Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM020919
CANTIL-SAKAUYE, J.
After admitting his fifth violation of probation, defendant, Adam Scott Gwathney, was sentenced to state prison.
This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We shall affirm.
In January 2005, as part of a bargain, defendant pled no contest to one count of committing a lewd act on a child (Pen. Code, § 288, subd. (a)), and agreed that three other lewd act counts and a count of exhibiting harmful matter to a child would be dismissed but could be considered at sentencing, and that he would receive probation.
The probation report states that in December 2003, defendant, then 18, showed a pornographic video to a 13-year-old girl who had been visiting overnight with defendant’s sister; then he molested the girl. He licked her breasts and vagina, had her perform oral sex on him, had sexual intercourse with her and sodomized her. Defendant admitted some of this conduct, specifically, that he showed the girl a pornographic tape, they were naked in bed, and he kissed her near her vagina and “might have” rubbed her breasts. Defendant’s handwritten statement to the court blames a sexually-sophisticated girl for pursuing him and otherwise minimizes the offense, but apologizes and states he was thinking “with the [wrong] part of my body.”
In April 2005, based partly on a psychological finding that defendant was not a pedophile, the court found this to be an unusual case, suspended imposition of sentence, and granted probation, with conditions including 90 days in jail.
In October 2006, defendant admitted violating probation, in that he tested “dirty” for alcohol and marijuana on two occasions. The court reinstated defendant on probation, on the condition that he waive time credits and serve an additional 45 days in jail, but warned that further “dirty” tests would lead to prison.
In January 2007, defendant admitted violating probation a second time, by using alcohol, causing his expulsion from a required treatment program. The court reinstated defendant on probation, but ordered him to serve an additional 180 days in jail.
In August 2007, defendant admitted violating probation a third time by being terminated from a substance abuse program, and agreed the trial court could consider as true an allegation that he used alcohol. The trial court ordered a 90-day diagnostic study and remanded defendant to state prison for that purpose.
The study recommended a prison term, noting defendant’s “unwillingness to be a productive member of society or accept any responsibility for the offence committed.”
In March 2008, defendant waived over a year’s worth of time credits, the trial court reinstated probation, extending the period of probation to eight years, and ordered defendant into a six-month residential treatment program. The trial court warned “if you’re caught drinking one Coors Light, you’re going to go to state prison.” “A lot of people have gone to bat for you. Don’t let them down. Again, something as quote, unquote, minor as just one drink is going to result in a state prison sentence.”
Less than a year later, in March 2009, defendant admitted a fourth violation of probation, in that he was drunk in public. Judge Glusman released defendant to a treatment facility pending receipt of a supplemental probation report.
In April 2009, defendant admitted a fifth violation of probation, in that after Judge Glusman placed him at the treatment facility, defendant absconded from the facility and drank alcohol.
In August 2009, Judge Glusman sentenced defendant to prison for six years.
Defendant timely filed a notice of appeal.
We appointed counsel to represent defendant on appeal. Counsel notified the trial court of an error in defendant’s custody credits, which the trial court corrected, as shown by an amended abstract of judgment received by this court.
Counsel then 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. (See 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: NICHOLSON, Acting P. J. RAYE, J.