutive 12-year terms, for an aggregate state prison sentence of 24 years. Defendant received 105 days actual presentence credit and 15 days section 2933.1 credit, for a total of 120 days.[2] The court ordered defendant to pay a $400 restitution fine, a $400 fine pursuant to section 1202.45 (suspended pending successful completion of parole), $60 in court security fees, $60 in criminal conviction assessments, and $1,215 for victim restitution, with jurisdiction reserved as to any possible additional restitution.

Defendant filed a timely notice of appeal.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

BLEASE , Acting P. J.

We concur:

NICHOLSON , J.

RAYE , J.

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[1] All further undesignated section references are to the Penal Code.

[2] The recent amendments to section 4019 do not operate to modify defendants entitlement to credit because his offenses count as serious felonies. ( 4019, subds. (b)(2) and (c)(2); Stats. 2009, 3d Ex. Sess., ch. 28,  50.)