Filed 12/2/15 P. v. Foley CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E062446

v.                                                                       (Super.Ct.No. SWF1200710)

MARK ARNOLD FOLEY,                                                       OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge.

Affirmed as modified in part; remanded with directions in part.

         Trenton C. Packer, 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, A. Natasha Cortina and Christine

Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       In July 2012, pursuant to a plea agreement, defendant and appellant Mark Arnold

Foley pled guilty to making criminal threats (Pen. Code, § 422)1 and admitted that he had

used a knife (§ 12022, subd. (b)(1)) in the commission of the offense. In return, the

remaining allegations were dismissed and defendant was placed on probation for a period

of 36 months on various terms and conditions, including serving 245 days in county jail

and participating in the Veterans’ Court Program. The trial court also imposed a $240

restitution fine, a $30 criminal conviction assessment fee, and a $40 court operations

assessment fee.

       In June 2014, a petition to revoke defendant’s probation wad filed. Following a

hearing in October 2014, the trial court found defendant had violated three of his

probation terms by failing to obey all laws and court orders, failing to report any law

enforcement contacts to his probation officer within 48 hours, and failing to complete an

alcohol monitoring program.

       In November 2014, the trial court denied defendant probation, and sentenced him

to four years in state prison. The court awarded defendant presentence custody credits of

318 actual days spent in local custody, plus 318 days for conduct credits, for a total of

636 days. The court denied defendant’s request to award him credit for the time he

served in two residential treatment programs. In addition, the court ordered defendant to

pay a $300 restitution fine, a $30 criminal conviction assessment fee, and a $40 court

operations assessment fee. Defendant subsequently appealed.



       1   All future statutory references are to the Penal Code unless otherwise stated.

                                               2
       On appeal, defendant argues (1) the trial court erred in failing to award him credit

of an additional 254 days for the time he spent in two different residential treatment

facilities, and (2) the trial court erred when it imposed an increased restitution fine and

duplicative court fees. Because the record is unclear as to whether defendant waived his

right to receive credits for the time he spent in the residential treatment facilities, we will

remand the matter for the trial court to determine this question and to award defendant

additional credits, if necessary. We will also order the trial court to amend the abstract of

judgment following the remand proceedings in accordance with the court’s determination

as to additional credits and with this opinion.

                                               I

                                       DISCUSSION2

       A.     Additional Credits for Time Spent in Residential Treatment Programs

       Prior to sentencing, defendant’s trial counsel filed a sentencing memorandum in

which he requested defendant be awarded 254 days credit for the time he spent in two

residential treatment facilities. The prosecutor objected, arguing that the award of credits

is “not permitted by law nor is it part of any arrangement or agreement we’ve ever

made.” The trial court denied defendant’s request at the sentencing hearing, noting the

court will not grant defendant’s request for the time defendant spent at “New Directions




       2  The details of defendant’s criminal conduct and probation violations are not
relevant to the limited issues raised in this appeal, and we will not recount them here.
Instead, we will recount only those facts and procedural background that are pertinent to
the issues we must resolve in this appeal.

                                               3
or Full Circle.” In a motion for resentencing, defendant again pointed out that he was

entitled to 254 days credit for the time he spent in the residential treatment facilities.

       Defendant argues that he is entitled to presentence credit of an additional 254 days

for the time he spent in the residential treatment programs. The People concede that a

defendant is entitled to credit for time spent in a residential drug treatment program, but

argues the matter must be remanded because the record is unclear as to whether

defendant waived his right to accrue custody credits for his time in the residential

treatment programs.

       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 time spent in a residential treatment program as a condition of

probation qualifies for presentence custody credit under section 2900.5, subdivision (a).

(People v. Jeffrey (2004) 33 Cal.4th 312, 318; People v. Johnson (2002) 28 Cal.4th 1050,

1053; People v. Davenport (2007) 148 Cal.App.4th 240, 245; People v. Thurman (2005)

125 Cal.App.4th 1453, 1460.) A defendant can expressly waive section 2900.5 credits,

so long as the waiver is “knowing and intelligent.” (Johnson, 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


                                                 4
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, 308-309.) 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.)

       Notwithstanding defendant’s arguments to the contrary, the record is unclear as to

whether defendant waived his right to accrue custody credits for the time he spent in the

residential treatment programs. The record does not contain the transcript of the plea

hearing in which defendant entered his plea and was placed on probation. In addition, the

felony plea form and the veterans’ court plea agreement form are silent as to whether

defendant waived his right to accrue credits for time spent in residential treatment

facilities. Likewise, the court’s minute order of the plea hearing and the sentencing

memorandum filed as part of the plea document calculate defendant’s credits as of the

date defendant was placed on probation but are silent as to waiver of any credits for time

spent in residential treatment facilities.

       Furthermore, the record is also unclear as to how much time defendant spent in the

residential treatment programs. We reject defendant’s claim that because his counsel had

requested 254 days credit on three separate occasions as the number of days to which

defendant spent in the treatment facilities, the People never objected to the number of

credits claimed, and the probation officer never corrected the credits claimed, all the

parties acquiesced in the number of credits and there is no need to remand for calculation

of credits. Defendant’s argument assumes that the People and the probation department


                                               5
believed defendant was entitled to credit for the time he spent in the two residential

treatment programs. On the contrary, the prosecutor objected to defendant’s request for

time he spent in the residential treatment programs, asserting, “[t]hat’s not permitted by

law nor is it part of any arrangement or agreement we’ve ever made.” Additionally, in

the probation officer’s notice of charged probation violations, the probation officer noted

credits for “local time” served with no mention of credit for time spent in residential

treatment programs. Thus, because the prosecutor and the probation officer believed

defendant was not entitled to credit for the time defendant spent in the residential

treatment programs, there was no need for either the People or the probation department

to object to or correct the 254 days calculation.

       We will remand the matter to allow the court to resolve the above questions. If, on

remand, the court determines defendant is entitled to credit for the time he spent in the

two residential treatment facilities, it shall then determine and award the appropriate

presentence custody credits.

       B.     Restitution Fines and Court Fees

       Defendant also asserts, citing People v. Chambers (1998) 65 Cal.App.4th 819

(Chambers), the trial court erred in increasing his restitution fine from $240 to $300 after

revoking his probation and imposing the restitution fine twice. He further contends the

trial court erred when it imposed the $40 court operations assessment fee and the $30

criminal conviction fee twice—once when he was originally placed on probation and

again when his probation was revoked. The People agree.




                                              6
       Although defendant did not object below to the imposition of the second

restitution fine and court operations and conviction fees, defendant did not forfeit the

claim of error. (See Chambers, supra, 65 Cal.App.4th at p. 823 [failure to object at

sentencing did not forfeit challenge on appeal because trial court exceeded its statutory

authority in imposing the second restitution fine]; see also People v. Andrade (2002) 100

Cal.App.4th 351, 354 [failure to object to imposition of allegedly unauthorized parole

revocation restitution fine did not forfeit challenge on appeal].)

       Section 1202.4 requires the trial court to impose a restitution fine absent

compelling and extraordinary reasons in every case resulting in a conviction. (§ 1202.4,

subd. (b).) The restitution amount is set at the discretion of the court within a statutory

range. (§ 1202.4, subd. (b)(1).)

       In Chambers, “the trial court imposed two separate restitution fines for the same

conviction: a $ 200 restitution fine at the time probation was granted and a $ 500

restitution fine at the time probation was revoked.” (Chambers, supra, 65 Cal.App.4th at

p. 823.) The question on appeal was whether the trial court was authorized to impose the

higher restitution fine. The Chambers court concluded it was not and held “a restitution

fine imposed at the time probation is granted survives the revocation of probation.” (Id.

at p. 820.) Likewise, we conclude the restitution fine of $300 imposed at the time

defendant’s probation was revoked was in error. The $240 restitution fine imposed when

the trial court granted defendant probation survived the trial court’s subsequent

revocation of defendant’s probation. Thus, the court lacked authority to impose the

higher restitution fine of $300. When probation is revoked, the trial court has no


                                              7
authority to impose a second restitution fine in a greater amount than the original fine.

(People v. Garcia (2006) 147 Cal.App.4th 913, 917.)

        For these same reasons, the trial court erred in imposing the $40 court operations

assessment fee and the $30 criminal conviction fee twice. (Pen. Code, § 1465.8 [$40

court operations fee per “conviction”]; Gov. Code, § 70373 [criminal conviction fee “on

every conviction for a criminal offense”]; Chambers, supra, 65 Cal.App.4th at pp. 822-

823.)

        Furthermore, as noted by the People, the parole revocation fine imposed by the

trial court must be in the same amount as the restitution fine pursuant to section 1202.45.

Section 1202.45, subdivision (a), provides: “In every case where a person is convicted of

a crime and his or her sentence includes a period of parole, the court shall, at the time of

imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an

additional parole revocation restitution fine in the same amount as that imposed pursuant

to subdivision (b) of Section 1202.4.” Since the restitution fine must be reduced to $240,

the parole revocation fine must also be reduced to the same amount. (People v. Garcia,

supra, 147 Cal.App.4th at p. 918.)

        We conclude the restitution and parole revocation fines in the amount of $300 are

unauthorized and must be corrected to reflect fines in the amount of $240. In addition,

the abstract of judgment should reflect only one court operations assessment fee in the

amount of $40 and one criminal conviction fee in the amount of $30.

        The People also correctly point out that the trial court failed to lift the suspension

of a $240 probation revocation fine and order that defendant pay the fine after his


                                               8
probation was revoked. When defendant was placed on probation, the trial court had

imposed but stayed a $240 probation revocation fine, as it was required to do so by law,

pursuant to section 1202.44. The statute provides: “In every case in which a person is

convicted of a crime and a conditional sentence or a sentence that includes a period of

probation is imposed, the court shall, at the time of imposing the restitution fine pursuant

to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution

fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.”

(§ 1202.44.) The probation revocation restitution fine is customarily imposed and stayed

at the time the defendant is placed on probation. Where, as here, the defendant’s

probation is revoked, the fine then becomes due and payable. (People v. Guiffre (2008)

167 Cal.App.4th 430, 435.)

       Here, the trial court failed to lift the suspension and order defendant to pay the

$240 probation revocation fine. Accordingly, under our inherent authority to correct an

unauthorized sentence, we modify the judgment to reflect the imposition of the $240

probation revocation fine pursuant to section 1202.44. (People v. Smith (2001) 24

Cal.4th 849, 853-854; People v. Crooks (1997) 55 Cal.App.4th 797, 811.)

                                             II

                                      DISPOSITION

       The matter is remanded for further proceedings. On remand, if the trial court

determines defendant is entitled to presentence credits for the time he spent in the two

rehabilitation treatment facilities, the court shall determine the number of days defendant

spent at the treatment facilities, and award presentence custody credit accordingly.


                                              9
       In addition, the judgment is modified to strike: (1) the Penal Code section 1202.4,

subdivision (b) restitution fine in the amount of $300 and insert the correct fine of $240;

(2) the Penal Code section 1202.45 parole revocation fine in the amount of $300 and

insert the correct fine of $240; (3) the second Penal Code section 1465.8 court operations

assessment fee in the amount of $40; and (4) the second Government Code section 70373

criminal conviction fee in the amount of $30. The judgment is also modified to reflect

the imposition of the $240 probation revocation fine pursuant to Penal Code section

1202.44.

       As so modified, the judgment is affirmed. The trial court is directed to prepare an

amended abstract of judgment reflecting the modifications and forward it to the

Department of Corrections and Rehabilitation.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                RAMIREZ
                                                                                        P. J.


We concur:


KING
                          J.


MILLER
                          J.




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