Filed 7/18/16 P. v. Hense CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----




THE PEOPLE,                                                                                  C081260

                   Plaintiff and Respondent,                                      (Super. Ct. No. 12F4836)

         v.

MARK ANTHONY HENSE,

                   Defendant and Appellant.



         In September 2012, defendant Mark Anthony Hense pleaded no contest to evading
a peace officer (Veh. Code, § 2800.2) and driving under the influence (Veh. Code,
§ 23152, subd. (a)). He also admitted the allegations that he had served two prior prison
terms. (Pen. Code, § 667.5, subd. (b).)1 The trial court sentenced defendant to an
aggregate term of five years eight months (five years in this case, plus eight months in
Shasta County case No. 12F1206), but suspended execution of the sentence and placed



1   Undesignated statutory references are to the Penal Code.

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him on five years of formal probation. In August 2013, the trial court revoked and
reinstated defendant’s probation with the condition that he complete the Jericho Project, a
residential drug treatment program. In December 2015, following a probation violation,
defendant’s probation was revoked and he was sentenced to five years in prison.
        On appeal, defendant contends, and the People concede, the trial court erred in
refusing to award him custody credits for the time he spent in the Jericho Project. We
agree and shall award defendant an additional 366 days of custody credits. As modified,
the judgment is affirmed.
                                        I. DISCUSSION
        Citing section 2900.5, defendant contends that he is entitled to custody credits for
the time he spent in the Jericho Project. That section provides, in pertinent part: “In all
felony and misdemeanor convictions, . . . when the defendant has been in custody,
including . . . any time spent in a . . . rehabilitation facility . . . or similar residential
institution, all days of custody of the defendant . . . shall be credited upon his . . . term of
imprisonment.” (§ 2900.5, subd. (a); see People v. Jeffrey (2004) 33 Cal.4th 312, 318
[the provisions of section 2900.5—entitling a defendant to credits against a term of
imprisonment for days spent in custody before sentencing as well as those served after
sentencing as a condition of probation—apply to custodial time in a residential treatment
facility].) “A sentence that fails to award legally mandated custody credit is
unauthorized.” (People v. Taylor (2004) 119 Cal.App.4th 628, 647.)
        “A Johnson[2] waiver is a waiver of a statutory right to credit for time served
against a subsequent county jail or state prison sentence pursuant to section 2900.5.”
(People v. Arnold (2004) 33 Cal.4th 294, 307, fn. added.) A Johnson waiver not only
applies to presentence jail time custody credits but also to future custody credits to be




2   People v. Johnson (1978) 82 Cal.App.3d 183 (Johnson).

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earned in a residential treatment facility. (Jeffrey, supra, 33 Cal.4th at p. 318.) “ ‘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.] The gravaman 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.” (Arnold, supra, at
p. 308.) While a trial court should expressly advise a defendant that he is giving up his
entitlement to custody credits, the failure to do so will not invalidate a Johnson waiver
where “the defendant is otherwise found to have knowingly and intelligently relinquished
his or her right to custody credits under section 2900.5.” (Id. at p. 309.) However, “[t]he
better practice is for sentencing courts to expressly admonish defendants who waive
custody credits . . . [citation] that such waivers will apply to any future prison term
should probation ultimately be revoked and a state prison sentence imposed. [Citations.]”
(Ibid.)
          Following his admission to violating the conditions of his probation in December
2015, the trial court sentenced defendant to five years in prison and awarded him
presentence custody credits for 319 days of actual custody, plus 318 days of conduct
credits. The trial court, however, denied defendant’s request to award him custody
credits for the time he spent in the Jericho Project—from August 16, 2013, to August 16,
2014.3 After defense counsel pointed out that defendant was ordered to complete the
Jericho Project as a condition of his probation by a visiting judge and there was no waiver
of custody credits at that time, the trial court stated that it was “not normal” for a



3 When defendant was placed on probation in November 2012, he was ordered to
complete the Teen Challenge Program, a residential drug treatment program. It is
undisputed that defendant waived custody credits for the time spent in that program.
Consistent with the waiver, the trial court did not award defendant any custody credits for
that time period.

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defendant in Shasta County to get custody credits while participating in a residential
treatment program. The court then provided the following explanation: “I’m going to
simply find that based on my knowledge, the way these things typically go, that if a
defendant chooses to say remain on probation and go to a program, even though it may
not be articulated in each occasion, that the intention of the judge is—and this would be
something that has been constant in this community for a long, long time, the intention
would be that the defendant is—the judge is doing the defendant a service in allowing for
that treatment, and as a result he is waiving credits. [¶] He doesn’t get credit, I should
say, for any time in any kind of program. So if this is some issue, you will have to take it
up on appeal.”
       We conclude the trial court erred in failing to award defendant custody credits for
the time he spent in the Jericho Project. The record does not disclose a knowing and
intelligent waiver of defendant’s right to custody credits under section 2900.5. At the
probation revocation hearing, the trial court advised defendant that he would be reinstated
on probation with the condition he complete the Jericho Project. The court explained that
he would remain in custody until someone from the program picked him up, and that he
would go to state prison if he failed to complete the program. The court did not inform
defendant that he was relinquishing his right to custody credits for the time spent in the
program. Nor does the record otherwise reflect that defendant knowingly and
intelligently relinquished his right to custody credits under section 2900.5 for that period
of time. Accordingly, defendant is entitled to an additional 366 days of custody credits.
(See People v. Urke (2011) 197 Cal.App.4th 766, 778 [defendant entitled to custody
credits where trial court failed to advise him he was relinquishing right to custody
credits].)




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                                  II. DISPOSITION
      Defendant is awarded 366 additional days of presentence custody credits.
(§ 2900.5.) The trial court is directed to prepare an amended abstract of judgment
showing the award of custody credits and to forward a certified copy to the Department
of Corrections and Rehabilitation. As modified, the judgment is affirmed.


                                                     /S/

                                                RENNER, J.



We concur:



/S/

DUARTE, Acting P. J.



/S/

HOCH, J.




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