Opinion
A129745
09-15-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID BRIAN ANDERSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.SCR562624)
I.
INTRODUCTION
Appellant David Brian Anderson appeals from the trial court's imposition of a seven-year state prison sentence without any credits for time spent in local custody. (Pen. Code, § 2900.5.) He contends on appeal that he did not knowingly and voluntarily agree to a seven-year sentence with a waiver of custody credits as part of his negotiated plea. We reject his contention, and affirm.
All further statutory references are to the Penal Code, unless otherwise indicated.
II.
PROCEDURAL BACKGROUND
In 2009, the Sonoma County District Attorney charged appellant with one felony count of theft of personal property (§§ 666, 484, subd. (a)), two felony counts of resisting an executive officer (§ 69), one misdemeanor count of battery upon a police officer (§ 243, subd. (b)), one misdemeanor count of resisting arrest (§ 148, subd. (a)(1)), and one misdemeanor count of battery (§ 242). The information also alleged that he had been convicted of two prior serious or violent felonies, within the meaning of the Three Strikes law (§ 1170.12), and that he had served five prior state prison sentences, within the meaning of section 667.5.
On October 30, 2009, appellant entered no contest pleas to all charges, and admitted all special allegations. The matter was continued for sentencing. In agreeing to the plea, appellant acknowledged that he could be sentenced up to 30 years to life in state prison, but that the court would consider a Romero motion at sentencing seeking the dismissal of the prior serious and violent felonies alleged under the Three Strikes law (§ 1385).
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
A sentencing hearing was held on February 18, 2010 , before the Honorable Julie Conger. Prior to the hearing, the county probation department submitted its sentencing report recommending that appellant be sentenced to state prison for 25 years to life. At the hearing, Judge Conger granted appellant's Romero motion, thus striking the two strike allegations which appellant had admitted. The court pronounced sentence, which included a six-year commitment to state prison, which the court felt was "merit[ed]." The court was then corrected by defense counsel who stated: "I thought we had an agreement formulated before that the sentence was going to be four years."
All subsequent unspecified date references are to the year 2010.
Judge Conger corrected herself, noting: "I think you're right. All right. [T]hat is correct. I wrote that in the file. I apologize. Yes, so that would be two years plus two years on each of the prior convictions, and I would strike the others for purposes of sentencing, so that would be four years state prison." Nothing was said by the prosecutor about the length of sentence. The judge also awarded custody credits totaling 456 days.
Just as the court was remanding appellant into the custody of the Sonoma County Sheriff for transportation to the Department of Corrections, appellant himself asked for, and was given, the opportunity to address the court. He implored the court to allow him the chance to attend a six-month program to address his drinking problem, rather than go back to prison where "[i]t's not going to do nothing to me." He then stated: "I'm willing to waive all the time that I have done so I can get into a program, get my life together, and if I get—if I make the program, I've got my life back. If I don't, then I've got four years with none of that credit."
Asking for clarification, the court asked, "[y]ou're telling me you're willing to waive the entire time that you've done—back time?" Appellant responded, "[y]es, I will." In urging the court to consider giving him a chance at a program, rather than sending him immediately to state prison, appellant reiterated: "And it's [the program] the last shot I have. I'll give all my time that I've done here since I've been here to get that shot. I either make it. Or if I don't make it, I've got to do the full thing, and I'd ask for this chance."
Judge Conger then asked counsel to approach the bench and an off-the-record discussion took place. The court then suggested that appellant and his counsel discuss the matter, and another off-the-record discussion took place.
Going back on the record, Judge Conger stated that she was impressed with appellant's seeming sincerity, including his expressed willingness to forgo all past credits in order to have this chance. She then stated, "I've indicated to your counsel that there would be a significantly higher sentence that would be suspended should I acknowledge your request. [¶] But I am persuaded that you are going to try to get into this program. If not, you will be committed to the previous sentence I have imposed, but I will give you an opportunity to do that." The case was then put over to March 23 for a further hearing on the matter.
The next hearing took place on March 26. At that time the court indicated that it had received confirmation that appellant had been accepted in a program known as the Jericho Project. The prosecutor reminded the court that appellant's Romero motion had been granted, and that appellant "had expressed a desire for treatment, and he would be willing to waive all treatment credits, all custody credits, and the Court said you agree to consider."
Judge Conger then stated her intention to place appellant on probation to enable him to get into the program. The following colloquy occurred:
"THE COURT: . . . Then I had also indicated there would be seven years prison suspended.
This is the same defense counsel who represented appellant at the time of his plea, and at the February 18 hearing.
"THE COURT: And the calculations on that would be sixteen
"MS. SHANAHAN:—sixteen, two, three, Your Honor.
This is the same prosecutor who represented the People at the time of appellant's plea, and at the February 18 hearing.
"THE COURT: —sixteen, two, three. [¶] So it would be—there are five prior prison priors, correct? So, that would be a mid term on all these matters, plus the five priors. That's how we get to the seven years suspended. All right.
"MR. ZAKASKY: Correct, Your Honor.
"THE COURT: All right. [¶] Mr. Anderson, we're finally able to resolve your case, sir. You are—I'm going to—the judgment will be seven years' [s]tate [p]rison. Execution of sentence is suspended for a period of three years, [during] which you are placed on felony probation. It's my understanding you're willing to waive the credits; is that correct, sir?
"[APPELLANT]: Yes."
The prosecutor again brought up the matter of a waiver of custody credits:
"THE COURT: I thought I did. And I will do that orally, again. [¶] Mr. Anderson, do you waive all the custody credits that you have done at this time?
"[APPELLANT]: Yes."
Appellant returned to court on August 20 before the Honorable Rene Chouteau, in connection with an allegation that appellant had violated the terms of his probation. A different prosecutor and a different defense counsel appeared at this hearing.
The transcript states "2009," but taken in context, it appears irrefutable that the year was 2010.
New defense counsel (Ms. Pozzi) indicated that appellant was "willing to admit," and that "[a]ccording to the universal . . . that's an indication that he has seven years, execution—" The seven-year term was confirmed by Judge Chouteau. The court and counsel then discussed the case history, noting that the probation department originally recommended "life in prison" based on appellant's prior strikes, but that Judge Conger "saw fit to give him a chance at Jericho and strike the strikes." The probation department recommended that the seven-year suspended sentence be imposed.
After Ms. Pozzi stated that appellant would admit the probation violation, the court addressed appellant:
"THE COURT: Sir, let me say, I realize seven years is a long time, but the real benefit you got here was from Judge Conger striking the strikes. Instead of being seven years, it would have been life."
The court went on to admonish appellant about the rights he would be waiving by admitting that he violated probation by being terminated from the Jericho Project. Appellant waived his rights, noting that he had discussed the case with Ms. Pozzi. The court accepted appellant's admission, revoked probation, refused to reinstate it, and went on to impose the seven-year state prison sentence.
Turning to the issue of credits, apparently the court and counsel did not have the benefit of the court reporter's transcript of the earlier hearing, although a "notation" reflected that both treatment and custody credits were waived at the February 18 hearing. The court continued the hearing as to the credit issue to enable counsel and the court to conduct further research.
A final hearing was held on September 13, this time before Judge Conger. After reading the transcript of the February hearing, defense counsel (Ms. Pozzi again) stated her opinion that while appellant indicated he was waiving his credits, "there was never a question posed to him nor an indication that we waived any credits if ultimately sent to state prison." Therefore, it was defense counsel's position that any waiver was not against a future prison sentence. The prosecutor disagreed and posed the rhetorical question: "[W]hy else would he waive credits if it's not towards a future prison sentence?"
The court sided with the prosecution's view noting that "the only meaning that can be attributed to the waiver of credits as reflected in the transcript . . . was regarding prison time, not jail time [alone]." Therefore, custody credits were denied, and this appeal followed.
III.
LEGAL ANALYSIS
Appellant contends that he did not intelligently and voluntarily waive his rights to custody and conduct credits, nor did he agree to be subject to a future seven-year state prison term with no credits if he violated his probation.
The precise issue raised by appellant with regard to his waiver of custody credits was decided in People v. Burks (1998) 66 Cal.App.4th 232 (Burks). In Burks, the defendant was granted probation on condition that he serve one year in jail, and that he would waive custody credits for that year served if he later violated probation. (Id. at p. 234.) After a third probation violation resulted in the court imposing a prison sentence, the defendant claimed he had not understood at the time he had waived custody credits that such waiver would apply to any future prison sentence imposed in the event he violated probation more than once. (Ibid.)
The Burks court rejected the defendant's contention. The court began: "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." (Burks, supra, 66 Cal.App.4th at pp. 236-237, fn. 3; see also People v. Arnold (2004) 33 Cal.4th 294, 309 (Arnold))It explained that "a custody credit waiver may be found to have been voluntary and intelligent from the totality of the circumstances, even if the sentencing court failed to follow the 'better course' of specifically advising the defendant regarding the scope of his waiver. . . ." (Burks, supra, at p. 235, citing and quoting People v. Salazar (1994) 29 Cal.App.4th 1550, 1554.)
The court concluded: "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. [¶] 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. . . . [A 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. [¶] Before Burks's waiver was accepted he faced a state prison term, which would have been reduced by his custody credits. He chose to give up those credits in return for the benefits of being reinstated on probation and serving time in jail instead of prison. Having declined one opportunity to offset his custody credits against a prison term, he could not reasonably expect to get another if he violated his terms of probation yet again. '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.' [Citation.] When a defendant repeatedly makes wrong choices in this situation, it is neither logical nor just to allow him to retract a custody credit waiver that enabled him to prolong his probation, leaving him no worse off after another violation than he was after the violation that prompted the waiver. [Citations.]" (Id. at pp. 236-237, fn. omitted.)
Burks, supra, 66 Cal.App.4th 232, was cited with approval by the Supreme Court in Arnold, supra, 33 Cal.4th at pages 305-309.
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It should be emphasized that the facts in this case are even stronger for supporting a finding of waiver than those in Burks. Here, it was appellant's own idea to offer a credit waiver in an effort to convince the trial judge to give him a chance at "a program" rather than to send him immediately to state prison. In fact, he made the offer twice: "I'm willing to waive all the time that I have done so I can get into a program, get my life together, and if I get—if I make the program, I've got my life back. If I don't, then I've got four years with none of that credit." (Italics added.)
Shortly thereafter, when the court expressed some initial interest in his offer, appellant reiterated his willingness to waive credits against a future state prison term, should he be unsuccessful in an alcohol treatment program: "And it's [the program] the last shot I have. I'll give all my time that I've done here since I've been here to get that shot. I either make it. Or if I don't make it, I've got to do the full thing, and I'd ask for this chance." (Italics added.)
Here, there was absolutely no need for an advisement because the genesis of the idea came from appellant himself. It is clear from the "totality of circumstances" that he knowingly and voluntarily waived any entitlement to credits against the seven-year state prison term conditionally imposed at sentencing. Accordingly, we reject his claim on appeal.
As to the underlying seven-year term, appellant's briefs are ambiguous as to whether he contends he did not agree to a suspended seven-year state prison term, or simply that he did not agree to such a term without credits for time served.
We have already rejected the latter contention. As to the former, we note that the record overwhelmingly supports the view that he did, in fact, agree to the seven-year term. At the beginning of the sentencing hearing, the trial court expressed its intention to sentence appellant to four years in state prison (after mistakenly stating it intended to impose a six-year term). However, it was at that point that appellant asked for the chance to address the court raising the issue of a waiver of custody credits; apparently to show his sincerity in making his request for a "program."
That entreaty resulted in two off-the-record discussions, one between counsel and the trial judge, which was immediately followed by another between appellant and his counsel. It was after these discussions that the court agreed to probation if appellant applied for, and was accepted into, a treatment program, confirming that the court had "indicated to your counsel that there would be a significantly higher sentence that would be suspended should I acknowledge your request." Sentencing was then continued for a month allowing appellant time to apply and be accepted into a suitable treatment facility.
While the "significantly higher sentence" was not articulated specifically at the February 18 hearing, it was at the next hearing when the probation grant actually was made. At the March 26 hearing, after being informed that appellant had been accepted into the Jericho Project, the court stated that a condition of probation would be the imposition of "seven years prison suspended." That term was confirmed by appellant's counsel who also had attended the earlier February 18 sentencing hearing, and by appellant himself. Later, when he admitted the probation violation at the August 20 hearing before a different judge, the court confirmed that the file indicated that appellant had agreed to a seven-year suspended sentence. No one suggested this was incorrect, including appellant who was specifically addressed about the burden of a seven-year sentence.
Therefore, to the extent appellant is claiming on appeal that he did not knowingly and voluntarily agree to a seven-year state prison sentence with or without a reduction for custody credits, the record does not support his claim.
IV.
DISPOSITION
The judgment and sentence are affirmed.
RUVOLO, P. J. We concur:
REARDON, J.
SEPULVEDA, J.