IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
February 8, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SARAH MARIE RILEY, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F8260)
The opinion of the court was delivered by: Hoch , J.
P. v. Riley CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We find no arguable error, but we note one sentencing error and one mistake in the abstract of judgment. We conclude that defendant is ineligible for one-for-one conduct credits requiring a modification of the judgment to reflect the correct days of conduct credit. We also note that the abstract of judgment must be corrected to reflect that defendant was sentenced as a two-strike offender. We affirm the judgment as modified.
We provide the following brief description and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On September 1, 2009, defendant Sarah Marie Riley fictitiously signed the name of Colonial West Security Storage and the Law Offices of Presleigh and Arel to a check.*fn1
Defendant entered a plea of guilty to forgery of a check (Pen. Code, § 470, subd. (a)) and admitted a strike prior for assault [2002 violation of Pen. Code, § 245, subd. (a)(1)] (Pen. Code, § 1170.12) and a prior prison term [same] (Pen. Code, § 667.5, subd. (b)) in exchange for a stipulated sentence of five years and the dismissal of the remaining count [receiving stolen property] and allegation [another prior prison term allegation for a 2005 fraud to obtain aid] and two other cases [case No. 10F4619, charging forgery, false personation, burglary, and grand theft, and case No. 10F8074], with restitution reserved in case No. 10F4619, and the prosecutor's agreement not to file an additional case based on a report by the Anderson Police Department but that defendant would be liable for restitution, if any.
The court sentenced defendant to state prison for the midterm of two years, doubled for the strike prior, plus a one-year enhancement for the prior prison term. The court ordered defendant to pay $570.05 in victim restitution to Winco Foods with restitution to be determined in the remaining cases.
Defendant appeals. She did not obtain a certificate of probable cause (Pen. Code, § 1237.5).
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 elapsed, and we received no communication from defendant.
We note a sentencing error. The trial court awarded 181 actual days and 180 conduct days for a total of 361 days of presentence custody credit. The recent amendments to Penal Code section 4019 do not operate to modify defendant's entitlement to credit, as her prior conviction for a serious felony rendered her ineligible. In entering her plea, defendant admitted a strike prior so she was ineligible for one-for-one credits. She is limited to conduct credits at the rate of two days for every four-day period served. (Pen. Code, §§ 245, subd. (a)(1); 1192.7, subd. (c)(31); 4019, subds. (b) & (c); former 4019, subds. (b) & (c) [Stats. 1982, ch. 1234, § 7, p. 4553]; former 4019, subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50]; former 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].) Defendant is entitled to 90 days of conduct credit for a total of 271 days of presentence custody credit. We will order the judgment modified accordingly. (Pen. Code, § 1260; People v. Serrato (1973) 9 Cal.3d 753, 763, disapproved on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.)
We also note the abstract fails to reflect that defendant was sentenced as a two-strike offender. There is a box to be checked to so reflect. We will order the abstract corrected accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
The judgment is modified to provide for 90 days of conduct credit for a total of 271 days of presentence custody credit. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment accordingly and to check the box to reflect defendant was sentenced as a two-strike offender and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: BLEASE , Acting P. J. BUTZ , J.