P. v. Larkin

Filed 2/21/07  P. v. Larkin 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NOT TO BE PUBLISHED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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

(Placer)

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     Between August 1, 2002, and December 31, 2002, defendant Stephen Michael Larkin had sexual intercourse with, and performed other sexual acts upon, his eight-year-old daughter.^[1] 

     In September 2003, defendant pleaded guilty to continuous sexual abuse of a child.  (Pen. Code, § 288.5, subd. (a); further statutory references are to the Penal Code.)  In exchange, four related counts were dismissed.  Defendant was sentenced to state prison for 12 years, awarded 132 days of custody credit and 19 days of conduct credit, and ordered to pay a $2,000 restitution fine (§ 1202.4, subd. (b)) and a $2,000 restitution fine suspended unless parole is revoked (§ 1202.45). 

     In May 2006, defendant served a motion to reduce the $2,000 restitution fines to $200 based upon his inability to pay the greater amount.  The trial court denied the motion on the ground it lacked jurisdiction to modify defendant's sentence.  Defendant timely appealed from the order denying the motion. 

     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.

DISPOSITION

     The judgment is affirmed.

                                          NICHOLSON      , J.

We concur:

          SCOTLAND       , P.J.

          RAYE           , J.

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^[1]    Because defendant pleaded guilty and waived referral to probation, our statement of facts is taken from the prosecutor's statement of factual basis.