Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. MA033670, Hayden Zacky, Judge.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance on behalf of Plaintiff and Respondent.
TURNER, P. J.
Defendant, Lawrence Wheeler, appeals from a trial court order denying his application for further presentence credits. Defendant pled nolo contendere to two counts of lewd act on a child under 14 in violation of Penal Code section 288, subdivision (a). On January 11, 2007, he was sentenced to 12 years in state prison. He received credit for 408 days in presentence custody and 61 days of conduct credit for a total presentence custody credit of 469 days. On June 11, 2010, defendant filed his application for additional custody credit. On June 22, 2010, defendant’s application for additional custody credit was denied. Defendant filed an August 4, 2010 notice of appeal.
All further statutory references are to the Penal Code unless otherwise noted.
We appointed counsel to represent defendant on appeal. After examination of the record, appointed appellate counsel has filed a brief in which no issues are raised. Instead, appointed appellate counsel has asked us to independently review the entire record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441-442. (See Smith v. Robbins (2000) 528 U.S. 259, 264.) On November 5, 2010, we advised defendant he had 30 days within which to submit by brief or letter any contentions or argument he wished this court to consider. No response has been received.
Defendant received a proper award of presentence custody credit. He was arrested on November 30, 2005 and sentenced on January 11, 2007. Hence, he was in actual presentence custody for 408 days. (§ 2900.5.) He received 61 days of conduct credit (15 percent) pursuant to section 2933.1, subdivision (a). (§ 667.5, subd. (c)(6).)
The enhanced presentence conduct credits under section 4019 as amended effective January 25, 2010 (Stats. 2009-2010 (3rd Ex. Sess.) Ch. 28, § 50) are not available to a defendant who has committed a serious felony. (§ 4019, subd. (b)(2).) Defendant was committed to state prison for two counts of lewd act on a child under 14 in violation of section 288, subdivision (a). Pursuant to section 1192.7, subdivision (c)(6), a “lewd or lascivious act on a child under 14 years of age” is a serious felony. Therefore, defendant cannot claim the benefit of the amendment to section 4019. (See People v. Jones (2010) 188 Cal.App.4th 165, 182-183.)
In the trial court, defendant argued he was entitled to additional credit under section 2933 for time spent as a “‘process case, ’” i.e., time spent in the county jail as a sentenced prisoner prior to his transportation to the Department of Corrections and Rehabilitation (the department). Defendant asserts the department failed to award credit pursuant to section 2933 for this “‘process time’” as a matter of practice. We cannot reach this contention. (People v. Mendoza (1986) 187 Cal.App.3d 948, 953-955; People v. Chew (1985) 172 Cal.App.3d 45, 52, disapproved on another point in People v. Buckhalter (2001) 26 Cal.4th 20, 40; In re Muszalski (1975) 52 Cal.App.3d 500, 508.)
It is the sole province of the department to determine prison credits. (People v. Myers (1999) 69 Cal.App.4th 305, 311; People v. Thornburg (1998) 65 Cal.App.4th 1173, 1176, disapproved on another point in People v. Buckhalter, supra, 26 Cal.4th at p. 40; People v. Goodloe (1995) 37 Cal.App.4th 485, 492-493; see Cal. Code Regs., tit. 15, § 3042 et seq.) Once a defendant is sentenced and delivered to the custody of the department, it has the responsibility for calculating and applying credits that accrue between the imposition of sentence and physical delivery of him or her to a prison facility. (§ 2900.5, subd. (e); People v. Buckhalter, supra, 26 Cal.4th at pp. 30-31.) As the Supreme Court explained in Buckhalter: “Once a person begins serving his prison sentence, he is governed by an entirely distinct and exclusive scheme for earning credits to shorten the period of incarceration. Such credits can be earned, if at all, only for time served ‘in the custody of the Director’ (§ 2933, subd. (a)) and pursuant to article 2.5 of chapter 7 of title 1 of part 3 of the Penal Code (commencing with section 2930) (hereafter article 2.5). Under article 2.5, eligible prisoners may shorten their determinate terms or the minimum confinement for certain indeterminate sentences, by up to six months for every six months actually served by performing, or making themselves available for participation, in work, training or education programs established by the Director. (§ 2933.) Such prison worktime credits, once earned, may be forfeited for prison disciplinary violations and, in some cases, restored after a period of good behavior. (§§ 2932, 2933, subds. (b), (c).) Accrual, forfeiture, and restoration of prison worktime credits are pursuant to procedures established and administered by the Director. (§§ 2932, subd. (c), 2933, subd. (c).)” (People v. Buckhalter, supra, 26 Cal.4th at p. 31; accord, People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) Department decisions as to post-commitment credits are subject to review on habeas corpus provided the defendant has exhausted his or her administrative remedies. (People v. Goodloe, supra, 37 Cal.App.4th at p. 494; People v. Mendoza, supra, 187 Cal.App.3d at p. 955.) There is nothing in the present record demonstrating defendant has pursued administrative remedies nor has he filed a habeas corpus petition.
The post-judgment order under review is affirmed.
We concur: ARMSTRONG, J., MOSK, J.