Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF09-5438
BUTZ, J.Defendant Willie B. Vains, Jr., entered a no contest plea to fraud or theft from an elder and admitted a strike prior. The trial court sentenced him to six years in state prison.
Defendant’s ensuing appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110. In accordance with the latter, we will provide a summary of the offense and the proceedings in the trial court.
From August to October 2009, defendant and Claude Gaither, representing themselves as licensed contractors, performed odd jobs at exorbitant rates for a mentally frail, 80-year-old woman. They received $17,000 from her for work, such as trimming trees, removing flower pots and repairing a doorbell, that should have cost at most $1,000, according to a licensed contractor. The victim reported that the two men just appeared at her door one day offering to do work for her and were persistent. The victim reported that their pushy manner scared her and she felt very uncomfortable.
Defendant entered a no contest plea to theft, fraud, or embezzlement from an elder (Pen. Code, § 368, subd. (d)) and admitted a strike prior (id., § 667, subds. (b)-(i)), a 1996 first degree burglary. The trial court sentenced defendant to state prison for six years (the midterm of three years doubled for the strike prior) and awarded 517 days of custody credit (345 actual days plus 172 conduct days).
The recent amendments to Penal Code sections 2933 and 4019 do not operate to modify defendant’s entitlement to additional presentence custody credit as he has a prior serious felony conviction. (Pen. Code, §§ 459, 1192.7, subd. (c)(18), 4019, former subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50], 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].)
Defendant appeals. He did not obtain a certificate of probable cause. (Pen. Code, § 1237.5.)
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. (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 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 judgment is affirmed.
We concur: RAYE, P. J., HOCH, J.