Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-508836
Banke, J.
After defendant Travis Birch Crenshaw pled guilty to one count of burglary (Pen. Code, § 459), the trial court sentenced him to four years in prison, but stayed execution and granted probation. The terms and conditions of probation included that defendant serve a year in county jail and complete a residential treatment program, waiving credit for time served in the program. After defendant violated and was restored to probation several times, the court ordered execution of the four-year prison sentence, awarding 487 days of credit, which did not include credit for the time defendant spent in the residential treatment program. Defendant now contends he did not knowingly and intelligently waive in-custody credit for the 31 days he spent in the program. We affirm the judgment.
All further statutory references are to the Penal Code.
Factual and procedural background
On March 17, 2007, defendant and several other young men entered the home of a 73-year-old woman, ransacked it, and took numerous items of jewelry including her wedding and engagement rings, prescription medication, and alcohol. On May 24, 2007, the Sonoma County District Attorney charged defendant with: (1) residential burglary (§ 459) and alleged the victim was over 65 years of age (§ 667.9, subd. (a)); (2) unlawful receiving, selling or holding stolen property (§ 496, subd. (a)); and (3) theft against an elderly victim (§ 368, subd. (d)).
On September 17, 2007, defendant pled guilty to one count of burglary, with the understanding the court would dismiss the remaining counts at the time of sentencing. Defendant signed a waiver of his Boykin/Tahl rights, and the court found the waiver was knowing, intelligent and voluntary. At the time of his plea, the court explained to defendant he had committed a “serious” crime, but the court had not ruled out any sentencing options, including probation.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
At defense counsel’s request, the court referred defendant to the California Department of Corrections and Rehabilitation (CDCR) for a diagnostic study and evaluation of suitability for probation. (§ 1203.03.) The CDCR evaluator found defendant has borderline intellectual function, some memory deficits, and an ongoing problem with alcohol and marijuana abuse. The evaluator also reported defendant’s “cognitive functions were adequately developed, and... his level of conceptual thinking, reasoning, cognitive awareness and ability to comprehend were adequate for the formation of good judgment.” The evaluator found “no evidence of serious psychological impairment” or other psychological factors relevant to the recommendation for suitability for probation. The associate warden recommended state prison because of the seriousness of the offense, the risk defendant posed to the community, and the importance of holding him accountable for his actions.
The probation officer recommended the court deny probation and impose the aggravated term of six years. The probation officer noted probation could be granted only if the court found unusual circumstances pursuant to section 462, subdivision (a). The probation officer acknowledged defendant was only 21 years old and had an alcohol and marijuana abuse problem, but observed he had failed in substance abuse treatment and performed unsatisfactorily when placed on juvenile probation for a juvenile adjudication for a section 459 violation.
At the sentencing hearing on February 25, 2008, defense counsel pleaded with the court to give defendant “one chance at probation, one opportunity to show that he can go through drug and alcohol treatment” and counseling. The court acknowledged the severity of the crime would normally warrant a prison commitment. Nevertheless, it decided to give defendant “one chance at probation” because he “has had some developmental challenges and he is very young, ” but warned him if he were unsuccessful on probation he would go to prison. To underscore the point the court imposed a prison sentence, and selected the midterm of four years.
The court suspended execution of the prison sentence and placed defendant on probation for three years, the terms and conditions of which included that he serve one year in county jail and subsequently complete a residential treatment program. The court informed defendant he would be required to remain in custody until a place in the treatment program became available, but had the right to go to prison if his time in jail exceeded one year. The court asked if he waived that right, and defendant responded he did. The probation officer, whose report had expressed deep skepticism about defendant’s ability to comply with probation terms without adequate structure or incentive, interjected: “We request he waive his credits while he’s in treatment.” The court agreed with this suggestion, and asked defendant: “During the time you’re in residential treatment you have to waive your custody credits. Do you waive those credits?” Defendant responded, “Yes.” Pursuant to the plea, the court dismissed the remaining counts.
Defendant served the county jail time. He then spent from June 11, 2008 to July 11, 2008, in a residential treatment program. After his release, he violated probation three times. The third violation occurred on June 3, 2009, when defendant was arrested for consuming alcohol in a public park and while he was awaiting sentencing for his second violation. The court revoked probation and ordered execution of the previously imposed prison sentence. The court awarded credits totaling 487 days, consisting of 325 days of actual custody and 162 days of conduct credit, but no credits for the 31 days defendant had spent in the residential treatment program.
Analysis
Defendant acknowledges he expressly waived credits for the time the court ordered him to spend in a residential treatment program following service of the county jail term. He nonetheless contends he should be relieved of his waiver and awarded additional credits against the prison term for the 31 days in the residential treatment program. He argues his waiver was not knowing and intelligent because: (1) The court did not inform defendant he was statutorily entitled to credit for time in residential treatment nor did it explain if defendant failed on probation he would not receive credit for that time against the prison term; and (2) Given defendant’s “cognitive deficits” he did not understand what he was giving up. Under the totality of the circumstances, we conclude defendant’s waiver was knowing and intelligent and he is bound by it.
A defendant is entitled to custody credits pursuant to section 2900.5 for time spent in a residential treatment program, but he may waive these credits. (People v. Johnson (2002) 28 Cal.4th 1050, 1053-1054 (Johnson).) “A waiver of custody credits when probation is conditioned upon completion of a residential treatment program serves as an ‘incentive’ for the defendant and has the ‘salutary goal [of] insuring optimum chances of success in a treatment program, while reserving an appropriate sentence if, despite the opportunity received, the treatment program and probation are not completed.’ ” (People v. Thurman (2005) 125 Cal.App.4th 1453, 1460.)
In People v. Arnold (2004) 33 Cal.4th 294 (Arnold), the Supreme Court held “when a defendant knowingly and intelligently waives jail time custody credits after violating probation in order to be reinstated on probation and thereby avoid a prison sentence, the waiver applies to any future use of such credits should probation ultimately be terminated and a state prison sentence imposed.” (Id. at p. 298.) In the companion case, People v. Jeffrey (2004)33 Cal.4th 312 (Jeffrey), the court also specifically held a knowing and intelligent “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.” (Id.at p. 318.)
“ ‘As with the waiver of any significant right by a criminal defendant, a defendant’s waiver of entitlement to section 2900.5 custody credits must, of course, be knowing and intelligent.’ [Citation.] 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 otherwise entitled under section 2900.5.” (Arnold, supra, 33 Cal.4th at. p. 308.)
The mere failure of a court explicitly to advise a defendant of a statutory right to custody credits, or to admonish that the waiver will apply in the event the suspended prison term is later executed, does not invalidate the waiver. Even when a defendant waives an important constitutional right, the absence of specific admonitions or explanations of the rights waived does not automatically invalidate the waiver, if the totality of the circumstances otherwise show the waiver was knowing and intelligent. (People v. Howard (1992) 1 Cal.4th 1132, 1175; People v. Murillo (1995) 39 Cal.App.4th 1298, 1304; People v. Salazar (1994) 29 Cal.App.4th 1550, 1554, fn. 1.) Here, the waiver concerns only a statutory right to credits. (People v. Salazar, supra, at p. 1554.) As the Supreme Court recognized in Arnold and Jeffrey, the “ ‘better practice is for sentencing courts to expressly admonish defendants who waive custody credits..., that such waivers will apply to any future prison term should probation ultimately be revoked and a state prison sentence imposed. [Citations.] A sentencing court’s failure to include such an explicit advisement will not, however, invalidate a Johnson waiver by which the defendant is otherwise found to have knowingly and intelligently relinquished his or her right to custody credits under section 2900.5.’ (Arnold, supra, 33 Cal.4th at p. 309.)” (Jeffrey, supra, 33 Cal.4th at pp. 318-319.) “A defendant entering a straightforward and unconditional waiver of section 2900.5 credits has no reason to believe that the waiver is anything other than a waiver of such credits for all purposes.” (Arnold, at p. 309.) When the record does not affirmatively indicate that, at the time defendant entered the waiver, he believed he would be able to recapture the waived custody credits to reduce a possible future prison term, “the waiver of credits must be presumed to be a waiver of credits for all purposes.” (Jeffrey, at p. 320; see also People v. Burks (1998) 66 Cal.App.4th 232, 236-237 [“a waiver of custody credits is presumptively applicable to any future term of imprisonment”].)
Here, nothing in the record indicates defendant was unaware he was entitled to credit for time in a residential treatment facility, or believed he could recapture the waived credits if he failed on probation and the court ordered him to serve the prison sentence. No doubt the trial court could have made a better record by expressly advising defendant he was entitled to credit “ ‘on a day-for-day basis for the time spent in the [drug treatment] program, ’ ” and asking whether defendant had discussed a credit waiver with his attorney and whether defense counsel joined in the waiver. (Jeffrey, supra, 33 Cal.4th at p. 319.) Nonetheless, if other circumstances demonstrate the waiver was knowing and intelligent, defendant “should not be permitted to attack his waiver by faulting the court for failing to foresee his recidivism and warn him of its consequences.” (People v. Burks, supra, 66 Cal.App.4th at p. 237.)
Here, other circumstances leading to the waiver support the conclusion defendant knowingly and intelligently waived credit for time in the residential treatment in order to avail himself of the leniency of a grant of probation. This was a case in which, as the probation report noted, the severity of the offense warranted denial of probation in the absence of unusual circumstances. Nevertheless, at the time of the entry of the plea the court did not rule out probation, and defense counsel launched a vigorous and ultimately successful effort to persuade the court, against the odds, to grant probation. This effort included defendant’s assurance in his interview with the probation officer he was willing to comply with all terms of a potential grant of probation “including the possibility of participating in residential substance abuse treatment.” Defendant told the probation officer: “ ‘I’m willing to do whatever it takes.’ ” It simply defies credulity that defense counsel, who otherwise vigorously and competently represented defendant, did not discuss with defendant the possibility he might have to waive credits to persuade the court to grant probation and give him another chance to address his substance abuse problems. In any event, in the absence of some affirmative indication in the record on appeal that defendant did not receive proper advice about the scope and effect of such a waiver we must assume he did. (People v. Black (2009) 176 Cal.App.4th 145, 153.)
Our conclusion that defendant understood what he was doing is further reinforced by his statement to the probation officer that he was “ ‘willing to do whatever it takes’ ” and the alacrity of defendant’s agreement to waive credits. When the probation officer requested the court to obtain defendant’s waiver of credits for the time in residential treatment, defense counsel did not raise any objection, or express surprise. Defendant also unhesitatingly agreed without any request for clarification or indication he did not understand. Defendant and his counsel clearly understood it was an uphill battle to persuade the court he could successfully comply with the terms of probation in light of defendant’s prior poor performance on juvenile probation and the opinion of the probation department and the CDCR that he was not a suitable candidate for probation. These circumstances demonstrate defendant willingly and knowingly agreed to the waiver of credits because it was a small price to pay in order to obtain the very substantial benefit of a grant of probation instead of an immediate prison term.
Finally, we reject defendant’s assertion his cognitive and memory deficits are so severe that he could not knowingly and intelligently waive credits for time in a residential treatment program. Despite defendant’s borderline intellectual function and memory deficits, the CDCR evaluator found defendant’s “cognitive functions were adequately developed, and... his level of conceptual thinking, reasoning, cognitive awareness and ability to comprehend were adequate for the formation of good judgment.” Moreover, defendant does not claim his cognitive deficits precluded him from knowingly and intelligently waiving important constitutional rights upon entry of the guilty plea. Instead, all too conveniently, now that he failed on probation and the court ordered him to serve the prison term, he asks this court to conclude his cognitive deficits impaired only his ability to understand the waiver of credits. We find this claim of selective impairment implausible. Defendant was competently and vigorously represented by counsel, and defense counsel never expressed any concern about defendant’s ability to understand the proceeding or make informed decisions. Defendant himself spoke intelligently on his own behalf at the sentencing hearing. He also wrote several letters to the court which, other than a few spelling errors, were cogent and displayed a complete understanding of the proceedings, his substance abuse problems, and his need for treatment. In light of defendant’s unquestioned ability to understand and waive important constitutional rights for the purpose of entering a guilty plea, and to speak and write cogently on his own behalf, we fail to see how his cognitive deficits could render him unable to understand a straightforward waiver of credits for time in a residential treatment program. The record before us demonstrates he was capable of understanding that, even if he waived credits for the time spent in residential treatment, he would still benefit from participation in treatment by learning skills to help him stay clean and sober and avoid repetition of behavior that otherwise would inevitably lead to incarceration.
Disposition
The judgment is affirmed.
We concur: Marchiano, P. J.Dondero, J.