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Filed 7/18/16 P. v. H ense CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.
MARK ANTHONY HENSE,

Defendant and Appellant. C081260
(Super. Ct. No. 12F4836)

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 ser ved 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 i n 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.2

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 In December 2015, following a probation violation, defendant’s probation was revoked and he was sentenced to five years in prison.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 contend s, and the People concede, the trial court erred in refusing to award him custody c redit s for the time he spent in the Jericho Project . We agree and shall award defendant an additional 366 days of custody credit s

. As modified , the judgment is affirmed.
I. DISCUSSION Citing section 2900.5, defendant contends that he is entitled to custody credit s for the time he spent i n the Jericho Project. That section provides, in pertinent part: “In all felony and misdemeanor convict ions,

. . . when the defendant has been in custody, including

. . . any time spent in a

. . . rehabilitation fac ility

. . . or similar residential institution, all days of custody of the defendant

. . . shall be credited upon his

. . . term of imprisonment

. ” ( § 2900.5, subd. (a); s ee People v. Jeffrey (2004) 33 Cal. 4th 312, 318 [t he provisions of section 2900.5

— ent itling a defendant to cr edit s against a term of imprisonment for days spent in custody before sentencing as well as those served after

sentenc ing as a condition of probation

— apply to custodial time in a residential treatment facility ]

. ) “ A sentence that f ails 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 prese ntence jail time custody credits but also to future custody credits to be

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

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 de fendants 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 condi tions of his probation in December 2015, the tria l court sentenced defendant to five year s in prison and awarded him presentence custody credit s for 319 days of actual custody, plus 318 days of conduct
credit s . The trial court, however, denied de fendant’s request to award him custody
credit s for the time he spent in the Jericho Project

— from August 16, 2013 , to Augus t 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, t he 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.4

defendant in Shasta County to get custody credits while participating in a residenti al 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 occasio n, 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 th at 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 t he trial court erred in failing to award defendant custody c redit s 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 h e would be reinstated on probation with the condition he complete the Jericho Project. The court explained that
he would remain in custody until someon e from the program picked him up, and that he
woul d go to state prison if he failed to complete the prog ram. The court did not inform
defendant that he was relinquishing his right to custody c redit s for the time spent in the

program. Nor does the record otherwise reflect that defendant knowingly and intelligently rel inquished his right to custod y credits u nder section 2900.5 for that period
of time

. Accordingly, defendant is entitled to an additional 366 days of custody credit s

. (See People v. Urke (2011) 197 Cal. App.4th 766, 778 [defendant entitled to custody
credit s where trial court failed to advise him he was relinquishing right to custody
credit s ].)5 II. DISPOSITION
Defendant is awarded 366 additional days of presen tence custody credit s

. ( § 2900.5

. ) The trial court is directed to prepare a n amended abstract of judgment showing the award of custody credit s 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.