California Court of Appeal Dec 2, 2015 No. E062446Unpublished
Filed 12/2/15 P. v. Foley CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E062446
v. (Super.Ct.No. SWF1200710)
MARK ARNOLD FOLEY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge.
Affirmed as modified in part; remanded with directions in part.
Trenton C. Packer, 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, A. Natasha Cortina and Christine
Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
1
In July 2012, pursuant to a plea agreement, defendant and appellant Mark Arnold
Foley pled guilty to making criminal threats (Pen. Code, § 422)1 and admitted that he had
used a knife (§ 12022, subd. (b)(1)) in the commission of the offense. In return, the
remaining allegations were dismissed and defendant was placed on probation for a period
1 All future statutory references are to the Penal Code unless otherwise stated.
2
On appeal, defendant argues (1) the trial court erred in failing to award him credit
of an additional 254 days for the time he spent in two different residential treatment
facilities, and (2) the trial court erred when it imposed an increased restitution fine and
duplicative court fees. Because the record is unclear as to whether defendant waived his
right to receive credits for the time he spent in the residential treatment facilities, we will
remand the matter for the trial court to determine this question and to award defendant
additional credits, if necessary. We will also order the trial court to amend the abstract of
judgment following the remand proceedings in accordance with the court’s determination
as to additional credits and with this opinion.
I
DISCUSSION2
A. Additional Credits for Time Spent in Residential Treatment Programs
Prior to sentencing, defendant’s trial counsel filed a sentencing memorandum in
which he requested defendant be awarded 254 days credit for the time he spent in two
residential treatment facilities. The prosecutor objected, arguing that the award of credits
is “not permitted by law nor is it part of any arrangement or agreement we’ve ever
made.” The trial court denied defendant’s request at the sentencing hearing, noting the
court will not grant defendant’s request for the time defendant spent at “New Directions
2 The details of defendant’s criminal conduct and probation violations are not relevant to the limited issues raised in this appeal, and we will not recount them here. Instead, we will recount only those facts and procedural background that are pertinent to the issues we must resolve in this appeal.
3
or Full Circle.” In a motion for resentencing, defendant again pointed out that he was
entitled to 254 days credit for the time he spent in the residential treatment facilities.
Defendant argues that he is entitled to presentence credit of an additional 254 days
for the time he spent in the residential treatment programs. The People concede that a
defendant is entitled to credit for time spent in a residential drug treatment program, but
argues the matter must be remanded because the record is unclear as to whether
defendant waived his right to accrue custody credits for his time in the residential
treatment programs.
Section 2900.5, subdivision (a), provides: “In all felony and misdemeanor
convictions, either by plea or by verdict, when the defendant has been in custody,
including, but not limited to, any time spent in a jail . . . halfway house, rehabilitation
facility, hospital, prison . . . or similar residential institution, all days of custody of the
defendant, including days served as a condition of probation in compliance with a court
order . . . shall be credited upon his or her term of imprisonment, . . .”
It is undisputed that time spent in a residential treatment program as a condition of
probation qualifies for presentence custody credit under section 2900.5, subdivision (a).
(People v. Jeffrey (2004) 33 Cal.4th 312, 318; People v. Johnson (2002) 28 Cal.4th 1050,
1053; People v. Davenport (2007) 148 Cal.App.4th 240, 245; People v. Thurman (2005)
125 Cal.App.4th 1453, 1460.) A defendant can expressly waive section 2900.5 credits,
so long as the waiver is “knowing and intelligent.” (Johnson, at pp. 1054-1055.)
“The gravamen 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
every conviction for a criminal offense”]; Chambers, supra, 65 Cal.App.4th at pp. 822-
823.)
Furthermore, as noted by the People, the parole revocation fine imposed by the
trial court must be in the same amount as the restitution fine pursuant to section 1202.45.
Section 1202.45, subdivision (a), provides: “In every case where a person is convicted of
a crime and his or her sentence includes a period of parole, the court shall, at the time of
imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an
additional parole revocation restitution fine in the same amount as that imposed pursuant
to subdivision (b) of Section 1202.4.” Since the restitution fine must be reduced to $240,
the parole revocation fine must also be reduced to the same amount. (People v. Garcia,
supra, 147 Cal.App.4th at p. 918.)
We conclude the restitution and parole revocation fines in the amount of $300 are
unauthorized and must be corrected to reflect fines in the amount of $240. In addition,
the abstract of judgment should reflect only one court operations assessment fee in the
amount of $40 and one criminal conviction fee in the amount of $30.
The People also correctly point out that the trial court failed to lift the suspension
of a $240 probation revocation fine and order that defendant pay the fine after his
8
probation was revoked. When defendant was placed on probation, the trial court had
imposed but stayed a $240 probation revocation fine, as it was required to do so by law,
pursuant to section 1202.44. The statute provides: “In every case in which a person is
convicted of a crime and a conditional sentence or a sentence that includes a period of
probation is imposed, the court shall, at the time of imposing the restitution fine pursuant
to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution
fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.”
(§ 1202.44.) The probation revocation restitution fine is customarily imposed and stayed
at the time the defendant is placed on probation. Where, as here, the defendant’s
probation is revoked, the fine then becomes due and payable. (People v. Guiffre (2008)
167 Cal.App.4th 430, 435.)
Here, the trial court failed to lift the suspension and order defendant to pay the
$240 probation revocation fine. Accordingly, under our inherent authority to correct an
unauthorized sentence, we modify the judgment to reflect the imposition of the $240
probation revocation fine pursuant to section 1202.44. (People v. Smith (2001) 24
Cal.4th 849, 853-854; People v. Crooks (1997) 55 Cal.App.4th 797, 811.)
II
DISPOSITION
The matter is remanded for further proceedings. On remand, if the trial court
determines defendant is entitled to presentence credits for the time he spent in the two
rehabilitation treatment facilities, the court shall determine the number of days defendant
spent at the treatment facilities, and award presentence custody credit accordingly.
9
In addition, the judgment is modified to strike: (1) the Penal Code section 1202.4,
subdivision (b) restitution fine in the amount of $300 and insert the correct fine of $240;
(2) the Penal Code section 1202.45 parole revocation fine in the amount of $300 and
insert the correct fine of $240; (3) the second Penal Code section 1465.8 court operations
assessment fee in the amount of $40; and (4) the second Government Code section 70373
criminal conviction fee in the amount of $30. The judgment is also modified to reflect
the imposition of the $240 probation revocation fine pursuant to Penal Code section
1202.44.
As so modified, the judgment is affirmed. The trial court is directed to prepare an
amended abstract of judgment reflecting the modifications and forward it to the
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
KING J.
MILLER J.
10
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court erred by imposing duplicative restitution fines and court fees upon probation revocation and remanded the case to determine whether the defendant waived his right to presentence custody credits for time spent in residential treatment.
Issues
Whether the defendant is entitled to presentence custody credits for time spent in residential treatment facilities.
Whether the trial court erred in imposing a second, increased restitution fine and duplicative court fees upon revocation of probation.
Disposition. Affirmed as modified in part; remanded with directions in part.
Quotations verified verbatim against the opinion
“a restitution fine imposed at the time probation is granted survives the revocation of probation.”
“the record is unclear as to whether defendant waived his right to accrue custody credits for the time he spent in the residential treatment programs.”