Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM032097.
NICHOLSON, Acting P. J.
This appeal is brought pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
In exchange for the dismissal of other charges, defendant Clemens Lee Kramer pleaded no contest to spousal abuse and admitted personal use of a deadly weapon, a machete. (Pen. Code, §§ 273.5, subd. (a); 12022, subd. (b)(1).) The factual basis for the plea, taken from the probation report, shows that on January 11, 2010, defendant struck his wife’s hand with a machete and said he was going to kill her.
The trial court sentenced defendant to prison for four years. Defendant timely filed this appeal, but did not request a certificate of probable cause.
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.
The trial court awarded defendant 86 days of actual custody credit and 42 days of conduct credit. Pursuant to this court’s miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised whether recent amendments to Penal Code section 4019, effective January 25, 2010, apply retroactively to this pending appeal and entitle defendant to additional conduct credits. (See Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) However, defendant personally used a deadly weapon in this case, and he has a prior first degree burglary conviction, and each of those circumstances separately disqualifies him from the new credit formula. (Pen. Code, §§ 1192.7, subds. (c)(18) & (23), 4019, subds. (b)(2) & (c)(2).) Therefore, the new credit formula does not apply to 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: BUTZ, J., MAURO, J.