1

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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,

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 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.
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defendant’s probation was revoked and he was sentenced to five years in prison.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 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).
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 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.
4

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].)
5

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.