Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. NA078873, Tomson T. Ong, Judge.
Leslie G. McMurray, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
CHANEY, J.
Appellant was charged in October 2008 with one count of oral copulation of an unconscious person. (Pen. Code, § 288a, subd. (f).) Appellant entered a not guilty plea. In December 2008, an amended information was filed, adding one count of oral copulation of a person under 18. (Pen. Code, § 288a, subd. (b)(1).) In March 2009, a third amended information was filed, adding count three, cruelty to a child by endangering health. (Pen. Code, § 273a, subd. (b).) Appellant entered not guilty pleas to counts two and three. Following a jury trial, Appellant was found not guilty of counts one and two and guilty of count three. Appellant filed a notice of appeal.
We appointed counsel to represent Appellant in this matter. After examining the record, counsel filed a Wende brief raising no issues on appeal and requesting that we independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) On November 2, 2009, we directed appointed counsel to send the record on this appeal and a copy of the opening brief to Appellant immediately, and we notified Appellant that, within 30 days from the date of the notice, he could submit by brief or letter any grounds of appeal, contentions, or argument he wished us to consider. We received no response from Appellant.
We have examined the entire record and are satisfied that Appellant’s attorney has fully complied with her responsibilities and that no arguable issue exists. (People v. Wende, supra, 25 Cal.3d at p. 441.) We set out below a brief description of the facts and procedural history of the case, the crimes of which Appellant was convicted, and the punishment imposed. (People v. Kelly (2006) 40 Cal.4th 106, 110.)
Eric Heath had a son, Zachary H., who was friends with Alan C. Zachary and Alan, both minors, knew Appellant because they volunteered at an after-school program run by Appellant at an elementary school, and Appellant was remotely related to Heath by marriage. On June 29, 2008, Zachary asked his father if he could go with Alan to a barbeque at Appellant’s house. Alan’s older brother, Giovanni, also went to Appellant’s house. Zachary later called his father to ask if he could spend the night at Appellant’s home with Alan and Giovanni. Appellant served beer to Alan, Zachary, and Giovanni, and Alan eventually passed out from drinking too much.
Around 4:00 a.m., Zachary saw Appellant orally copulating Alan. Zachary was very upset, so he yelled at Appellant and then called his father to ask him to bring Zachary and Alan back to Zachary’s home. When Heath arrived at Appellant’s house, Zachary woke Alan up and helped him to the car, and Zachary and Heath took Alan to their home. Zachary told Heath what happened, and, in the morning, they told Alan and called Alan’s mother, and they all went to the police station.
Appellant was charged with one count of oral copulation of an unconscious person, one count of oral copulation of a person under 18, and one count of cruelty to a child by endangering health. (Pen. Code, §§ 273a, subd. (b), 288a, subds. (b)(1) & (f).) Appellant entered not guilty pleas to all three counts and went to trial. The jury found Appellant not guilty of counts one and two, the oral copulation charges, and guilty of count three, cruelty to a child by endangering health, in violation of Penal Code section 273a, subdivision (b).
At sentencing, the trial court placed Appellant on summary probation for four years and sentenced him to Los Angeles County jail for 10 days, with credit for 10 days already served. The court imposed a $20 court security assessment fee, a $30 criminal conviction assessment fee, and $100 in restitution. The court ordered Appellant not to have any alcohol in his home or in his blood, to agree to chemical testing, and not to have any minors in his home without the presence of the minor’s parent or legal guardian. The court also ordered Appellant to attend a child abuser treatment program and Alcoholics Anonymous.
The original minute order erroneously indicated that the trial court imposed a $35 installment and accounts receivable fee. The minute order was corrected in an October 1, 2009, minute order, and the corrected order was made part of the record on appeal on October 27, 2009.
We have conducted an independent review of the record, and nothing in the record indicates any arguable issue on appeal. We therefore will affirm.
We acknowledge the amendment, effective January 25, 2010, of Penal Code section 4019, which sets forth the manner of determining presentence credits. (Pen. Code, § 4019, subds. (b) & (c), as amended by Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 50.) Appellant was sentenced before the amendment’s effective date, and there is no indication in the record that the court erred in sentencing Appellant.
In addition, “[n]o appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.” (Pen. Code, § 1237.1.) The record does not indicate that Appellant raised any claim regarding the calculation of presentence custody credits in the trial court. Thus, any issue regarding the amendment of Penal Code section 4019 is not cognizable on appeal.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J. OHNSON, J.