Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF064407
BLEASE, J.
Defendant Robert Glenn Barron, Jr., entered a negotiated plea of no contest to grand theft (Pen. Code, § 484, subd. (a)). On appeal, he contends he must be permitted to withdraw his plea because it was induced by a nugatory promise that he would be committed to the California Rehabilitation Center (CRC). We shall vacate defendant’s sentence and remand with directions that defendant be permitted to withdraw the plea.
Further undesignated statutory references are to the Penal Code.
BACKGROUND
Defendant was charged with first degree burglary, forgery, and grand theft. (§§ 459, 470, subd. (d), 484, subd. (a)/487.) He pled no contest to grand theft on the condition that he would receive the upper term of three years and the other charges would be dismissed. As stated on the written plea form, “in return[,] I have been promised CRC in that there will be a stipulation I’m an addict. I will be allowed to participate in that program.” At the hearing, defendant recited his understanding of the plea agreement, stating, “So, I go to CRC. When I get out, if I get in trouble, I do three years.” The trial court responded, “If CRC rejects you or you get kicked out of CRC, you have three years in prison; correct?” Defendant answered, “Yes.”
As indicated, the trial court sentenced defendant to the upper term of three years, the prosecutor filed a petition for commitment to CRC, and the trial court signed the order approving commitment.
Approximately six months later, the warden of CRC advised the trial court via letter that defendant did not qualify for commitment to CRC and was being returned for sentencing. Specifically, the letter explained that defendant was received for the Civil Addict Program and had appeared before the Unit Classification Committee. The committee acted to exclude defendant from the program “because of his dual case status under both a Felon Commitment and a Civil Addict Commitment.” Citing Welfare and Institutions Code section 3053, the warden indicated that defendant was unsuitable for the program because he was serving a parole revocation term.
Welfare and Institutions Code section 3053 provides for the return of a person committed to the CRC “to the court in which the case originated for further proceedings on the criminal charges that the court may deem warranted” in the event the Director of Corrections concludes that the person is not a fit subject for confinement or treatment due to “excessive criminality or for other relevant reason . . . .” (Welf. & Inst. Code, § 3053, subd. (a).)
Upon his return to the trial court, defendant sought to withdraw his plea. Attorney Toney was appointed to represent defendant for the motion to withdraw the plea. Toney noted that the plea agreement was not clear, since the written plea seemed to indicate a guarantee of CRC but the court had stated that defendant would serve the three years if he was rejected by CRC and defendant said he understood that. Toney also stated that, because defendant had already been sentenced, he could not move to withdraw his plea. Since any relief would have to be done by writ (without court-appointed counsel), Toney sought to be relieved. The trial court relieved Toney and continued the matter to the following day to secure the public defender’s presence.
At this point, the following colloquy took place:
“THE COURT: Put it on tomorrow morning with the public defender here for sentencing, and I do specifically remember telling the defendant that if CRC rejected him[,] he was going to get three years at [prison].
“THE DEFENDANT: Your Honor, I did not understand when you said that.
“THE COURT: All I can tell you at this point, I don’t have jurisdiction to do anything different. It has been more than six months.
“THE DEFENDANT: I was led to believe I was able to withdraw it as long as it was in open court.
“THE COURT: “We’ll deal with that tomorrow morning when we get the public defender here. . . .”
The following day, however, defendant’s new attorney represented to the trial court that she understood that defendant “went to CRC on the hope he would be accepted. He was not accepted, came back and was sent to Mr. Toney for appointment for a short period of time for withdrawal of plea. [Defendant] indicates to me that that motion was denied.” The trial court responded, “That’s correct. I denied that. The basis, I think Mr. Toney made clear himself, was I made it clear at the time the plea was taken that if CRC rejected him or he wasn’t eligible for CRC, he was just going to go to [prison]. He chose to go forward. There was no basis.”
The trial court reinstated proceedings and the matter was continued to obtain a new calculation of custody credits. The clerk’s transcript reflects that defendant was ultimately awarded 353 actual days and 176 conduct days, for a total of 529 days of custody credit.
DISCUSSION
I
Defendant contends his plea was induced by a nugatory promise that he would committed to CRC and he did not understand that this promise was illusory or that CRC may reject him. We agree that defendant must be permitted to withdraw his plea.
Initially, we note that the record is inadequate for this court to address defendant’s contention that the promise that defendant would be committed to CRC was nugatory or illusory at the outset. A defendant’s parole status does not make him ineligible for treatment at CRC. (People v. Ballin (1967) 66 Cal.2d 80, 82.) Conversely, once a defendant’s parole is revoked and he is required to serve a prison term as a result, he becomes ineligible for treatment and there exists, as a matter of law, an “other relevant reason” for the Director of Corrections to certify the defendant unfit for treatment. (Id. at pp. 82-83; Welf. & Inst. Code, § 3053.)
Here, the record does not reflect whether the facts and circumstances of defendant’s parole revocation, which made him ineligible for CRC, preceded his change of plea and then were subsequently revealed. If such is the case, defendant would be correct that the plea was given and received upon the mistaken belief of all involved that he was eligible for CRC and the trial court abused its discretion in refusing to permit him to withdraw his plea. (People v. Coley (1968) 257 Cal.App.2d 787, 804, disapproved on another ground in People v. Delles (1968) 69 Cal.2d 906, 910.) The record, however, is inadequate for this court to so hold.
Likewise, the record does not reflect whether the parole revocation was based on defendant’s change of plea. We note, however, that defendant was not advised that his change of plea could result in the revocation of his parole.
Nonetheless, defendant is entitled to withdraw his plea. A defendant who enters a guilty plea “must be advised of the direct consequences of the plea . . . .” (People v. Lytle (1992) 10 Cal.App.4th 1, 4.) Here, defendant was not so advised and, consequently, he did not enter into it knowingly and intelligently.
“[T]he standard for determining the validity of a guilty plea ‘was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’. . . ‘[T]he record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.’” (People v. Howard (1992) 1 Cal.4th 1132, 1177.)
“[A] defendant’s waiver of the right to jury trial may not be accepted by the court unless it is knowing and intelligent, that is, ‘“‘made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it,’”’ as well as voluntary ‘“‘in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.’”’” (People v. Collins (2001) 26 Cal.4th 297, 305.)
Here, the written plea agreement essentially guaranteed defendant would be allowed to participate in CRC. It was never adequately conveyed to defendant that he could be rejected from CRC for reasons other than getting in “trouble” at CRC. To the contrary, defendant was led to believe that if he cooperated and stayed out of “trouble” at CRC, he would be allowed to participate in the treatment program. The court’s statement during the plea colloquy was simply insufficient under the circumstances to inform a lay person that CRC could reject him even if he thereafter cooperated and stayed out of “trouble.”
Defendant’s decision to change his plea appears to be the direct consequence of being advised that he would be permitted to participate in CRC. He was not, however, apprised of the essential information necessary to make a voluntary and intelligent choice among the alternative courses of action. Accordingly, defendant’s guilty plea was not knowing and voluntary and he must be permitted to withdraw it if he so desires.
II
Neither party has raised the calculation of custody credits in this appeal. However, in the event defendant chooses not to withdraw his plea, we must address an obvious error.
Defendant was awarded 353 actual days and 176 conduct days, for a total of 529 days of custody credit. This calculation reflects the application of the normal formula under Penal Code section 4019 -- the award of two days of “good time/work time” credit for each four-day period actually served. (People v. Smith (1989) 211 Cal.App.3d 523, 527; People v. Bobb (1989) 207 Cal.App.3d 88, 97, disapproved on another ground in People v. Barton (1995) 12 Cal.4th 186, 198-199, fn. 7.) Conduct credit for time spent in nonpenal institutions, however, is not allowed under the law. (§ 4019, subd. (a)(3); People v. Nubla (1999) 74 Cal.App.4th 719, 731.) The record here is sufficient for this court to recognize an error has occurred, since it reflects defendant spent nearly six months at CRC, during which time he was not entitled to conduct credits. Thus, the conduct days actually should not divide perfectly in the Penal Code section 4019 formula, as they do.
The record is inadequate, however, for this court to determine the appropriate custody and conduct credits, whether it be more or less. Defendant is entitled to custody credits as follows: (1) defendant receives both custody and conduct credits for time spent in local custody (§§ 2900.5, 4019); (2) defendant receives custody but not conduct credits for time spent at CRC prior to being found ineligible (§ 2900.5; People v. Nubla, supra, 74 Cal.App.4th at p. 731); (3) defendant receives custody and conduct credit for time spent in either CRC or county jail after being excluded for being ineligible (People v. Nubla, supra, 74 Cal.App.4th at pp. 731-732); and (4) defendant receives neither custody nor conduct credits for time spent in custody on an unrelated parole violation (§ 2900.5; People v. Bruner (1995) 9 Cal.4th 1178, 1191-1194).
It is unclear how many days defendant spent in each type of custody. Accordingly, if defendant declines to withdraw his plea and the judgment is therefore reinstated, the trial court must recalculate defendant’s custody credits.
DISPOSITION
The judgment is vacated and the matter is remanded with directions to the trial court to allow the defendant to withdraw his plea, in which case the original charges should be reinstated. Defendant shall file any motion to withdraw his plea within 30 days of the filing of our remittitur. If defendant chooses not to withdraw his plea, the trial court shall reinstate the sentence and recalculate custody credits in accordance with this opinion.
We concur: SCOTLAND, P. J., HULL, J.