People v. Hense CA3

Filed 7/18/16 P. v. Hense CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE, C081260

Plaintiff and Respondent, (Super. Ct. No. 12F4836)

v.

MARK ANTHONY HENSE,

Defendant and Appellant.

In September 2012, defendant Mark Anthony Hense pleaded no contest to evading a peace officer (Veh. Code, § 2800.2) and driving under the influence (Veh. Code, § 23152, subd. (a)). He also admitted the allegations that he had served two prior prison terms. (Pen. Code, § 667.5, subd. (b).)1 The trial court sentenced defendant to an aggregate term of five years eight months (five years in this case, plus eight months in Shasta County case No. 12F1206), but suspended execution of the sentence and placed

1 Undesignated statutory references are to the Penal Code.

1

him on five years of formal probation. In August 2013, the trial court revoked and reinstated defendant’s probation with the condition that he complete the Jericho Project, a residential drug treatment program. In December 2015, following a probation violation, defendant’s probation was revoked and he was sentenced to five years in prison. On appeal, defendant contends, and the People concede, the trial court erred in refusing to award him custody credits for the time he spent in the Jericho Project. We agree and shall award defendant an additional 366 days of custody credits. As modified, the judgment is affirmed. I. DISCUSSION Citing section 2900.5, defendant contends that he is entitled to custody credits for the time he spent in the Jericho Project. That section provides, in pertinent part: “In all felony and misdemeanor convictions, . . . when the defendant has been in custody, including . . . any time spent in a . . . rehabilitation facility . . . or similar residential institution, all days of custody of the defendant . . . shall be credited upon his . . . term of imprisonment.” (§ 2900.5, subd. (a); see People v. Jeffrey (2004) 33 Cal.4th 312, 318 [the provisions of section 2900.5—entitling a defendant to credits against a term of imprisonment for days spent in custody before sentencing as well as those served after sentencing as a condition of probation—apply to custodial time in a residential treatment facility].) “A sentence that fails to award legally mandated custody credit is unauthorized.” (People v. Taylor (2004) 119 Cal.App.4th 628, 647.) “A Johnson[2] waiver is a waiver of a statutory right to credit for time served against a subsequent county jail or state prison sentence pursuant to section 2900.5.” (People v. Arnold (2004) 33 Cal.4th 294, 307, fn. added.) A Johnson waiver not only applies to presentence jail time custody credits but also to future custody credits to be