Opinion
NOT TO BE PUBLISHED
Super. Ct. No. MCYKCRBF 08-076
BUTZ, J.
Defendant Ricky Lynn Brubaker was playing video games at M.C.’s apartment. M.C. asked defendant to watch her 23-month-old daughter and her 12-month-old son while she ran upstairs to a friend’s apartment. During M.C.’s absence, defendant sexually molested the 23-month-old child by digitally penetrating her vagina. Defendant initially lied to M.C. and police about the incident, but later confessed what he had done. M.C.’s seven-year-old daughter also reported that defendant had molested her about two weeks before. Police also learned defendant had previously been arrested for reportedly molesting his own siblings.
Defendant pleaded guilty to sexual penetration by foreign object of a child under the age of 10 (Pen. Code, § 288.7, subd. (b)--count 1) and pleaded no contest to misdemeanor forcible lewd act upon a child under the age of 14 (§ 647.6, subd. (a)(1)--count 4); he admitted the special allegations of bodily injury to a child (§ 1203.066, subd. (a)(2)) and substantial sexual conduct (§ 1203.066, subd. (a)(8)) in exchange for dismissal of all remaining charges against him and a sentencing range of felony probation to an indeterminate sentence of 15 years to life.
Undesignated statutory references are to the Penal Code.
For purposes of sentencing, the People agreed to strike the previously admitted special allegations. The court denied probation and sentenced defendant to 15 years to life in state prison on count 1, and one year in county jail for the count 4 misdemeanor, to be served concurrently with the prison sentence. The court imposed fees and fines and awarded defendant 193 actual days of custody credit, plus 24 days of conduct credit for time served, for a total of 217 days of presentence custody credit.
Defendant’s subsequent request to the trial court to correct an error in the calculation of custody credits to reflect a total of 221 days of presentence custody credit was granted on November 24, 2008, and the abstract of judgment was thereafter modified accordingly. We note the amended abstract does not reflect that the 28 days of conduct credits are pursuant to section 2933.1. We will order the trial court to prepare a second amended abstract with the box in item 14 of the abstract checked to reflect credits pursuant to section 2933.1.
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 trial court shall prepare a second amended abstract of judgment with the box under item 14 checked for local conduct credits earned pursuant to section 2933.1. A certified copy of the second amended abstract shall be forwarded to the Department of Corrections and Rehabilitation. The judgment is affirmed.
We concur: RAYE, Acting P. J. CANTIL-SAKAUYE, J.