P. v. Sample

Filed 7/24/06 P. v. Sample CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Desiree Sample entered a negotiated plea of no contest to stalking (Pen. Code, § 646.9) and to unlawfully using computer data, a misdemeanor (Pen. Code, § 502, subd. (c)(1)) in exchange for dismissal of the remaining counts with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. The trial court granted probation and ordered defendant to make restitution to the victim in an amount to be determined. Ten months later, the trial court issued an ex parte order requiring defendant to pay victim restitution in the amount of $2,848. Defendant appealed. In a nonpublished opinion (People v. Sample (Feb. 24, 2005, C046509)), this court vacated the restitution order, remanded and directed the trial court to hold a restitution hearing. On remand, after a contested restitution hearing, the trial court awarded victim restitution in the amount of $4,247, that is, $3,147 to the victim and $1,100 to the victim restitution fund.

Defendant appeals.

We appointed counsel to represent defendant on appeal.

Defense appellate counsel sought modification of the restitution award in the trial court to correct a mathematical error. The trial court modified the amount with the stipulation of the prosecutor and defendant's trial counsel. As modified, the trial court awarded victim restitution in the amount of $3,147, that is, $2,047 to the victim and $1,100 to the victim restitution fund. Defense appellate counsel requests judicial notice of the minute order dated February 3, 2006, modifying the restitution order to correct the mathematical error.

On the same day as he requested judicial notice of the modification, defense appellate 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.

We grant the request for judicial notice of the modification (Evid. Code, §§ 452, subd. (d)), 459, subd. (a)) and, 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 (order as modified on February 3, 2006) is affirmed.

HULL , J.

We concur:

SIMS , Acting P.J.

CANTIL-SAKAUYE , J.

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