P. v. Swanson

Filed 11/28/05 P. v. Swanson CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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THE PEOPLE, Plaintiff and Respondent, v. JOHN ALAN SWANSON, JR., Defendant and Appellant.

C047885 (Super. Ct. No. SF088277A)

Defendant John Alan Swanson, Jr. appeals from an order modifying the conditions of probation granted after he entered a plea of guilty to child detention with the right to custody (Pen. Code, § 278.5).^[1] Without objection, the trial court added the condition that defendant stay away from the mother of the victim/child.

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 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 (order modifying probation) is affirmed.

NICHOLSON , J.

We concur:

SCOTLAND , P.J.

ROBIE , J.

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^[1] Defendant’s notice of appeal filed September 16, 2004, reflects that he appeals from the order or judgment entered on the following dates: “08/04/04, 9/01/04, 9/09/04.” On August 4, 2004, the court modified probation, adding the condition that defendant “[s]tay 100 yards away from, do not contact, nor have anyone contact [K.O.] inc[luding] [her] residence, place of employment, and vehicle” and “[d]o not annoy, harass, threaten, or strike.” On September 1, 2004, the matter was continued to September 9, 2004, for a review of defendant’s compliance with probation. On September 9, 2004, the matter was continued to September 22, 2004, for possible reduction of the underlying charge to a misdemeanor. Defense appellate counsel has written a brief as if defendant’s appeal is from the original order of probation entered on July 30, 2003. Defendant’s notice of appeal does not refer to July 30, 2003. Defendant previously sent a notice of appeal to the superior court and it was received on October 14, 2003, but was rejected because it was incomplete in that it failed to identify the order or judgment from which defendant appealed. Defendant’s notice of appeal from the July 30, 2003, order granting probation was thereafter received on March 29, 2004, by the superior court but not filed because the time for filing had elapsed and his appeal was not operable but noted that he could seek relief from default. The record does not reflect that defendant ever sought relief from default.