Opinion
A130087
11-29-2011
THE PEOPLE, Plaintiff and Respondent, v. RODNEY RENE IRVING, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. VCR180953)
Rodney Rene Irving appeals from a judgment executing a previously suspended 10-year prison sentence following a revocation of probation. He contends the trial court should have awarded him additional presentence credits for jail time he served following an earlier probation violation. The People dispute appellant's entitlement to those credits, claiming that he knowingly he waived them when he entered his initial plea. We agree that appellant is entitled to credits for the time he spent in custody on the earlier probation violation. We also agree with his claim (not disputed by the People) that he is entitled to additional credits for time he spent in jail after the most recent probation violation.
FACTS AND PROCEDURAL HISTORY
On October 21, 2005, appellant was arrested with 30 rocks of cocaine and a chunk of tar heroin. A criminal complaint was filed. Appellant agreed to enter a no contest plea to possession for sale of a controlled substance and possession for sale of cocaine base, and to admit allegations that he had been previously convicted of a drug offense and had served a prior prison term. (Health & Saf. Code, §§ 11351, 11351.5, 11370.2, subd. (a); Pen. Code, § 667.5, subd. (b).) In exchange for the plea, the district attorney agreed to dismiss a prior conviction allegation that would have rendered appellant ineligible for probation so that he could be placed on probation if found amenable to a residential drug treatment program.
Further statutory references are to the Penal Code unless otherwise indicated.
At the sentencing hearing held March 14, 2006, the court indicated that it would follow the plea agreement and placed appellant on three years of probation on the condition that he serve 365 days in the county jail. The parties agreed that appellant had accumulated 216 days in presentence credits up until that point (144 days actual custody, 72 days of conduct credits under section 4109). The court stated, "He shall commit himself to a Category One Program and remain there until released by the director upon satisfactory completion. [¶] He'll remain in custody until placed in the program. He can be released to the program — the program is specifically Genesis House, correct?" When this was confirmed by defense counsel, the court continued, "He can be released for a screening and transportation to the program when a bed is available prior to the completion of his jail sentence. [¶] The defendant will waive all of his credits: Pre-sentence, time in program, good-time, work-time credits. However, he's eligible for day-for-day work — day-for-day work credits."
The court imposed a 10-year prison sentence and suspended execution of that sentence. It went on to describe a number of additional probation conditions, such as the requirement that appellant obey all laws, submit to searches, and refrain from using drugs or alcohol. Appellant expressly accepted the terms of his probation. His attorney then asked the court, "Your Honor, in regard to the order, I'm sorry, the Court imposed 365 days. The balance, he is eligible for the day-for-day work credits, correct?" The court responded, "Correct, and he may be placed before [then]," noting that this was possible "[b]ecause he's waiving all of his credits."
After his release from the Genesis House program, appellant violated probation by using drugs. The probation officer filed a supplemental report recommending that probation be reinstated subject to an additional 180 days in jail custody. At the sentencing hearing on the probation violation, held on April 22, 2008, the court reinstated probation "on all current terms and conditions," and extended the probationary period until March 11, 2010. It ordered appellant to "serve 180 days in the county jail; receive 81 days credit, 55 actual and 26 days pursuant to Section 4019 of the Penal Code. [¶] While the Court will not recommend sheriffs alternative release or early release, however, you will receive day-for-day credits and good-time, work-time credits." Appellant was released from jail on June 27, 2008.
After his release from jail, appellant was arrested in two other cases and was alleged to have violated his probation in the current case by using drugs and failing to drug test. He admitted a new probation violation on August 23, 2010. A sentencing hearing was held on September 21, 2010, at which time the court imposed the previously suspended 10-year prison sentence and the district attorney agreed to dismiss pending charges in the two other cases.
At a subsequent hearing, the court awarded appellant 81 days of presentence credits for the period he spent in jail after his arrest on the most recent probation violation (41 days of actual time; 40 days of conduct credits under section 4019). The court rejected appellant's argument that he was also entitled to credits for the time spent in jail after his first probation violation in 2008, concluding that his initial waiver of credits at the original sentencing hearing extended to the time he spent in custody following the first probation violation.
According to the most recent probation report in this case, appellant spent the following time in local custody: 255 days (October 22, 2005 — July 3, 2006) in the Solano County Jail following his arrest on the original charges and continuing until after the original sentencing date while he awaited placement in a residential drug treatment program; 362 days (July 3, 2006 — June 29, 2007) in Genesis House, the residential treatment program ordered as a condition of probation; 163 days (January 17, 2008 — June 27, 2008) in jail, following his first violation of probation; and 42 days in jail (August 11, 2010 — September 21, 2010) following his arrest on the second probation violation, which led to the imposition of the 10-year prison sentence.
The probation report mistakenly calculates this period as 162 days.
DISCUSSION
I. Credits for Jail Time Served on the 2008 Probation Violation
Appellant received credits for the period of time spent in custody following the second probation violation in 2010, but was not awarded credits for the time he spent in jail and Genesis House in connection with his initial grant of probation in 2006, or the time spent in jail in connection with his first probation violation in 2008. Appellant acknowledges that he waived the credits associated with the original order placing him on probation (255 days in jail; 362 days in Genesis House), but argues that the trial court should have awarded him credits for the time he spent in custody on the 2008 probation violation. We agree.
A defendant committed to state prison is ordinarily entitled to credit against the prison term for all days spent in custody prior to sentencing, including days spent in jail or in a residential drug treatment program as a condition of probation. (§ 2900.5; People v. Johnson (2002) 28 Cal.4th 1050, 1053; People v. Jeffrey (2004) 33 Cal.4th 312, 315 (Jeffrey).) Like other statutory rights, the right to receive presentence credits may be expressly waived "as long as the defendant's waiver is 'knowing and intelligent' in the sense that it was made with awareness of its consequences." (People v. Thurman (2005) 125 Cal.App.4th 1453, 1460 (Thurman).)A knowing and intelligent waiver of credits bars any future use of those credits to reduce a prison term in the event probation is terminated and a prison sentence imposed. (Jeffrey, supra, 33 Cal.4th at pp. 316-317; People v. Arnold (2004) 33 Cal.4th 294, 308-309 (Arnold).)
A waiver of presentence custody credits allows the court to avoid the one-year limitation on time that can be spent in local custody as a condition of probation. (See § 19.2; People v. Johnson (1978) 82 Cal.App.3d 183, 188-189.) In cases where probation is conditioned on the completion of a residential treatment program, a waiver of credits also "serves as an 'incentive' for the defendant and has the 'salutary goal [of] insuring optimum chances of success in a treatment program, while reserving an appropriate sentence if, despite the opportunity received, the treatment program and probation are not completed.' " (Thurman, supra, 125 Cal.App.4th at p. 1460.) "A failure to require waiver of such credits could practically mean that a probationer, while failing the treatment program, simply substitutes easier time in a residential drug treatment facility for custody in jail or prison." (People v. Torres (1997) 52 Cal.App.4th 771, 775.)
Appellant was told at his original sentencing hearing in 2006 that he would be placed on probation subject to the condition that he serve 365 days in local custody and complete a residential drug treatment program. Although custody credits had not been mentioned in his written change of plea form or at the hearing at which he changed his plea from not guilty to no contest, appellant was advised by the court that as a condition of probation, he would waive all his credits "[p]re-sentence, time in program, good-time, work-time." As appellant acknowledges, he thereby waived for all purposes any credits for the time he spent in jail and in Genesis House after the original sentencing. The question we must resolve is whether appellant knowingly and intelligently waived any future credits for time that might be served on a probation violation after the initial jail term and residential treatment had been completed. Our standard of review is de novo. (See People v. Panizzon (1996) 13 Cal.4th 68, 80.)
"To determine whether a waiver [of credits] is knowing and intelligent, the inquiry should begin and end with deciding whether the defendant understood he was giving up custody credits to which he was otherwise entitled." (People v. Burks (1998) 66 Cal.App.4th 232, 236, fn. 3.) Here, the court's advisement at the original sentencing hearing that appellant was waiving "[p]re-sentence, time in program, good-time, work-time" credits did not clearly advise him that he would also be denied credits for periods spent in custody on a future probation violation. The People do not explain why a reasonable person would have understood the trial court's advisement at the original sentencing hearing in 2006 to encompass a waiver of all future credits for local custody not related to the 365 days in jail or time spent in Genesis House. Their respondent's brief simply states, without further explanation, that the judge who sentenced appellant to prison "reasonably found" that the 2006 credits waiver included all future credits. We are not persuaded.
Nor did the court solicit a second waiver of credits when it imposed an additional 180 days of jail time in 2008, following the first probation violation. (Contrast Arnold, supra, 33 Cal.4th at p. 298 [second credits waiver entered when probation revoked and reinstated].) To the contrary, the court awarded appellant credits for the time he had spent in custody since his arrest on the violation, and advised him that while it would not recommend early release, he would receive day-for-day and good time/work time credits for the time he served. Under the circumstances, there was no waiver of credits for the time spent in jail in 2008, and appellant was entitled have this time credited against the prison sentence imposed in 2010. (§ 2900.5.)
II. Calculation of Additional Credits
Having concluded that appellant was entitled to credits for the time spent in jail following first probation violation in 2008, we must determine the number of credits that appellant is entitled to receive for this period.
The probation report indicates that appellant was in custody in the Solano County jail between January 17, 2008 and June 27, 2008, or 163 days.(See footnote 2.) Appellant argues that in addition to credits for his actual time served, he is entitled to receive presentence conduct credits under section 4019 in an equal amount (163 days), for a total of 326 days.
Section 4019, which had previously allowed a defendant to receive six days of credits for every four days served in actual custody, was amended effective January 25, 2010, to increase the conduct credits available to most defendants (i.e., those who have no convictions of serious or violent felonies and who are not required to register as sex offenders). (Former § 4019, subds. (b), (c) & (f), as amended by Stats. 2009-2010, 3d Ex. Sess. 2009, ch. 28, § 50; People v. Dieck (2009) 46 Cal.4th 934, 939.) The January 2010 version of section 4019 allows an award of one day of good behavior credit and one day of work credit for every four days spent in presentence custody, or four days of credit for every two days spent in custody. (Former § 4019, subds. (b), (c) & (f), as amended by Stats. 2009-2010, 3d Ex. Sess. 2009, ch. 28, § 50.)
Section 4019 was amended again effective September 28, 2010, but that version applies only to crimes committed on or after September 28, 2010. (Stats. 2010, ch. 426, § 2.) It was also amended as part of the 2011 Realignment Legislation addressing public safety, but that amendment applies only to crimes committed on or after July 1, 2011. (Stats. 2011, ch. 15, § 636.) These subsequent amendments to do not affect our analysis.
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Although appellant committed the underlying offenses and served the jail time at issue before the January 2010 amendment to section 4019 went into effect, the hearing at which he was sentenced to state prison was held on September 21, 2010, after the amendment went into effect. We therefore apply the January 2010 version of section 4019 to this case. In so doing, we note that we do not view this application of the January 2010 amendment as "retroactive" and need not address the question, currently pending in the California Supreme Court, of whether the amendment may apply retroactively. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808; see People v. Grant (1999) 20 Cal.4th 150, 157 ["A law is not retroactive 'merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment' "].)
Even if our application of the January 2010 amendment is "retroactive," given that it postdates the underlying offenses and the jail time at issue, we would conclude that retroactive application is appropriate. The January 2010 version of section 4019 mitigates punishment and, as such, applies retroactively to cases that were not yet final at the time of its enactment. (See In re Estrada (1965) 63 Cal.2d 740, 745, 748; People v. Doganiere (1978) 86 Cal.App.3d 237, 238-240 [amendment to § 2900.5 to allow section 4019 good time/work time credits against a prison sentence applied retroactively to credits earned before amendment]; People v. Hunter (1977) 68 Cal.App.3d 389, 391-394 [amendment to § 2900.5 allowing "back-time" credit should be applied retroactively to defendant placed on probation before its enactment].)
Having concluded that the January 2010 amendment to section 4019 applies to the case before us, we apply a modified version of the calculation method set forth in People v. Kimbell (2008) 168 Cal.App.4th 904, 908-909: " '[W]e divide by [two] the number of actual presentence days in custody, discounting any remainder. That whole-number quotient is then multiplied by two to arrive at the number of good/work credits. Those credits are then added to the number of actual presentence days spent in custody, to arrive at the total number of presentence custody credits.' " Having spent 163 days in custody, defendant is entitled to 162 days of conduct credit. (The equation is 163 divided by two equals 81.5; discounting the remainder leaves 81, which multiplied by two equals 162.) Appellant is entitled to a total of 325 days of presentence credit for the time spent in jail in 2008: 163 days for actual time served and 162 days of conduct credit under section 4019.
III. Additional Credit for Time Served After Arrest on 2010 Probation Violation
Appellant spent 42 days in jail after his arrest on the second probation violation in 2010. The court awarded him 41 days for actual time served plus 40 days in section 4019 credits. Appellant argues, and the People concede, that he is entitled to 42 days in actual custody credits plus 42 days in section 4019 credits for this period of time; i.e., an additional three days of credits. We agree.
DISPOSITION
The judgment is modified to award appellant a total of 205 days of actual custody credits (163 days in 2008 and 42 days in 2010) and 204 days of presentence conduct credits under section 4019 (162 days in 2008 and 42 days in 2010), for a total of 409 days of presentence credits. As so modified, the judgment is affirmed.
NEEDHAM, J. We concur. JONES, P. J. SIMONS, J.