Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. Nos. SS081435A, SS082825A.
Duffy, J.
Defendant Royce Dean Curl pleaded no contest to possession for sale of a controlled substance (MDMA, or ecstasy) in Case Number SS081435A. He also pleaded no contest to transportation for sale of a controlled substance (cocaine) and resisting a peace officer in consolidated Case Number SS082825A. In April 2009, the court suspended execution of sentence in both cases and placed defendant on three-years’ probation. After petitions alleging probation violations were filed in both cases, the court sustained the petitions. In December 2009, the court reinstated defendant’s probation in Case Number SS081435A, after it confirmed that defendant waived all custody credits to which he was otherwise entitled. Further probation violation petitions were filed, which the court sustained in April 2010. After the court denied defendant’s motion to set aside his waiver of custody credits, it executed the prison sentence of three years and eight months that it had previously imposed and suspended in the two cases.
Defendant claims on appeal that the court erred in denying his request to set aside the waiver of 513 days’ custody credits. He claims that there was never a voluntary and intelligent waiver of such credits and that he should have been granted those credits in connection with the imposition of the sentences in the two cases. We conclude that the court did not err by failing to set aside the waiver of defendant’s custody credits. We therefore will affirm the judgment.
Because this appeal concerns only the validity of defendant’s waiver of custody credits, the facts underlying the convictions have little bearing on the issues before us, and we therefore present an abbreviated summary of them from the probation reports.
I. MDMA and Cannabis Possession Case (No. SS081435A)
On April 21, 2008, Salinas police officers made a traffic stop on a car driven by defendant because his passenger was not wearing a seatbelt. Defendant advised the officers that he was on parole. During the stop, defendant’s parole agent, who happened to be passing by, stopped. After defendant got out of his car, a search of his person yielded over $400 in cash and a search of the car yielded two dark brown rocks suspected to be concentrated cannabis. Defendant, who was unemployed, refused to explain to his parole officer how he had come to be in possession of the cash. A later search of defendant’s home uncovered a baggie in the pocket of a jacket containing 22 MDMA tablets.
II. Cocaine and Marijuana Possession Case (No. SS082825A)
On November 23, 2008, California Highway Patrol officers made a traffic stop after observing that the driver of the car, defendant, appeared not to be wearing a seatbelt. Upon speaking with defendant, the officers immediately smelled a strong marijuana odor from the car and saw marijuana on the center console. During a search of defendant’s person, the officers found a plastic baggie. When they tried to remove it, defendant fled. After giving chase, the officers apprehended defendant; he resisted and the officers used a stun device and ultimately took defendant into custody. The officers found the baggie, which contained 0.15 grams of cocaine.
III. Probation Violations
On June 23, 2009, defendant tested positive for marijuana use. He admitted having used marijuana while he was housed in the Monterey County Jail. He again tested positive for marijuana use on August 26, 2009, and admitted having used the drug the day prior. Defendant failed to register with the City of Los Angeles as a convicted drug offender and failed to report to the Los Angeles County Probation Department for supervision on behalf of the Monterey County Probation Department.
In December 2009, defendant reported to the Monterey County Probation Department, after his release from jail, and was told by his probation officer to make telephone contact with her every Monday until otherwise instructed. Defendant failed to make contact with his probation officer on a weekly basis in February 2010 and failed to report to her for that month.
PROCEDURAL BACKGROUND
On October 29, 2008, defendant was charged by a three-count information in case number SS0801435A with possession of a controlled substance (MDMA) for sale, a felony (Health & Saf. Code, § 11378; count 1); possession of a controlled substance (MDMA), a felony (Health & Saf. Code, § 11377, subd. (a); count 2); and possession of concentrated cannabis, a misdemeanor (Health & Saf. Code, § 11357, subd. (a); count 3). The information contained the further allegations that defendant had suffered a prior felony conviction for which he had served a prison term within the meaning of Penal Code section 667.5, subdivision (b); and a prior conviction of a violation of Health and Safety Code section 11351.5 within the meaning of Health and Safety Code section 11370.2, subdivision (a).
All further statutory references are to the Penal Code unless otherwise stated.
On November 25, 2008, defendant was charged by complaint in case number SS082825A with transportation of a controlled substance, cocaine, a felony (Health & Saf. Code, § 11352, subd. (a); count 1); possession of a controlled substance, cocaine, a felony (Health & Saf. Code, § 11350, subd. (a); count 2); resisting a peace officer, a misdemeanor (§ 148, subd. (a)(1); count 3); and possession of one ounce or less of marijuana while driving, a misdemeanor (Veh. Code, § 23222, subd. (b); count 4). The complaint included special allegations that defendant had suffered a prior conviction of a violation of Health and Safety Code section 11351.5 within the meaning of Health and Safety Code section 11370.2, subdivision (a); had been released on bail at the time of the commission of the current offense (§ 12022.1); and had suffered a prior felony conviction for which he had served a prison term within the meaning of section 667.5, subdivision (b).
The case was later certified to superior court on the existing complaint.
On March 3, 2009, defendant entered conditional pleas of no contest (nolo contendere) to count 1 in case number SS0801435A, and to counts 1 and 3 in case number SS082825A. The pleas were entered with the understanding that the court would suspend execution of a prison sentence of three years and eight months and that the remaining counts and allegations in both cases would be dismissed. On April 21, 2009, the court imposed a prison sentence of three years, eight months in connection with the conviction in case number SS0801435A, but suspended execution of the sentence and granted probation for a period of three years. On the same date, the court imposed a three-year prison sentence in connection with the convictions in case number SS082825A, but suspended execution of the sentence and granted probation for a period of three years.
In August 2009, a petition was filed in both cases, alleging that defendant had violated the terms of his probation in four respects, namely, twice testing positive for marijuana, failing to register in Los Angeles as a convicted drug offender under Health and Safety Code section 11590, and failing to report to the Los Angeles County Probation Department. In October 2009, the court after a hearing found the existence of three of the four probation violations. On December 10, 2009, the court entered an order in Case Number SS0801435A revoking and reinstating probation on the same terms and conditions, indicating that “[d]efendant waives all custody credits permanently.” The court also revoked and reinstated probation on the same terms and conditions in case number SS082825A.
In February 2010, a second petition was filed in both cases, alleging that defendant had violated the terms of his probation in two respects, namely, failing to report on a weekly basis to his probation officer, and failing to report to the probation department for the month of February 2010. In April 2010, the court after a hearing found the existence of the two probation violations. Defendant filed a motion to set aside a waiver of custody credits. The court heard and denied the motion on June 8, 2010. On the same day, the court revoked probation in both cases and executed the previously imposed three-year prison sentence in case number SS082825A, and eight-month prison sentence in Case Number SS0801435A. Defendant filed a timely notice of appeal.
DISCUSSION
I. Waiver of Custody Credits
A. Background
In October 2009, after the court sustained the allegations of the first probation revocation petition, the court referred the matter to the probation department for the preparation of a supplemental report. In her supplemental report, the probation officer, April Irving, although acknowledging the existence of defendant’s violations of probation conditions, recommended to the court that he “be given one last opportunity on Probation.” In the “recommendation” section of the supplemental report in Case Number SS0801435A, Irving indicated that one of the conditions of probation be that “[d]efendant waive all custody credits permanently.”
At the sentencing hearing on December 10, 2009, the court’s first inquiry was whether defendant and his counsel had “reviewed... and considered” the supplemental probation report. Defense counsel responded in the affirmative. The prosecution indicated its opposition to Irving’s recommendation of probation, arguing that given defendant’s having served a prior prison term for a drug offense and his violations of the terms of probation, the court should execute the prison term previously imposed and suspended. Thereafter, defense counsel, arguing that the court should adopt the probation officer’s recommendation, noted: “There is a recommendation [in the supplemental report] that [defendant] waive credits. Mr. Curl is in agreement with that. We have discussed that, and he does believe that he will be able to comply with all his probation orders at this time, and he understands that the need to work more closely with Ms. Irving, also.”
Immediately after defense counsel spoke, the court then indicated to defendant, “Well, I think that Ms. Irving is really giving you a chance, Mr. Curl. [¶]... [¶] What that basically means, and you know this, is that if you violate your probation and that particular petition is sustained, you’re on a bus to prison. And Probation here is basically saying, let’s give him another chance. And that’s unusual.” Defendant indicated that he understood what the court was telling him. After admonishing defendant at some length that the consequence of any further probation violations would be his being sent to prison, the court indicated that probation would be revoked and reinstated, and that “[d]efendant to serve 513 days in the Monterey County jail, credit for time served of 513, 343 actual plus 170 good time/work. [¶] You waive all those credits permanently. Agreed?” Defendant responded, “Yes, sir.” The court then asked defense counsel if she agreed, to which she responded, “Yes, all credits.”
Defendant argues that there was no valid waiver of custody credits that occurred at the December 2009 sentencing hearing. He argues that he “did not knowingly and intelligently waive his credits because the court did not conduct a sufficient voir dire to ensure that he knew what rights he was waiving and that he actually intended to waive them. Further, [defendant] did not execute any written document which indicated such a knowing and intelligent waiver.” Defendant asserts that, although custody credits may be waived, such a waiver cannot be found here because of the absence of evidence that he knowingly and voluntarily did so.
B. Applicable Law
Criminal defendants convicted of felonies are entitled to credit for time spent in custody prior to sentencing or as a condition of probation (§ 2900.5), and to credit for good conduct and work performed during presentence custody (§ 4019). A defendant may specifically waive the right to custody credits under section 2900.5, provided that waiver is voluntarily and intelligently made. (People v. Johnson (1978) 82 Cal.App.3d 183, 187-188.) Such a “Johnson waiver, ” as our high court has explained, is a procedure by which “a sentencing court [is able] to reinstate a defendant on probation after he or she has violated probation one or more times, conditioned on service of an additional county jail term, ...” (People v. Jeffrey (2004) 33 Cal.4th 312, 315 (Jeffrey).) A Johnson waiver thus allows a court, faced with a defendant’s probation violation and as an alternative to revoking probation and imposing a state prison sentence, to reinstate probation, conditioned on service of additional county jail time, without running afoul of the sentencing proscriptions of section 19.2. (Jeffrey, at pp. 315, 316.)
“(a) In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment.... [¶]... [¶] (d) It shall be the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section. The total number of days to be credited shall be contained in the abstract of judgment provided for in Section 1213.” (§ 2900.5.)
“In no case shall any person sentenced to confinement in a county or city jail, ... on conviction of a misdemeanor, or as a condition of probation upon conviction of either a felony or a misdemeanor, ... be committed for a period in excess of one year;...” (§ 19.2.)
The principles of a criminal defendant’s waiver of custody credits have been affirmed by the Supreme Court since Johnson was decided in 1978. In People v. Johnson (2002) 28 Cal.4th 1050, 1052, the trial court conditioned the grant of probation upon the defendant’s express waiver of the right to claim custody credits for time in jail spent before and after sentencing and time spent in a residential drug rehabilitation program in the event he later violated probation and was sent to prison. On appeal, he claimed that the court exceeded its powers by conditioning the grant of probation upon his waiver of custody credits because, in the event he later violated probation and had his sentence imposed, he would spend a period of time in custody greater than permitted by law. (Id. at p. 1053.) The high court rejected this challenge. After observing that a number of Courts of Appeal had agreed with Johnson, supra, 82 Cal.App.3d 183, the high court held: “[W]e too conclude 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.” ’ [Citation.] 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 a defendant’s express waiver of past and future custody credits.” (People v. Johnson, supra, 28 Cal.4th at pp. 1054-1055, fn. omitted.)
In People v. Arnold (2004) 33 Cal.4th 294, 298-299 (Arnold), the defendant waived custody credits for time served in jail before a specific date to avoid the imposition of a prison sentence, and later, after having been found to have violated probation, again waived custody credits as a condition to having his probation reinstated in lieu of being sentenced to prison. After he again violated probation and was sentenced to prison, he argued that the first waiver did not preclude his receiving credits against any possible future prison sentence because he was not expressly advised that the waiver would apply to that circumstance. (Id. at p. 299.) The high court rejected the defendant’s argument, holding that “[a] Johnson waiver is a waiver of a statutory right to credit for time served against a subsequent county jail or state prison sentence pursuant to section 2900.5.” (Id. at p. 307.)
The defendant made no such argument regarding the second waiver, because the court at that time expressly informed him that the waiver of custody credits would apply to any possible future prison sentence. (Arnold, supra, 33 Cal.4th at p. 299.)
The Arnold court explained: “If probationers are continued on probation notwithstanding two, three, or more probation violations..., and if Johnson waivers are entered, and one or two additional periods of up to one year of local jail time are imposed as conditions of each successive probation reinstatement, in many instances the waived credits for the aggregate time served in county jail will equal or be greater than the suspended prison sentence for the original offense. In such cases, if the credits can permissibly be ‘recaptured’ [citation] by the defendant when his own misconduct ultimately leads to revocation of probation and imposition of a prison term, he will have no prison term left to serve. In practical effect, ... a point will be reached in some cases at which those probationers who have repeatedly been shown the most leniency may continue to violate probation with impunity, secure in the knowledge that the specter of an actual prison sentence is no longer hanging over their heads, as the credit equivalent of the suspended prison sentence that would be imposed if probation were ultimately revoked will already be ‘in the bank, ’ having been served in local jail. [¶] A rule that gives back previously waived credits to a defendant as a consequence of his future violation of probation thus rewards him for his own misconduct. It is also unjust enrichment, as the defendant would be getting the benefit of the bargain reached at his original sentencing and later be permitted to revoke the consideration he gave up to obtain the benefit of that bargain. As a matter of sound sentencing policy, the law should not afford probationers incentives or rewards for refusing to comply with the terms and conditions of probation.” (Arnold, supra, 33 Cal.4th at p. 308, fn. omitted.) The court therefore concluded that since the defendant was informed by the trial court at the initial sentencing hearing that he was waiving all custody credits accrued up to that time and that “there would be ‘no immediate state prison in this case, ’ ” his waiver constituted a full waiver of custody credits under section 2900.5 for all purposes and the credits could not be recaptured when he was later sentenced to prison after his probation was revoked. (Arnold, at p. 310.)
In Jeffrey, supra, 33 Cal.4th at page 315, the defendant waived both presentence jail time credits and future credits for anticipated time spent in a residential drug treatment program as a condition of probation. After violating probation and having the court impose a prison sentence, the defendant argued that she was entitled to custody credits for both presentence jail time and time spent in the residential drug treatment program. (Id. at p. 316.) The high court reiterated 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.’ [Citation.]” (Id. at p. 318.) It held that the rule that it expressed in the companion case of Arnold, supra, 33 Cal.4th 294, that a waiver of custody credits is effective to waive credits for all purposes, including any future prison term, applies as well to waivers of future custody credits to be earned as a result of placement in a drug or alcohol treatment facility. (Jeffrey, at pp. 318-319.) Accordingly, since there was nothing in the record to suggest that the defendant, at the time she waived presentence and future custody credits, thought that she would be able to recapture any such waived credits in the event she were later imprisoned, the court held that the waiver applied to the circumstance of her later probation revocation and imprisonment. (Id. at pp. 319-320.)
C. Discussion of Claim of Error
1. Forfeiture of appellate claim
The Attorney General argues briefly—citing, inter alia, People v. Welch (1993) 5 Cal.4th 228 (Welch)—that as a result of defendant’s waiver of custody credits and his failure to object to the requirement that he waive credits as a condition of probation result in the waiver (or more properly, forfeiture) of the issue on appeal. We reject the Attorney General’s contention.
In Welch, supra, 5 Cal.4th at page 237, the high court held that a defendant’s failure at the trial level to challenge the reasonableness of a probation condition on Bushman/Lent grounds resulted in the forfeiture of such a claim on appeal. But in People v. Smith (2001) 24 Cal.4th 849, 853, the court concluded that where a sentencing error—namely, the failure to impose a parole revocation fine under section 1202.45 in the same amount as a restitution fine imposed under section 1202.4—is one that “presents a pure question of law with only one answer, any such error is obvious and correctable without reference to any factual issues in the record or remanding for further findings, ” and was thus a matter not forfeited despite the prosecution’s failure to object at the trial level. (Smith, supra, at p. 853.) In so holding, the court in Smith observed that there was a “narrow exception” to the rule that unpreserved claims are forfeited on appeal where “ ‘ “unauthorized sentences” or sentences entered in “excess of jurisdiction.” ’ [Citation.] Because these sentences ‘could not lawfully be imposed under any circumstance in the particular case’ [citation], they are reviewable ‘regardless of whether an objection or argument was raised in the trial and/or reviewing court.’ [Citation.]... [A]ppellate intervention [was] appropriate in these cases because the errors presented ‘pure questions of law’ [citation], and were ‘ “clear and correctable” independent of any factual issues presented by the record at sentencing.’ [Citation.] In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable.” (People v. Smith, supra, at p. 852.) And in In re Sheena K. (2007) 40 Cal.4th 875, 888, the Supreme Court held that a constitutional challenge to a probation condition on the basis that it was facially vague and overly broad was “an asserted error that is a pure question of law, easily remediable on appeal by modification of the condition, ” and was thus not forfeited by virtue of the absence of a challenge at the trial level.
See People v. Lent (1975) 15 Cal.3d 481; In re Bushman (1970) 1 Cal.3d 767.
Here, defendant argues that (1) the record does not establish that he expressly waived his right under section 2900.5 to receive custody credits in connection with the prison sentence imposed by the court, and (2) the trial court therefore erred when it sentenced him to prison without granting him 513 days of credits to which he was entitled. The underlying facts regarding defendant’s alleged waiver of custody credits are undisputed and it is therefore a question of law as to whether those undisputed facts support a finding that defendant waived the benefits of section 2900.5. This appeal thus falls within the narrow exception to the forfeiture rule under which “an asserted error [involves one] that is a pure question of law, easily remediable on appeal....” (In re Sheena K., supra, 40 Cal.4th at p. 888.) Moreover, since a defendant is statutorily entitled to receive credit for all time spent in custody prior to sentencing or as a condition of probation unless he or she expressly waives the benefits of the statute, defendant’s claim of error also is one—assuming the correctness of his position that there was no waiver of custody credits—involving an “ ‘ “unauthorized sentence[]” or sentence[] entered in “excess of jurisdiction” ’[citation] [which]... ‘could not lawfully be imposed under any circumstance in the particular case.’ ” (Smith, supra, 24 Cal.4th at p. 852.) We therefore reject the Attorney General’s contention that defendant forfeited the claim of error by failing to raise it at the time the court suspended the prison sentence and conditionally granted probation.
2. Merits of challenge to defendant’s waiver of custody credits
Defendant argues that the record does not support the court’s finding—in denying defendant’s motion to set aside the alleged waiver of credits—that he knowingly and intelligently waived custody credits. He asserts that there was no voir dire by the court at the time the alleged waiver took place and, additionally, there was no written waiver by defendant evidencing a knowing and intelligent waiver of his rights. In the absence of such a record, defendant argues that it was error to conclude that he had waived the custody credits. We disagree and conclude that there was a knowing and intelligent waiver of custody credits by defendant.
“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.” (People v. Burks (1998) 66 Cal.App.4th 232, 236, fn. 3 (Burks); see also Arnold, supra, 33 Cal.4th at p. 309.) In Burks, the defendant, after having been convicted and granted probation on condition he serve one year in jail, waived custody credits for that year served after he violated probation for the first time as a condition of reinstating probation. (Burks, at p. 234.) After a third probation violation which resulted in the court imposing a prison sentence, the defendant claimed that he had not understood at the time he had waived custody credits—and it had not been explained to him by the judge—that such waiver would apply to any future prison sentence imposed in the event he violated probation. (Ibid.)
The Burks court rejected the defendant’s contention. 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, 66 Cal.App.4th at p. 235, citing and quoting People v. Salazar (1994) 29 Cal.App.4th 1550, 1554.) Further, it observed that although there was nothing in the record establishing that the defendant knew that the waiver applied to state prison time, “[t]he waiver was negotiated with sophistication....” (Burks, at p. 235.) 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’ 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 discussed at length and cited with approval by the Supreme Court in Arnold, supra, 33 Cal.4th at pages 305 to 309.
The record here shows that before the sentencing hearing on December 10, 2009, a probation report was prepared in Case Number SS0801435A, in which Irving recommended that, as a condition to granting probation, “[d]efendant waive all custody credits permanently.” (Italics added.) At the commencement of the sentencing hearing, the court confirmed with defense counsel that she and her client had “reviewed... and considered” the report. The prosecution opposed Irving’s recommendation that defendant receive a suspended sentence, and defense counsel responded that defendant was “in agreement with” the probation officer’s recommendation that as a condition of granting probation defendant waive custody credits. The court then told defendant that Irving was “really giving [him] a chance” by recommending probation and that further violations of probation would result in his being sent to prison. The court then—after indicating that defendant had credit for time served totaling 513 days—asked defendant if he “waive[d] all those credits permanently. Agreed?” (Italics added.) Defendant responded that he did, and his counsel indicated that she also agreed to the waiver of all credits. This record demonstrates that, “from the totality of the circumstances” (Burks, supra, 66 Cal.App.4th at p. 235), defendant knowingly and intelligently waived his right under section 2900.5 to custody credits.
Defendant nonetheless contends that the voir dire by the court was insufficient to establish the custody credits waiver. In support of this position, defendant cites People v. Correll (1991) 229 Cal.App.3d 656, a case finding a knowing and intelligent waiver where the sentencing “judge thoroughly questioned [the defendant] regarding his understanding of his presentence credits... [and] asked if [he] was willing to waive those credits.” (Id. at pp. 659.) The defendant indicated his agreement to waive custody credits, and, in fact, had indicated his willingness to do so to the probation officer prior to the sentencing hearing. (Ibid.) Defendant here contrasts his circumstances with those in Correll. But Correll does not stand for the proposition that a custody credits waiver may only be found where the defendant is the one who initially suggested the waiver. Nor does Correll otherwise set the minimum showing necessary to establish a knowing and intelligent waiver.
Defendant also relies on People v. Harris (1991) 227 Cal.App.3d 1223 (Harris). There, the defendant argued that there was insufficient evidence that he had knowingly and intelligently waived custody credits because “(1) so far as the record shows, the court’s inquiry was the first mention by anyone of waiving credit; (2) [the defendant] was not advised on the record of the consequence of waiver nor the number of days involved; and (3) [the defendant] was not personally questioned; only [the defendant’s] lawyer spoke.” (Id. at p. 1227.) The court, without discussion, agreed with the defendant that a knowing and intelligent waiver was not shown from the paucity of evidence in the record (ibid.); the major issue addressed by the Harris court was the appropriate disposition of the case. (Id. at pp. 1227-1229.) Harris is distinguishable and offers no support for defendant’s position here.
Unlike the circumstances here—where there was a probation report recommending custody credits waiver that defendant’s counsel indicated she and her client had reviewed and considered, and a specific inquiry by the judge of defendant as to whether he agreed to waive custody credits—in Harris, the only record concerning waiver was from the following exchange involving the court and defense counsel (but not involving the defendant): “ ‘The Court: I would like to inquire if the defendant would be willing to waive his back time. [¶ Defense Counsel:] Yes, Your Honor. [¶] The Court: Do you want to speak to your client? [¶ Defense Counsel:] Yes, Your Honor. [¶] The Court: The motion [regarding the court’s exercising its discretion to dismiss the jury’s special circumstances finding] is granted, defendant having waived his back time.... [¶ Defense Counsel]: Thank you, Your Honor. [¶ The Defendant:] Thank you, Your Honor. [¶] The Court: And there will be no credits [in that] this was a contested issue.’ ” (Harris, supra, 227 Cal.App.3d at pp. 1226-1227.)
Further, defendant’s reliance on People v. Black (2009) 176 Cal.App.4th 145, and People v. Bowen (2004) 125 Cal.App.4th 101, is misplaced. The fact that in each case, the court rejected the defendant’s challenge where the custody credits waiver included a writing signed by the defendant, does not support the leap made by defendant here: that the absence of a writing signed by defendant acknowledging a waiver of custody credits compels the conclusion that the waiver was not knowing and intelligent. Neither case held that—nor even discussed the question of whether—a written acknowledgment signed by the defendant is required for a finding that a custody credits waiver is knowingly and intelligently made. (See People v. Alvarez (2002) 27 Cal.4th 1161, 1176 [cases are not authority for propositions not considered].)
We acknowledge that the court could have made a more specific inquiry of defendant at the time to ensure that he completely understood that he was forgoing any rights he had to custody credits for all purposes. But perfection in voir dire is not required to secure a defendant’s custody credits waiver. Further, while “[t]he better practice” would have been for the court “to expressly admonish” defendant that his custody credits waiver would “apply to any future prison term should probation ultimately be revoked and a state prison sentence imposed [citations]” (Arnold, supra, 33 Cal.4th at p. 309), the absence of “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.” (Ibid.)
Here, defendant points to nothing in the record that suggests ambiguity concerning the waiver or that he had an understanding that his waiver was limited in any respect. (See Burks, supra, 66 Cal.App.4th at p. 236 [if defendant wants to place limitations on custody credits waiver, he or she has burden of proposing limitations to sentencing court].) And we find nothing ambiguous about (1) the notation in Irving’s report—reviewed and considered by defendant and his attorney—recommending that “[d]efendant waive all custody credits permanently” (italics added), or (2) defendant’s specific agreement taken on the record, in response to the court’s inquiry, to “waive all those [513 days of] credits permanently.” (Italics added.) The record shows that defendant knowingly and intelligently waived custody credits to which he was otherwise entitled under section 2900.5. He is not entitled to “receiv[e] the lenient benefit of reinstatement of probation... [in exchange for a] Johnson waiver [that] is anything less than a waiver and relinquishment of all statutory entitlement to custody credit under section 2900.5 in the fullest sense.” (Arnold, supra, 33 Cal.4th at p. 309.) A contrary conclusion that “gives back previously waived credits to a defendant as a consequence of his future violation of probation [would] reward[] him for his own misconduct [and would also constitute] unjust enrichment, as the defendant would be getting the benefit of the bargain reached at his original sentencing and later be permitted to revoke the consideration he gave up to obtain the benefit of that bargain.” (Id. at p. 308.)
The court properly concluded that defendant knowingly and intelligently waived any custody credits to which he was otherwise entitled under section 2900.5.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Premo, J.