Opinion
H035914
12-20-2011
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW THOMAS BORONDA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Monterey County Super. Ct. No. SS071787
Defendant Matthew Thomas Boronda appeals a judgment entered following his no contest plea to receiving stolen property (Pen. Code, § 496, subd. (a)). On appeal, defendant asserts the court erred in awarding him custody credits prior to his sentencing. Specifically, defendant asserts he is entitled to additional 85 actual days and 85 days of conduct credit. The Attorney General concedes defendant is entitled to additional custody credit, but argues it is only 24 actual days and 24 days of conduct credit.
All further statutory references are to the Penal Code.
STATEMENT OF THE FACTS
The underlying facts are omitted because they are not relevant to the issues on appeal.
In July 2007, defendant pleaded no contest to one count of receiving stolen property (§ 496, subd. (a)). The court suspended imposition of sentence, and placed
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defendant on probation. In March 2009, defendant admitted his fourth violation of probation. The court reinstated probation on the condition that defendant waive all presentence custody credit over 365 days. The court ordered defendant serve an additional 35 days in custody as a condition of probation.
In July 2010, defendant admitted a new allegation that he violated probation. The court sentenced defendant to two years in prison, and awarded him 432 days presentence custody credit, broken down as 216 actual days and 216 conduct credit. Defendant filed a timely notice of appeal.
DISCUSSION
Defendant asserts he is entitled to a total of 170 days additional presentence custody credit. The Attorney General concedes defendant is entitled to additional credits, but asserts he should only be awarded 48 total days.
Initially, there is no question defendant is entitled to a minimum of 48 total days of custody credit due to the court's failure to award defendant credit for the time he served from March 19, 2009 through April 11, 2009. The Attorney General concedes this point, and the record is clear that the court erred in failing to award these credits.
At issue here is whether defendant is entitled to the award of an additional 61 days of actual credit pursuant to his credit waiver agreement. Specifically, when defendant waived credits as a term modifying his probation at the March 18, 2009 hearing, he agreed to waive then-accrued credits that exceeded 365 days. Under the existing law, 365 days would be broken down to 244 actual days and 121 days of conduct credit. (Former § 4019, subd. (f), as amended by Stats. 1982, ch. 1234, § 7, p. 4553 [provides "if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody"].) Therefore, defendant waived all actual credits above 244 days.
At the time of the waiver, defendant's credits were 257 actual days and 128 days of conduct credit. Because of the waiver of all credits exceeding 365, this amount was reduced to 244 actual days, and 121 days of conduct credit.
When defendant was sentenced on July 30, 2010, the court awarded him 183 days of actual credit, rather than 244 for the period up to March 18, 2009. This calculation was based on the state of the law on the date defendant was sentenced in 2010, rather than the date he entered the waiver in 2009. Former section 4019, which went into effect on January 25, 2010, provided that qualifying defendants were to receive two days of conduct credit for every four days actually served. (Former § 4019, Stats 2009, 3d Ex. Sess., ch. 28, § 50, eff. Jan. 25, 2010.)
The January 25, 2010 amendment to section 4019 has been the subject of many appellate court decisions on the issue of its prospective or retroactive application. The issue is currently pending before the California Supreme Court. The designated lead case is People. v. Brown (2010) 182 Cal.App.4th 1354, review granted Jun. 9, 2010, S181963.
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Defendant asserts the court's award of actual credits in the amount of 183 days violated the terms of his credit waiver. In particular, defendant argues his credit waiver was based on the expectation that the number of credits would be calculated based on the law in effect at the time, dividing 365 days credit into 244 actual days and 121 days of conduct credit.
In People v. Johnson (2002) 28 Cal.4th 1050, the California Supreme Court held that a defendant may, as a condition of being reinstated on probation, waive custody credit against a jail or prison sentence. (Id. at pp. 1053-1055.) Such waivers are commonly referred to as " „Johnson' " waivers. (People v. Jeffrey (2004) 33 Cal.4th 312, 315.)
"As with the waiver of any significant right by a criminal defendant, a defendant's waiver of entitlement to section 2900.5 custody credits must, of course, be knowing and intelligent. [Citation.] Because a defendant may give up the statutory right to custody credits, a trial court has discretion to condition a grant or extension of probation upon a defendant's express waiver of past and future custody credits." (Johnson, supra, 28 Cal.4th at p. 1055, fn. omitted.)
Here, the record shows defendant knowingly and intelligently waived the right to all credits above 365 days. At that time, defendant was waiving all actual credits above 244, based on the calculation of former section 4019 in effect in 2009. The January 25, 2010 amendment to section 4019 that allowed the court to grant defendant only 183 credits had not yet taken effect. Defendant could not knowingly or intelligently waive actual credits in 2009 based on the 2010 amendment to the statute.
Defendant is entitled to an additional 61 days actual credit for the period through March 18, 2009, and 24 actual days for the period between March 19, 2009 through April 11, 2009, for a total of 85 days actual time, and 85 days conduct credit.
DISPOSITION
The judgment is modified to award defendant an additional 170 days of presentence custody credit, broken down as 301 actual days and 301 conduct credits. The trial court shall prepare an amended abstract of judgment reflecting this modified judgment and forward a certified copy of this abstract to the Department of Corrections. This modified judgment is affirmed.
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RUSHING, P.J.
WE CONCUR:
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PREMO, J.
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ELIA, J.