Opinion
C083947
08-20-2018
THE PEOPLE, Plaintiff and Respondent, v. CODY LEE PRESTON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF1659, CRF1333)
Defendant Cody Lee Preston appeals the custody credits awarded to him when he was sentenced following an admitted probation violation. He contends he is entitled to full conduct credits for the days he spent in "flash incarceration" despite the fact he waived those credits as a condition of his probation. We affirm the judgment.
I. BACKGROUND
The facts underlying defendant's convictions and probation violations are not relevant to any issue raised on appeal, and are therefore not recounted.
In 2013, in case No. CRF13033, defendant pleaded no contest to taking a vehicle without the owner's consent. (Veh. Code, § 10851, subd. (a).) He requested probation, and the probation officer recommended he be placed on probation for three years. As a condition of receiving probation, defendant was advised of, and understood, his sentence included a period of probation that might include the use of "flash incarceration." The advisement explained he could be incarcerated for up to 10 days for each probation violation without a formal court proceeding. The advisement also stated he would not "earn or receive conduct credits (good time/work time) for days served in flash incarceration." Defendant initialed and signed the waiver agreeing to give up his right to custody credits for each day of "flash incarceration." Defendant received the probation report prior to the sentencing hearing and asked the court to follow probation's recommendation. The trial court asked him if he understood the flash incarceration and if he had any questions. Defendant indicated he understood and had no questions. The trial court placed defendant on three years of probation.
In February 2016, probation filed a violation of probation petition alleging defendant had violated probation by failing to report and incurring new charges in case No. CRF1659. Defendant admitted the violations of probation. Defendant also pleaded no contest to child endangerment (Pen. Code, § 273a, subd. (a)) in case No. CRF1659. The trial court placed defendant on four years of formal probation.
Undesignated statutory references are to the Penal Code. --------
Probation filed a violation of probation petition in June 2016, alleging seven violations of probation in both case Nos. CRF1333 and CRF1659. In October 2016, defendant admitted the probation violations.
The trial court sentenced defendant in case No. CRF1659 to a term of four years, and a consecutive eight months in case No. CRF1333. The trial court awarded defendant 62 days of actual credit and 52 days of conduct credit in case No. CRF1333 and 70 days of actual credit and 70 days of conduct credit in case No. CRF1659. The trial court also imposed various fines and fees in both cases.
II. DISCUSSION
Defendant contends the trial court erred in awarding him only 52 days of conduct credit in case No. CRF1333, because he was entitled to full credit for the 62 days he spent in custody, including the nine days he spent in flash incarceration. He contends flash incarceration was not authorized for a probationer prior to January 2017, and to the extent it was authorized, it involved only a period of incarceration, not loss of credits.
As a term of his probation in 2013, defendant agreed to the availability of flash incarceration as a sanction to address violations of probation. He was explicitly advised, and agreed, that in agreeing to flash incarceration he was giving up his right to conduct credits "for each day of 'flash incarceration' and that this waiver is for all time in this case as to each day served pursuant to flash incarceration." Defendant was represented by counsel in those 2013 proceedings, and counsel requested the trial court follow the probation officers' recommendation and place defendant on probation. The trial court confirmed defendant understood the flash incarceration term of probation and asked if he had any questions. Defendant indicated he understood it and had no questions.
Defendant is foreclosed from raising this claim on appeal. The trial court has broad discretion to impose conditions of probation provided only that they serve a statutory purpose. (§ 1203.1; People v. Richards (1976) 17 Cal.3d 614, 619, disapproved on another ground in People v. Carbajal (1995) 10 Cal.4th 1114, 1126.) If a probation condition serves the statutory purpose of rehabilitation it necessarily has a reasonable relationship to future criminality and may not be held invalid. (People v. Balestra (1999) 76 Cal.App.4th 57, 65.) It is well-established in a variety of circumstances that defendants may waive custody credits, including future custody credits. (People v. Johnson (2002) 28 Cal.4th 1050, 1054-1055, and cases cited therein; People v. Jeffrey (2004) 33 Cal.4th 312, 318-319.) "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, at p. 1055.)
Defendant agreed to the waiver of flash incarceration credits as a term of his probation. "As the United States Supreme Court has observed, ' "[t]he most basic rights of criminal defendants are . . . subject to waiver." ' (United States v. Mezzanatto (1995) 513 U.S. 196, 201 .) This is consistent with the well-established rule allowing ' "[a] party [to] waive any provision . . . intended for his benefit." ' (Ibid.; accord, Civ. Code, § 3513; Cowan v. Superior Court (1996) 14 Cal.4th 367, 371.)" (People v. Johnson, supra, 28 Cal.4th at p. 1055) " 'Generally, permitting waiver " 'is consistent with the solicitude shown by modern jurisprudence to the defendant's prerogative to waive the most crucial of rights.' [Citation.]" [Citation.] A defendant may waive a right that exists for his or her own benefit, where such waiver is not against public policy.' (People v. Farnam (2002) 28 Cal.4th 107, 146.) A defendant may waive a right accorded by statute so long as the statute does not expressly preclude waiver. (People v. Jackson (1996) 13 Cal.4th 1164, 1209-1211.)" (People v. Campbell (2004) 119 Cal.App.4th 1279, 1288.) As with any waiver of a significant right, of course a waiver must be knowing and intelligent. (People v. Johnson, supra, at p. 1055.)
Defendant cites no authority, and makes no argument, that flash incarceration custody credits should be treated differently than any other type of conduct custody credits or that conditioning probation on such a waiver is outside of the trial court's broad discretion. Defendant cites no authority indicating he was precluded from waiving entitlement to credits earned during a period of flash incarceration. Defendant has not claimed his waiver was not knowing and intelligent. Because we discern no error in defendant's waiver of custody credits for flash incarceration, we find no error in the trial court's award of custody credits in case No. CRF1333.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
BUTZ, Acting P. J. /S/_________
MAURO, J.