Opinion
H043054
01-11-2017
THE PEOPLE, Plaintiff and Respondent, v. FELIX ADOLPHO PROVENCIO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SS130837B)
Defendant was placed on probation for committing battery with serious bodily injury. Following his third probation violation, probation was terminated and he was sentenced to a prison term. Defendant challenges the denial of 134 days of custody credits toward that term earned under Penal Code section 4019, arguing that his earlier waiver of those credits was limited and did not extend to a future sentence. As we will explain, defendant's argument has merit, and we will order the judgment modified to reflect the additional 134 days of custody credits.
I. BACKGROUND
Defendant was charged with battery with serious bodily injury (§ 243, subd. (d) ), alleged to be a serious felony (§ 1192.7, subd. (c)(8)), and resisting arrest (§ 148, subd. (a)(1)). Pursuant to a negotiated disposition, he pleaded no contest in 2013 to assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), in exchange for dismissal of the original charges and either a misdemeanor sentence or felony probation. The trial court declined to reduce the charge to a misdemeanor, instead ordering three years' formal probation with several conditions, including 268 days in county jail. The court deemed the jail time served, crediting defendant for 134 actual days served and 134 days conduct credits under section 4019.
Undesignated statutory references are to the Penal Code.
In June 2014, defendant's probation was revoked and reinstated based on a misdemeanor plea to public intoxication. In November 2014, a second probation violation was alleged based on another public intoxication incident. In January 2015, the court revoked and reinstated defendant's probation, and ordered him to enter a residential treatment program. Defendant waived the 134 days of conduct credits earned in 2013 in order to comply with the trial court's stated desire that he enter treatment directly from jail. At the January 2015 hearing, counsel stated that defendant "is willing to waive the good time credit just for the purpose of probation to secure a residential treatment for him in this case." (Emphasis added.) The court responded, "I will not require it to be waived for all purposes," and asked defendant "[I]s that what you are willing to do at this time is waive your good time/work time credits for -- not for all purposes but for purposes of placement in a residential treatment program?" (Emphasis added.) Defendant responded affirmatively.
Defendant's probation was modified and reinstated. The court ordered defendant to serve 365 days in jail with credit for 134 days actually served. The court explained, "You will not receive any good time/work time credits at this time. [Your] good time/work time credits can be reinstated if you are ultimately sent to prison."
At the same hearing, defendant agreed to "permanently waive [his] rights to any credits for time that [he] will be in the residential treatment program" toward any future prison or jail term should his probation be revoked.
Defendant attended a residential treatment program for about 60 days. He was discharged for behavior infractions, but no probation violation was pursued for failure to complete the program. A third notice of probation violation was filed several months later, following an October 2015 arrest for public intoxication. Defendant admitted that violation and requested another treatment program, telling his probation officer that he had not had a drink for 10 months and had made a huge mistake. The probation department recommended that sentence be imposed, given that the underlying offense and probation violations all involved belligerent public intoxication.
Probation was terminated and defendant was sentenced to a three-year prison term in December 2015. In addition to the 134 days of actual time served before he was placed on probation in September 2013, defendant had served 42 days in jail following his October 2015 arrest. The court awarded defendant conduct credits under section 4019 for the 42 days served in 2015, but not for the 134 days served in 2013. Defendant objected, explaining that he had waived the conduct credits in January 2015 only for the purpose of allowing him to attend a treatment program after his second probation revocation, and not for all purposes. The probation department argued that the court had retained discretion regarding whether those credits "would ever be given back to the defendant," relying on the minute order from the January 2015 hearing which stated that "conduct credits may be reinstated towards a future prison commitment." The probation department recommended that the court withhold the credits because defendant had been discharged from the residential treatment program. The court agreed, stating, "I think the waiver was one that was discretionary. The Court would be able to make a determination in the future. It would be odd and unusual for me to do anything else."
II. DISCUSSION
Defendant argues that he knowingly and voluntarily waived section 4019 conduct credits in January 2015 for the sole and limited purpose of placement in a residential treatment program. According to defendant, the trial court exceeded the scope of that waiver by failing to apply the credits toward the three-year prison term imposed later that year.
Under Penal Code section 4019, a defendant is entitled to have one day of confinement deducted for every four-day period in which he is committed to jail, provided he or she satisfactorily complies with the jail's rules and regulations. (§ 4019, subds. (a), (c).) A defendant is also is entitled to a one-day confinement deduction for every four-day period in which he is committed to jail, provided satisfactory performance of any assigned labor. (§ 4019, subds. (a), (b).) According to subdivision (f) of that section, "if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody." (§ 4019, subd. (f).) Under section 2900.5, "all days of [jail] custody ... , including days served as a condition of probation in compliance with a court order, credited to the period of confinement pursuant to Section 4019, ... shall be credited upon [a] term of imprisonment" for the applicable conviction. (§ 2900.5, subd. (a).) A defendant can waive entitlement to custody credits under section 2900.5, provided the waiver is knowing and intelligent. (People v. Johnson (2002) 28 Cal.4th 1050, 1055.) The voluntariness of a waiver is a question of law which we review de novo. (People v. Vargas (1993) 13 Cal.App.4th 1653, 1661.)
In People v. Arnold (2004) 33 Cal.4th 294, the court recognized that "[t]he gravamen of whether [a custody credit] waiver is knowing and intelligent is whether the defendant understood he was relinquishing or giving up custody credits to which he was otherwise entitled under section 2900.5." (Id. at p. 308.) The Arnold court explained that "a waiver of custody credits is presumptively applicable to any future term of imprisonment." (Id. at p. 307.) Accordingly, "[a] defendant entering a straightforward and unconditional waiver of section 2900.5 credits has no reason to believe that the waiver is anything other than a waiver of such credits for all purposes." (Id. at p. 309.) In Arnold, the waiver was upheld because nothing in the record "suggested to defendant that his waiver was anything other than a full relinquishment of his statutory right to section 2900.5 custody credits for all purposes." (Id. at p. 310.)
Defendant argues that under Arnold his waiver was conditional and must be limited to the second probation revocation disposition—namely, entry into residential treatment—given the trial court's express statements acknowledging a limited waiver at the January 2015 hearing. We are persuaded by defendant's argument.
Defendant's agreement to a limited waiver of his 2013 conduct credits was clear. Counsel stated that the waiver was "just for the purpose of probation to secure a residential treatment for him in this case." The trial court's agreement with the limited scope of the waiver was equally clear. The court stated that it "will not require [custody credits] to be waived for all purposes," and it accepted the waiver "not for all purposes but for purposes of placement in a residential treatment program."
Indeed, the unequivocal waiver stands in stark contrast to defendant's permanent waiver of credits (entered at the same hearing) for time spent in residential treatment toward any future prison or jail term should his probation be revoked at a later date.
The Attorney General does not argue that the waiver was all encompassing under Arnold. Rather, she argues that the trial court retained discretion to withhold defendant's section 4019 credits, relying on the minute order memorializing the January 2015 hearing, People v. Lara (2012) 54 Cal.4th 896 (Lara), and People v. Johnson (1981) 120 Cal.App.3d 808 (Johnson). She contends that the trial court properly exercised that discretion by declining to reinstate the waived credits when defendant was ultimately sentenced to prison after failing to complete the residential treatment program.
We are not persuaded that the minute order, signed one month after the January 2015 hearing, accurately reflects the waiver defendant gave at that hearing. As shown in the reporter's transcript, defendant's waiver was expressly limited to facilitate direct entry into a residential treatment program. Given the express understanding that the waiver was for a discrete limited reason and not for all purposes, we cannot read the court's comment after pronouncing judgment that the credits "can be reinstated if you are ultimately sent to prison" as qualifying the scope of the waiver.
Lara addressed whether the trial court had discretion under section 1385 to disregard a prior conviction so that a defendant could receive presentence credits under a former version of section 4019 that disqualified defendants with certain prior convictions from receiving those credits. (Lara, supra, 54 Cal.4th at p. 899.) In rejecting a pleading and proof requirement for former section 4019 disabilities, the Lara court explained that credits under section 4019 are awarded based on the sheriff's determination of a defendant's statutory entitlements. (Lara, at p. 903.) The Lara court recognized the trial court's authority to resolve a dispute over the sheriff's calculation of conduct credits, citing Johnson as an example of the trial court's proper exercise of discretion to determine the amount of credit to be withheld for a serious act of misconduct. (Id. at p. 903.) In Johnson, the defendant was placed on probation with the condition that he serve six months in county jail. (Johnson, supra, 120 Cal.App.3d at p. 812.) While in jail, he was issued a pass to attend job interviews, failed to return to jail, and remained at large for several days before he was taken into custody and charged with escape. (Ibid.) The Johnson court upheld the denial of all good behavior credits under section 4019 based on the defendant's escape. (Johnson, at p. 814.) But it also held that the escape could not serve as a basis to deny work-time credits for the entire period of confinement because those credits could only be denied for failing to perform labor satisfactorily. (Id. at p. 815.)
Lara and Johnson recognize a trial court's discretion to deny behavior credits under section 4019, subdivision (c) for failure to comply with jail rules and regulations. But Lara and Johnson do not support respondent's position that the trial court has broader discretion to withhold conduct credits for reasons other than those relating to their accrual under section 4019. Indeed, the Lara court expressly rejected the argument that a trial court has discretion "to withhold conduct credits from a prisoner who has satisfied the statutory prerequisites and is entitled to receive them, or to grant credits to a defendant who is ineligible to receive them by reason of misbehavior or statutory disability." (Lara, supra, 54 Cal.4th at p. 903.)
Here, it is undisputed that defendant was statutorily eligible to receive conduct credits for 134 days of confinement served in 2013. He had in fact been awarded those credits at his initial sentencing hearing without objection from the prosecution or the probation department. Defendant's January 2015 waiver did not provide the trial court with discretion to withhold those credits for any reason other than to enter a residential treatment program as part of the second probation revocation disposition, and the decisional law cited by respondent does not recognize any discretion to withhold section 4019 credits for reasons unrelated to defendant's conduct while in custody. Accordingly, we will exercise our authority to credit defendant an additional 134 days of presentence credit. (In re Ricky H. (1981) 30 Cal.3d 176, 191 [recognizing appellate court's authority to correct unlawful sentence].)
III. DISPOSITION
The judgment is modified to reflect a total of 352 days credit against defendant's prison term under section 2900.5. That credit consists of 176 days of actual presentence custody plus 176 days credit under section 4019. As modified, the judgment is affirmed.
The Clerk of the Superior Court is directed to prepare and transmit to the Department of Corrections and Rehabilitation a corrected abstract of judgment and minutes reflecting our disposition, including the corrected total days of presentence credit under section 2900.5.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Rushing, P.J. /s/_________ Walsh, J.