People v. Hense CA3, C081260

In Sept. 2012 Mark Hense pleaded no contest to evading a peace officer and DUI, and admitted two prior prison-term enhancements; he received suspended execution and five years’ formal probation.
In Aug. 2013 the court revoked and reinstated probation and ordered Hense to complete the Jericho Project, a residential drug treatment program, as a condition of probation.
In Dec. 2015 probation was revoked after a violation and Hense was sentenced to five years in prison; the court awarded 319 days actual custody plus 318 days conduct credit.
Hense requested custody credit for time spent in the Jericho Project (Aug 16, 2013–Aug 16, 2014); the trial court denied that request, believing it was customary that probationary participants do not get credits.
The record contained no express, knowing, intelligent waiver of section 2900.5 custody credits for the Jericho Project period; Hense had waived credits earlier for a different program (Teen Challenge) but not for Jericho.
The Court of Appeal held the trial court erred and awarded Hense an additional 366 days of custody credits, directing an amended abstract of judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Hense was entitled to custody credits under Penal Code § 2900.5 for time in the Jericho Project	People conceded the trial court erred in denying credits once no valid waiver existed	Hense argued he did not knowingly waive section 2900.5 credits for time spent in Jericho and is entitled to credit	Court held Hense was entitled to 366 additional days of presentence custody credits because no knowing, intelligent waiver of § 2900.5 existed
Whether a court may rely on community practice or an unstated intention to find a waiver of custody credits	People relied on trial court’s view that it was "not normal" to award credits and that judges intend to give a benefit without credits	Hense argued practice or unstated intention cannot substitute for a knowing, intelligent waiver	Court held practice or implicit intention cannot replace an express or otherwise provable knowing and intelligent waiver of § 2900.5 credits

People v. Jeffrey, 33 Cal.4th 312 (explaining § 2900.5 applies to custody in residential treatment when imposed as condition of probation)
People v. Arnold, 33 Cal.4th 294 (discussing requirements for knowing, intelligent waiver of § 2900.5 credits)
People v. Johnson, 82 Cal.App.3d 183 (defining Johnson waiver concept)
People v. Taylor, 119 Cal.App.4th 628 (a sentence failing to award mandated custody credit is unauthorized)
People v. Urke, 197 Cal.App.4th 766 (awarding credits where court failed to advise defendant of relinquishment of § 2900.5 rights)