Opinion
F061201 Super. Ct. No. F09907105
10-13-2011
THE PEOPLE, Plaintiff and Respondent, v. SHARON DENISE LUSK, Defendant and Appellant.
Eleanor M. Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Gomes, Acting P.J., Kane, J. and Poochigian, J.
APPEAL from a judgment of the Superior Court of Fresno County. James Oppliger, Judge.
Eleanor M. Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
On August 12, 2010, a jury convicted appellant, Sharon Denise Lusk, of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)), a felony, and providing false personal identification information to a peace officer (Pen. Code, § 148.9, subd.(a)), a misdemeanor. In a separate proceeding on August 13, appellant admitted three prior prison term enhancement allegations (§ 667.5, subd. (b)). On October 21, the court imposed a sentence of four years four months, consisting of the 16-month lower term on the felony conviction and one year on each of the three prior prison term enhancements, and awarded appellant presentence credit of 297 days, consisting of 199 days of actual time credit and 98 days of conduct credit. The court credited appellant for time served on the misdemeanor.
Except as otherwise indicated, further references to dates of events are to dates in 2010.
Except as otherwise indicated, all further statutory references are to the Penal Code.
Appellant's appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this court's invitation to submit additional briefing.
We advised the parties, pursuant to Government Code section 68081, that we had tentatively determined that the trial court had erred in its award of presentence credit and that we proposed, were we to otherwise affirm the judgment, to modify the judgment to correct the error. Neither party has responded to our invitation to submit briefing on this issue. We will modify the judgment to award appellant additional presentence credit, and otherwise affirm.
FACTS
Prosecution Case
On the night of December 21, 2009, City of Fresno Police Officer Luis Carrillo and other officers went to an apartment in Fresno to conduct a parole search of Edmond Sanders. When the officers "[m]ade contact at the ... front door," Officer Carrillo saw appellant "sitting next to [Sanders]."
Except as otherwise indicated, the "Prosecution Case" portion of our factual statement is taken from Officer Carrillo's testimony.
Officer Carrillo asked appellant to identify herself. Appellant gave the name Tanya Washington. The officer "ran the name through ... dispatch" and learned that "it was a fake name." He asked appellant her name again, and she gave the name Vicky Upshaw. Officer Carrillo "ran that name" and learned that a person named Sharon Lusk "was using that name as an aka ...." Appellant subsequently confirmed she was Sharon Lusk, at which point Officer Carrillo arrested her for falsely identifying herself to a peace officer.
Officer Carrillo then walked with appellant to the officer's patrol car where his partner, Officer Paul Zarasua, conducted a pat-search of appellant's person. During the search, the officers found, in appellant's left front pants pocket, a pipe used for smoking crack cocaine. There was crack cocaine in the pipe. When the pipe was found, appellant stated, "'Oh, shit, I forgot that was there.'" Officer Zarasua booked the pipe and its contents into evidence. Thereafter, Officer Carrillo "Mirandize[d]" appellant, after which appellant stated that she had smoked crack cocaine with Sanders earlier that day, and that she forgot about the crack cocaine pipe in her pocket.
See Miranda v. Arizona (1966) 384 U.S. 436.
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A police criminalist testified to the following: He conducted chemical tests of the substance found in the pipe and determined the substance weighed .07 gram and contained cocaine base. Cocaine base is the same substance as crack cocaine. The criminalist opined that .07 gram of cocaine base is a "usable amount."
Defense Case
Neither appellant nor any other person testified for the defense.
DISCUSSION
Presentence Credit
Under section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). These forms of section 4019 presentence credit are called, collectively, conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
The trial court determined appellant had earned 199 days of actual time credit--a figure neither party disputes--and 98 days of conduct credit under section 4019. The court calculated appellant's conduct credit under a former version of section 4019, which provided for "two days [of conduct credit] for every four days the defendant is in actual presentence custody." (People v. Duff (2010) 50 Cal.4th 787, 793.)
However, section 4019 was not applicable to appellant. As indicated above, appellant was sentenced on October 21. Section 2933 was amended effective September 28 (Stats. 2010, ch. 426, § 1) to provide as follows: "Notwithstanding Section 4019 ... a prisoner sentenced to the state prison ... for whom the sentence is executed shall have one day deducted from his or her period of confinement for every day he or she served in a county jail, city jail, industrial farm, or road camp from the date of arrest until state prison credits ... are applicable to the prisoner." (§ 2933, subd. (e)(1), italics added.) The statute also provides that a person shall not receive such credit "if it appears by the record that [he or she] has refused to satisfactorily perform labor ... or has not satisfactorily complied with the reasonable rules and regulations." (§ 2933, subd. (e)(2).) Lastly, section 2933, subdivision (e)(3) provides, "[s]ection 4019, and not this subdivision, shall apply" to persons required to comply with sex offender registration requirements, those committed for a serious felony (§ 1192.7, subd. (c)), and those with a prior conviction for a serious or violent felony (§ 667.5, subd. (c)). (§ 2933, subd. (e)(3).)
The record contains no indication appellant failed to perform assigned labor or follow rules, or that any of the section 2933, subdivision (e)(3) disqualifying factors apply. Therefore, the trial court erred in failing to award appellant, in addition to actual time of credit of 199 days, 199 days of section 2933, subdivision (e) conduct credit. (§ 2933, subd. (e)(1); People v. Buckhalter (2001) 26 Cal.4th 20, 30 ["'[T]he court imposing a sentence' has responsibility to calculate the exact number of days the defendant has been in custody 'prior to sentencing,' add applicable good behavior credits ... and reflect the total in the abstract of judgment"]; Cal. Rules of Court, rule 4.310 [presentence credit to be awarded "[a]t the time of sentencing"].) We will modify the judgment accordingly.
Independent Review of the Record
Based on our review of the record, we conclude no other reasonably arguable issues exist.
DISPOSITION
The judgment is modified to provide that appellant is awarded a total of 398 days of presentence credit (199 days of actual time credit plus 199 days of conduct credit under Penal Code section 2933, subdivision (e)(1)). The trial court is directed to amend the abstract of judgment and to forward the amended abstract to the California Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.