Opinion
A099170.
7-14-2003
THE PEOPLE, Plaintiff and Respondent, v. DWAYNE STAMPS, Defendant and Appellant.
Defendant Dwayne Stamps appeals from a judgment upon his plea of no contest, contending that the trial court erred when it refused to give him presentence credits for all of his time served in the county jail. Defendant claims he did not make a knowing and intelligent waiver of credits as against a subsequently imposed prison term. We conclude that defendant was not entitled to the credits because he never expressly reserved the right to reclaim them against any future prison term.
I. FACTUAL AND PROCEDURAL HISTORY
On November 18, 1996, defendant was charged with two counts of sale or transportation of cocaine base (Health & Saf. Code, § 11352, subd. (a)) and the additional allegation that defendant suffered a prior conviction for the transportation or sale of a controlled substance, within the meaning of Health and Safety Code section 11370.2. On January 21, 1997, defendant pleaded no contest to one count of transportation or sale of cocaine base and admitted the prior conviction. The remaining count was dismissed.
On April 9, 1997, the trial court suspended imposition of sentence and placed defendant on three years probation on conditions including that he serve six months in the county jail and participate in a residential treatment program. Defendant was credited with 22 days time served and 10 days Penal Code section 4019 time.
All further statutory references are to the Penal Code.
On May 7, 1997, defendants probation was revoked when he failed to appear to serve his county jail sentence. On December 24, 1998, defendant admitted the probation violation. The trial court suspended execution of a four-year prison sentence and reinstated and extended probation for three years on condition that defendant serve an additional 30 days plus his original 180-day county jail sentence. Defendant was further ordered to enter a residential treatment program, and he agreed to waive credit for program time unless he successfully completed the program.
On March 26, 1999, defendants probation was again revoked, and a bench warrant issued when defendant walked away from his residential treatment program. Defendant admitted the violation on April 11, 2000. On May 9, 2000, the trial court again reinstated probation on the condition that defendant serve one year in the county jail. Defendant agreed to waive all presentence credits so that the court would have jurisdiction to impose a one-year county jail term. The court removed the drug treatment program requirement.
On March 26, 2002, defendants probation was revoked for a third time when he failed to appear for a meeting with his probation officer and tested positive for marijuana. Defendant admitted the probation violation on May 14, 2002. On June 11, 2002, the trial court imposed the previously suspended four-year prison sentence. Defendant objected to the calculation of credits, asserting that the probation report showed a total of 814 days of credit and that defendant did not make a knowing and intelligent waiver. This timely appeal followed.
II. DISCUSSION
The only issue on appeal relates to defendants waiver of his presentence custody credits. Defendant concedes that he is not entitled to credits for the time he spent in residential treatment because he had earlier waived those credits as a condition of probation. Defendant claims, however, his waiver of presentence custody credits on May 9, 2000, was not a knowing and intelligent waiver of credits. Rather, he contends his waiver was for the sole purpose of receiving a county jail term as a condition of having his probation reinstated and did not prospectively apply to a future prison term.
This issue of what constitutes a valid waiver is raised in the following cases currently pending before the California Supreme Court: People v. Arnold, review granted June 12, 2002, S106444; People v. Jeffrey, review granted June 12, 2002, S105978; and People v. Hilger (2003) 105 Cal.App.4th 202, review granted March 19, 2003, S113526.
Section 19.2 provides that a defendant may not be committed to a county jail term of more than a year as a condition of probation. A defendant, however, may validly waive custody credits in order to permit a court to reinstate probation on the condition that he serve a county jail term. (People v. Johnson (1978) 82 Cal. App. 3d 183, 187-188, 147 Cal. Rptr. 55 (Johnson).) Trial courts now routinely obtain Johnson waivers from defendants who are approaching the maximum time set forth in section 19.2. The waiver allows courts to reinstate probation on the condition that the defendants serve additional time in county jail, thus eliminating the "Hobsons choice of the `joint or a `straight walk." (Johnson, supra, at p. 187). As with the waiver of any significant right by a criminal defendant, a defendants waiver of the provisions of section 2900.5 must, of course, be knowing and intelligent. (People v. Johnson (2002) 28 Cal.4th 1050, 1055.)
Section 19.2 states in pertinent part: "In no case shall any person sentenced to confinement in a county or city jail . . . as a condition of probation upon conviction of either a felony or a misdemeanor . . . be committed for a period in excess of one year . . . ."
In People v. Burks (1998) 66 Cal.App.4th 232, 234, Division Three of the First Appellate District held that a defendant who waived custody credits could not, upon a subsequent probation violation, recapture those credits unless he limited the scope of the credit waiver. "If a defendant wants to restrict the waiver of custody credits to extend the jail time he can serve, but preserve the same credits for future use against prison time, the burden should be on the defendant to propose that to the sentencing court for its approval." (Id. at p. 236, fn. omitted.) In placing the burden on the defendant to specifically limit the scope of a credit waiver, the court reasoned that "nothing in the statutory scheme suggests that custody credits are kept in dual accounts, one for use against jail time and one for use against prison time. To the contrary, section 2900.5 treats all credits uniformly, wherever accrued and wherever applied. Therefore, a waiver of custody credits is presumptively applicable to any future term of imprisonment." (Burks , supra, at pp. 236-237.)
In People v. Zuniga (1980) 108 Cal. App. 3d 739, 166 Cal. Rptr. 549, the court similarly held that a defendant, who bargained for a probationary sentence by waiving the provisions of section 2900.5, could not set aside the waiver and renegotiate his sentence when he again violated probation. The court reasoned that a defendant cannot use his own misconduct as a basis for setting aside the waiver he executed as a condition for obtaining leniency in the first place. "Probation is a form of leniency which is predicated on the notion that a defendant, by proving his ability to comply with the requirements of the law and certain special conditions imposed upon him, may avoid the more severe sanctions justified by his criminal behavior. Once given the opportunity for lenient treatment the choice is his as to whether he merits being continued on probation." (Zuniga, supra, at p. 743.)
In People v. Harris (1987) 195 Cal. App. 3d 717, 240 Cal. Rptr. 891, the court reached a different result where the record was silent on the scope of the waiver. The Harris court held that a valid waiver of credits must be made with full awareness of its consequences, including the knowledge that the waiver applied against a prison term imposed for a subsequent probation violation. Because there was nothing in the record to indicate that the defendant was made aware that the waiver would apply against a state prison sentence, the court concluded that defendants Johnson waiver was not knowingly made. (Harris, supra, at pp. 724-725.) Other courts have adopted a similar case-by-case approach, looking at the particular facts to determine whether the defendant knew he was waiving credits against any eventual prison sentence. (See, e.g., People v. Burroughs (2003) 108 Cal.App.4th 728, 737 [finding an invalid waiver where the defendant was neither expressly nor implicitly informed that the waivers would apply to any future prison term]; People v. Salazar (1994) 29 Cal.App.4th 1550, 1553 [finding a valid waiver because the court informed the defendant he was waiving credits "`. . . for all time and for all purposes. "];People v. Ambrose (1992) 7 Cal.App.4th 1917 [finding a waiver where the court specifically told defendant he would not receive any credit against a prison sentence if he violated probation].)
We respectfully disagree with Harris and instead follow the analysis and reasoning set forth in Burks. As the Burks court explained, the "Harris rule improperly bestows a windfall on a defendant who repeatedly violates probation. . . ." (People v. Burks, supra, 66 Cal.App.4th at pp. 236-237.) "To determine whether a waiver is knowing and intelligent, the inquiry should begin and end with deciding whether the defendant understood he was giving up custody credits to which he was otherwise entitled. . . . Harris invites the defendant to claim the waiver was not knowing and intelligent because the court failed to remind him his waived credits would not be reinstated if he continued to violate probation. Such an admonition is illogical . . . ."
(Id. at pp. 236-237, fn. 3.)
Here, as in Burks, the record reveals that neither defendant nor his counsel suggested that there was any dispute or confusion concerning the scope of that credit waiver. Indeed, the record indicates that defendant clearly and unequivocally waived credits. The relevant colloquy is as follows: "THE COURT: All right. The Court at this time is going to reinstate the defendant on probation. . . . [P] First term and condition of his probation is hell serve one year in county jail. Mr. Stamps, right now you have accrued 340 days credit for time served. Do you understand that? [P] THE DEFENDANT: Yes, sir. [P] THE COURT: Do you want to waive or give up those credits so I have jurisdiction to sentence you to one year in county jail? [P] THE DEFENDANT: Yes, sir. [P] THE COURT: Pardon? [P] THE DEFENDANT: Yes, sir. [P] THE COURT: All right. That will be a 365-day county jail sentence. Im going to delete the Category 2 residential treatment program. . . . [P] Keep in mind that you are on a suspended state prison sentence, so if you violate the terms and conditions of your probation, thats where you are gonna go. Do you understand? [P] THE DEFENDANT: Yes, sir. [P] THE COURT: Do you accept those terms and conditions of probation? [P] THE DEFENDANT: Yes."
Moreover, this is not a situation where the defendant did not have an attorney to explain to him the scope of the credit waiver, a factor that might weigh against a finding of a knowing and intelligent waiver. In this situation, we conclude, as did the court in Burks, that a defendant who waives custody credit in order to receive a grant of probation properly bears the burden of establishing on the record that the waiver was limited in scope. (People v. Burks, supra, 66 Cal.App.4th at p. 236.) As previously demonstrated, there is nothing in the record before us to overcome the presumption that defendants credit waiver was applicable to any future term of imprisonment.
In his reply brief, citing the United States Supreme Courts decision in United States v. Olano (1993) 507 U.S. 725, 123 L. Ed. 2d 508, 113 S. Ct. 1770, defendant contends that the Burks court confuses waiver with forfeiture by requiring a defendant to timely assert that his credit waiver is limited in scope. To the contrary, the Burks court simply recognizes that a defendant, who wishes to assert at a subsequent hearing that his prior waiver was limited, bears the burden of so demonstrating. (People v. Burks, supra, 66 Cal.App.4th at p. 236.) The Olano courts statement that "forfeiture is the failure to make the timely assertion of a right, waiver is the `intentional relinquishment or abandonment of a known right "is of no assistance to defendant. (United States v. Olano, supra, 507 U.S. at p. 733.) Here, the record demonstrates that defendant knowingly waived his custody credits in order to be reinstated on probation.
Although we affirm the judgment, we note it is the better practice for the trial court to make clear that Johnson credit waivers are for all purposes.
III. DISPOSITION
By a separate order filed today, we summarily deny defendants petition for writ of habeas corpus, filed on June 5, 2003.
We concur: KAY, P.J., and REARDON, J.