Filed 3/26/15 P. v. Guadarrama CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A141233
v.
ALEJANDRO GUADARRAMA,                                                (Sonoma County
                                                                     Super. Ct. No. SCR617087)
         Defendant and Appellant.


         Defendant Alejandro Guadarrama appeals the prison sentence imposed in this case
on the ground that he did not waive custody credits for time served in Victory Outreach, a
residential treatment program, and is entitled to them pursuant to Penal Code section
2900.5, subdivision (a). We agree that the record does not show that he waived credits,
and we will remand the matter to the trial court to determine whether the placement
qualifies for custody credits and, if so, to modify the judgment accordingly.
                         FACTUAL AND PROCEDURAL BACKGROUND
         Because this appeal is based on the issue of whether defendant waived custody
credits, we will not discuss the underlying facts of this case.
         Defendant was charged by information with assault with a deadly weapon (a
bottle) (Pen. Code, § 245, subd. (a)(1)),1 actively participating in a criminal street gang
(§ 186.22, subd. (a)), and misdemeanor resisting arrest (§ 148, subd. (a)(1)). The
information also alleged two enhancements: the assault was committed for the benefit of

         1
             All statutory references are to the Penal Code.


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a criminal street gang (§ 186.22, subd. (b)(1)(C)), and defendant personally caused great
bodily injury in the commission of the crime (§ 12022.7, subd. (a)).
        Defendant entered into a negotiated disposition of the case on July 13, 2012. The
prosecution amended the gang enhancement to allege a violation of section 186.22,
subdivision (b)(1)(B)), and struck the great bodily injury enhancement. When the court
asked defendant’s attorney to recite the terms of the plea, he stated that it was an “open
plea” to the court to the assault with a deadly weapon charge and the amended gang
enhancement. The court informed defendant that the maximum penalty was up to nine
years in state prison. The court asked defendant whether “any other promises [had] been
made to you,” and defendant answered “[n]o.” The court stated that it had “discussed the
issue of the Victory Outreach [program] with your counsel” and asked that a
representative from Sacramento Victory Outreach identify himself in the courtroom. The
matter was set over for preparation of a probation report and sentencing.
        Defendant was sentenced on August 30, 2012, to nine years in prison, with
execution of sentence suspended. Defendant was placed on probation with various
conditions, including that he enter the Victory Outreach residential treatment program.
Before sentencing, the court spoke to defendant’s family members and then asked to hear
from defendant about his “commitment” to changing his life. This is the sum total of
what was said at the sentencing hearing regarding custody credits:
        “THE COURT: Your brother is a good example of what you should aim for.
        “THE DEFENDANT: Yeah.
        “THE COURT: There would be a waiver of past custody credits?
        “[Defendant’s Attorney] MR. FLAGERMAN: While he’s at Victory Outreach,
Your Honor, yes.
        “THE COURT: Prepared for sentencing?
        “MR. FLAGERMAN: So prepared.”
        After remarks by the deputy district attorney and further comments by defense
counsel—none of which addressed waiver of custody credits—the trial judge stated in
part:


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       “THE COURT: I am going to sentence you to nine years state prison with
execution of sentence suspended. All past credits are waived. Do you understand that?
And do you agree to that, sir?
       “THE DEFENDANT: Yes, Your Honor.”
       The Court then placed defendant on probation, with terms that included
participating in the Victory Outreach program. The court stated that “what I need to do is
impose a jail sentence with the understanding that he can be released, so it would be a
one-year jail sentence but he may be released to a representative of Victory Outreach
with the understanding all credits he’s done so far are waived. He’s to remain in custody
until bed space is available.”
       On October 8, 2013, after having completed the Victory Outreach program,
defendant admitted a violation of probation.
       At defendant’s sentencing on February 28, 2014, the court declined to reinstate
probation and imposed the nine-year prison sentence. Defendant had a different attorney
(Jack Montgomery) from the one who had represented him at the time of his plea and
original probationary sentence, and the deputy district attorney (Spencer Brady) was
different, too. Attorney Montgomery asked the court to give defendant credit for time
served at Victory Outreach:
       “MR. MONTGOMERY: Judge, the only final consideration, would Your Honor
consider allowing him to be given some credit for all the time that he did serve in
treatment? Of course, there’s the obligatory waiver that seems to accompany every
treatment program. But he has made a very good faith and concerted effort to complete
that program. And I think he should be given some benefit on that.
       “THE COURT: What is your position?
       “MR. BRADY [Prosecutor]: We would object strongly to what we believe was a
condition of probation, he agreed to waive those credits.
       “THE COURT: He did.
       “MR. BRADY: He’s not entitled to that part and parcel.
       “THE COURT: He did do that.


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       “MR. BRADY: The decision to grant him that probation in the first place, if he
had not agreed to waive, I think it’s unlikely the Court would have followed through on
its grant of probation.
       “MR. MONTGOMERY: Well—
       “THE COURT: That is true.
       “MR. MONTGOMERY: Somewhat coercive to say. At least—
       “THE COURT: That is true, sir.
       “MR. MONTGOMERY: I just want to put that before your honor.
       “THE COURT: No. I’m not going to do that, Mr. Montgomery.
       “MR. MONTGOMERY: —in an effort to try and mitigate the sentence.”
       The court then sentenced defendant to nine years in state prison. The court
ordered that the probation department calculate his “credits.” The abstract of judgment
reflects that defendant received 329 days of presentence credit (165 actual days and 164
conduct days), for the period of time between his arrest on the probation violation to the
date of sentence on February 28, 2014. No credit was given for time in Victory
Outreach.
                                         DISCUSSION
                                                I.
       The issue on appeal is whether defendant is entitled to presentence credit for the
time he served in the Victory Outreach program. Defendant claims that he did not waive
these credits. We agree that he did not waive them.
       Section 2900.5, subdivision (a) provides: “In all felony and misdemeanor
convictions, either by plea or by verdict, when the defendant has been in custody,
including, but not limited to any time spent in a jail, . . . halfway house, rehabilitation
facility, hospital, prison . . . or similar residential institution, all days of custody of the
defendant, including days served as a condition of probation in compliance with a court
order, . . . shall be credited upon his or her term of imprisonment . . . .”
       It is undisputed that this provision “also applies to custodial time in a residential
treatment facility.” (People v. Johnson (2002) 28 Cal.4th 1050, 1053.) A defendant can


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expressly waive section 2900.5 credits, so long as the waiver is “knowing and
intelligent.” (Id. at pp. 1054-1055.)
       “The gravamen of whether such a 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. ([People v.] Burks [(1998)] 66 Cal.App.4th
[232,] 236, fn.3.) . . . [¶] The better practice is for sentencing courts to expressly
admonish defendants who waive custody credits . . . .” (People v. Arnold (2004) 33
Cal.4th 294, 308.) We look to the totality of circumstances to determine if a waiver is
voluntary and intelligent. (People v. Salazar (1994) 29 Cal.App.4th 1550, 1554, fn. 1.)
       Here, the record is clear that there was simply no waiver of future credits. The
issue was not discussed on the record when defendant entered his plea “open” on July 13,
2012. When sentence was orally pronounced on August 30, 2012, the waiver of custody
credits for Victory Outreach was not imposed as a condition of the probationary sentence.
By contrast, the trial court explicitly stated that “[a]ll past credits are waived,” and then
asked defendant if he understood; the court subsequently reiterated that “all credits he’s
done so far are waived.” (Emphasis added.)
       Further, other parts of the record are silent. The written form advising defendant
of his rights and the rights he was giving up by pleading guilty (sometimes known as a
Tahl waiver2), is silent on waiver of future credits for time served in a residential
treatment program. Nor does the probation report prepared for the original sentencing
refer to waiver of these credits.
       The evidence is insufficient to establish that the trial court required a waiver of
future custody credits, let alone that future credits were waived. When the court asked
defense counsel at the original sentencing on August 30, 2012, whether “[t]here would be
a waiver of past custody credits,” defense counsel did not respond to the question asked.
Inexplicably, he responded by stating “[w]hile he’s at Victory Outreach, Your Honor,
yes.” But this was a response as to future, not past custody credits. Further, the Attorney

       2
           In re Tahl (1969) 1 Cal.3d 122.


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General concedes that defendant “never expressed agreement with counsel’s statement
about the waiver, nor did he ever personally waive future credits.” Defense counsel’s
remark linking “Victory Outreach” and “past custody credits” was the only time at the
change of plea hearing or the original sentencing hearing that waiver of credits was raised
in connection with Victory Outreach.3 As we have noted, when the trial court addressed
defendant later in the sentencing hearing on August 30, the issue of future custody credits
never came up, although the issue of a waiver of past credits came up repeatedly. Under
the totality of these circumstances, there was insufficient evidence of waiver. (See
People v. Harris (1991) 227 Cal.App.3d 1223, 1226-1227 [finding waiver after brief
colloquy at sentencing hearing was invalid under the circumstances].)
       Finally, the clerk’s minutes from the original sentencing hearing appear simply to
be incorrect. They state, in part: “Although not a condition of probation, defendant
waives custody credits while in residential treatment program” and “Defendant waives
ALL time previously served.” The oral pronouncement of judgment and sentence
prevails over the clerk’s minutes. (People v. Mesa (1975) 14 Cal.3d 466, 471-72
[rendering judgment is an oral pronouncement; “a discrepancy between the judgment as
orally pronounced and as entered in the minutes is presumably the result of clerical
error”].)4




       3
         At a pretrial proceeding on June 29, 2012, a few weeks before the change of plea
and before a different judge, the court (Judge Medvigy) summarized plea offers that
apparently had just been made by the district attorney in his chambers to counsel for the
defendants in this case. In the course of his remarks, the judge stated (apparently to
unspecified multiple defendants in the courtroom) that if he were to grant probation, it
would be lengthy and he would “expect a waiver of all credits earned to the date of
sentencing, as well as those credits you would earn in the program.” The transcript of
this proceeding does not identify which defendants, if any, were present when these
remarks were made. In any event, the Attorney General agrees that the record does not
show that defendant agreed to waive credits.
       4
        Because we conclude that there was no waiver of future credits, we need not
address defendant’s alternative argument that any waiver was invalid.


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                                                 II.
       Defendant asks us to modify the judgment and order the trial court to issue an
amended judgment reflecting custody credits of 363 actual days, plus conduct credits for
time spent at Victory Outreach. The Attorney General urges us to remand the matter for
the trial court to determine whether the Victory Outreach program qualifies as custody
for the purposes of section 2900.5, subdivision (a) credits.
       We will take the latter course. Whether the Victory Outreach program meets the
criteria of the statute is a factual issue that is best left to the trial court in the first instance.
                                          DISPOSITION
       The matter is remanded to the trial court for a hearing to determine whether
defendant’s time served in Victory Outreach qualifies for custody credits pursuant to
section 2900.5, subdivision (a), and, if it does, to modify the judgment accordingly.




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                                _________________________
                                Miller, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.




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