Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD191408, Roger W. Krauel, Judge.
AARON, J.
Carmelo G. Reyes appeals from a judgment sentencing him to prison for three years for stalking an individual after having been served with a restraining order (Pen. Code, § 646.9, subd. (b)), following a second revocation of Reyes's probation. Reyes contends that the trial court erred by not granting him the "good time" conduct credits (§ 4019) he earned after he was arrested following the second revocation of probation.
Statutory references are to the Penal Code.
FACTS
Reyes and Elizabeth Gonzalez had a long-time relationship that ended in September 2004. On February 28, 2005, Gonzalez, who had four children with Reyes, obtained a restraining order against Reyes that prohibited him from contacting her. Reyes disregarded the restraining order and contacted Gonzalez both in person and by telephone. Reyes threatened Gonzalez and called her names.
In September 2005 Reyes entered a negotiated guilty plea to one count of stalking after having been served with a restraining order (§ 646.9, subd. (b)). The following month, the trial court sentenced Reyes to three years in prison, suspended execution of the sentence, and placed Reyes on probation for five years, with the conditions that, among other things, he serve 365 days in jail and not contact Gonzalez.
On April 6, 2006, the court summarily revoked Reyes's probation for failing to report to his probation officer, using methamphetamine, and failing to provide proof that he successfully completed a program for batterers. On May 9, Reyes admitted these probation violations, and the court formally revoked his probation. The court then reinstated Reyes's probation on the previous terms and ordered Reyes to serve 365 days in jail with credit for actual time served, but with no "good time" conduct credits. The following colloquy took place:
"THE COURT: . . . Because if I see you again, I'll give you the three years. [¶] You're going to give up your good time credits, 102 days; that goes to zero. Do you understand that?
"THE DEFENDANT: Yeah.
"THE COURT: And any time I give you today you serve without earning good time credits. If you go to prison, you don't get them back. Is all that clear?
[¶] . . . [¶]
The court's minute order for this hearing states: "Defendant waives past, present and future [Penal Code section 4019 credits], including if defendant is sentenced to prison in the future."
On May 15, 2007, Reyes was arrested for violating the terms of his probation by contacting Gonzalez. On May 22 the court summarily revoked Reyes's probation. At an evidentiary hearing on July 17, Gonzalez testified that Reyes had knocked on the door of her residence in April and attempted to enter by turning the doorknob. Gonzalez telephoned the police. While Gonzalez was on the telephone, Reyes broke the window in the dining room. However, he left promptly after he heard Gonzalez talking to the police. Reyes denied that he had been at Gonzalez's residence and denied having violated the order that he not contact her.
At the conclusion of the hearing, the court found that Reyes had violated his probation and formally revoked his probation. The court ordered that the suspended three-year prison term be imposed. The court granted Reyes 384 days credit for time served with no "good time" conduct credits under section 4019.
DISCUSSION
Reyes contends that the trial court erred by not granting him "good time" conduct credits under section 4019 after his second probation revocation. The contention has merit.
Criminal defendants who are convicted of felonies are entitled to credit for time spent in custody prior to sentencing (§ 2900.5), and credit for good conduct and willingness to perform work during presentence custody (§ 4019). Prisoners who are confined to jail before sentencing for a felony conviction are among those entitled to section 4019 credits. (§ 4019, subd. (a)(4).)
Section 4019, subdivisions (b) and (c) provide that for each six-day period in which a prisoner is confined in or committed to a specified facility, one day shall be deducted from his period of confinement unless the prisoner has refused to satisfactorily perform assigned labor, and one day shall be deducted for compliance with the rules and regulations of the facility. Section 4019, subdivision (f) provides: "[I]f 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."
On May 9, 2006, at the time of his first probation revocation, Reyes effectively waived the conduct credit he had already accrued and the conduct credit that he would have earned during the one-year jail term he was to serve pursuant to the revocation, in order to be reinstated on probation and avoid prison at that time. The trial court said: "[A]ny time I give you today you serve without earning good time credits." (Italics added.) Reyes indicated he understood and agreed to this condition. Accordingly, Reyes properly did not receive any conduct credit during his second jail incarceration associated with this case.
This incarceration took place from May 1, 2006, until his release on August 29, 2006.
However, the 2006 waiver of conduct credit did not apply to any period of incarceration that might be imposed after May 9, 2006, for future probation violations. Nonetheless, at the time of Reyes's second probation revocation in 2007, when the court imposed the suspended three-year prison term, it did not grant Reyes any conduct credit for his period of incarceration from May 15 to July 17, 2007. The court apparently relied on the minute order from the May 9, 2006 hearing, which incorrectly states that Reyes waived "past present and future PC 4019's, including if defendant is sentenced to prison in the future." (See fn. 2, ante.) The court's failure to grant Reyes conduct credit for his incarceration from May 15 to July 17, 2007 was error.
We granted Reyes's unopposed motion to augment the record with copies of correspondence between appellate counsel and the sentencing judge concerning this issue. (See § 1237.1.)
"The record of the oral pronouncement of the court controls over the clerk's minute order." (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) "Entering the judgment in the minutes being a clerical function, a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error." (People v. Mesa (1975) 14 Cal.3d 466, 471.) "Courts may correct clerical errors at any time, and appellate courts . . . that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts." (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We conclude that the minute order for the May 9, 2006 hearing is inaccurate.
To hold otherwise in this case would go against the very principles underlying the law of waiver, which require a waiver to be knowing and intelligent. (See People v. Thurman (2005) 125 Cal.App.4th 1453, 1460 [waiver of future custody credits].) A court may condition probation on waiver of credit "as long as the defendant's waiver is 'knowing and intelligent' in the sense that it was made with awareness of its consequences." (Ibid.)
The Attorney General argues unpersuasively that the May 9, 2006 minute order (see fn. 2, ante) was correct because when the court's statements on May 9, 2006 are read in context it is clear that the court's intention was to have Reyes waive all future conduct credits. This argument is largely speculative, and, in any event, is beside the point. The issue is what Reyes knowingly and intelligently waived—not the court's intention. The court's oral pronouncement that Reyes was waiving good time credits for "any time I give you today" is determinative.
To calculate conduct credits, the number of actual custodial days is divided by four and then multiplied by two. (See People v. Smith (1989) 211 Cal.App.3d 523, 527.) We conclude that Reyes should receive 32 days of conduct credits under section 4019 for the 64-day time period between his arrest on May 15, 2007, and his sentencing on July 17, 2007. The trial court must modify the judgment to award Reyes these conduct credits.
DISPOSITION
The trial court is directed to modify the judgment and award Reyes 32 days conduct credits. The court is also directed to modify the court minutes for the May 9, 2006 hearing, and any other hearing, to delete reference to a waiver of all future conduct credits. As so modified the judgment is affirmed. The court is directed to prepare an amended abstract of judgment in accordance with this disposition and to deliver it to the Department of Corrections and Rehabilitation.
WE CONCUR: HUFFMAN, Acting P. J., O'ROURKE, J.