P. v. Pena
Filed 12/19/08 P. v. Pena CA6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. JESSE PEREZ PENA, Defendant and Appellant. | H032861 (Santa Clara County Super. Ct. No. CC580740) |
Defendant Jesse Perez Pena appeals from the sentence imposed following resentencing after appeal. We appointed counsel to represent defendant in this court. Appointed counsel has filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. The period has elapsed and we have received no written argument from him. Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and we have concluded that there is no arguable issue on appeal. (See also People v. Kelly (2006) 40 Cal.4th 106, 124.) Therefore, we will affirm.
PROCEDURAL HISTORY
A jury convicted defendant of four felony counts of lewd acts on D., a child under the age of 14, and one misdemeanor count of annoying or molesting a child, S. (Penal Code, 288, subd. (a); 647.6, subd. (a).)[1] Following a bifurcated trial on enhancements, the court found 19 prior strike convictions and four serious felony convictions true. For each of the sexual assaults, the court sentenced defendant to consecutive terms of 26 years to life, plus 20 years for each of the four prior felony convictions, for a total term of 104 years to life plus a consecutive term of 80 years. For the misdemeanor, the court imposed a concurrent term of 60 days in the county jail. (People v. Jesse Perez Pena (October 31, 2007, H030345) [p. 1] (Pena I).)
In defendants prior appeal, we concluded there was insufficient evident to support two of the four prior serious felony convictions alleged and found true under Penal Code section 667, subdivision (a), reversed the judgment, and remanded to the trial court for resentencing in the event that the prosecutor elected not to retry the enhancement allegations. The prosecutor elected not to retry the enhancement allegations, and defendant was resentenced on February 25, 2008.
On remand, for each one of the four felony molestation counts, the trial court sentenced defendant to a term of 25 years to life, plus 10 years for the two remaining prior serious felony convictions, and ordered each term to be served consecutively to the others, for a total term of 100 years, plus 40 years. ( 667, subd. (e)(2)(A)(ii); 667, subd. (a).) The court re-imposed a concurrent term of 60 days in the county jail for the misdemeanor count.
Pursuant to section 1237.1, appellate counsel brought to the trial courts attention, by letter, a miscalculation in the presentence credits. The court agreed with counsels recalculation of credits, awarded defendant additional credits, and prepared an amended abstract of judgment to reflect the new credit award.
FACTUAL SUMMARY[2]
The facts underlying the convictions are not pertinent to this appeal and are therefore very briefly summarized as follows. In 2004, it came to light that defendant had molested his grand-niece four times when she was in the fourth grade. In 2005, it came to light that when defendants grandson was in the fourth grade, defendant had talked to him about sex acts, and encouraged him to masturbate. Defendants conversations motivated the boy to act out in school.
DISCUSSION
Pursuant to People v. Wende, supra, 25 Cal.3d 436, we have reviewed the entire record. The trial court did not err in rejecting defendants request to reduce the amount of the restitution fine, or in resentencing defendant on remand. The trial court correctly recalculated defendants credits and properly amended the abstract of judgment. We conclude that there is no arguable issue on appeal. (People v. Kelly, supra, 40 Cal.4th at p. 124.)
DISPOSITION
The judgment is affirmed.
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McAdams, J.
WE CONCUR:
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Bamattre-Manoukian, Acting P.J.
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Duffy, J.
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[1] Unless otherwise specified, all further statutory references are to the Penal Code.
[2] This factual summary is drawn from our prior opinion in Pena I.
