People v. Tate

         APPEAL from an order of the Superior Court of San Diego County No. SCD243042, Eugenia A. Eyherabide, Judge.

Page 333

         COUNSEL

         Erica L. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

Page 334

         OPINION

         AARON, J.

         I.

         INTRODUCTION

         Marcia Lareah Tate appeals from an order revoking probation and imposing a seven-year prison term. Tate contends that the trial court erred in awarding her zero days of Penal Code^[1] section 4019 conduct credits.^[2] Tate argues that the court erroneously concluded that she had waived all section 4019 conduct credits, including future credits, by virtue of a December 11, 2014 agreement in which Tate admitted violating parole and agreed to waive her section 4019 credits in exchange for reinstatement of probation.

         The People argue that Tate's waiver included a waiver of future section 4019 credits that she might otherwise have earned, whereas Tate contends that she waived only the section 4019 credits that she had already earned at the time of the waiver. We conclude that the record in this case demonstrates only that Tate agreed to waive past conduct credits under section 4019. We therefore reverse the award of zero days of section 4019 conduct credits in the order revoking probation and imposing the seven-year prison term, and remand the matter for the limited purpose of determining Tate's eligibility for conduct credits under section 4019 for the time period after she waived section 4019 credits at the October 18, 2013 hearing.

         II.

         PROCEDURAL BACKGROUND^[3]

         Proceedings in the trial court

         The information

         On September 10, 2012, the People charged Tate with felony child abuse (§ 273a, subd. (a)), possession of methamphetamine (Health & Saf. Code,

Page 335

§ 11377, subd. (a)), and being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)). The People also alleged that Tate had suffered three ...