Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS071913.
Mihara, J.
Defendant Josephina Reyes pleaded guilty to petty theft with prior theft convictions (Pen. Code, §§ 484, subd. (a), 666) and admitted the allegation that she had served a prior prison term (§ 667.5, subd. (b)). The trial court suspended imposition of sentence and placed defendant on probation for three years. After defendant committed a series of probation violations, the trial court revoked her probation, sentenced her to four years in prison, and awarded her 365 days custody credit. The trial court also ordered restitution and parole revocation fines (§§ 1202.4, subd. (b)(2), 1202.45). On appeal, defendant contends: (1) she is entitled to additional presentence custody credits; and (2) the restitution and parole revocation fines must be reduced. We conclude that defendant’s contentions have merit and reverse the judgment.
All further statutory references are to the Penal Code.
I. Factual and Procedural Background
In June 2007, defendant stole a home entertainment center from Target. About a month later, defendant was charged by information with petty theft with prior convictions and a prior prison term allegation. In October 2007, defendant pleaded guilty and admitted the prior prison term allegation. The trial court suspended imposition of sentence and placed her on probation for three years. As a condition of probation, the trial court ordered defendant to serve 300 days in jail with credit for 175 days custody and conduct credits. The trial court also imposed a $200 restitution fine (§ 1202.4, subd. (b)) and a probation revocation fine (§ 1202.44) in the same amount.
In June and July 2009, the probation department alleged that defendant violated probation by failing to report, failing to provide an updated address and telephone number, failing to obey all laws, and failing to submit to drug testing. In August 2009, defendant pleaded no contest to a misdemeanor charge, and admitted that she violated probation. The trial court ordered defendant to remain in custody pending sentencing.
In September 2009, the trial court imposed a prison sentence of four years, suspended execution of sentence, and reinstated probation. The trial court awarded 398 days custody and conduct credits for time already served. Defendant waived all custody credits over 365 days.
In February 2010, the probation department alleged that defendant failed to report to probation and failed to attend her outpatient program and meetings. Following a contested hearing, the trial court found that defendant had violated her probation as alleged.
In July 2010, the trial court revoked and terminated probation, and imposed the previously execution-suspended sentence of four years. The trial court also ordered a restitution fine of $800 and a parole revocation fine in the same amount.
Defendant filed a timely notice of appeal.
II. Discussion
A. Presentence Custody Credit
Defendant contends that she did not knowingly and intelligently waive future presentence custody credits, and thus she is entitled to additional credits for the period of custody between April 1, 2010 and July 7, 2010.
In September 2009, defense counsel urged the trial court to follow the probation officer’s recommendation that defendant “serve 398, and then waive current custody credits over 365.” The trial court imposed a sentence of four years, suspended execution of sentence, and placed defendant on probation. The trial court then stated, “In order to proceed with reinstatement of probation, you must permanently waive all custody credits over 365 days toward any future prison commitment or jail sentence.... Do you understand and accept these reinstated terms and conditions of probation, permanently waiving the credits over 365?” Defendant responded, “Yes.” The trial court added, “All right. It’s in your hands. Make sure you remember what you say you want to do, and do it. Because if you don’t you’re looking at prison for four years.”
Following revocation of probation in June 2010, defendant argued that her waiver of presentence credits in September 2009 applied only to those credits that had accumulated at the time of her waiver and not to those credits that she subsequently earned between her arrest on April 1, 2010 and her sentencing on July 7, 2010. The prosecutor contended that defendant’s waiver applied to all credits over 365 days, including those that she had not yet earned. The trial court concluded that defendant “waived any future credits beyond 365 toward a future prison sentence, ” and awarded 365 days custody and conduct credit.
Pursuant to section 2900.5, when the trial court sentences a defendant to county jail or state prison, the defendant is entitled to credit against such term for days spent in custody before sentencing and for those served as a probation condition. (People v. Johnson (2002) 28 Cal.4th 1050, 1053 (Johnson).) A defendant may, as a condition to being reinstated on probation, waive such credits against a jail or prison sentence. (Id. at pp. 1053-1055.) These waivers are commonly referred to as Johnson waivers. (People v. Jeffrey (2004) 33 Cal.4th 312, 315 (Jeffrey).) A Johnson waiver enables the trial court to reinstate a defendant on probation after he or she has violated probation one or more times, conditioned on service of additional county jail time, as an alternative to imposing a state prison sentence, without violating section 19.2. (Jeffrey, at pp. 315, 316.) Though a defendant may expressly waive such credits, his or her waiver must be knowing and intelligent. (Johnson, at pp. 1054-1055.) Thus, the waiver must be “made with ‘awareness of its consequences.’ [Citation.]” (People v. Salazar (1994) 29 Cal.App.4th 1550, 1553.)
Section 19.2 provides in relevant part: “In no case shall any person sentenced to confinement in a county or city jail..., on conviction of a misdemeanor, or as a condition of probation upon conviction of either a felony or misdemeanor..., be committed for a period in excess of one year....”
Here, though the trial court advised defendant that the waiver would apply to any future prison sentence, nothing in the record suggests that her waiver applied to any future credits that she might earn. Defense counsel referred to the waiver of “current custody credits over 365.” Neither the trial court nor the parties referred to future credits. Since nothing in the record suggests that the loss of future credits would be a consequence of defendant’s waiver or that such a waiver was a condition for her reinstatement on probation, this court cannot conclude that defendant knowingly and intelligently waived credits for periods of incarceration that occurred after her waiver of credits in September 2009. Accordingly, the judgment must be reversed and remanded for calculation of presentence custody credits.
The People’s reliance on People v. Arnold (2004) 33 Cal.4th 294, 297-298, People v. Burks (1998) 66 Cal.App.4th 232, 234, and People v. Hilger (2005) 131 Cal.App.4th 1528, 1532, is misplaced. In each of those cases, the issue was whether the defendant’s waiver applied to the future use of credits in the event that his probation was terminated and he was sentenced to state prison. Here, the issue is whether defendant’s waiver encompassed future credits that had not yet accrued.
People v. Bowen (2004) 125 Cal.App.4th 101 also does not assist the People’s position. In Bowen, the defendant expressly waived any custody credits that would accrue while he was in a residential treatment program. (Id. at pp. 108-109.) Thus, Bowen is distinguishable from the present case.
B. Restitution and Parole Revocation Fines
At the October 2007 sentencing hearing, the trial court ordered defendant to pay a $200 restitution fine (§ 1202.4, subd. (b)). When defendant was ultimately sentenced to prison in July 2010, the trial court ordered a restitution fine of $800 and a parole revocation fine in the same amount (§ 1202.45).
Defendant contends, and the People properly concede, that imposition of the second restitution fine was unauthorized under People v. Chambers (1998) 65 Cal.App.4th 819 because “the first restitution fine remained in force despite the revocation of probation.” (Id. at p. 823.) Moreover, the parole revocation fine must also be reduced to $200, because this fine must be in the same amount as the restitution fine. (People v. Smith (2001) 24 Cal.4th 849, 853.)
III. Disposition
The judgment is reversed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.