Filed 6/22/16
                          CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                    DIVISION ONE

                              STATE OF CALIFORNIA



THE PEOPLE,                                      D068309

        Plaintiff and Respondent,

        v.                                       (Super. Ct. No. SCD243042)

MARCIA LAREAH TATE,

        Defendant and Appellant.


        APPEAL from an order of the Superior Court of San Diego County,

Eugenia A. Eyherabide, Judge. Affirmed in part; reversed in part and remanded with

directions.

        Erica L. Gambale, under appointment by the Court of Appeal, for Defendant

and Appellant.

        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant

Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland

and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
                                           I.

                                  INTRODUCTION

       Marcia Tate appeals from an order revoking probation and imposing a seven-

year prison term. Tate contends that the trial court erred in awarding her zero days of

Penal Code1 section 4019 conduct credits.2 Tate argues that the court erroneously

concluded that she had waived all section 4019 conduct credits, including future

credits, by virtue of a December 11, 2014 agreement in which Tate admitted violating

parole and agreed to waive her section 4019 credits in exchange for reinstatement of

probation.

       The People argue that Tate's waiver included a waiver of future section 4019

credits that she might otherwise have earned, whereas Tate contends that she waived

only the section 4019 credits that she had already earned at the time of the waiver. We

conclude that the record in this case demonstrates only that Tate agreed to waive past

conduct credits under section 4019. We therefore reverse the award of zero days of

section 4019 conduct credits in the order revoking probation and imposing the seven-

year prison term, and remand the matter for the limited purpose of determining Tate's

eligibility for conduct credits under section 4019 for the time period after she waived

section 4019 credits at the October 18, 2013 hearing.




1      All further statutory references are to the Penal Code unless otherwise
indicated.
2      Section 4019 provides credits against a defendant's period of confinement for
good conduct. (See generally People v. Brown (2012) 54 Cal.4th 314.)
                                           2
                                           II.

                          PROCEDURAL BACKGROUND3

A.     Proceedings in the trial court

       1.     The information

       On September 10, 2012, the People charged Tate with felony child abuse

(§ 273a, subd. (a)), possession of methamphetamine (Health & Saf. Code, § 11377,

subd. (a)), and being under the influence of methamphetamine (Health & Saf. Code,

§ 11550, subd. (a)). The People also alleged that Tate had suffered three prison priors

(§ 667.5, subd. (b)).

       On September 19, 2012, Tate pled guilty to the charges and admitted the prison

prior allegations. The following month, on October 18, 2012, the trial court imposed a

seven-year prison sentence, suspended execution of the sentence, and placed Tate on

probation on the condition that she serve 90 days in county jail.

       A year later, on October 18, 2013, Tate admitted that she had violated a term of

her probation. During the hearing, at which the court reinstated Tate on probation, the

court asked her, "Do you agree to waive your 4019 good-time credits?" Tate

responded, "Yes, sir." The court then said, "Okay. You are sentenced to 365 with

credits then of 269, because you are waiving the 268 days, and [I] authorize you to be




3     Because the facts underlying Tate's conviction are not relevant to her contention
on appeal, we do not provide a recitation of those facts.
                                            3
released from the custody of the sheriff of San Diego County to any authorized

residential inpatient treatment program."4

       In December 2014, Tate admitted to another probation violation. The trial court

again reinstated Tate's probation, and modified probation by ordering Tate to attend a

child-abuse treatment program. At that hearing, the trial court attempted to address the

credits that Tate had earned up until that point in time, and appeared to provide

numbers for both actual time in custody, as well as good conduct credits, saying "372

and 282 for a total —." At this point, the probation officer interrupted and stated,

"Your Honor, she previously waived." The court then said, "Oh. 372 and 0." This

was the only discussion regarding Tate's section 4019 credits at the December 2014

hearing.5

       On May 1, 2015, Tate again admitted to violating her probation. On May 22,

2015, the trial court imposed the seven-year prison term. The court awarded Tate 423

days of actual custody credits, and zero days of section 4019 conduct credits.

       Tate filed a timely notice of appeal.




4      The minute order from the October 2013 hearing states, with respect to the
section 4019 credits, "Defendant waives past, present and future PC4019 credits."
5      The minute order from the December 2014 hearing states, "Previously waived
PC4019's on 10-18-13 remain waived."
                                               4
                                             III.

                                        DISCUSSION

A.     The record demonstrates that Tate waived only those section 4019 conduct
       credits earned as of October 18, 2013

       Tate contends that the trial court awarded her zero days of section 4019 conduct

credits based on the erroneous conclusion that she had waived all such credits, even

those earned after the December 11, 2014 hearing at which the court revoked and

reinstated her probation. We conclude that the trial court erred in failing to award Tate

any days of section 4019 conduct credits for time spent in custody after the October

18, 2013 hearing, the sole hearing at which she waived any section 4019 credits.6

       1.       Governing law

                a.       Section 4019

       Section 4019 provides in relevant part:

            "(a) The provisions of this section shall apply in all of the
            following cases:

            "[¶] . . . [¶]


6      Apparently assuming that Tate also waived her section 4019 credits at the
December 11, 2014 hearing (possibly because the transcript of that hearing was not
originally designated as part of the record on appeal), Tate's appellate counsel has
argued only that she is entitled to section 4019 credits for "the time spent in custody
from the date of her final arrest until the date of her final sentencing on May 22,
2015." However, we ordered the record augmented with the transcript from the
December 11, 2014 hearing. As we discuss further below, we conclude that Tate did
not waive either past or future section 4019 credits at that hearing. We therefore
conclude that the court erred not only in failing to award Tate conduct credits for time
she spent in custody after her final arrest until the date of final sentencings in May
2015, but also in failing to award Tate any conduct credits for any time she spent in
custody after the October 18, 2013 hearing.
                                              5
          "(2) When a prisoner is confined in or committed to the county
          jail . . . as a condition of probation after suspension of imposition
          of a sentence or suspension of execution of sentence, in a criminal
          action or proceeding.

          "[¶] . . . [¶]

          "(4) When a prisoner is confined in a county jail . . . following
          arrest and prior to the imposition of sentence for a felony
          conviction.

          "[¶] . . . [¶]

          "(b) . . . [F]or each four-day period in which a prisoner is confined
          in or committed to a facility as specified in this section, one day
          shall be deducted from his or her period of confinement unless it
          appears by the record that the prisoner has refused to satisfactorily
          perform labor as assigned by the sheriff, chief of police, or
          superintendent of an industrial farm or road camp.

          "(c) For each four-day period in which a prisoner is confined in or
          committed to a facility as specified in this section, one day shall
          be deducted from his or her period of confinement unless it
          appears by the record that the prisoner has not satisfactorily
          complied with the reasonable rules and regulations established by
          the sheriff, chief of police, or superintendent of an industrial farm
          or road camp."

              b.       Waiver of section 4019 credits

      "A prisoner may waive presentence credits, including conduct credits, as part of

a negotiated disposition." (People v. Lara (2012) 54 Cal.4th 896, 903, fn. 3.) In

People v. Black (2009) 176 Cal.App.4th 145, 154 (Black), the court considered a

defendant's waiver of section 4019 credits:

          " 'As with the waiver of any significant right by a criminal
          defendant, a defendant's waiver of entitlement to section [4019]
          credits must, of course, be knowing and intelligent.' [Citation.]
          'The gravamen of whether such a waiver is knowing and

                                              6
            intelligent is whether the defendant understood he was
            relinquishing or giving up custody credits to which he was
            otherwise entitled under section [4019].' " (Black, supra, at p.
            154.)

In other words, a defendant's waiver of section 4019 credits "must be clear, voluntary,

and informed." (People v. Eastman (1993) 13 Cal.App.4th 668, 678 (Eastman).)

       2.      Analysis

       The record indicates that on October 18, 2013, Tate "agree[d] to waive [her]

4019 good-time credits." This language is sufficient to demonstrate that Tate

knowingly and intelligently waived any section 4019 credits that she had already

earned as of the date of this hearing. (See Black, supra, 176 Cal.App.4th at p. 152.)

However, based on the authority of Black, we also conclude that Tate's waiver did not

include in its scope a waiver of future section 4019 credits.

       In Black, the defendant was in custody after having her probation revoked.

(Black, supra, 176 Cal.App.4th at p. 149.) She executed an application and agreement

(Agreement) to participate in a drug court program. (Id. at p. 152.) The Agreement

contained a provision that stated that the defendant agreed to " 'waive all [section]

4019 credits as a condition of participating' " in the program. (Ibid.) The defendant

was released from custody to a drug rehabilitation facility on that same day, September

24, 2007. (Id. at p. 149.)

       On appeal, the defendant argued that the waiver was invalid because her

attorney had not discussed the implication of this provision and the court had not

admonished her on the record with respect to the waiver of section 4019 credits.


                                             7
(Black, supra, 176 Cal.App.4th at p. 152.) The Black court rejected this argument, but

concluded that, based on the language of the defendant's waiver, the waiver applied

only to credits that she had accrued prior to September 24, 2007, the date on which the

defendant executed the Agreement that contained the waiver of section 4019 credits.

The People agreed:

          "The People's position is that the waiver applies to all section
          4019 credits accrued prior to September 24, 2007, the date
          defendant signed the Agreement. The People concede defendant
          should have been awarded section 4019 credits for any time spent
          in custody after September 24, 2007, and a limited remand for a
          proper calculation of credits is therefore appropriate. On the
          record before us, we cannot detect a basis for disagreeing with the
          People's position." (Black, supra, at p. 155.)

       Tate's waiver is essentially indistinguishable from the waiver addressed in

Black. Tate "agree[d] to waive [her] 4019 good-time credits," and the defendant in

Black agreed to " 'waive all [section] 4019 credits as a condition of participating' " in a

drug program (Black, supra, 176 Cal.App.4th at p. 152). Given the language of Tate's

waiver—i.e., that Tate "agree[d] to waive [her] 4019 good-time credits"—we conclude

that Tate made a "clear, voluntary, and informed" (Eastman, supra, 13 Cal.App.4th at

p. 678) waiver of already-earned conduct credits, but not future credits. The trial

court's statement immediately after Tate's waiver is consistent with the waiver of past

credits, in that the court referred only to a waiver of Tate's previously earned credits:

"You are sentenced to 365 with credits then of 269, because you are waiving the 268

days . . . ." Further, there was nothing else that occurred during the probation




                                             8
revocation and reinstatement hearing that would suggest that Tate agreed to waive any

and/or all section 4019 conduct credits that she might earn in the future.7

        On December 11, 2014, Tate did not make any further waiver of section 4019

credits. Rather, the probation officer suggested to the court that Tate had waived her

section 4019 credits, apparently assuming, along with the court, that Tate's October 18,

2013 waiver constituted a waiver of both past and future credits. As we have

concluded, however, nothing that occurred at the October 18, 2013 hearing indicated

that Tate agreed to waive future section 4019 credits. Further, nothing that occurred at

the December 11, 2014 hearing would indicate that Tate agreed to waive any past or

future section 4019 credits as of the date of that hearing. Accordingly, we conclude

that the record does not demonstrate that Tate effectuated a "clear, voluntary, and

informed" waiver of the right to earn section 4019 credits after the date of her October

18, 2013 probation revocation hearing. (Eastman, supra, 13 Cal.App.4th at p. 678; see

also Black, supra, 176 Cal.App.4th at p. 155 [concluding defendant's waiver of section

4019 credits did not extend to potential future credits earned after the date of the

waiver].) Under these circumstances, a limited remand to the trial court for a

redetermination of section 4019 conduct credits is appropriate. (See Black, supra, at p.

155.)




7      The statement in the October 2013 minute order that Tate "waives past, present
and future PC4019 credits" is simply not supported by transcript of that hearing.
There was no recorded discussion of the possible application of Tate's waiver of
section 4019 credits to any future credits that she might earn.
                                            9
                                           IV.

                                    DISPOSITION

       The portion of the May 22, 2015 order awarding zero days of section 4019

conduct credits is reversed. The matter is remanded to the trial court for the limited

purpose of determining Tate's eligibility for conduct credits under section 4019 for the

time period after the date of her October 18, 2013 probation revocation hearing. In all

other respects, the May 22, 2015 order is affirmed.



                                                                       AARON, J.

WE CONCUR:

BENKE, Acting P. J.

McDONALD, J.




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