Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. P05CRF0011, P05CRF0356
Retired Associate Justice of the Court of Appeal, Third Appellant District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
The only issue raised on appeal concerns custody credits and whether certain credits were waived. We recount in detail the procedural history and only those facts relevant to the issue raised. We will find no error with respect to the custody credits awarded.
In case No. P05CRF0011 (“11”), defendant Alexander Curtis Netto was charged with possession of marijuana for sale. He plead not guilty and remained free on bail.
While released on bail in case No. 11, defendant was arrested and charged in case No. P05CRF0356 (“356”) with attempted unlawful taking or driving of a vehicle and second degree burglary of a vehicle. Defendant plead not guilty and remained in custody.
On September 8, 2005, defendant entered a plea of no contest to the charges in both cases in exchange for a grant of probation with defendant serving a “Johnson” year on one case, and the dismissal of several other cases./ The court immediately suspended imposition of sentence and granted probation in both cases for a term of three years subject to certain terms and conditions including one year in county jail in case No. 11 which the court, parties, and defendant, referred to as a “Johnson” year. The court and parties discussed the “Johnson” year as follows:
Defendant also entered a plea to hit and run, a misdemeanor, in case No. P05CRM8297. (CT 46, 51; RT 2, 5, 10, 12)
People v. Johnson (1978) 82 Cal.App.3d 183 (Johnson) “recognized that the interplay of Penal Code section 19.2’s long-standing one-year cap on the time that can be served in county jail as a condition of probation for any single violation, and Penal Code section 2900.5’s requirement that all local jail time served be credited against any subsequent county jail term imposed as a condition of reinstatement of probation, created a dilemma for sentencing courts in those cases in which the defendant had already served a year or more in county jail as a condition of probation before subsequently violating probation. In such cases, if the sentencing court desired to reinstate the defendant on probation, the interplay of the two statutes forced the sentencing court to choose between sentencing the defendant to state prison or imposing no additional jail time as a condition of reinstatement of probation—because applying custody credit for the earlier one year of county jail time against the new county jail term would result in the defendant’s having already served the maximum one-year county jail term permitted under section 19.2 for the new violation. [Citation.] The Johnson court therefore fashioned the rule that ‘a defendant who has served one year in jail as a condition of probation and who thereafter violates probation may be sentenced to an additional period of up to one year in jail if he knowingly and intelligently waives the provisions of Penal Code section 2900.5.’ [Citation.] Johnson’s waiver rule has been a settled rule of criminal procedure in this state for over two decades now.” (People v. Jeffrey, supra, 33 Cal.4th 312, 317.)
“The Court: Okay. It will be the judgment of the Court that the imposition of sentence be suspended, that the defendant be sentenced to a period of one year in custody. He will be allowed credit for time already served. The sheriff’s office is to determine the exact amount of credit, including good time credits.
“[Prosecutor]: Your Honor, there would be no good time credits on that.
“[Defense counsel]: I think we should take a Johnson year waiver, shouldn’t we?
“[Prosecutor]: This is supposed to be a Johnson year. So he would not get any good time or work time credits.
“The Court: But he is still entitled to credit for time already served.
“[Prosecutor]: Yes.
“The Court: It’s the good time that’s excluded.
“[Prosecutor]: Yes. Absolutely.
“The Court: Let’s revise the order to reflect no credit for good time save and except any time already served, off of the year in jail.”
After the court set forth further terms and conditions, defendant confirmed that he understood the sentence and accepted the terms and conditions.
A petition for revocation of probation filed on December 21, 2006, in both cases alleged that defendant used or was under the influence of a controlled substance and possessed a hypodermic needle or syringe. Defendant denied the allegations and was released on his own recognizance. He failed to appear at the next scheduled hearing. The court revoked defendant’s own recognizance release and issued a warrant for his arrest.
A second petition for revocation of probation filed on March 14, 2007, in case No. 11 and on March 20, 2007, in case No. 356, alleged that defendant failed to obey all laws in that he possessed a controlled substance and a hypodermic needle or syringe and falsely identified himself to an officer. Defendant denied the allegations. He remained in custody.
On July 12, 2007, defendant admitted violating probation by failing to obey all laws in exchange for a three year eight month sentence, suspended pending successful completion of an 18-month program at the Salvation Army. The court also stated an additional term that defendant would have to waive credit. The court stated: “So if you go to the program and you decide to leave after you’ve been in it for awhile, [. . .] I will require that you give up all of the credits for all of the time that you spent, all of the custody credits and you’re going to prison for the longest term I can get you there. [¶] There are cases under Arnold and Jeffrey that authorize waiver of credits, and that’s a condition of entering into these admissions. [¶] The purpose of this is to give you as much incentive as possible to have you successfully complete the program.” The court imposed a three year eight month prison term, stayed execution of sentence, and reinstated defendant on probation in both cases, subject to the condition that he serve 18 months in the Salvation Army treatment program and waive time credits. The court stated, “The minutes should reflect the defendant has waived confidentiality [to allow the treatment program to file status reports] and also waived potential credits if he fails in the program. [¶] Are you willing to accept probation under these terms and conditions?” Defendant responded, “Yes, your Honor.”
People v. Arnold (2004) 33 Cal.4th 294, 308-309 [a knowing and intelligent waiver of presentence jail time custody credits is “for all purposes”]; People v. Jeffrey (2004) 33 Cal.4th 312, 315, 318 [waiver of custody credits for all purposes likewise applies to future credits in residential or drug/alcohol treatment facilities].
The minute order from the July 12, 2007, proceeding filed in both cases provides that, “if the [defendant] violates probation in any way and is sent to state prison[,] the [defendant] waives all jail time credits previously served on this case.”
Defendant signed a form entitled “Order re: Probation Terms” citing both cases which provides, in relevant part: “In the event the defendant fails treatment program and is sent to state prison; defendant waives all jail time credits previously served on these cases.”
On or about August 29, 2007, defendant was dismissed from the Salvation Army treatment program. On August 30, 2007, the court revoked probation and ordered the prosecutor to file a formal petition.
On September 27, 2007, the court found that defendant had been dismissed from the treatment program for minor rule violations. The court reinstated defendant on probation subject to the condition, again, that he complete the Salvation Army treatment program provided that he agree to “waive all of the custody time [he had] been in custody for the last month or so[,]” requiring him to restart the program. Defendant agreed. The court also stated, “Then under the case of Jeffrey and other cases, the defendant waives all of his credits for the time he’s been in custody.” In reinstating defendant on probation, the court explained that defendant had waived “all credits that [he had] just accumulated while being in custody.” Defendant signed a form agreeing that he had waived “all jail time credits through today’s date [September 27, 2007] for time spent in jail and treatment program per stipulation.” The minute order dated September 27, 2007, in both cases reflects, “Per stipulation the [defendant] waives all jail time credits through today’s date for time spent in jail and treatment program in the event he violates probation and is sent to state prison in the future.”
A petition for violation of probation filed November 27, 2007, alleged that defendant had violated the terms of probation in both cases by leaving the treatment program prior to completion and his whereabouts were unknown. The court revoked probation and issued a warrant for his arrest.
On January 27, 2008, defendant was placed in custody.
On January 29, 2008, defendant appeared and denied the allegation that he had violated probation.
On April 16, 2008, defendant admitted violating probation. The court lifted the stay on the execution of sentence and sentenced defendant to the full three year eight month state prison sentence. Defense counsel objected, claiming that defendant was entitled to the original year served in county jail. The court disagreed, noting that defendant had waived all jail and treatment time credits prior to his most recent arrest. The court awarded credit for actual days (81) and conduct days (40) from January 27, 2008, through April 16, 2008.
On appeal, defendant contends that the court erroneously concluded that he had waived credit for jail time as a condition for release into the Salvation Army treatment program. He claims the only jail time credit waived was time spent from August 30, 2007, to September 28, 2007, while he waited to go back to the program. He argues he did not knowingly and intelligently waive credits. He also argues that there is a discrepancy between the clerk’s transcript and the reporter’s transcript which must be resolved in favor of the reporter’s transcript. We find no discrepancy and no error with respect to waiver of credits.
Normally, a defendant is entitled to custody credit either before sentencing or as a condition of probation against his prison term. (Pen. Code, § 2900.5.) A defendant may expressly waive jail time and residential drug or alcohol treatment facility custody credits for past and future days for all purposes. A defendant’s waiver of credits must be knowing and intelligent. (People v. Jeffrey, supra, 33 Cal.4th 312, 315, 318-319 (Jeffrey); People v. Arnold, supra, 33 Cal.4th 294, 308-309 (Arnold); People v. Johnson (2002) 28 Cal.4th 1050, 1054-1055 (Johnson II).) “‘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.’ [Citation.]” (Jeffrey, supra, 33 Cal.4th at p. 320.)
In originally accepting probation on September 8, 2005, the court noted that defendant would serve a Johnson year which meant defendant waived entitlement to credit for the one year he spent in jail as a condition of probation. At that time, defendant orally confirmed that he understood and accepted the terms and conditions of probation which included a Johnson waiver of section 2900.5 credit. In the entry of plea form, defendant initialed the statement that he understood he would receive a “‘Johnson’” year. Defendant was represented by counsel. Defendant knowingly and intelligently waived the foregoing period of custody credit.
On July 12, 2007, when defendant admitted violating probation in exchange for a suspended prison sentence subject to his successful completion of the 18-month program at the Salvation Army, the court required defendant to waive credit, stating: “So if you go to the program and you decide to leave after you’ve been in it for awhile, [. . .] I will require that you give up all of the credits for all of the time that you spent, all of the custody credits and you’re going to prison for the longest term I can get you there. [¶] There are cases under Arnold and Jeffrey that authorize waiver of credits, and that’s a condition of entering into these admissions. [¶] The purpose of this is to give you as much incentive as possible to have you successfully complete the program.” The court further stated, “The minutes should reflect the defendant . . . waived potential credits if he fails in the program. [¶] Are you willing to accept probation under these terms and conditions?” Defendant responded, “Yes, your Honor.” Defendant knowingly and intelligently waived all future credit in the treatment program with the Salvation Army.
On September 27, 2007, the court stated that in order to reinstate defendant on probation and to return him to the rehabilitation program, defendant would have to agree to waive all custody time “for the last month or so. . .” and “all credits that [he had] just accumulated while being in custody.” Defendant signed a form stating that he waived “all jail time credits though September 27, 2007 for time spent in jail and treatment program per stipulation.” Defendant waived all jail time credits through September 27, 2007.
The court awarded credit for the time defendant spent in custody from the date of his arrest on the warrant which was issued following the last probation violation after absconding from the program.
Defendant received all the credit that was due. We simply reject defendant’s interpretation of the record. Defendant waived all custody credit except for the period of time he was in custody after he was arrested on the warrant issued after his last probation violation. Defendant waived “all jail time credits though September 27, 2007 for time spent in jail and treatment program per stipulation.” And the fact the court reiterated that defendant was waiving his credit when he was allowed to return to the Salvation Army program does not change the fact that he initially waived all future credit for the program when he was first granted the opportunity to complete the program. Defendant was fully informed that the court viewed the Salvation Army treatment as an opportunity and that defendant’s failure to complete the program meant he would not receive the benefit of any credit for partial performance.
We note an error in preparation of the abstract of judgment. On July 13, 2007, the court, the in presence of counsel, but in the absence of defendant, noted that the previous day when it had imposed three years for auto burglary in case No. 356 and a consecutive one-third the midterm or eight months for possession for sale in case No. 11, it had failed to sentence on the attempted unlawful taking or driving offense in case No. 356. The court noted that it was an oversight because it had been discussed to give defendant “credit for time served on that count, so the count would no longer be an issue before the Court.” Defense counsel waived defendant’s appearance and agreed to the disposition. The court then so ordered. When defendant was sentenced to prison on April 16, 2008, the court never mentioned the attempted unlawful taking or driving offense but such offense appears on the abstract of judgment and reflects a stay of punishment pursuant to section 654. We will order the abstract corrected to delete reference to the offense. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The trial court is directed to prepare a corrected abstract of judgment deleting reference to the attempted unlawful driving or taking offense in case No. P05CRF0356 and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., ROBIE, J.