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People v. Arevalo

California Court of Appeals, First District, First Division

February 26, 2018

THE PEOPLE, Plaintiff and Respondent,
v.
RODRIGO AREVALO, Defendant and Appellant.

         Trial Court: Napa County No. CR174988 Superior Court Trial Judge: Hon. Mark S. Boessenecker

          Counsel for Defendant and Appellant: Donald L. Lipmanson, Appointed by the First District Appellate Project

          Counsel for Plaintiff and Respondent: Xavier Becerra, Attorney General Gerald A. Engler, Chief Assistant Attorney General Jeffrey M. Laurence, Senior Assistant Attorney General René A. Chacón, Supervising Deputy Attorney General Nanette Winaker, Deputy Attorney General

          HUMES, P.J.

         This case arises out of a statutory anomaly that requires a trial court to use one formula to calculate presentence conduct credits when placing a defendant convicted of a violent felony on probation, but requires the court to use another formula to recalculate those credits if that person later violates probation and is sentenced to state prison. Defendant Rodrigo Arevalo was placed on probation after pleading no contest to a felony count of continuous sexual abuse of a child under 14 years old. Before being placed on probation, he waived some of the custody credits he had accrued while in jail in accordance with People v. Johnson (1978) 82 Cal.App.3d 183 (Johnson). This waiver left him with a total of 365 days of credits: 183 credits for time served (actual credits) and 182 credits for good behavior (conduct credits) under Penal Code section 4019.[1] At the time of the waiver, the trial court mistakenly indicated that Arevalo would be entitled to the full 365 days of custody credits if he were eventually sentenced to prison.

         The following year, Arevalo admitted to violating his probation, and the trial court sentenced him to six years in prison. In doing so, the court recalculated the pre-probation conduct credits under section 2933.1, subdivision (c) (section 2933.1(c)), which limits the conduct credits a defendant convicted of a violent felony can accrue under section 4019 to 15 percent of actual time served. This calculation resulted in an award of 27 days of conduct credits for the same period of pre-probation custody that had resulted in an award of 182 days of conduct credits when probation was granted.

         On appeal, Arevalo claims that the original award of 182 days of conduct credits should be applied to his prison sentence. He contends that his Johnson waiver was not knowing and intelligent and that he is entitled to enforce the trial court's comment when probation was granted that he would have 365 days of credits for pre-probation time served were he sentenced to prison. We reject these contentions and affirm.

         I. Factual and Procedural Background

         In April 2015, the Napa County District Attorney filed a complaint charging then 18-year-old Arevalo with seven felony counts of various sexual offenses against a minor that occurred over the previous two years. We do not discuss the facts underlying these offenses because they are immaterial to the issues on appeal. Arevalo eventually pleaded no contest to a charge of continuous sexual abuse of a child under 14, a violent felony, and the remaining charges were dismissed.[2] On his plea form, Arevalo acknowledged that the maximum sentence he faced was 16 years in prison.

         In June 2016, the trial court suspended imposition of the sentence and placed Arevalo on probation for 12 years subject to various terms and conditions, including that he serve 365 days in jail. The court explained that before it could grant probation Arevalo was required “to waive the excess” custody credits over 365 days to comply with Johnson. In accepting the waiver, the court then stated, “Mr. Arevalo, as I indicated as part of my sentencing here, in order for me to grant you probation you would have to waive what would be 968 days of custody credits. So in other words, that if you were to come back to court on a probation violation your credits towards any prison sentence you might receive would be limited to 365 days. That's actual time plus conduct credits. Do you understand that?” Arevalo responded, “Yeah.” He was awarded 365 days of custody credits, composed of 183 days of actual credits and 182 days of conduct credits, resulting in the jail term being deemed served.

         A few months later, Arevalo was arrested, and the Napa County District Attorney filed two petitions to revoke his probation. Arevalo ultimately admitted he had violated his probation terms by consuming alcohol, driving under the influence, and driving without a license.

         At the January 2017 sentencing hearing, the trial court revoked and terminated probation and sentenced Arevalo to the lower term of six years in prison. It then awarded him 379 days of presentence credits, composed of 330 days of actual credits and 49 days of conduct credits. The court explained that, although Arevalo had 365 days of custody credits at the time he was put on probation, he could accrue conduct credits at only 15 percent of actual time for purposes of his sentence to prison. As a result, he received 330 days of actual credits (composed of the 183 days of actual credits he was originally awarded and 147 days of actual credits for the time he served between his August 2016 arrest and his sentencing to prison) and 49 days of conduct credits, representing 15 percent of the 330 days. In other words, the recalculation changed his total conduct credits for pre-probation time served from 182 days to 27 days (15 percent of 183 days).

         Arevalo objected, arguing that he was entitled to the full 365 days of custody credits that were calculated when probation was granted. Observing that it was “an anomaly about [section] 2933.1 that you get the day for day [conduct credits] when you're granted probation, but you lose it once you're sentenced to prison, ” the trial court awarded 379 days of credits without prejudice to readdressing the issue if the parties wished to brief it.

         Arevalo then filed a motion for reconsideration of the award of custody credits, which the trial court denied. The court determined that Arevalo had made “a free and voluntary [Johnson] waiver, ” explaining, “I wasn't making any promises to him about what would happen if he went to prison, other than I was giving him credit for 365, which at that time was day for day, because he was being ...


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