P.v .Padilla

Filed 9/19/07 P.v .Padilla CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Tomson T. Ong, Judge. Affirmed in part, modified in part and remanded for recalculation of credits.

Sharon Fleming, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Joseph P. Lee and Elaine F. Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.

Luis Miguel Padilla appeals from the judgment entered following an order revoking probation. He previously, on February 1, 2005, pled no contest to committing a lewd act upon a child. (Pen. Code,  288, subd. (a).)[1] Pursuant to his negotiated plea, he was sentenced to eight years in prison, execution of sentence was suspended and he was placed on formal probation for five years. He was ordered to pay a restitution fine in the amount of $200 plus a parole revocation fine in the same amount. Included in the terms of his probation were that he serve 365 days in jail and waive all back time presentence credits. He contends he is entitled to an additional 435 days of custody credits and that the restitution fine and parole revocation fine must be reduced. For reasons stated in the opinion, we remand the matter to the superior court for a recalculation of credits, and strike the second restitution fine and parole revocation fine imposed.

FACTUAL AND PROCEDURAL SUMMARY

At the probation violation hearing conducted on August 29, 2006, it was established that appellant failed to report to his probation officer on December 30, 2005 in violation of a condition of his probation. Additionally, he violated probation by failing to enroll in sex offender counseling and failing to register as a sex offender every 30 days and within five days of his birthday. The last time appellant registered was on December 5, 2005 and on that date he acknowledged on the registration form that he understood that as a transient he was required to register every 30 days.

Following revocation of probation, appellants previously suspended sentence of eight years was imposed and he was given credit for 70 days of presentence custody plus 10 days for conduct credit for a total of 80 days credit. Agreeing that appellant had only waived back time . . . from the date of the plea the court additionally stated appellant was entitled to credit for the year he served in county jail. Pursuant to Penal Code section 1202.4, appellant was ordered to pay a restitution fine to the state restitution fund in the amount of $200 for each of the eight years of his sentence for a total of $1600 and a parole revocation fine in the same amount.

DISCUSSION

I

Appellant contends he is entitled to an additional 435 days of custody credits composed of 365 days for the time he served in custody after his plea and sentence plus an additional 65 days credit pursuant to Penal Code section 2933.1.[2] Appellant notes that while the courts oral pronouncement reflects credit for the 365 days served in county jail, the abstract of judgment does not.[3] Respondent agrees the award of custody credits reflected in the abstract of judgment is incorrect but claims it appears appellant is entitled to fewer days of conduct credit than appellant contends.

We agree with appellant that a defendant may knowingly and intelligently waive his potential right to future credits. (See People v. Ambrose (1992) 7 Cal.App.4th 1917, 1921.) We also agree with appellant that no such waiver occurred in this case. The court advised appellant at the time of his plea, he was waiving back time and starting with no credits today. Appellant did not waive his right to credits he had not yet earned, and he is entitled to credit for the time he spent in county jail following his plea.

As respondent observes, however, it appears that appellant was released from jail after serving less than 365 days. While the record does not expressly disclose the date on which appellant was released from county jail, it does indicate that on September 26, 2005, he reported to the Long Beach Probation Office. Appellant would, therefore, be entitled to presentence credits for every day he spent in custody plus conduct credits computed at 15 percent of his actual time in custody pursuant to Penal Code section 2933.1, subdivision (c).[4]

Since execution of appellants sentence was suspended and he was granted probation at his initial sentencing, he was properly awarded credits under Penal Code section 4019. Thereafter, however, when he violated probation and was committed to state prison he was only entitled to credits computed according to the 15 percent limitation set forth in Penal Code section 2933.1, subdivision (c). (See People v. Daniels (2003) 106 Cal.App.4th 736, 739-740.)

II

Appellant correctly contends the restitution fine and parole revocation fine must be reduced.[5] When appellant was originally sentenced for this offense, the court ordered a restitution fine in the amount of $200 and a parole revocation fine in the same amount. When appellants probation was revoked and he was sentenced to prison, the court imposed a $1600 restitution fine and a parole revocation fine of $1600. There is no statutory authority justifying the second restitution fine because . . . the first restitution fine remained in force despite the revocation of probation. Accordingly, since the trial court was without statutory authority to impose the second restitution fine, it must be stricken. [Citation.] (People v. Chambers (1998) 65 Cal.App.4th 819, 823.) Since the parole revocation fine is to be in the same amount as the restitution fine, the second parole revocation fine must also be stricken. (See Pen. Code, 1202.45.)

DISPOSITION

The matter is remanded to the trial court for a recalculation of custody credits. The $1600 restitution and parole revocation fines imposed are stricken and the $200 restitution and parole revocation fines remain in force. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J.

We concur:

WILLHITE, J.

MANELLA, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line attorney.

[1] According to the probation report, between April 1, 2004 and April 30, 2004, appellant committed a lewd act upon A., a five-year-old child.

[2] Penal Code section 2933.1 provides in pertinent part that a person convicted of a violent felony shall accrue no more than 15 percent worktime credits. For purposes of this code section, a violation of Penal Code section 288, subdivision (a) is a violent felony. (See Pen. Code,  667.5, subd. (c).)

[3] In a letter to the superior court dated December 11, 2006, appellate counsel attempted to correct appellants credits. In an order dated January 5, 2007, however, the superior court concluded that because appellant waived back time at the time of the taking of the plea, . . . the trial judges computation of custody credits during sentencing is correct. Because this is not the only issue raised in this appeal and because appellant first attempted to correct the alleged error by way of a letter to the superior court, we address the issue here. (See People v. Acosta (1996) 48 Cal. App. 4th 411, 420.)

[4] It appears the trial court correctly awarded appellant 80 days of custody credit, consisting of 70 actual days served between his probation violation arrest and sentencing to state prison, plus 15 percent of 70 or 10 days. Neither party disputes this calculation.

[5] Respondent agrees.