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The People v. James Brian Smith

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


May 20, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JAMES BRIAN SMITH, DEFENDANT AND APPELLANT.

(Super. Ct. No. 62-098134)

The opinion of the court was delivered by: Nicholson, J.

P. v. Smith

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

Defendant James Brian Smith was found in possession of a stolen 1996 GMC Jimmy belonging to P. Perpa. He knew the vehicle was stolen. In addition, on June 29, 1994, defendant suffered a prior strike conviction for robbery. Defendant was charged with receipt of a stolen vehicle. (Pen. Code, § 496d.) It was further alleged defendant had suffered two prior serious felony convictions for robbery in 1994. (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).)

Pursuant to a plea agreement, defendant pled no contest to possession of a stolen vehicle and admitted one of the strike allegations. Defendant agreed to a sentence of the upper term of three years, doubled to six because of the strike and the second strike allegation would be dismissed. Defendant was sentenced in accordance with the plea and was awarded 172 days' credit for time served and credited with an additional 86 days' good time credit for a total of 258 days' presentence credit. Originally, defendant was granted 34 days of good time credit for a total of 206 days' presentence credit. Appellate counsel requested the trial court correct the error directly. The court has done so. In addition, because defendant had a prior strike conviction, the amendments to Penal Code section 4019 do not operate to change the presentence credit he is entitled. A restitution fund fine of $200 was imposed, and jurisdiction was reserved on the issue of victim restitution. Defendant's request for a certificate of probable cause was denied.

Appointed counsel filed an opening brief setting forth the facts of the case and requesting this court 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 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.

We concur: RAYE , P. J. HOCH , J.

20110520

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