Trial court misinformed probationer convicted of violent felony that he would receive the same number of conduct credits if he was ultimately sentenced to prison. After pleading guilty to a violent felony (Pen. Code, § 288.5, subd. (a)), Arevalo was placed on probation, with 365 days in jail as a condition. The court informed him that he would have to waive his custody credits that exceeded 365 days before it granted probation. The 365 days of credits included 183 credits for actual time served and 182 conduct credits under Penal Code section 4019. The court also explained that, if Arevalo violated probation and was sentenced to prison, “your credits towards any prison sentence you might receive would be limited to 365 days. That’s actual time plus conduct credits.” Arevalo subsequently violated probation and was sentenced to six years in prison. The trial court recalculated his conduct credits under Penal Code section 2933.1, subdivision (c), which limits conduct credits to 15% when a person is committed to state prison for a violent felony, and Arevalo was only awarded 27 days of conduct credit. On appeal, he challenged the custody credit award. Held: Affirmed. When a defendant convicted of a violent felony is granted probation, his conduct credit is calculated under section 4019. However, if he later violates probation and is sentenced to prison, his conduct credits are recalculated under the less favorable formula in section 2933.1, subdivision (c). Here, the trial court’s suggestion when granting probation that Arevalo would retain 365 days of credits toward a prison sentence was mistaken because section 2933.1, subdivision (c) made it a certainty that he would be entitled to fewer conduct credits for his preprobation time in custody. Trial courts placing defendants convicted of violent felonies on probation and accepting waivers of presentence custody credits “should strive to inform defendants that their conduct credits will be recalculated at a lower rate if they are sentenced to prison . . . .”
Assuming probationer’s waiver of presentence custody credits was not knowing and intelligent based on the trial court’s misstatement, there was no authority for awarding him additional credit despite section 2933, subdivision (c). Arevalo argued that his presentence custody credit waiver was not knowing and intelligent, and that the judge’s comment that he would be entitled to 365 days of credit if he was sentenced to prison should be enforced. The Court of Appeal disagreed. A trial court has discretion to condition a grant of probation upon a defendant’s express waiver of past and future custody credits. (People v. Johnson (2002) 28 Cal.4th 1050 1052, 10541055 (Johnson II).) Arevalo’s Johnson waiver was knowing and intelligent to the extent he understood the number of credits being given up and the number of credits remaining at the time he entered the waiver. But Arevalo argued that he did not understand 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 said nothing about credits in the event Arevalo was sentenced to prison, there would be no argument that his Johnson waiver was invalid. The trial court here, however, did not merely fail to explain the consequences of section 2933.1, subdivision (c) but affirmatively suggested that Arevalo would retain all 365 days of custody credits if he were sentenced to prison. Even assuming Arevalo’s waiver was invalid based on the court’s misstatement, there was no authority for enforcing the trial court’s suggestion that Arevalo would be entitled to 182 days of conduct credits for his preprobation custody if he were sentenced to prison. Once he was sentenced to prison, Arevalo was entitled only to conduct credits calculated under section 2933.1, subdivision (c), not section 4019, and enforcing the court’s comment would result in an unauthorized sentence. Arevalo also failed to show that he relied on the misstatement when he accepted probation. [Editor’s Note: In a footnote, the court noted that “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 [Penal Code] 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.”]
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A150804.PDF
