P. v. Stewart

Filed 4/12/07 P. v. Stewart 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(San Joaquin)

----

Between February 28, 2003, and March 27, 2003, defendant Darcey Susanne Stewart cashed checks and used credit accounts of 76-year-old Frank Joaquin without the permission of his son and daughter-in-law who had power of attorney. Defendant cashed checks at the 99 Club and used Joaquins credit account at Target.

Defendant entered a negotiated plea of guilty to theft from an elder or dependent adult (Pen. Code, 368, subd. (d)) in exchange for no state prison at the outset and a grant of probation for a term of five years subject to certain terms and conditions including 90 days in county jail with a recommendation for the alternative work project and victim restitution in the amount of $3,789.52. The offense would be reduced to a misdemeanor upon payment of victim restitution in full.

The court suspended imposition of sentence and granted probation accordingly. Upon the prosecutions motion, the court dismissed the remaining counts [forgery and another elder theft count] in the interest of justice and in light of the plea.

Defendant failed to report to jail and a bench warrant issued. When defendant appeared in court, the court recalled the warrant and reinstated probation.

Defendant violated probation in that she failed to report her living arrangements to the probation officer, to enroll in or complete a treatment program, to pay the restitution fine, to comply with the probation officers directions and to obey all laws in that she committed new offenses, including using illegal substances. She was also charged and entered a no contest plea to a new violation of Penal Code section 368, subdivision (c). The court reinstated defendant on probation. The court also granted probation in the new case.

Defendant again violated probation. She failed to report to probation, to complete counseling, to pay fines and fees and violated a stay away order.

The court sentenced defendant to state prison for the low term of two years, imposed a $200 parole revocation restitution

fine, ordered defendant to pay $3,789.52 in victim restitution and awarded 188 actual days and 94 conduct days for a total of 282 days of presentence custody credit.

Defendant appeals.

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 elapsed, and we 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.

We do find that the abstract of judgment requires correction. The restitution fine should be $200, not $2003.0. We will order the abstract corrected accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

DISPOSITION

The trial court is directed to prepare a corrected abstract of judgment to reflect a restitution fine in the amount of $200 and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is affirmed.

MORRISON , Acting P.J.

We concur:

ROBIE , J.

BUTZ , J.

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