Opinion
D073565
08-20-2018
THE PEOPLE, Plaintiff and Respondent, v. MARTIN G. RODRIGUEZ, Defendant and Appellant.
David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS291278) APPEAL from a judgment of the Superior Court of San Diego County, Keri G. Katz, Judge. Affirmed as modified and remanded with directions. David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
In this case, Martin G. Rodriguez pleaded guilty to one count of buying or receiving a stolen vehicle (Pen. Code, § 496d; count 2). He also admitted a prior conviction of buying or receiving a stolen vehicle (§ 666.5, subd. (a)). The court granted probation on various terms and conditions and ordered the custody period to be concurrent with custody and probation in another case.
All further statutory references are to the Penal Code unless otherwise specified. --------
Following a contested hearing in October 2017, the court revoked probation. In January 2018, the court sentenced Rodriguez to a four-year term. At the sentencing, the court stated that, as to this case, Rodriguez had waived credits under section 4019.
Rodriguez appeals, originally challenging his probation revocation and the trial court's finding he had waived section 4019 credits. The People responded supporting the probation revocation, but conceded the court erred in finding a section 4019 waiver of credits. Thereafter, Rodriguez dismissed his challenge to the probation revocation and then requested an expedited appeal and immediate issuance of an opinion. The court granted the motion for an expedited appeal. We will agree with the parties' assertions that there is nothing in the record on appeal to support a finding of waiver of section 4019 credits in this case. We will direct the trial court to recalculate the custody credits in accordance with the views expressed in this opinion.
DISCUSSION
In August 2017, when Rodriguez admitted an earlier violation of probation, the court reinstated him on probation and commented, "As to [this] case, he is waiving his PC 4019s. That would be a waiver of 4019s past, present and future." Unfortunately, there is no record of a personal waiver of such credits by Rodriguez.
A defendant may waive the right to custody credits, provided the waiver is knowing and intelligent, and personally made by the defendant. (People v. Johnson (1978) 82 Cal.App.3d 183, 187-188; People v. Burks (1998) 66 Cal.App.4th 232, 236, fn. 3.)
Although the trial court stated the section 4019 credits had been waived, the record does not contain a personal waiver by Rodriguez, nor any discussion from which such waiver might be implied. As the People respond: "However, the record appears void of any discussion of, or waiver of, these custody credits by appellant."
Based upon the record before us and the parties' agreement, we find the trial court's assertion of waiver of section 4019 credits in this case is not supported. We will vacate the sentence and remand the case to the trial court with directions to recalculate the custody credits, including credits under section 4019.
DISPOSITION
The sentence in this case is vacated. The matter is remanded to the trial court with directions to recalculate the custody credits, including the appropriate amount of credits under section 4019 and to modify the abstract of judgment accordingly. In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. IRION, J.