Opinion
A101901.
11-19-2003
THE PEOPLE, Plaintiff and Respondent, v. GLORIA ANN JACKSON-WAGNER, Defendant and Appellant.
Upon revocation of defendants probation, the trial court imposed a state prison term, granted her sentence credits for her time spent in custody following her violation of probation, and imposed a restitution fine. Defendant argues that she was improperly denied an award of presentence credits, and asks that we strike the restitution fine as unauthorized. We find that defendant validly waived presentence credits upon entry of her plea, but strike the restitution fine as not authorized by statute.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Pursuant to a negotiated disposition, on November 9, 2001, defendant entered a plea of no contest to inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)). The court suspended imposition of sentence and placed defendant on formal probation for a period of five years, upon the condition, among others, that she satisfactorily complete the Sisters residential treatment program, waive all sentence credits and pay a restitution fine.
Due to the entry of the plea, the facts of the underlying offense are not at issue in this appeal. As part of the plea agreement, two misdemeanor charges were dismissed, with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. All further statutory references are to the Penal Code unless otherwise indicated.
After defendant was terminated from the Sisters program for rules violations, she admitted a violation of probation on December 6, 2002, and her probation was revoked. On January 31, 2003, the trial court imposed the middle term of three years in state prison. Defendant was granted a total of 116 days of sentence credits: 78 "actual days" plus 38 days of conduct credits (§ 4019). Another restitution fine of $ 200 was imposed pursuant to section 1202.4, subdivision (b).
DISCUSSION
I. The Waiver of Presentence Custody Credits .
Defendant argues that the trial court erred by failing to award her presentence custody credits for time served in county jail and the Sisters program. Defendant acknowledges her waiver of custody credits as a condition of her plea, but complains that the record does not establish she was expressly informed "that the waiver of credit would apply to a prison term if she violated her probation." She maintains that absent evidence of an express admonition or other indication in the record of her explicit understanding of the "ramifications of her waiver" of custody credits upon her entry of a plea, the scope of the waiver cannot extend to imposition of a "future prison sentence" upon revocation of probation.
Absent a waiver, defendant was entitled to sentence credits upon revocation of her probation and imposition of a state prison term. "Under section 2900.5, a defendant sentenced either to county jail or to state prison is entitled to credit against the term of imprisonment for days spent in custody before sentencing as well as those served after sentencing as a condition of probation. [Citations.] This provision also applies to custodial time in a residential treatment facility. (& sect; 2900.5.)" (People v. Johnson (2002) 28 Cal.4th 1050, 1053, fn. omitted.) However, "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." (People v. Johnson, supra , at pp. 1054-1055; see also People v. Tran (2000) 78 Cal.App.4th 383, 387-388.)
Defendants challenge to her waiver of credits raises two interrelated issues that are determinative of the validity and extent of a waiver of the rights—in this case, to sentence credits—upon entry of a plea: the voluntariness of the waiver, and the scope of the rights relinquished pursuant to the plea bargain. "As with the waiver of any significant right by a criminal defendant, a defendants waiver of entitlement to section 2900.5 custody credits must, of course, be knowing and intelligent." (People v. Johnson, supra, 28 Cal.4th 1050, 1055; see also People Salazar (1994) 29 Cal.App.4th 1550, 1553.) Under the general governing test, a plea is valid "if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances." (People v. Howard (1992) 1 Cal.4th 1132, 1175; see also North Carolina v. Alford (1970) 400 U.S. 25, 31; People v. Torres (1996) 43 Cal.App.4th 1073, 1082; People v. Knight (1992) 6 Cal.App.4th 1829, 1831-1832.)
"When a defendant pleads guilty or nolo contendere, whether or not the plea is pursuant to a plea bargain, [she] must be advised of and waive [her] rights of self-incrimination, confrontation and jury trial [citations], and must be advised of the direct consequences of the plea, including the maximum possible penalty. [Citation.] [¶] The validity of a guilty or nolo contendere plea requires a record demonstrating that the defendant understood the nature of the charges and the direct consequences of conviction, including the possible range of punishment." (People v. Lytle (1992) 10 Cal.App.4th 1, 4; see also People v. Crosby (1992) 3 Cal.App.4th 1352, 1354-1355.) "[B]efore a defendant agrees to waive custody credit to which [she] is entitled, [she] should understand the full consequences of the waiver." (People v. Ambrose (1992) 7 Cal.App.4th 1917, 1922-1923.) "An awareness of the [full] consequences of waiving any right should include an understanding of the impact of that waiver on the amount of time a defendant may be incarcerated." (Id. at p. 1922.) "There is no specific formula for advising a defendant of his or her rights, and none is required as long as the record, in light of the totality of circumstances, `shows by direct evidence that the accused was fully aware of [her] rights. [Citations.]" (People v. Murillo (1995) 39 Cal.App.4th 1298, 1304.) And even in the absence of a specific admonition on the record, a waiver of rights pursuant to a plea is not invalidated if the record otherwise shows, from the totality of circumstances, that it was voluntary and intelligent. (People v. Howard, supra , 1 Cal.4th 1132, 1175; People v. Salazar, supra, 29 Cal.App.4th 1550, 1554, fn. 1.) "The voluntariness of a waiver is a question of law which appellate courts review de novo." (People v. Panizzon (1996) 13 Cal.4th 68, 80.)
A waiver of the right to credits upon imposition of sentence also cannot contravene the terms of the plea bargain. (People v. Harris (1987) 195 Cal.App.3d 717, 720-721.) " ` "`A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound. " (People v. Armendariz (1993) 16 Cal.App.4th 906, 911 .)" (People v. Vargas (2001) 91 Cal.App.4th 506, 533.) " `While no bargain or agreement can divest the court of the sentencing discretion it inherently possesses [citation], a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain. . . . [Citation.]" (People v. Cunningham (1996) 49 Cal.App.4th 1044, 1047.) "`When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon. [Citation.] It is well settled that a disposition harsher than that agreed to by the court or the prosecution may not be imposed on a defendant." (In re Jermaine B. (1999) 69 Cal.App.4th 634, 639; see also People v. Masloski (2001) 25 Cal.4th 1212, 1216-1217; People v. Delgado (1993) 16 Cal.App.4th 551, 554.) "Accordingly, `[w]hen either the prosecution or the defendant is deprived of benefits for which it has bargained, corresponding relief will lie from concessions made. " (People v. Collins (1996) 45 Cal.App.4th 849, 863, quoting People v. Collins (1978) 21 Cal.3d 208, 214.) "Failure of the state to honor the agreement violates the defendants due process rights for which the defendant is entitled to some remedy." (People v. Lopez (1998) 66 Cal.App.4th 615, 636; see also People v. Campbell (1994) 21 Cal.App.4th 825, 829.)
Courts interpret the terms of a plea agreement under fundamental contract principles. (People v. Armendariz, supra, 16 Cal.App.4th 906, 911; People v. Ames (1989) 213 Cal.App.3d 1214, 1217;People v. Haney (1989) 207 Cal.App.3d 1034, 1037; Leo v. Superior Court (1986) 179 Cal.App.3d 274, 283; People v. Alvarez (1982) 127 Cal.App.3d 629, 633.) Using the paradigm of contract law, a waiver of rights must be analyzed in terms of the reasonable expectations of the parties. (People v. Kelly (1994) 22 Cal.App.4th 533, 536; People v. Nguyen (1993) 13 Cal.App.4th 114, 120.) "[T]he scope of the waiver is approached like a question of contract interpretation—to what did the parties expressly or by reasonable implication agree?" (In re Uriah R . (1999) 70 Cal.App.4th 1152, 1157.) " `The court should accord an interpretation which is reasonable (Civ. Code, § 1643) and which gives effect to the intent of the parties as it may be interpreted from their entire agreement . . . . " (People v. Haney, supra, at p. 1038, citation omitted.) The crucial inquiry is whether the ultimate sentence imposed "involves a bargained-for provision related to the plea agreement or a judicially imposed, unrelated, unbargained-for term." (People v. Casillas (1997) 60 Cal.App.4th 445, 453.) A trial court may not accept a proffered plea bargain, then attach a new provision or condition to the final bargain without the defendants consent. (People v. Jensen (1992) 4 Cal.App.4th 978, 981; People v. Morris (1979) 97 Cal.App.3d 358, 360-362.)
According to the record before us, defendant executed a waiver of rights form that specified she had been advised of and understood the consequences of her plea. The form did not refer to sentence credits. At the entry of plea hearing, defendant reiterated that she understood the consequences of the plea as "set forth on the form." The plea bargain negotiated by defendant called for dismissal of some of the charged counts "with a Harvey waiver," and was an "open plea" which gave the trial court the authority to either "consider probation" or impose a state prison sentence. The placement screening report filed before the sentencing hearing specifically indicated a waiver by defendant of "all" presentence credits. Then at the sentencing hearing on May 10, 2002, defendant expressed that she understood and was willing to abide by the courts directive that "shes going to waive all her credits," both the time spent "in prison" and the time spent "in the program."
We find that defendants waiver of the right to sentence credits was knowing and voluntary. Although the appellate courts have been divided on the extent of the showing a defendant must make to prove a waiver was not knowing and intelligent and that issue is pending before the California Supreme Court, we do not find defendants plea defective for failure of the trial court to expressly advise her of the effect of her no-contest plea upon her right to sentence credits in the event of imposition of a future state prison term. The cases have not required as part of the trial courts obligation to warn the defendant of the consequences of a plea a specific admonition that a waiver of sentence credits will extend to a term of imprisonment following revocation of probation. (People v. Salazar, supra, 29 Cal.App.4th 1550, 1554.) Rather, the totality of the circumstances shown in the entire record is reviewed in determining whether a defendant had an adequate understanding of the full consequences of the waiver. (People v. Howard, supra, 1 Cal.4th 1132, 1174-1178; People v. Salazar, supra, at p. 1554, fn. 1.) And another division of this court ruled in People v. Burks (1998) 66 Cal.App.4th 232, 236, that, "If a defendant wants to restrict the waiver of custody credits to extend the jail time [she] 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." (Fn. omitted.) The court declared that custody credits are not "kept in dual accounts, one for use against jail time and one for use against prison time," and a defendant "should not be permitted to attack [her] waiver by faulting the court for failing to foresee [her] recidivism and warn [her] of its consequences." (Id., at pp. 236-237.)
See People v. Arnold, review granted June 12, 2002, S106444, 2002 Cal.LEXIS 3780 and People v. Jeffrey, review granted June 12, 2002, S105978, 2002 Cal.LEXIS 3788.
A "trial court normally must admonish a defendant of the direct consequences of a plea of guilty or nolo contendere." (People v. Panizzon, supra, 13 Cal.4th 68, 83.) However, a defendant need not be admonished of the collateral consequences of a plea. (People v. Barella (1999) 20 Cal.4th 261, 267; People v. Reed (1998) 62 Cal.App.4th 593, 598.) "`The traditional "direct consequences" of a plea are those which follow inexorably from the plea. . . . [Citation.]" (People v. Barella, supra, at p. 270.) Possible revocation of probation and imposition of a state prison term for an as yet uncommitted crime or violation of probation is not an inevitable consequence of a plea, and thus failure of the trial court to advise defendant of that possibility when she pleaded was not error. (See People v. Gurule (2002) 28 Cal.4th 557, 634-635; People v. Barella, supra, at pp. 268-269; People v. Crosby, supra, 3 Cal.App.4th 1352, 1355-1356.)
Here, defendant was given notice in the placement screening report of the recommendation of the condition that she waive "all" presentence credits. Nothing in the record indicates to us that the trial court had any reason to believe defendant did not fully comprehend her rights or the consequences of the plea, which she had discussed with counsel. (See People v. Panizzon, supra, 13 Cal.4th 68, 84.) At the sentencing hearing the trial court then warned defendant that if she failed in the Sisters program "shes going to prison," and "shes going to waive all her credits," meaning both any time spent in prison or in the program. (Italics added.) Defendant agreed that she was willing to waive those credits to avoid a state prison term—which would have been reduced by her custody credits—and receive the benefits of a grant of probation. (People v. Burks, supra, 66 Cal.App.4th 232, 237.) Although the trial courts admonitions made no explicit reference to a waiver of credits upon imposition of a future prison term, defendant did expressly consent to a waiver of all credits, specifically including those attributable to time spent in the program—which necessarily would only apply if her probation was revoked and a state prison sentence was subsequently imposed. Defendant also never objected to the courts broad warning that she waived all of her credits, even those earned in prison or in the Sisters program. (See People v. Salazar, supra, 29 Cal.App.4th 1550, 1556.) We thus distinguish defendants plea from those cases in which the record entirely omitted any mention of the scope of the waiver of credits. (Cf., People v. Harris, supra, 195 Cal.App.3d 717, 724-725.) Instead, we are persuaded that the case now before us is governed by our previous decision in People v. Salazar, supra, at page 1556, in which we found the courts admonition that the defendant waived credits "for all time and for all purposes" adequate to demonstrate a knowing and voluntary waiver of credits applied to a future state prison term. Following defendants consent to a waiver of all of her sentence credits, we cannot grant her the right to retract the waiver that enabled her to receive probation, thereby leaving her no worse off after her violation of probation than she was when sentence was pronounced. (People v. Burks, supra, 66 Cal.App.4th 232, 237; People v. Salazar, supra, at p. 1555.)
And finally, the record lacks any evidence that defendant would have declined to plead no contest if she had been more thoroughly advised of the loss of credits upon revocation of probation. (People v. Salazar, supra, 29 Cal.App.4th 1550, 1556.) A showing of prejudice requires the defendant " `"to demonstrate that it is reasonably probable [she] would not have entered [her] plea if [she] had been" " properly advised. (People v. Rowland (1997) 51 Cal.App.4th 1745, 1753, citation omitted; see also People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 210; People v. Walker (1991) 54 Cal.3d 1013, 1022-1023.) To the extent the record before us sheds any light upon the issue, defendants failure to object suggests that she did not consider the loss of all of her credits significant in the context of the plea agreement. (People v. McClellan (1993) 6 Cal.4th 367, 378 ; People v. Salazar, supra, at p. 1556.) The record on appeal is devoid of any affirmative evidence to support a finding that defendant satisfied her burden of establishing prejudice.
Nor did the waiver of the right to credits upon imposition of sentence violate the terms of the plea bargain. The agreement did not promise defendant that she would retain her credits. She entered an "open plea" with a Harvey waiver that granted the court discretion to reach any disposition considered appropriate. At the sentencing hearing defendant was granted probation, conditioned upon waiver of all sentence credits. As we read the record, defendant voluntarily agreed to the waiver. The record contains no representation by the court that following defendants no-contest plea she would be entitled to full custody and conduct credits if her probation was revoked and she was sentenced to state prison. To the contrary, the court expressed no limit on the announced waiver of all sentence credits. Following the trial courts admonition that defendant waived all sentence credits, upon entry of her plea defendant could not reasonably expect to nevertheless receive credits against a state prison sentence. (People v. Salazar, supra, 29 Cal.App.4th 1550, 1556.) We conclude that the waiver of presentence credits was valid.
II. The Restitution Fine .
Defendant also argues that the imposition of a "second" restitution fine upon revocation of her probation pursuant to section 1202.4, subdivision (b), must be stricken as unauthorized. The Attorney General concedes that despite the lack of any objection by defendant in the trial court, "there is no statutory authority justifying the second restitution fine," and we agree that it must therefore be stricken. (People v. Chambers (1998) 65 Cal.App.4th 819, 823; see also People v. Downey (2000) 82 Cal.App.4th 899, 921; People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534.)
DISPOSITON
The judgment is modified to strike the $200 restitution fine imposed when defendants probation was revoked, and as so modified the judgment is affirmed.
We concur: Marchiano, P. J., Stein, J.