IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama)
November 30, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JEAN MARIE CORNELISON, DEFENDANT AND APPELLANT.
The opinion of the court was delivered by: Cantil-sakauye, J.
P. v. Cornelison
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436. In January 2009, an informant went to the residence of defendant Jean Marie Cornelison. Defendant sold the informant 20 hydrocodone pills and said that she had additional pills for sale. Later that day, the informant returned to the residence on two separate occasions. On each occasion, defendant sold the informant 20 additional pills.
In May 2009, officers executed a search warrant at defendant's residence. She was found in an adjacent motor home. Defendant admitted that she was not under a doctor's care and that she had no medical prescriptions. She stated that she had sold prescription medication only to the informant, whom she knew, and only because the informant had "nagged" her about getting pills. Defendant was taken into custody.
An information accused defendant of three counts of sale of hydrocodone (Health & Saf. Code, § 11352, subd. (a); counts I, II & III) and one count of maintaining a place for sale of hydrocodone (Health & Saf. Code, § 11366; count IV), possession by a convicted felon of a firearm (Pen. Code, § 12021, subd. (a)(1); count V) and ammunition (Pen. Code, § 12316, subd. (b)(1); count VI), and possession of morphine (Health & Saf. Code, § 11350, subd. (a); count VII). The information also alleged two prior controlled substance convictions.
The trial court granted defendant's motion to dismiss counts V and VI. (Pen. Code, § 995.) She then pled guilty to counts I through III. In exchange, counts IV and VII were dismissed along with the prior conviction allegations.
Defendant was sentenced to state prison for three concurrent upper terms of five years, awarded 181 days' custody credit and 90 days' conduct credit, and ordered to pay an $800 restitution fine (Pen. Code, § 1202.4), an $800 restitution fine suspended unless parole is revoked (Pen. Code, § 1202.45), a $50 laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) plus a $160 penalty assessment, a $100 drug program fee (Health & Saf. Code, § 11372.7) plus a $290 penalty assessment, and a $90 court security fee (Pen. Code, § 1465.8).
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. 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.
Our review of the record discloses that defendant is entitled to additional presentence credit. The probation report computed defendant's credit as of the original sentencing date of November 3, 2009. Thereafter, sentencing was continued for one week, until November 10, 2009, but the credit computation was not updated.
On September 28, 2010, the Legislature enacted Senate Bill No. 76, which amended Penal Code section 2933 regarding presentence conduct credits for defendants sentenced to state prison. This amendment, effective September 28, 2010, gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (Pen. Code, § 2933, subd. (e)(1)-(3), added by Stats. 2010, ch. 426, § 1), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. SBX3 18 when the person served an odd number of days in presentence custody. Senate Bill No. 76 also eliminates the directive in Penal Code section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (See Pen. Code, § 2933, subd. (e)(1)-(3), added by Stats. 2010, ch. 426, § 1; former Pen. Code, § 4019, subd. (e), as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.)
The amendment to section 2933, effective September 28, 2010, which now supersedes the section 4019 amendments effective January 25, 2010, does not state it is to be applied prospectively only. Consequently, for the reasons we would conclude that the January 25, 2010, amendments to section 4019 apply in this case, we similarly conclude that the rate now provided in Penal Code section 2933 applies retroactively to all appeals, like defendant's, pending as of September 28, 2010.
As defendant does not have a present or prior conviction for a "serious" or "violent" felony and is not subject to registration as a sex offender, she is entitled to the presentence conduct credits now provided for in section 2933, subdivision (e). (Pen. Code, § 2933, subd. (e)(1) & (3), added by Stats. 2010, ch. 426, § 1.) Consequently, defendant is entitled to 188 days of custody credit. She is also entitled to 188 days of conduct credit. We shall modify the judgment accordingly.
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
The judgment is modified to award defendant 188 days of custody credit and 188 days of conduct credit. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, Acting P. J. ROBIE, J.
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