Filed 4/23/15 P. v. Duckett 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C076197

         v.                                                                      (Super. Ct. No. 11F07674)

JOSEPH ANTWION DUCKETT,

                   Defendant and Appellant.




         Appointed counsel for defendant Joseph Antwion Duckett asked this court
to review the record and determine whether there are any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436 (Wende).) Our review of the record discloses
that the trial court did not impose a mandatory $40 court operations fee or a mandatory
$30 court facilities assessment. We will modify the judgment to include the fee and
assessment. Finding no arguable error that would result in a disposition more favorable
to defendant, we will affirm the judgment as modified.



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                                             I
       Defendant was an inmate at Folsom State Prison on August 20, 2011. He was
housed on the second tier of the five-tier cell block. Shortly before 8:00 p.m., sleep
medications were being dispensed to the inmates for whom they had been prescribed.
Inmates were released from their cells in groups to receive the medications from a nurse.
After consuming the medication, the inmates would return to their cells.
       Correctional Sergeant Scott Russell supervised the medication process. He
observed defendant while he stood in line for medication. Defendant appeared to have
an object in his sock. Sergeant Russell thought the object might be a state-issued
identification card. Defendant briefly left the medication line and went around a corner
out of Sergeant Russell’s view. Defendant returned to the medication line and, after
a brief period, walked toward Sergeant Russell. Sergeant Russell saw that the object
in defendant’s sock was too long and slender to be an identification card.
       Sergeant Russell called out to defendant as defendant ascended the cell block
stairs. Defendant looked at Sergeant Russell and continued climbing the stairs while
Sergeant Russell followed. When Sergeant Russell reached the second tier he again
called out to defendant. Defendant ran up to the third tier. Sergeant Russell broadcast
a call over the radio and activated a handheld alarm device. When the alarm activated,
the majority of the inmates got on the ground as they had been instructed to do.
       Sergeant Russell lost sight of defendant when he went up to the third tier. Russell
reached the fourth tier, he saw defendant prone on the ground with a correctional officer
standing over him. Russell told the officer to place handcuffs on defendant. After
defendant was handcuffed, Russell reached into defendant’s sock and retrieved a thin, flat
piece of metal that was approximately six inches long and one and a half inches wide
with an orange taped handle. It appeared to Russell that one edge of the object had been
sharpened. Defendant told Russell that defendant used the item to cut sausage.



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       Defendant testified that he was wearing ear buds and was listening to his compact
disc player when he walked downstairs to get his medication. He had the object that
Sergeant Russell ultimately seized, which defendant described as a “utility tool.”
Defendant did not recall anyone saying anything to him as he went upstairs after taking
his medication. Regarding Sergeant Russell’s claim that defendant ran, defendant
explained that his left foot had been injured in the early 1990’s and that leg is unable
to support his weight. When defendant climbed up to the fourth tier, he saw the flashing
blue light that is part of the alarm system. At that point, he removed the ear buds and
heard the audible alarm. A correctional officer ordered him to the ground. Defendant
went prone as directed.
       A jury found defendant guilty of possession of a sharp metal instrument by
a prisoner. (Pen. Code, § 4502, subd. (a).) In a bifurcated proceeding, the jury found
that defendant had two prior serious felony convictions (Pen. Code, §§ 667, subds. (b)-(i),
1170.12) and had served a prior prison term. The trial court sentenced defendant to seven
years in prison, consecutive to the term he was then serving. The sentence consisted of
twice the middle term of three years plus one year for the prior prison term. The trial
court ordered defendant to pay a $600 restitution fine (Pen. Code, § 1202.4) and a $600
parole revocation fine (Pen. Code, § 1202.45).
                                              II
       Appointed counsel filed an opening brief setting forth the facts of the case and
asking 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 the opening brief.
More than 30 days elapsed and we received no communication from defendant.
       Our review of the record discloses that the trial court did not impose a mandatory
$40 court operations fee (Pen. Code, § 1465.8, subd. (a)(1)) or a mandatory $30 court



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facilities assessment (Gov. Code, § 70373). We will modify the judgment to include the
fee and assessment. (People v. Robinson (2012) 209 Cal.App.4th 401, 405.)
       Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
                                     DISPOSITION
       The judgment is modified to include the imposition of a $40 court operations fee
(Pen. Code, § 1465.8, subd. (a)(1)) and a $30 court facilities assessment (Gov. Code,
§ 70373). The judgment is affirmed as modified. The trial court is directed to prepare an
amended abstract of judgment and to forward a certified copy of the amended abstract of
judgment to the Department of Corrections and Rehabilitation.



                                                       MAURO                , Acting P. J.


We concur:


      DUARTE                , J.


      HOCH                  , J.




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