1

Filed 4/27/16 P. v. Thoreson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

STEVEN A. THORESON,

Defendant and Appellant.

 A146644

 (Sonoma County

 Super. Ct. No. MCR-430610)

Appellant Steven A. Thoreson appeals from a written order denying his “Motion 

for Clarification” which pertains to his sentence and corresponding custody credits. His 

assigned counsel has filed a brief raising no issues and asking this court to independently

review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel advised 

appellant she intended to file such a brief, and that appellant could file a supplemental 

brief in his own behalf, and appellant has filed such a brief. Because this appeal followed 

a guilty plea and is based on matters after the plea which do not challenge the validity of 

the plea, it is proper under rule 8.304(b)(4)(B) of the California Rules of Court. 

FACTUAL AND PROCEDURAL BACKGROUND

Many of the facts we shall recite are taken from our unpublished opinion in People 

v. Thoreson (Aug. 10, 2007, A114406) (Thoreson), an earlier appeal from a judgment 

entered against appellant after he pled guilty and admitted violating probation. We 

affirmed that judgment after rejecting appellant’s claims that (1) his July 8, 2004 

prospective waiver of custody credits was not knowing, voluntary and intelligent, (2) the 

waiver was imposed by the court as a routine matter in violation of People v. Penoli
2

(1996) 46 Cal.App.4th 298, and (3) an April 20, 2005 waiver of custody credits did not 

apply to credits he received in a residential treatment program. 

The facts pertinent to appellant’s earlier appeal, which are also germane to this 

appeal, were as follows: Defendant had pled guilty to one count of substantial sexual 

conduct with a child under the age of 14. (Pen. Code, § 288.5, subd. (a).)1 On March 25, 

2004, he was sentenced to five years of supervised probation, with the condition that he 

serve one year in the county jail and participate in a residential drug rehabilitation 

program. At the time of his sentencing, he had accumulated 201 days of custody credit 

against the required year of incarceration. 

On July 8, 2004, appellant appeared at a hearing requested by the Sonoma County 

Probation Department. At that hearing, appellant’s probation officer informed the court 

that a place had opened up for him at a residential treatment program called Pate House. 

The following is the discussion of waiving the custody credits he had accrued up to that 

point:

“The Court: Very well. It appears—Let’s see. He’s been in for quite a while, 

hasn’t he? 

“The Probation Officer: Yes, he has.

“The Court: All right. Are you prepared to waive any custodial credits while 

you’re in residential treatment?

“The Defendant: Yes.

“The Court: All right. Do you need to discuss that with your attorney?

“[Public Defender]: I’m assuming he already did that.

“The Court: Well, let’s reaffirm it, then.

“[Public Defender]: Okay

“The Court: You get custodial credits up to and including Monday, when you will 

be released to a representative of the Pate House for residential treatment. [¶] You 

understand that?

 

1 All further statutory references are to the Penal Code unless otherwise indicated.
3

“The Defendant: Yes.

“The Court: And while you’re in residential treatment, you receive no custodial 

credits, correct?

“The Defendant: Uh-huh (affirmative).

“The Court: All right.

“[Public Defender]: Thank you.

“The Court: Very well. He will then be released on Monday, the 12th of July, to 

a representative of Pate Recovery Home, Inc., for housing and treatment there.”

About three months later, on September 30, 2004, appellant admitted drinking 

alcohol in violation of a condition of probation. On April 20, 2005, after having been 

referred to the Department of Corrections for a 90-day diagnostic study (§ 1203.03), 

appellant appeared at a sentencing hearing. 

At the hearing, the court stated that it would permit appellant to enter a second 

treatment program at Redwood Gospel Mission. The People stated, “if . . . defendant is 

going to be given the privilege of a second chance, I would ask that he waive all of his 

credits, current credits.” The People also pointed out that due to the severity of 

appellant’s conduct, his numerous prior convictions for molestation, the court consider 

imposing the upper term. The court stated that it agreed, but was limited by the previous 

plea agreement. The People responded, “with that, then, I would even more strenuously 

ask that there be a waiver of all credits.” The court agreed, stating: “I think there should 

be a waiver.” Counsel for appellant agreed that this would not be an issue. As earlier 

noted, our earlier opinion in Thoreson rejected appellant’s several challenges to the 

validity and scope of his waivers, and the present appeal does not directly address that 

issue. 

The probation officer informed the court that appellant had accrued 704 days of 

credit. Of that total, there were 470 days of “actual” credit, and 234 days of good 

conduct credit. The probation officer also stated that “[h]e would get zero days credit for 

the treatment program due to the waiver on September 7th for a total of 704.” The court

then told appellant, “those are credits toward any future state prison commitment. In
4

other words, it’s like they never happened. If you violate your probation and this court or 

another court sentences you to state prison, you wouldn’t get any of these credits that you 

accrued. That’s over a couple years. Is that what you want to do?” Appellant replied, 

“Yes, ma’am.” A week later, on April 27, 2005, Appellant entered Redwood Gospel 

Mission. 

In January 2006, appellant was terminated from the Redwood Gospel Mission 

program, based on an allegation (which he strenuously disputed) that he had stolen from 

other residents in the program. 

On January 11, appellant was placed in custody. His probation was summarily 

revoked the next day. At a hearing on February 16, 2006, appellant admitted to violating 

his probation. On April 24, 2006, the court executed the previously suspended sentence 

of 12 years. Appellant was granted 119 days of custody credits against this sentence, 

none of which included any of the time he had previously waived. 

In June 2009, appellant’s ex parte letter request for pre-prison custody credits from 

November 12, 2003, through May 3, 2006, was denied by Sonoma County Superior 

Court Judge Raima H. Ballinger, in a written order stating that “[w]aivers for custody 

credits while in residential treatment programs were waived on July 8, 2004, and April 

20, 2005,” and that “credit for actual time served (104 actual plus 15 conduct) were 

credited toward the current prison time now being served.” 

On April 30, 2012, appellant raised the issue of custody credits again by filing a 

petition for habeas corpus in the Sonoma County Superior Court. The claim this time 

was that amendments to section 4019 should apply to him retroactively. The petition was 

denied on May 9, 2012, by Judge Dana B. Simonds. A similar writ petition filed in this 

court was denied on May 29, 2012. Appellant then commenced considerable 

correspondence with the superior court regarding various aspects of his sentence he 
5

believed erroneously denied him release from prison under sentencing statutes and/or the 

terms of his plea agreement.2 

Finally, on September 18, 2015, acting in propria persona, appellant filed a 

“Motion for Clarification of Sentence” in the superior court. The motion commences 

with the statements that on December 18, 2003, he pled guilty to violation of section 

288.5 in return for a term not to exceed 12 years, and was found eligible for probation,”

and that on December 18, 2015, he “maxed out his time in custody including time spent 

in a rehabilitation center” and “should have his parole requirement discharged at that 

time.” The motion then states that the “question” that “needs clarification” is “if a plea 

agreement was entered by the district attorney’s office rather than sentencing under a 

‘one strike,’ ‘three strike’ or habitual sex offender statute as listed under . . . section 

1192.7(a)(1), would that also not affect petitioner’s custody credit of 85 percent as listed 

in section 2933.1 and violent offender status on parole?”3

 

2

In a letter dated February 4, 2015, Judge Chouteau told appellant: “The Sonoma 

County Superior Court is unable to assist you in your request for correction of sentencing 

errors. I have reviewed your file in detail including the Tahl waiver which you executed, 

the transcript of your plea, the transcript of your sentencing, the multiple appellate 

decisions, and the petitions for writ of habeas corpus which you have filed. Your 

interpretation of the plea transcript is incorrect. Mr. McBride clearly indicated that the 

sentencing triad for . . . section 288.5 is 6-12-16, and the Tahl waiver which you signed, 

clearly indicated both the maximum sentence of 16 years and an agreement pursuant to 

. . . section 1192.5, that you would receive a sentence of no more than 12 years if you 

were sent to prison. [¶] Although you were initially placed on probation, you violated 

probation twice. After the first violation the court sentenced you to the mid-term of 12 

years and suspended execution of sentence on April 20, 2005. You once again violated 

probation and on April 24, 2006, the court executed the suspended sentence. There does 

not appear to be any error in your sentencing.” 

3

Subdivision (a)(1) of section 1192.7 states in its entirety as follows: “It is the 

intent of the Legislature that district attorneys prosecute violent sex crimes under statutes 

that provide sentencing under a ‘one strike,’ ‘three strikes’ or habitual sex offender 

statute instead of engaging in plea bargaining over those offenses.” As we later explain, 

section 2933.1 limits custody credits that may be awarded certain serious offenders to 

“not more than 15 percent of worktime credit” as defined in the statute. In effect, 

appellant contends he is erroneously being subjected to the 15 percent limitation. The 

last paragraph of appellant’s motion also states that in August 2015, he was notified by 
6

On September 28, 2015, Sonoma County Superior Court Judge Rene Chouteau 

denied appellant’s motion for clarification on the ground that “There is no ambiguity as 

to defendant’s sentence.” This is so, the order explains, because “[t]he record is clear that 

on April 24, 2006, defendant was sentenced to 12 years state prison based on his 

admission to a violation of probation, which had been granted based on a plea of guilty to 

a violation of Penal Code section 288.5, entered on December 18, 2003.”4(Underscoring

in original.) 

Appellant’s October 16, 2015 notice of appeal from this order was timely.

DISCUSSION

The general statute governing credit for presentence custody, section 4019,

provides that “[a]bsent contrary authority ‘a defendant receives what are commonly 

known as conduct credits toward his term of imprisonment for good behavior and 

willingness to work during time served prior to commencement of sentence.

[Citations].’ ” (People v. Philpot (2004) 122 Cal.App.4th 893, 907.) Section 4019 

provides, among other things, that “[w]hen a prisoner is confined in a county jail . . . 

following arrest and prior to the imposition of sentence for a felony conviction” (§ 4019, 

subd. (a)(4)), then “for each six-day period in which a prisoner is confined in . . . a 

facility as specified in this section, one day shall be deducted from his or her period of 

confinement unless . . . the prisoner has refused to satisfactorily perform labor as 

assigned . . . ,” and an additional “day shall be deducted . . . unless . . . the prisoner has 

 

his correctional counselor that “I will have five years parole requirement even after I 

max-out the 12 year in custody.” Appellant asks the court, “Will I be placed on violent 

sex offender parole after maxing out my 12 year plea agreement?” 

4

Section 288.5, which defines the offense of continuous sexual abuse of a child, 

defines such an offender as one who “resides in the same home with the minor child or 

has recurring access to the child, who over a period of time, not less than three months 

duration, engages in three or more acts of substantial sexual conduct with a child under 

the age of 14 years at the time of the commission of the offense . . . or three or more acts 

of lewd or lascivious conduct . . . .” For commission of this offense the statute prescribes 

a state prison sentence of 6, 12, or 16 years.
7

not satisfactorily complied with the reasonable rules and regulations” applicable to the 

facility. (§ 4019, subds. (c) & (d).)

Section 2933.1, subdivision (c), operates as an exception to section 4019. As 

pertinent, it provides that “[n]otwithstanding section 4019 or any other provision of law, 

the maximum credit that may be earned against a period in confinement in, or 

commitment to, a county jail . . . following arrest and prior to placement in the custody of 

the Director of Corrections, shall not exceed 15 percent of the actual period of 

confinement for any person specified in subdivision (a).” The persons subject to the 15 

percent limitation imposed by section 2933.1 include “any person who is convicted of a 

felony offense listed in subdivision (c) of Section 667.5 . . . .” (§ 2933.1, subd. (a).)

The offenses specified in subdivision (c) of section 667.5, include “[c]ontinuous 

sexual abuse of a child, in violation of section 288.5.” (§ 667.5, subd. (c)(16).) 

As Judge Chouteau emphasized in his order, appellant was convicted of that 

offense. He is therefore subject to the 15 percent limitation on custody credit imposed by 

section 2933.1. Appellant’s reliance on section 1192.7, subdivision (a)(1) is unavailing, 

as nothing in that or any other statute, or the cases he cites, support his suggestion that, 

because he was convicted on the basis of a plea bargain, he cannot be subject to 

sentencing and/or parole pursuant to the habitual sex offender statute. Appellant’s 

contention that he is being held in excess of his 12-year sentence is apparently predicated 

on the assumptions that he is not subject to the 15 percent limitation and that he is 

entitled to the custody credits he earned for the time he spent in residential treatment. 

Both assumptions are false.

As we ruled in appellant’s earlier appeal, he is not entitled to credit for any of the 

time he spent in residential treatment programs due to his waivers of such credit.

Appellant’s supplemental brief takes the position that “imposition of the maximum 

term of 12 years violates the terms of the plea,” because “the district attorney promised 

not to seek more than the midterm of six years as stipulated pursuant to [section] 1192.5.”

(Citing, People v. Buttram (2003) 30 Cal.4th 773.) Appellant’s reference to the district

attorney’s promise of the six-year midterm, which is not based on any citation to the
8

record before us, is unclear. The citation of Buttram, may indicate appellant’s belief that 

his plea was based on a maximum sentence which left unresolved the appropriate 

sentence within that maximum, leaving that issue to the normal sentencing discretion of 

the trial court in a separate proceeding, which would be analogous to the situation in 

Buttram. In any case, appellant does not explain, and we do not understand, the 

relevance of the assertedly promised six-year midterm. As earlier noted, in his letter to 

appellant of February 4, 2015, Judge Chouteau explained that appellant had

misinterpreted the transcript of the proceedings at which he entered his last guilty plea. 

As Judge Chouteau stated, the transcript “clearly indicated that the sentencing triad for 

[section] 388.5 is 6-12-16, and the Tahl waiver which you signed, clearly indicated both 

the maximum sentence of 16 years and an agreement pursuant to [section] 1192.5, that 

you would receive a sentence of no more than 12 years if you were sent to prison.” To 

the extent denial of appellant’s motion for clarification indicates that imposition of the 

maximum term of 12 years does not violate the terms of appellant’s plea agreement, the 

order is correct.

Appellant’s supplemental brief also seeks clarification “on a Johnson waiver that 

was engrafted onto the plea after entry of that plea pursuant to People v. Hebert (2007) 

156 Cal.App.4th 1114.” The Hebert opinion appellant cites is not valid authority, as it 

was vacated by a grant of rehearing. We assume the unexplained reference to a “Johnson

waiver” refers to a waiver of the right announced in People v. Johnson (1974) 10 Cal.3d 

868,5 which after the opinion in People v. Cruz (1988) 44 Cal.3d 1247 (Cruz), is now 

more commonly referred to as a “Cruz waiver.” In Cruz, the defendant pleaded guilty in 

return for a grant of five years probation and a county jail term of one year or, at the

 

5

In Johnson, after discovering that in negotiating a plea bargain regarding a 

misdemeanor the defendant had concealed his true name and past criminal record, the 

court withdrew its prior approval of the bargain and sentenced the defendant to state 

prison, without informing him of his right under section 1192.5 to withdraw his plea. 

The Supreme Court reversed, with directions that the defendant be advised of his rights 

under section 1192.5, and permitted to withdraw his plea and enter a new plea. Johnson 

holds that a defendant does not waive his right to change his plea by failing to request a 

change of plea after learning of the court’s withdrawal of its prior approval.
9

defendant’s option, a state prison term of 16 months and no probation. After the

defendant failed to appear at sentencing, the trial court disapproved the plea bargain, 

denied the defendant’s motion to withdraw his guilty plea, and sentenced him to two 

years in state prison. The Supreme Court reversed the decision of the Court of Appeal 

and remanded the case with directions to permit the defendant to withdraw his guilty 

plea, because the resulting sentence exceeded the bargained for term and was a separately 

chargeable offense. Cruz holds that, pursuant to section 1192.5, a defendant who pleads 

guilty pursuant to a plea bargain that is subsequently disapproved by the trial court for the 

defendant’s failure to appear is nevertheless entitled to withdraw his or her plea. 

We are at a complete loss to understand the relevance to this case of a “Johnson” 

or “Cruz” waiver, as the trial court in this case did not disapprove appellant’s plea 

bargain, the sentence he received was based on the plea bargain, and he does not seek to 

withdraw his plea. Nor do we have any idea why appellant relies on the opinion in 

People v. Hebert, supra, 156 Cal.App.4th 1114. Indeed, appellant asks us “not to vacate 

the plea per [section] 1192.5, but rather enforce the original terms of the plea.” (Italics

added.) In support of this request appellant relies on People v. Kaanehe (1977) 19 Cal.3d 

1 and Santobello v. New York (1971) 404 U.S. 257, 261-262, but we cannot discern the 

relevance to this case of either opinion.6

Neither the trial court’s denial of appellant’s motion to clarify, nor anything else 

disclosed by our careful review of the record, presents an arguable issue warranting 

further briefing.

Accordingly, the September 28, 20015 order is affirmed. 

 

6

In both Kaanehe and Santobello the district attorney violated or failed to keep a 

commitment regarding the sentence on a negotiated guilty plea, a crucial fact not present 

in this case. 
10

_________________________

Kline, P.J.

We concur:

_________________________

Richman, J.

_________________________

Miller, J.

People v. Thoreson (A146644)