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The People v. Ann Marie Vance

October 22, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ANN MARIE VANCE, DEFENDANT AND APPELLANT.



(Super. Ct. No. CM032520)

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. Vance 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Ann Marie Vance was sentenced to state prison after pleading guilty to possessing controlled substances for sale. Defendant contends the trial court erred by failing to award her presentence custody credit for time spent in residential rehabilitation facilities. Because we cannot determine on this record what credit, if any, she might be entitled to, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On May 14, 2010, defendant was charged with possessing methamphetamine and marijuana for sale (counts 1 & 3; Health & Saf. Code, §§ 11378, 11359) and with possessing Dilaudid (count 2; Health & Saf. Code, § 11350, subd. (a)). It was alleged as to all counts that defendant had previously been convicted of manufacturing controlled substances. (Health & Saf. Code, § 11379.6.)

On April 28, 2011, defendant entered a plea of guilty to counts 1 and 3; count 2 and the prior conviction allegation were dismissed with Harvey*fn1 waivers. According to the probation report and counsels' stipulation at the plea hearing, on May 12, 2010, after a traffic stop of defendant's van, a search of the van and its occupants found methamphetamine packaged for sale and marijuana. On the same date, narcotics agents searched defendant's residence and found additional marijuana packaged for sale.

On June 23, 2011, the trial court sentenced defendant to an aggregate prison term of two years eight months. The court awarded 56 days of presentence custody credit (28 days actual credit and 28 days conduct credit). Neither the trial court nor counsel mentioned any credit to which defendant might be entitled for time spent in residential drug treatment facilities.

DISCUSSION

Defendant contends she is entitled to "at minimum" 143 days of presentence custody credit for time spent in residential rehabilitation. She also contends that trial counsel's failure to raise the issue at sentencing does not forfeit it, but if we find otherwise, counsel's silence constituted ineffective assistance of counsel.

As we shall explain, on this record we cannot find that defendant is entitled to the amount of credit she claims or to any other ascertainable amount of credit for residential rehabilitation time. Her relief, if any, must come by way of habeas corpus.

Applicable Law

"In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a . . . rehabilitation facility . . . or similar residential institution, all days of custody of the defendant . . . credited to the period of confinement pursuant to Section 4019 . . . shall be credited ...


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