Opinion
A100427.
9-30-2003
THE PEOPLE, Plaintiff and Respondent, v. RANDY WEATHERS, Defendant and Appellant.
BACKGROUND
On his plea of guilty, appellant Randy Weathers was convicted of possessing cocaine while in county jail. (Pen. Code, § 4573.6.) On June 1, 2000, he was sentenced to three years in state prison, execution of the sentence was stayed and appellant admitted to probation.
A motion to revoke probation was filed by the district attorney and on July 30, 2001, appellant admitted the alleged violation. His probation was reinstated and appellant was ordered to serve 11 months in the county jail. Appellant waived prior custody credits for all purposes.
On September 4, 2001, appellants request to serve his 11-month county jail sentence in the Futures Foundation drug treatment program was granted. Appellant expressly waived any credit for time spent in the program if he did not successfully complete the program. On December 5, 2001, at appellants request, the Salvation Army drug treatment program was substituted for the Futures program.
Appellant entered the Salvation Army program on December 6 and left the program without permission on January 29, 2002. He was arrested in connection with a new offense on June 2, 2002.
Appellants probation was revoked and the previously suspended sentence was ordered into effect. Appellant did not receive credit for the 54 days he spent in the Salvation Army program.
Appellants sole contention on this appeal is that his waiver of credits for time spent in the program did not apply to the subsequently executed prison sentence. We reject this contention and affirm the judgment.
DISCUSSION
In People v. Burks (1998) 66 Cal.App.4th 232, Division Three of this District held "that when a defendant agrees to waive custody credits after violating probation, the waived credits may not be recaptured when probation is violated again, unless the agreement expressly reserves that right. In the absence of such a record, custody credits once waived may not be used again." (Id. at p. 234.) The reporters transcript of the credit waiver proceedings reflects no such reservation or limitation on the extent of the waiver:
"[PROSECUTOR]: I just want [to] make sure it is clearly understood, if he doesnt successfully complete this program, he doesnt get any credit for the time he spends in it.
"THE COURT: Good point.
"Do you understand what [the prosecutor] just said Mr. Weathers?
"THE DEFENDANT: Yes.
"THE COURT: Could you explain it to me in your own words.
"THE DEFENDANT: In my own words, it is a two-to five-year program. And if I do not stay there for the entire period and complete the program, then I will not receive credit for any time that I spent in jail and any time that I may spend at the program before I leave, if I should leave.
"THE COURT: Both clear and eloquent. You obviously understand very well.
"THE DEFENDANT: Thank you.
"THE COURT: Good luck to you, Mr. Weathers."
Appellant contends that the waiver was limited to the county jail sentence because a minute order of these same proceedings contains the following entry: "Defendant will get no credit toward the 11-month sentence if he fails [to complete] the 2 to 5-year program." It is well settled that when there is a discrepancy between the oral pronouncement as reflected in the reporters transcript and a clerks minute order, the oral pronouncement of the trial court prevails. (People v. Mesa (1975) 14 Cal.3d 466, 471-472.) Here, where the minute order finds absolutely no support in the actual reported proceedings, the reporters transcript prevails and renders appellants reliance on the minute order misplaced.
Finally, appellant observes that the waiver of credits was made in connection with his placement in the Futures drug rehabilitation program and that no record waiver was made when, at his request, the placement was changed to the Salvation Army program. Because the only change or modification concerned the place where appellant could do his drug rehabilitation, a modification made at his request with no other modifications, a second waiver of credits was not required.
Accordingly, the trial court did not err in denying appellant credit for time spent in the Salvation Army program, a program that he left within 54 days.
Judgment affirmed.
We concur:
Kay, P.J.
Sepulveda, J.