Opinion
A148128
10-27-2017
THE PEOPLE, Plaintiff and Respondent, v. GLEN HOLLIS SHAFER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1302509)
Defendant Glen Hollis Shafer appeals from the trial court's order sentencing him to a maximum prison term after he violated his probation for the fifth time. He argues the trial court erred when it imposed this maximum term without deducting 88 days he previously spent in custody after his fourth probation violation. As a condition to the reinstatement of probation after this fourth violation, defendant waived his credits for this time in custody "for all purposes." He now argues that regardless of his prior waiver, the trial court's failure to deduct these 88 days from his total sentence resulted in its imposition of a sentence that was beyond the maximum allowed by law and exceeded the court's jurisdiction. We conclude the trial court properly imposed the maximum sentence on defendant without deducting his 88 days in custody, which he previously waived as a legitimate condition of probation. Therefore, we affirm.
BACKGROUND
In June 2013, the Humboldt County District Attorney filed an information charging defendant with inflicting corporal injury on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)), making criminal threats (§ 422), and falsely imprisoning another by violence (§ 236). The information also alleged defendant suffered a prior prison term (§ 667.5, subd. (b)).
All statutory references are to the Penal Code unless otherwise stated.
In August 2013, defendant pleaded guilty to inflicting corporal injury and admitted the prior prison term allegation with the understanding that he would be placed on probation, but potentially faced a maximum of five years in prison. The court found him guilty, suspended imposition of sentence and placed him on probation for four years.
Thereafter, the court found four times that defendant had violated probation. It reinstated probation after each violation. Its reinstatement after the fourth violation was conditioned in part on defendant waiving "for all purposes" 88 days of custody credits. Specifically, at the fourth probation violation hearing in June 2015, defendant's counsel indicated defendant would admit to his probation violation and waive 88 days of custody credits with the understanding that probation would be reinstated. The court asked if this waiver was "for all purposes," including if defendant "goes to prison in this matter in the future, he would not have credits for . . . that time period?" Defendant's counsel replied in the affirmative. The court then advised defendant of his rights and said he faced a total of five years in prison if probation were revoked in the future; defendant indicated he understood this. The court said, "And you wouldn't have the credits that you are going to be waiving either that had been discussed." Defendant indicated he understood this. Defendant's counsel added that he believed defendant understood the nature of the credits waiver.
The court ordered the reinstatement of defendant's probation, subject to his waiver of the 88 days of custody credits and his serving 180 days in county jail (minus certain other credits), from which he could be released for entry into a suitable residential substance abuse program. The court also required defendant to complete such a substance abuse program, as well as a batterer's intervention program.
In March 2016, the court found defendant had violated his probation a fifth time. This time it terminated probation and imposed the maximum sentence: an upper term prison sentence of four years for the inflicting corporal injury conviction and one year for the prior prison term allegation. The court awarded defendant certain credits, but did not award him the 88 days of custody credits that defendant had previously waived. Defendant filed a timely notice of appeal regarding the court's order.
DISCUSSION
Defendant contends the trial court acted beyond its jurisdiction when it ordered him to serve a maximum prison sentence without deducting the 88 days he previously had spent in custody after his fourth probation violation, regardless of his previous waiver of credits for this custody time. He requests that we remand this matter to the trial court with instructions to deduct these 88 days from his total sentence. We conclude the trial court properly imposed a maximum prison sentence without deducting these 88 days under People v. Johnson (2002) 28 Cal.4th 1050 (Johnson II).
"A court is without authority to impose a sentence not prescribed by statute. [Citation.] To the extent that a judgment imposing a term of imprisonment contains unauthorized surplusage, it is void." (In re Andrews (1976) 18 Cal.3d 208, 212.)
A court does not have to immediately impose sentence in all cases, however. It may in granting probation "suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding the maximum possible term of the sentence . . . and upon those terms and conditions as it shall determine. The court . . . in the order granting probation and as a condition thereof, may imprison the defendant in a county jail for a period not exceeding the maximum time fixed by law in the case." (§ 1203.1, subd. (a).) Should a probationer "violate any of the terms or conditions imposed by the court in the matter, [the court] shall have authority to modify and change any and all the terms and conditions and to reimprison the probationer in the county jail within the limitations of the penalty of the public offense involved." (§ 1203.1, subd. (j).)
Any sanction imposed at a probation revocation hearing follows from the probationer's original conviction, and not from any new criminal allegations. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 348.) Further, the total number of days a defendant spends in jail before sentencing or as a condition of probation "shall be credited" against the defendant's "term of imprisonment." (§ 2900.5, subd. (a).) "If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served." (Ibid.) "Term of imprisonment" includes "any period of imprisonment imposed as a condition of probation or otherwise ordered by a court in imposing or suspending the imposition of any sentence" (Id., subd. (c).)
Nonetheless, courts may require defendants to waive their section 2900.5 "custody credits" as a condition of probation for a legitimate purpose. In People v. Johnson (1978) 82 Cal.App.3d 183 (Johnson I), the defendant was placed on probation on the condition that he serve one year in jail, the maximum jail time allowed by statute as a condition of probation. (Id. at p. 185; see § 19.2.) After serving virtually the entire year, he violated probation. The court sentenced him to prison, believing that sentencing him to another year in jail, as the defendant suggested, was beyond its statutory authority. (Johnson I, at p. 185.) The defendant appealed.
The appellate court concluded the trial court could sentence the defendant to another year in jail if, as a condition of probation, he knowingly and intelligently waived the custody credits as a condition of probation the custody credits to which he was entitled under section 2900.5. (Johnson I, supra, 82 Cal.App.3d at p. 188.) Thus, the "Johnson waiver" was established, i.e., a defendant may waive custody credits to which he or she is entitled under section 2900.5, "which enables a sentencing court to reinstate a defendant on probation after he or she has violated probation, conditioned on service of an additional county jail term, as an alternative to imposing a state prison sentence." (People v. Arnold (2004) 33 Cal.4th 294, 297-298 (Arnold).)
In Johnson II, supra, 28 Cal.4th 1050, our Supreme Court made clear the broad parameters of the Johnson waiver. There, the trial court sentenced the defendant to a maximum term of imprisonment, six years, but suspended execution of this sentence. Instead, it placed the defendant on probation for 36 months conditioned on his incarceration in jail until space became available in Turning Point, a residential drug treatment facility, as well as on his waiver of his section 2900.5 custody credits for any time he was to spend in both jail and the program if he later violated probation and was sent to state prison. (Johnson II, at p. 1052.) On appeal, defendant challenged the court's right to insist on such a waiver. (Id. at p. 1053.)
The Johnson II court, after favorably citing Johnson I and other cases, concluded "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. As the United States Supreme Court has observed, ' "[t]he most basic rights of criminal defendants are . . . subject to waiver." ' (United States v. Mezzanatto (1995) 513 U.S. 196, 201.) This is consistent with the well-established rule allowing ' "[a] party [to] waive any provision . . . intended for his benefit." ' [Citations.] 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.] 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 defendant's express waiver of past and future custody credits." (Johnson II, supra, 28 Cal.4th at pp. 1054-1055.)
The Johnson II court specifically considered the defendant's argument that the trial court exceeded its authority "because, after imposing the maximum prison term . . . , it required, as a condition of granting probation, that defendant give up entitlement to custody credits." (Johnson II, supra, 28 Cal.4th at p. 1055.) Thus, the Johnson II defendant argued, "were he to violate probation, he would face the full six-year prison sentence with no reduction for time spent in county jail or Turning Point, resulting in a total time in custody in excess of the maximum state prison term for the offense." (Ibid.) The court rejected this argument. (Ibid.)
Instead, the Johnson II court evaluated the defendant's waiver under the rule that a probation condition must serve a legitimate purpose. It determined the waiver had this purpose because it "was to give defendant an incentive to successfully complete the residential treatment program based on the knowledge that failure to do so would expose him to imposition of the six-year prison sentence unreduced by previously served custodial time. Here, defendant, who admittedly suffers from drug dependency, committed a serious residential burglary warranting maximum punishment, but the trial court's grant of probation gave him a chance to get off drugs and to avoid state prison. On these facts, we cannot say that the trial court's requirement of a waiver of custody credits as a condition of granting probation lacked any legitimate penal function." (Johnson II, 28 Cal.4th at pp. 1056-1057.)
Our Supreme Court subsequently developed this waiver rule further. It held "that 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." (Arnold, supra, 33 Cal.4th at p. 298.) In a companion case, it further held that a defendant may waive future credits to be earned while in a residential treatment facility for all purposes, including regarding any subsequently imposed prison term. (People v. Jeffrey (2004) 33 Cal.4th 312, 318 (Jeffrey).)
As for the waiver procedure itself, "[t]he better practice is for sentencing courts to expressly admonish defendants who waive custody credits under [Johnson I], 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.)
Despite this clear authority for courts to require the waiver of custody credits as a condition of probation even when also imposing a maximum sentence, defendant contends the trial court, when it sentenced him to a maximum prison term after his fifth probation violation, was required to credit him for his previously waived custody credits in order to avoid acting beyond its jurisdiction. In doing so, he posits an untenably narrow, inaccurate and unpersuasive interpretation of the court's holding in Johnson II.
According to defendant, despite its "broadly worded holdings," Johnson II was "limited to analysis of whether section 2900.5 prohibits defendants from waiving credits for time served as a condition of imposing probation. [Citation.] The opinion does not address questions related to whether other laws prohibit imposition of such waiver conditions. And, more importantly, . . . the opinion does not reach analysis of the legality of executing cumulative punishment that exceeds the maximum punishment provided for the crime. [Citation.] The opinion rejects addressing that question as that issue was not yet ripe for review under the circumstances of that case."
Defendant misinterprets Johnson II. He emphasizes the court's statement that the defendant made "no claim that, as a result of the waiver condition, the total time he will be required to spend in custody before sentencing and as a condition of probation will exceed the maximum term statutorily authorized for the crime he committed." (Johnson II, 28 Cal.4th at pp. 1057-1058, italics added.) The statement referred to a concern that was not raised by the facts in that case and is not raised by the facts here: that a trial court, as a condition of probation, might impose "an indefinite custodial term in a residential treatment program" even before any imposition and/or execution of a statutorily authorized prison sentence. (Id. at p. 1056.) An indefinite custodial term is not a risk when a trial court has already sentenced a defendant to a maximum prison term but conditions probation on a waiver of custody credits in an amount far less than this maximum term. Under the facts in this case and those in Johnson II, there was no possibility that the trial court would impose an indefinite custodial term as a condition of probation or otherwise.
Shortly after Johnson II was published, this court stated that the case "declined to discuss a split of appellate authority over whether trial courts can routinely require waiver of time credits beyond the statutory term in maximum-term cases." (People v. Juarez (2004) 114 Cal.App.4th 1095, 1098.) This issue is not implicated here. In analyzing the issue, the Juarez court wrote that "the penultimate sentence of the Johnson II opinion left open the possibility that a sentence exceeding the statutory maximum by reason of waived time-credits might still be challenged." (Id. at p. 1102.) With the benefit of cases that were unavailable to the Juarez court, Arnold, supra, 33 Cal.4th 294 and Jeffrey, supra, 33 Cal.4th 312, which were published later in the same year, we now disagree with our interpretation of Johnson II in Juarez. The Juarez quote from Johnson II improperly omits the limiting phrase we have italicized in our own quotation above. (See Juarez, at p. 1102.) Arnold and Jeffrey did not qualify or limit the term of sentence that could be imposed after a proper waiver of custody credits as a condition of probation. (See Jeffrey, at pp. 316-317 [proper waiver of local jail time custody credits for reinstatement of probation was a waiver "for all purposes" and applied in the event that a previously suspended state prison sentence was imposed].)
Defendant also attempts to distinguish Johnson II on the ground that the trial court here imposed a maximum prison sentence that was to be executed immediately and which did not include his waived custody credits, whereas in Johnson II the trial court imposed and suspended a maximum sentence and then accepted a waiver of custody credits as a condition of probation before execution of the sentence. Therefore, defendant contends, Johnson II "held that because the defendant had failed to show that the maximum sentence which had been imposed would ever be executed, the question of the consequences of the execution of such a sentence was not ripe for review."
Defendant's reading of Johnson II is simply incorrect. The Supreme Court did hold that a trial court could require waiver of custody time as a condition of probation even if this custody time, when added to an already imposed maximum sentence—albeit one that was suspended—exceeded the maximum sentence allowed by law. Indeed, the court stated the question before it as "whether imposition of a suspended maximum prison term precludes the trial court from requiring, as a condition of probation, that the defendant waive entitlement to section 2900.5 custody credits." (Johnson II, supra, 28 Cal.4th at p. 1056.) It answered that question in the negative. Further, the court expressly disapproved of this court's holding in People v. Tran (2000) 78 Cal.App.4th 383, stating:
"In Tran, the defendant . . . pleaded guilty to three counts of grand theft. The trial court imposed the maximum prison sentence, suspended its execution, and placed the defendant on five years' probation conditioned upon an 18-month county jail term, a waiver of future custody credits, and restitution to the banks . . . . Under protest, the defendant agreed to waive entitlement to credit for days in custody. On appeal, he challenged that aspect of the trial court's sentencing order as unauthorized, arguing that if he violated probation and was sent to state prison with no credit for the 18-month jail term, his total custodial time would exceed the maximum prison term. The Court of Appeal agreed. (Tran, supra, 78 Cal. App. 4th 383, 385-390.)
"We disagree with Tran, supra, 78 Cal. App. 4th 383, that a trial court, after imposing and suspending a state prison sentence for the maximum term allowed by law, may never condition a grant of probation on a waiver of the custody credits authorized by section 2900.5. In general, defendants may waive provisions that are intended for their benefit, and the provision of section 2900.5 allowing defendants to receive credits against an eventual sentence for time spent in custody before sentencing or while on probation is intended to benefit defendants, as we explained at pages 1054-1055, ante." (Johnson II, supra, 28 Cal.4th at p. 1057.)
Thus, defendant's contention that Johnson II did not address the issue in this case is simply wrong. As one appellate court later put it, as a result of Johnson II, "it does not matter that [a defendant's] waivers mean he might spend more time in custody than the statutory maximum for his offense." (People v. Hilger (2005) 131 Cal.App.4th 1528, 1532 (Hilger).
Defendant also relies on People v. Riolo (1983) 33 Cal.3d 223 to argue that his custody time constitutes part of his punishment for his crime and must be considered in formulating his total sentence. Riolo is inapposite. It preceded the establishment of the Johnson waiver and Johnson II, and does not address the waiver and probation issues addressed in those cases.
As defendant acknowledges, the circumstances before us are similar to those in Hilger. There, the trial court sentenced the defendant to an upper term of four years in state prison, suspended the sentence and placed the defendant on three years' probation. The trial court conditioned probation on the defendant's completion of a substance abuse treatment program and his waiver of credit for 169 days spent in presentence custody. Over the next few years, the court repeatedly revoked and then reinstated probation, and required that the defendant waive more credits for time spent in custody. Eventually, the court terminated probation and remanded the defendant to state prison to serve his upper-term sentence without awarding him custody credits he waived totaling 362 days. (Hilger, supra, 131 Cal.App.4th at pp. 1530-1531.)
The appellate court reversed the trial court's decision denying the defendant these custody credits because of its concerns about whether he waived these credits for all sentencing purposes. Our Supreme Court granted the Attorney General's petition for review and deferred action until it decided Arnold and Jeffrey, whereupon it remanded the case back to the appellate court for reconsideration. (Hilger, supra, 131 Cal.App.4th at p. 1531.)
On remand, the appellate court no longer had concerns about the scope of the defendant's waivers because "Arnold, supra, 33 Cal.4th 294, establishes that a trial court need not advise a defendant that a Johnson waiver ordinarily applies both to future confinement in county jail and state prison," and that "unless a defendant expressly limits his Johnson waiver, he waives use of his custody credits for all purposes." (Hilger, supra, 131 Cal.App.4th at p. 1532.) More to the point, the Hilger court concluded, "In [Johnson II], the trial court sentenced a defendant to the upper term in state prison, but suspended the sentence and put him on probation. As a condition of probation, the court required the defendant to waive the future custody credits he was likely to accrue while waiting in county jail for placement in the drug treatment center. Combined with his upper term sentence, the waiver resulted in the defendant potentially serving more time in custody for his crime than the maximum punishment established by the Legislature. Nevertheless, the Supreme Court approved such an outcome." (Ibid.) Based on this analysis, the Hilger court affirmed the trial court's ruling. (Id. at p. 1533.)
We agree with Hilger's interpretation of Johnson II. Here, defendant waived his 88 days of custody credits as a condition to the reinstatement of probation after his fourth probation violation. The record indicates he voluntarily and knowingly waived the credits for all purposes, including, as the court told him, in the event that he was later sentenced to prison for the maximum term. Further, defendant's waiver was for a legitimate penal function: to enable the trial court to impose on defendant a further period in county jail notwithstanding four prior probation violations and to incentivize him to successfully complete both a substance abuse and batterer's intervention program as part of his probation. (See Johnson II, supra, 28 Cal.4th at p. 1056.) Defendant's argument that his circumstances are not governed by Johnson II is without merit.
Defendant raises a number of scattershot arguments for the first time in his reply brief, such as that permitting a court to add punishment in a revocation hearing would " 'undermine the function of the criminal trial process' "; that he is entitled to a jury trial regarding any punishment imposed that exceeds the maximum punishment prescribed for his crime; and that treating credits as waived "alters the definition of 'term of imprisonment' contained in section 2900.5 in a way that effectively increases what the law otherwise states is the maximum term of imprisonment." We disregard these arguments as tardily made without defendant showing good reason for doing so. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.)
We also have no need to further discuss defendant's contention that the People are making improper policy arguments in light of our conclusion that Johnson II and its progeny govern here.
DISPOSITION
The order appealed from is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.