Opinion
A147217
06-23-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY NICHOLAS CAPURRO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR636417)
Defendant Anthony Nicholas Capurro appeals a judgment entered upon his plea of no contest to driving with a blood alcohol level of .08 percent or greater and driving with a suspended license. He contends he is entitled to presentence credits for time spent in a residential treatment program. Because defendant waived those custody credits as a condition of probation, we affirm the judgment.
I. BACKGROUND
Defendant entered his plea of no contest to felony driving with a blood alcohol level of .08 percent or greater (Veh. Code, § 23152, subd. (b)) and misdemeanor driving with a suspended license (Veh. Code, § 14601.2, subd. (a)) in 2013. The trial court sentenced him to the upper term of three years, suspended execution of sentence, and placed him on probation. Among the conditions of probation, defendant was to serve one year in county jail and thereafter be placed immediately in a residential treatment program.
At the sentencing hearing, the trial court asked defense counsel if defendant would "give a Johnson waiver if between custody and treatment it exceeds one year." Defendant agreed to waive his right to go to state prison if his custody time exceeded one year and to waive all custody credits while in treatment.
Defendant's probation was summarily revoked in October 2014, based upon allegations that he had submitted diluted chemical tests, failed to appear for testing, and failed to report to probation as directed. Defendant admitted the probation violation, and the trial court terminated probation and imposed the previously suspended sentence. The trial court originally awarded 415 days of custody credits, but, based on a recalculation by the probation department, reduced the credits to 385 days. The memorandum from the probation officer, which was the basis for the trial court's order, calculated custody credits to include the time from defendant's initial arrest in June 2013 until the time he was released from jail to go to the residential treatment program, and the time after he was arrested for the probation violation; defendant did not receive credit for the six months he spent in residential treatment. The memorandum noted that, on October 29, 2013, defendant had waived custody credits for the time he would spend in residential treatment.
The trial court appeared to believe, erroneously, that this waiver was the basis for the recalculation of the custody credits.
II. DISCUSSION
Defendant contends that, despite his waiver, he is entitled to custody credits for the time he spent in the residential treatment program.
Although defendant did not object on this basis in the trial court, we shall exercise our discretion to consider the issue.
A defendant is entitled to credit for presentence time spent in custody, including time spent in a residential rehabilitation facility as a condition of probation. (Pen. Code, § 2900.5, subd. (a).) However, it is well established that a defendant may waive the right to presentence credits as a condition of probation through a Johnson waiver. (People v. Johnson (1978) 82 Cal.App.3d 183, 188 (Johnson I).) "Briefly, the court in Johnson [I], supra, 82 Cal.App.3d 183, recognized that the interplay of Penal Code section 19.2's long-standing one-year cap on the time that can be served in county jail as a condition of probation for any single violation, and Penal Code section 2900.5's requirement that all local jail time served be credited against any subsequent county jail term imposed as a condition of reinstatement of probation, created a dilemma for sentencing courts in those cases in which the defendant had already served a year or more in county jail as a condition of probation before subsequently violating probation. In such cases, if the sentencing court desired to reinstate the defendant on probation, the interplay of the two statutes forced the sentencing court to choose between sentencing the defendant to state prison or imposing no additional jail time as a condition of reinstatement of probation—because applying custody credit for the earlier one year of county jail time against the new county jail term would result in the defendant's having already served the maximum one-year county jail term permitted under section 19.2 for the new violation. [Citation.] The Johnson [I] court therefore fashioned the rule that 'a defendant who has served one year in jail as a condition of probation and who thereafter violates probation may be sentenced to an additional period of up to one year in jail if he knowingly and intelligently waives the provisions of Penal Code section 2900.5.' " (People v Jeffrey (2004) 33 Cal.4th 312, 317 (Jeffrey).)
All further statutory references are to the Penal Code. --------
Our Supreme Court has endorsed this rule, holding that "a defendant may expressly waive entitlement to section 2900.5 credits against an ultimate jail or prison sentence for past and future days in custody. . . . . Because a defendant may give up the statutory right to custody credits, a trial court has discretion to condition a grant or extension of probation upon a defendant's express waiver of past and future custody credits." (People v. Johnson (2002) 28 Cal.4th 1050, 1054-1055 (Johnson II).) The high court later developed this rule further, concluding that when a defendant has been afforded the benefit of a Johnson waiver and a probation violation convinces the court that probation must be terminated and the defendant sentenced to prison, the defendant is not entitled to the benefit of the previously waived credits. (People v. Arnold (2004) 33 Cal.4th 294, 297-298, 307-309.) And in Jeffrey, the court ruled that "a Johnson waiver of future custody credits to be earned in a residential drug or alcohol treatment facility is a waiver of such credits for all purposes, including application of such credits to a subsequently imposed prison term in the event probation is revoked." (Jeffrey, supra, 33 Cal.4th at p. 318.)
Despite this clear authority, defendant contends he should have received credit against his sentence for his previously waived custody credits. He argues that, although a defendant may waive entitlement to custody credits, the court may not demand that he do so as a condition of a grant of probation. However, our high court has made clear that "a trial court has discretion to condition a grant or extension of probation upon a defendant's express waiver of past and future custody credits." (Johnson II, supra, 28 Cal.4th at p. 1055, fn. omitted.)
Defendant contends this result improperly subjects him to imprisonment for longer than the maximum term for his crimes. (In re McInturff (1951) 37 Cal.2d 876, 880-881; § 1203.1, subds. (a), (j).) We reject this contention. Johnson II holds that a waiver of custody credits "is proper and enforceable when a trial court in sentencing a defendant to a maximum term of imprisonment conditions a grant of probation upon the defendant's waiver of custody credits," even though the result might be that a defendant who violates probation is subject to "a total time in custody in excess of the maximum state prison term for the offense." (Johnson II, supra, 28 Cal.4th at pp. 1052, 1055; see also People v. Hilger (2005) 131 Cal. App.4th 1528, 1532 [following Johnson II and concluding it does not matter that appellant's waivers mean he might spend more time in custody than the statutory maximum for his offense].) Johnson II is dispositive.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Rivera, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Reardon, J.