Filed 2/26/18
                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                        DIVISION ONE


THE PEOPLE,
        Plaintiff and Respondent,
                                                     A150804
v.
RODRIGO AREVALO,                                     (Napa County
                                                     Super. Ct. No. CR174988)
        Defendant and Appellant.


        This case arises out of a statutory anomaly that requires a trial court to use one
formula to calculate presentence conduct credits when placing a defendant convicted of a
violent felony on probation, but requires the court to use another formula to recalculate
those credits if that person later violates probation and is sentenced to state prison.
Defendant Rodrigo Arevalo was placed on probation after pleading no contest to a felony
count of continuous sexual abuse of a child under 14 years old. Before being placed on
probation, he waived some of the custody credits he had accrued while in jail in
accordance with People v. Johnson (1978) 82 Cal.App.3d 183 (Johnson). This waiver
left him with a total of 365 days of credits: 183 credits for time served (actual credits)
and 182 credits for good behavior (conduct credits) under Penal Code section 4019. 1 At
the time of the waiver, the trial court mistakenly indicated that Arevalo would be entitled
to the full 365 days of custody credits if he were eventually sentenced to prison.
        The following year, Arevalo admitted to violating his probation, and the trial court
sentenced him to six years in prison. In doing so, the court recalculated the pre-probation
conduct credits under section 2933.1, subdivision (c) (section 2933.1(c)), which limits the


        1
            All further statutory references are to the Penal Code.

                                                 1
conduct credits a defendant convicted of a violent felony can accrue under section 4019
to 15 percent of actual time served. This calculation resulted in an award of 27 days of
conduct credits for the same period of pre-probation custody that had resulted in an award
of 182 days of conduct credits when probation was granted.
       On appeal, Arevalo claims that the original award of 182 days of conduct credits
should be applied to his prison sentence. He contends that his Johnson waiver was not
knowing and intelligent and that he is entitled to enforce the trial court’s comment when
probation was granted that he would have 365 days of credits for pre-probation time
served were he sentenced to prison. We reject these contentions and affirm.
                                         I.
                               FACTUAL AND PROCEDURAL
                                    BACKGROUND
       In April 2015, the Napa County District Attorney filed a complaint charging then
18-year-old Arevalo with seven felony counts of various sexual offenses against a minor
that occurred over the previous two years. We do not discuss the facts underlying these
offenses because they are immaterial to the issues on appeal. Arevalo eventually pleaded
no contest to a charge of continuous sexual abuse of a child under 14, a violent felony,
and the remaining charges were dismissed. 2 On his plea form, Arevalo acknowledged
that the maximum sentence he faced was 16 years in prison.
       In June 2016, the trial court suspended imposition of the sentence and placed
Arevalo on probation for 12 years subject to various terms and conditions, including that
he serve 365 days in jail. The court explained that before it could grant probation
Arevalo was required “to waive the excess” custody credits over 365 days to comply with
Johnson. In accepting the waiver, the court then stated, “Mr. Arevalo, as I indicated as
part of my sentencing here, in order for me to grant you probation you would have to
waive what would be 968 days of custody credits. So in other words, that if you were to
come back to court on a probation violation your credits towards any prison sentence you


       2
         The conviction was under section 288.5, subdivision (a), and the offense
constitutes a violent felony under section 667.5, subdivision (c)(16).

                                             2
might receive would be limited to 365 days. That’s actual time plus conduct credits. Do
you understand that?” Arevalo responded, “Yeah.” He was awarded 365 days of custody
credits, composed of 183 days of actual credits and 182 days of conduct credits, resulting
in the jail term being deemed served.
       A few months later, Arevalo was arrested, and the Napa County District Attorney
filed two petitions to revoke his probation. Arevalo ultimately admitted he had violated
his probation terms by consuming alcohol, driving under the influence, and driving
without a license.
       At the January 2017 sentencing hearing, the trial court revoked and terminated
probation and sentenced Arevalo to the lower term of six years in prison. It then awarded
him 379 days of presentence credits, composed of 330 days of actual credits and 49 days
of conduct credits. The court explained that, although Arevalo had 365 days of custody
credits at the time he was put on probation, he could accrue conduct credits at only
15 percent of actual time for purposes of his sentence to prison. As a result, he received
330 days of actual credits (composed of the 183 days of actual credits he was originally
awarded and 147 days of actual credits for the time he served between his August 2016
arrest and his sentencing to prison) and 49 days of conduct credits, representing
15 percent of the 330 days. In other words, the recalculation changed his total conduct
credits for pre-probation time served from 182 days to 27 days (15 percent of 183 days).
       Arevalo objected, arguing that he was entitled to the full 365 days of custody
credits that were calculated when probation was granted. Observing that it was “an
anomaly about [section] 2933.1 that you get the day for day [conduct credits] when
you’re granted probation, but you lose it once you’re sentenced to prison,” the trial court
awarded 379 days of credits without prejudice to readdressing the issue if the parties
wished to brief it.
       Arevalo then filed a motion for reconsideration of the award of custody credits,
which the trial court denied. The court determined that Arevalo had made “a free and
voluntary [Johnson] waiver,” explaining, “I wasn’t making any promises to him about
what would happen if he went to prison, other than I was giving him credit for 365,


                                             3
which at that time was day for day, because he was being granted probation. [¶] . . . [T]o
hold otherwise would not be following the explicit terms of [section 2933.1].”
                                            II.
                                        DISCUSSION
        A.    Section 4019 Governs the Calculation of Conduct Credits when a
              Defendant Convicted of a Violent Felony Is Placed on Probation, but
              Section 2933.1(c) Governs if the Defendant Is Later Sentenced to Prison.
        This case is yet another illustration of how “perplexing the computation of custody
credits may be for the trial court.” (People v. Daniels (2003) 106 Cal.App.4th 736, 739
(Daniels).) A defendant may “accrue both actual presentence custody credits under . . .
section 2900.5 and conduct credits under . . . section 4019 for the period of incarceration
prior to sentencing.” (People v. Kennedy (2012) 209 Cal.App.4th 385, 395.) The
calculation of actual credits is performed by simply adding together “all days of custody”
the defendant has served. (§ 2900.5, subd. (a).) In contrast, the calculation of conduct
credits depends on the purpose for which they are being calculated. Under section 4019,
a defendant can earn two conduct credits for every two actual credits. 3 (§ 4019,
subds. (b), (c), (f); People v. Whitaker (2015) 238 Cal.App.4th 1354, 1358.) But under
section 2933.1(c), a defendant convicted of a violent felony “cannot earn good behavior
credits under section 4019 exceeding 15 percent of the actual time of confinement in a
local facility ‘prior to placement in the custody of the Director [of Corrections and
Rehabilitation].’ ” (People v. Buckhalter (2001) 26 Cal.4th 20, 31-32, quoting
§ 2933.1(c).) We independently review whether a trial court has correctly applied these
statutes in awarding custody credits. (See People v. Anaya (2007) 158 Cal.App.4th 608,
611.)
        Although section 2933.1(c)’s 15-percent cap on conduct credits applies when a
defendant convicted of a violent felony violates his or her probation and is sentenced to

        3
         This calculation is often referred to as “day for day” credits. But because the
statutory formula actually awards conduct credits based on every two days served, when
the actual time served is an odd number the resulting conduct credits are the next lower
even number. Thus, Arevalo’s award of 183 days of actual credits resulted in 182 days of
conduct credits.

                                             4
prison, it does not apply when that person is first granted probation. (In re Carr (1998)
65 Cal.App.4th 1525, 1529.) The calculation of conduct credits for purposes of granting
probation is controlled by section 4019. The proper calculation of conduct credits in
these two different circumstances was addressed and resolved in Daniels. There, the
defendant was convicted of a violent felony and placed on probation, with the condition
that he serve 365 days in jail. (Daniels, supra, 106 Cal.App.4th at p. 738.) At the time
he received probation, the trial court awarded him actual credits for jail time served
before receiving probation and conduct credits under section 4019, and the sheriff
computed additional conduct credits under that statute, as well as actual credits, for
further time spent in jail until the 365-day term was deemed served. (Daniels, at pp. 738-
739.) When the trial court later revoked probation and imposed a prison sentence, it
awarded the defendant credits for all the time he actually spent in jail but limited his
conduct credits to 15 percent under section 2933.1(c). (Daniels, at p. 739.)
        In affirming the trial court’s award of custody credits, Daniels rejected the
defendant’s contention that his “section 4019 credits were irrevocably earned and could
not be reduced by a recalculation under section 2933.1(c) at the time he was sentenced to
state prison.” (Daniels, supra, 106 Cal.App.4th at p. 739.) Daniels explained that when
granting probation, the trial court had properly calculated the defendant’s conduct credits
under section 4019, but once the prison sentence was imposed, section 2933.1(c) applied
and his conduct credits had to be limited to 15 percent of his actual time served.
(Daniels, at p. 741.) Daniels determined that “[n]o other construction of the statutory
scheme would be faithful to the language of section 2933.1(c), or produce a fair and
reasonable result,” emphasizing that “the benefit of previously earned conduct credits
[was] not being taken away from” the defendant as he “received the full benefit of
section 4019 credits against his jail term because he was released from jail sooner than he
would have been if the section 2933.1(c) limitation had been applied.” (Id. at pp. 741-
742.)
        The only distinctions between this case and Daniels, a decision neither party
addresses, is that Arevalo entered a Johnson waiver and the trial court indicated that he


                                              5
would retain all 365 days of custody credits if he were sentenced to prison. Had the court
said nothing and merely awarded Arevalo 183 days of actual credits and 182 days of
conduct credits under section 4019 when it placed him on probation, there is no question
under Daniels that, upon sentencing him to prison, the court would have been required to
limit his conduct credits under section 2933.1(c) to 15 percent of 183 days. Thus, the
issue we must resolve is whether the circumstances surrounding Arevalo’s Johnson
waiver entitled him to 182 days of conduct credits against his prison sentence for pre-
probation time served, despite section 2933.1(c)’s dictates. We conclude they did not.
       B.     A Johnson Waiver Allows a Defendant to Serve More than a Year in Jail
              While on Probation.
       Section 2900.5 provides that upon any conviction, when a defendant has already
served time in local custody, “all days of custody of the defendant, including days served
as a condition of probation in compliance with a court order, credited to the period of
confinement pursuant to Section 4019 . . ., shall be credited upon his or her term of
imprisonment . . . . If the total number of days in custody exceeds the number of days of
the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed
to have been served.” (§ 2900.5, subd. (a).) In turn, “term of imprisonment” is defined
to include “any period of imprisonment imposed as a condition of probation or otherwise
ordered by a court in imposing or suspending the imposition of any sentence.” (§ 2900.5,
subd. (c).) “[T]he court imposing the sentence” has “the duty . . . to determine the date or
dates of any admission to, and release from, custody prior to sentencing and the total
number of days to be credited pursuant to this section” and list them on the abstract of
judgment or probation order indicating a term of imprisonment. (§ 2900.5, subd. (d); see
§ 1213, subd. (a).)
       “A Johnson 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 (Arnold).) A primary reason why a defendant would
waive custody credits stems from section 19.2, which prohibits a trial court “ ‘as a
condition of probation’ ” from committing a defendant to jail for more than one year “for


                                             6
any single offense or probation violation.” (Arnold, at pp. 299-300 & fn. 1, quoting
§ 19.2.) Together, these statutes created a “dilemma for sentencing courts” arising from
“the interplay of section 19.2’s long-standing one-year cap on the time that can be served
in county jail as a condition of probation for any single [offense or probation violation],
and the [1976] amendment of section 2900.5, requiring that all local jail time served be
credited against any subsequent county jail term imposed as a condition of reinstatement
of probation.” (Arnold, at pp. 300-301.) If a “defendant had already served a year or
more in county jail as a condition of probation before subsequently violating probation,”
these “two statutes forced the sentencing court to choose between sentencing the
defendant to state prison or imposing no additional jail time as a condition of
reinstatement of probation—because applying custody credit for the earlier one year of
county jail time against the new county jail term would result in the defendant’s having
already served the maximum one-year county jail term permitted under section 19.2 for
the new violation.” (Id. at p. 301, italics omitted.) Johnson provides a way around this
dilemma. By allowing a defendant to waive custody credits for previous jail time,
Johnson permits “a sentencing court to reinstate probation conditioned on service of an
additional period of up to one year in county jail for the new probation violation” and
thereby ensure that the defendant actually spends additional time in jail. (Arnold, at
p. 302.)
       The waiver authorized in Johnson was contemplated to occur not when a
defendant is originally placed on probation, but instead when the defendant’s probation is
reinstated after a violation. (Johnson, supra, 82 Cal.App.3d at pp. 184-185.) As we have
said, such a waiver allows a trial court to reinstate probation conditioned on service of an
additional period of up to one year in jail for the violation. (Id. at p. 186.) But
subsequent cases have relied on Johnson’s general principle that a defendant may waive
entitlement to custody credits “in upholding [such] waivers in a wide variety of
circumstances.” (People v. Johnson (2002) 28 Cal.4th 1050, 1054 (Johnson II).) In
Johnson II, the Supreme Court approved a waiver of credits that was obtained, as was
Arevalo’s, when the defendant was originally put on probation, holding that a defendant’s


                                              7
ability to “expressly waive entitlement to section 2900.5 credits against an ultimate jail or
prison sentence for past and future days in custody” means that “a trial court has
discretion to condition a grant or extension of probation upon a defendant’s express
waiver of past and future custody credits.” (Id. at pp. 1052, 1054-1055.) Thus, we refer
to Arevalo’s waiver as a Johnson waiver in the broader sense of a waiver of presentence
custody credits, not in the sense of a waiver necessitated by sections 19.2 and 2900.5 to
enable additional confinement in jail as a condition of probation. 4
       C.     Arevalo Is Not Entitled to Relief Even if His Johnson Waiver Was Not Fully
              Knowing and Intelligent.
       “ ‘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.’ ” (Arnold, supra, 33 Cal.4th at p. 308.) “ ‘To determine
whether a waiver is knowing and intelligent, the inquiry should begin and end with
deciding whether the defendant understood he [or she] was giving up custody credits to
which he [or she] was otherwise entitled.’ ” (People v. Jeffrey (2004) 33 Cal.4th 312,
320.) Whether a Johnson waiver is knowing and intelligent is determined under the
totality of the circumstances and is a question of law we review de novo. (Arnold, at
p. 306; see People v. Panizzon (1996) 13 Cal.4th 68, 80.)
       Arevalo contends that his Johnson waiver was not knowing and intelligent
because the trial court “promise[d] that he would receive 365 days of credits were his
probation ultimately revoked” but “failed to give him a clear warning that under
section [2933.1] he would be deprived of a large portion of those credits if he were


       4
         While it was well within the trial court’s discretion to condition probation on the
waiver of 968 days of custody credits, Arevalo eventually would have been required to
waive more of his pre-probation credits (so as to reduce his total to fewer than 365 days)
in order for the trial court to have conditioned a future reinstatement of Arevalo’s
probation on the actual service of additional jail time. Still, and contrary to the court’s
suggestion otherwise, Arevalo was not required to waive 968 days of credits when he
was originally placed on probation. While probation cannot be conditioned on a
commitment longer than one year under section 19.2, we see no reason why a defendant
would have to waive all credits that exceed the length of the term actually imposed.

                                              8
imprisoned.” We begin by observing that it is misleading to speak of being “deprived” of
conduct credits in this context. Section 2900.5 establishes that conduct credits are not
banked, in the sense of carrying over from sentencing hearing to sentencing hearing.
Rather, the statute provides that each time a trial court orders a “term of imprisonment,”
including jail time as a condition of probation, it has a duty to determine the dates a
defendant has actually spent in custody and, based on that number, calculate “the total
number of days to be credited,” including conduct credits. (§ 2900.5, subds. (c) & (d).)
True enough, the days actually spent in custody over a given period will remain the same
from hearing to hearing, and thus, absent a waiver, the corresponding number of actual
credits will remain the same as well. But, as Daniels confirms, there is nothing fixed
about how many conduct credits those actual credits will generate, because that number
will depend on the purpose for which the calculation is made.
       We accept that a knowing and intelligent waiver requires an understanding not
only of the number of credits being given up, but also of the number of credits remaining
after the waiver. (See People v. Ambrose (1992) 7 Cal.App.4th 1917, 1922 [knowing and
intelligent waiver “is one entered into with awareness of its consequences,” including “an
understanding of the impact of that waiver on the amount of time a defendant may be
incarcerated”].) But both conditions were satisfied here: Arevalo does not dispute that
he understood he was giving up 968 days of credits, and he also understood that, at the
time he entered the waiver, he was retaining 183 days of actual credits and 182 days of
conduct credits—which were then applied to the jail term imposed. The only thing he
claims he did not understand was that he would not be entitled to 182 days of conduct
credits under the new calculation performed if he were sentenced to prison.
       Had the trial court remained silent about the number of credits to which Arevalo
would be entitled upon a subsequent sentence to prison, he would have no argument that
his Johnson waiver was invalid. Arnold is instructive. There, the Supreme Court
rejected the contention that a Johnson waiver was not knowing and intelligent because
the trial court failed to inform the defendant that the waiver applied not only to the
credits’ use against future jail terms but also to their use against any prison sentence.


                                              9
(Arnold, supra, 33 Cal.4th at pp. 298-299.) The Court explained, “ ‘Nothing in the
statutory scheme suggests that custody credits are kept in dual accounts, one for use
against jail time and one for use against prison time. To the contrary, section 2900.5
treats all credits uniformly, wherever accrued and wherever applied. Therefore, a waiver
of custody credits is presumptively applicable to any future term of imprisonment,’ ” and
a defendant who violates probation and is sentenced to prison “ ‘should not be permitted
to attack his [or her] waiver by faulting the court for failing to foresee his [or her]
recidivism and warn him [or her] of its consequences.’ ” (Arnold, at p. 307.) Thus, while
“[t]he better practice is for sentencing courts to expressly admonish defendants who
waive custody credits under Johnson . . . that such waivers will apply to any future prison
term should probation ultimately be revoked and a state prison sentence imposed[,] . . .
[a] sentencing court’s failure to include such an explicit advisement [alone] will not . . .
invalidate a Johnson waiver.” (Id. at p. 309.)
       Similarly, as we have explained, the amount of custody credits is calculated anew
each time a trial court imposes a term of confinement and, as Daniels illustrates, there is
no inherent entitlement to credits that were awarded at previous sentencing hearings.
Thus, a defendant who enters a Johnson waiver has no basis for presuming from the
court’s silence on the matter that he or she will retain all un-waived conduct credits for all
time and for all purposes.
       The trial court here, however, did not merely fail to explain the consequences of
section 2933.1(c) but affirmatively suggested that Arevalo would retain all 365 days of
custody credits if he were sentenced to prison. The Attorney General argues that by
telling Arevalo his “credits toward any prison sentence [he] might receive would be
limited to 365 days” (italics added), the court did not actually mean that Arevalo would
receive 365 days “under any and all circumstances.” We disagree. It is far more
reasonable to interpret the court’s use of the word “limited” to refer to the fact Arevalo
was waiving all credits above 365 days, not to the possibility that he might get fewer than
365 days of credits later. Moreover, the court specifically referred to the credits’
application to any prison sentence imposed if Arevalo violated probation, the same


                                              10
scenario that came to pass, and there were no other variables affecting the fact that if he
were sentenced to prison, section 2933.1(c) would apply and his conduct credits would be
capped at 15 percent of actual time served. Thus, the court’s suggestion that Arevalo
would retain 365 days of credits toward any such sentence was mistaken because
section 2933.1(c) made it a certainty that if he were eventually sentenced to prison he
would be entitled to fewer conduct credits for his pre-probation time in custody.
       Nevertheless, even assuming that the Johnson waiver was not knowing and
intelligent by virtue of the trial court’s mistaken statement, Arevalo offers no authority
for the proposition that he is entitled to the full 365 days of custody credits despite
section 2933.1(c)’s dictates. Generally, if a trial court misstates the law in advising a
defendant of the consequences of a waiver, the defendant must demonstrate reliance on
the misstatement to be entitled to relief. (See, e.g., People v. D’Arcy (2010) 48 Cal.4th
257, 286-287 [waiver of right to self-representation]; People v. Fox (2014)
224 Cal.App.4th 424, 437 [waiver of right to counsel].) Arevalo can claim no such
reliance. He does not, and he could not reasonably, contend that he would have declined
probation by not entering the Johnson waiver had he understood that his conduct credits
might eventually be recalculated under section 2933.1(c). 5 Therefore, he has not shown
that any failure to understand the waiver’s consequences was prejudicial.
       Arevalo insists that he is entitled to enforce the trial court’s purported promise of
365 days of custody credits against any prison sentence. Initially, we reject his
suggestion that “[t]he [trial] court could have credited him for 365 of the 465 days he
actually spent in jail . . . [and] then add[ed] 54 days (15%) for good conduct.” This
ignores that he waived all but 183 days of actual credits, and he is not entitled to



       5
         In response to an argument by the Attorney General, Arevalo disavows any claim
that “he would have gone to trial instead of entering a plea” had he understood the full
consequences of the Johnson waiver. The parties’ focus on whether Arevalo would have
entered the plea is misplaced, as the waiver was not part of the plea bargain, but his
position is consistent with the conclusion that he does not seek to undo the grant of
probation either.

                                              11
additional conduct credits for pre-probation time served calculated on top of the 182 days
of conduct credits he was original awarded.
         Nor do we perceive any authority for enforcing the trial court’s suggestion that
Arevalo would be entitled to 182 days of conduct credits for his pre-probation custody if
he were sentenced to prison. As we have explained, Daniels establishes that once he was
sentenced to prison, he was entitled only to conduct credits calculated under
section 2933.1(c), not section 4019. Enforcing the court’s supposed promise would result
in an unauthorized sentence, and it is therefore an improper remedy. (People v. Gisbert
(2012) 205 Cal.App.4th 277, 282 [award of presentence custody credits that “trial court
did not have discretion to award” results in unauthorized sentence]; see also People v.
Brown (2007) 147 Cal.App.4th 1213, 1224 [specific performance of plea bargain
unavailable as remedy where “negotiated sentence is invalid or unauthorized”].)
         Trial courts should be aware of section 2933.1(c) when placing defendants
convicted of violent felonies on probation and accepting waivers of presentence custody
credits. Courts should strive to inform defendants that their conduct credits will be
recalculated at a lower rate if they are sentenced to prison or, at least, avoid misleading
them into believing that the same number of conduct credits will carry over from
sentencing hearing to sentencing hearing. But even though Arevalo was not informed of
section 2933.1(c)’s consequences, he fails to show that he is entitled to the relief he
seeks.
                                             III.
                                         DISPOSITION
         The judgment is affirmed.




                                              12
                                 _________________________
                                 Humes, P.J.



We concur:



_________________________
Margulies, J.



_________________________
Banke, J.




People v. Arevalo A150804


                            13
Trial Court:
       Napa County Superior Court


Trial Judge:
       Hon. Mark S. Boessenecker


Counsel for Defendant and Appellant:

       Donald L. Lipmanson, Appointed by the First District Appellate Project

Counsel for Plaintiff and Respondent:
       Xavier Becerra, Attorney General
       Gerald A. Engler, Chief Assistant Attorney General
       Jeffrey M. Laurence, Senior Assistant Attorney General
       René A. Chacón, Supervising Deputy Attorney General
       Nanette Winaker, Deputy Attorney General




People v. Arevalo A150804


                                          14
