Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. Nos. CR004276, CR005439
SIMONS, Acting P.J.
Defendant Edwin Gail Donahue, Sr., appeals an order denying his motion for pretrial credits in case Nos. CR004276 and CR005439 (People v. Donahue (Super. Ct. Humboldt Co., 2002)). He contends his waiver of pretrial credits was not knowing, intelligent and voluntary. We disagree and affirm.
BACKGROUND
On April 20, 2001, pursuant to a “white form diversion agreement,” defendant pled guilty in case No. CR005439 to infliction of corporal injury on a spouse, cohabitant or parent of defendant’s child (Pen. Code, § 273.5, subd. (a)), and in case No. CR004276 to driving under the influence (DUI) with a prior conviction (Veh. Code, §§ 23152, subd. (a), 23550.5) and misdemeanor driving with a license suspended or revoked for DUI (Veh. Code, § 14601.2, subd. (a)).
Pursuant to the negotiated disposition, defendant also admitted three prior prison term allegations (Pen. Code, § 667.5, subd. (b)) and conditionally admitted a prior strike allegation. He was sentenced to seven years eight months in state prison, suspended.
In June 2002, defendant was placed on five years’ probation. As a condition of probation, defendant agreed to waive all custody credits earned up to April 20, 2001, including time spent in a drug treatment program, if he was subsequently committed to state prison.
Between November 2002 and March 2006, defendant’s probation was violated and revoked five times. In January 2003, following his first probation violation, probation was reinstated, a new 365-day jail term was imposed, and defendant waived 28 days of custody credits. In August 2004, following his second probation violation, probation was reinstated and extended for one year, and defendant waived all custody credits to date. In February 2005, following his third probation violation, probation was reinstated with a condition of a 150-day jail term. In April 2005, probation was modified such that defendant waived all custody credits to date. In January 2006, following defendant’s fourth probation violation, probation was reinstated and he was given 85 days of combined custody and conduct credit.
On April 11, 2006, following defendant’s fifth probation violation, he admitted the violation and agreed to reinstatement of probation with concurrent one-year county jail terms in case Nos. CR004276 and CR005439, after which probation was to terminate unsuccessfully. He was awarded 15 days of combined custody and conduct credit. The minute order from the April 11 hearing is silent as to any waiver of custody credits. It states: “Probation reinstated under original terms and conditions. [¶] With the following modification: [¶] Defendant to serve [one] year in jail. [¶] Upon completion of jail term; probation [is] to terminate unsuccessfully. [¶] Defendant understands and accepts the terms and conditions of probation.”
On July 17, 2006, defendant petitioned the court for a one-week furlough to help his infirm father. The court granted the furlough. A May 2007 minute order lists defendant’s status as “escaped.”
The People filed a complaint in People v. Donahue (Super. Ct. Humboldt County, 2007, No. CR066482) alleging a violation of Penal Code section 4532, subdivision (b), for failing to timely return from the furlough. Defendant subsequently appealed his conviction in that action, which this court affirmed in People v. Donahue (June 5, 2008, A119582 [nonpub. opn.]).
On August 3, 2007, defendant filed a written motion seeking pretrial custody credits prior to April 11, 2006, for his incarceration in case Nos. CR004276 and CR005439. Defendant asserted that had he been awarded all of his earned credits his one-year sentence would have been completed prior to his release on furlough. He argued that at the April 11, 2006 hearing when he was given the terminal sentence in both cases, he was not advised of the amount of custody credits he had earned and did not knowingly, intelligently or voluntarily waive any custody credits.
On August 24, 2007, the court issued a written order denying defendant’s motion for custody credits, concluding that defendant’s waiver of credits was knowing, intelligent and voluntary.
DISCUSSION
Preliminarily, we reject the People’s assertion, made without citation of authority or citation to the appellate record, that this appeal should be dismissed because defendant’s notice of appeal is untimely. The People appear to argue that this appeal is taken from appellant’s April 11, 2006 waiver of custody credits. However, defendant’s notice of appeal, filed September 26, 2007, states that the instant appeal is from the court’s August 27, 2007 order which denied his motion for custody credits. The appeal, filed within 60 days of the August 27 order, is timely. (Cal. Rules of Court, rule 8.308, subd. (a).)
Defendant contends his April 11, 2006 waiver of pretrial credits was not a valid waiver. He points to the following colloquy regarding pretrial credits at that hearing:
“THE COURT: Are there any questions you would like to ask me, anything you don’t understand at this point or anything I have not adequately explained? Any questions at all about this?
“THE DEFENDANT: Maybe my time credits.
“THE COURT: Pardon.
“THE DEFENDANT: My time credits maybe.
“THE COURT: This is a new year.
“THE DEFENDANT: I was thinking I have some credits from back a couple of violations.
“THE COURT: You may have credits in the past, but this is a new year. You would be starting a brand new year today and getting good time credits for the time you are in custody.
“THE DEFENDANT: Yeah, that is all right.
“THE COURT: So you understand that?
“THE DEFENDANT: I will be doing about six years on a seven-year term.
“THE COURT: I don’t know how many years you would be doing. I’m talking a new one year commitment to the Humboldt County Correctional Facility starting today with credit for good time served. Each file will run concurrently, and at the end of the time, assuming you get good time, when you are released from custody
“THE DEFENDANT: I will be doing eight months?
“THE COURT: When you are released from custody, probation will be terminated unsuccessfully.
“[DEFENSE COUNSEL]: He would get credit for the time he was in custody on the latest round rather than from today’s date?
“THE COURT: He will get custody from the time he was brought in on this violation, which is a couple of days ago.
“[DEFENSE COUNSEL]: April 1.
“THE COURT: You get credit from that.
“THE DEFENDANT: I was thinking about the last violation.
“THE COURT: That is what I was thinking you were thinking about.
“THE DEFENDANT: I never waived it.
“THE COURT: I want to make sure you understood this time would be a brand new year less credit from April 1st. I want to make sure you understood that before you agree to it.
“THE DEFENDANT: I would rather do a year than seven.
“THE COURT: Makes sense to me. Is that what you wish to do? Any other questions?
“THE DEFENDANT: Nope.”
A defendant is entitled to credit against a county jail or state prison term for days spent in custody before sentencing, as well as days spent in custody after sentencing as a condition of probation. (Pen. Code, § 2900.5; People v. Johnson (2002) 28 Cal.4th 1050, 1053 (Johnson II)). 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.” (Johnson II, at pp. 1054-1055.) A trial court has discretion to condition a grant of probation or an extension of probation on a defendant’s express waiver of past and future custody credits so long as the defendant’s waiver is “knowing and intelligent” (id., at p. 1055), which means that the defendant must understand that he is giving up custody credits to which he would be otherwise entitled (People v. Arnold (2004) 33 Cal.4th 294, 308). (Accord, People v. Hilger (2005) 131 Cal.App.4th 1528, 1532.)
All undesignated section references are to the Penal Code.
“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.” (Johnson II, supra, 28 Cal.4th at p. 1055.) The gravamen of whether such a waiver is knowing and intelligent is whether the defendant understood he was relinquishing or giving up custody credits to which he was otherwise entitled under section 2900.5. (People v. Burks (1998) 66 Cal.App.4th 232, 236-237, fn. 3.) “[B]efore a defendant agrees to waive custody credit to which he is entitled, he should understand the full consequences of the waiver.” (People v. Ambrose (1992) 7 Cal.App.4th 1917, 1922-1923.)
“The better practice is for sentencing courts to expressly admonish defendants who waive custody credits under [People v. Johnson (1927) 82 Cal.App.3d 183 (Johnson)], 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.) There is no specific formula for advising a defendant of his or her rights, and none is required as long as the record shows from the totality of the circumstances that the defendant’s waiver was knowing and intelligent. (People v. Howard (1992) 1 Cal.4th 1132, 1175; People v. Murillo (1995) 39 Cal.App.4th 1298, 1304.) The voluntariness of defendant’s waiver of custody credits is a question of law which we review de novo. (See People v. Panizzon (1996) 13 Cal.4th 68, 80.)
Defendant contends his waiver of custody credits at the April 11, 2006 hearing was not knowing and intelligent and he was not advised of the amount of credits he had earned when he entered his waiver. Given the totality of the circumstances, we conclude defendant understood he had a right to pretrial custody credits and agreed to waive those credits. In exchange for the waiver, the court agreed not to sentence him to a multi-year prison term but instead to reinstate his probation and impose a year in county jail.
On numerous prior occasions during this case, defendant had been presented with the same choice he faced at the hearing on April 11, 2006. In fact, at the hearing, defendant himself raised the issue of his entitlement to past credits, and the court explicitly stated, “You may have credits in the past, but this is a new year. You would be starting a brand new year today and getting good time credits for the time you are in custody.” Defendant then responded, “Yeah, that is all right.” In response to a comment from defense counsel, the court reiterated its position that defendant would be getting credit from April 1, the date he was arrested for the current violation. Defendant then questioned whether he had previously waived his credits from his last probation violation, and the court answered, “I want to make sure you understood this time would be a brand new year less credit from April 1. I want to make sure you understood that before you agree to it.” And defendant agreed once again: “I would rather do a year than seven.” We conclude defendant’s motion for custody credits was properly denied.
DISPOSITION
The judgment is affirmed.
We concur. NEEDHAM, J., DONDERO, J.
Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.