People v. Ambrose

• Decision Date: 14 July 1992
• Docket Number: No. A052906,A052906
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff/Respondent, v. Jeffrey AMBROSE, Defendant/Appellant.

Page 812

9 Cal.Rptr.2d 812

7 Cal.App.4th 1917

The PEOPLE, Plaintiff/Respondent, v. Jeffrey AMBROSE, Defendant/Appellant.

No. A052906.

Court of Appeal, First District, Division 2, California.

July 14, 1992.

Francia M. Welker, Oakland, for defendant/appellant.

Daniel E. Lungren, California Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Ronald E. Niver, Supervising Deputy Atty. Gen., Don Jacobson, Deputy Atty. Gen., Atty. General's Office, San Francisco, for plaintiff/respondent.

PETERSON, Associate Justice.

In this case, we hold that the trial court validly required appellant to waive any right to future custody credit, for the time he would spend in a residential alcohol treatment center, as a condition of probation. ¹ We also hold appellant could knowingly and intelligently waive his right to future custody credit, even though the amount of the prospective credit was then necessarily unknown.

I. FACTS AND PROCEDURAL HISTORY

In October 1989, appellant pleaded guilty to second degree burglary (PEN.CODE, § 459)² and to receiving stolen property (§ 496). The court sentenced appellant to concurrent upper terms of three years in state prison, suspended execution of sentence, and placed him on probation on condition he serve 240 days in the county jail.

In addition to the standard conditions of probation, the court ordered appellant to abstain from the use of alcohol and other intoxicants. In March 1990, appellant was arrested while extremely intoxicated. Appellant subsequently admitted violating the terms of his probation.

In June 1990, the court agreed to reinstate appellant on probation on condition he successfully complete a residential alcohol abuse program at Diablo Valley Ranch (the ranch). Before agreeing to reinstate appellant, the court insisted that appellant waive not only the 196 days of custody credit he had accrued, but also any credit he would earn while waiting in the county jail for a bed to become available at the ranch and for time spent at the ranch. Appellant agreed.

Appellant apparently completed the program; but in January 1991, he was arrested for driving while under the influence of alcohol. Appellant again admitted violating the terms of his probation. The trial court revoked probation and imposed the previously suspended concurrent three-year prison terms. Due to appellant's prior waiver of custody credit, the court granted appellant presentence credit only for the time in custody after his arrest for drunk driving.

II. DISCUSSION

Section 2900.5, subdivision (a) states in pertinent part: "In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including but not limited to any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, ... shall be credited upon his term of imprisonment...." (Emphasis added.) ³ Our Supreme Court and this court (Division Two) have previously recognized that custody credit under section 2900.5 need not be granted, in circumstances which go beyond the requirements of a defendant's statutory rights under section 2900.5. (See In re Joyner (1989) 48 Cal.3d 487, 256 Cal.Rptr. 785, 769 P.2d 967; In re Nickles (1991) 231 Cal.App.3d 415, 282 Cal.Rptr. 411; accord, In re Bustos (1992) 4 Cal.App.4th 851, 5 Cal.Rptr.2d 767.) In the circumstances of this case, the trial court's requirement that appellant waive potential rights to future custody credit was a valid exercise of its power in specifying the conditions of probation.

We are cited to no case, nor has our research discovered any, which precludes a knowing and intelligent waiver of future custody credit. Here, the waiver served important purposes in (a) resolving in advance the issue as to whether custody credit would apply at all to time spent at the ranch; and (b) allowing the trial court to deny credit for an unsuccessful stay at the ranch, thus avoiding a windfall to appellant. In these circumstances, we conclude the waiver was valid.

Initially, it is debatable whether appellant was even "in custody" at all while at the ranch. The term "in custody" as used in section 2900.5, subdivision (a) has never been precisely defined. People v. Reinertson (1986) 178 Cal.App.3d 320, 326, 223 Cal.Rptr. 670 reviewed several cases in which courts approved the granting of custody credit for time spent in various facilities. The court concluded: "It is clear from the words of the statute and from judicial decisions that, for purposes of credit, 'custody' is to be broadly defined. (See People v. Mobley (1983) 139 Cal.App.3d 320, 323 [credit for period of residence in 'Discovery House']; People v. Sylvestry (1980) 112 Cal.App.3d Supp. 1, 7 [credit for stay in custodial 'Impact House']; People v. Rodgers (1978) 79 Cal.App.3d 26, 31-32 [credit for stay in 'Delancy Street facility']; In re Wolfenbarger (1977) 76 Cal.App.3d 201, 205-206 [credit for stay in residential 'Cri-Help' program].) ... The courts which have considered the question generally focus on such factors as the extent freedom of movement is restricted, regulations governing visitation, rules regarding personal appearance, and the rigidity of the program's daily schedule. [Citation.] [p] While no hard and fast rule can be derived from the cases, the concept of custody generally connotes a facility rather than a home. It includes some aspect of regulation of behavior. It also includes supervision in a structured life style." (Id. at pp. 326-327, 223 Cal.Rptr. 670, parallel citations omitted.)

However, the record does not reveal the exact nature of the program at the ranch. The question of whether time spent at the ranch qualified as time "in custody" was neither raised nor briefed in the trial court or on appeal. It is, at the very least, uncertain whether time spent merely drying out at a ranch is really the type of "custody" for which credit should be given, even if the term "custody" is to be broadly defined.

The question of whether a particular facility should be regarded as sufficiently restrictive as to amount to custody constitutes a factual question (Cf. People v. Rodgers (1978) 79 Cal.App.3d 26, 32-33, 144 Cal.Rptr. 602), even though certain facilities by their very nature involve some restraint on untrammeled liberty (see People v. Schnaible (1985) 165 Cal.App.3d 275, 277, 211 Cal.Rptr. 530). Although it is difficult to conceive of a live-in alcohol treatment program that does not include some modification of behavior and supervision, at least regarding the availability of alcohol, this does not necessarily constitute "custody."

The trial court recognized, however, that time spent at the ranch might potentially be considered custodial, when the court required appellant to waive the future credit to which he would be entitled by living at the ranch. We assume for purposes of this action that such time was custodial, and that the trial court thereby acted to resolve any such uncertainty implicit in appellant's case.

Moreover, appellant also "knowingly and intelligently" waived his potential right to future custody credit. A " 'knowing and intelligent waiver' " of a right, it is true, is one entered into with awareness of its consequences. (People v. Harris (1987) 195 Cal.App.3d 717, 725, 240 Cal.Rptr. 891.) An awareness of the 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. (See People v. Howard (1992) 1 Cal.4th 1132, 1174-1180, 5 Cal.Rptr.2d 268, 824 P.2d 1315 reinterpreting In re Tahl (1969) 1 Cal.3d 122, 132-133, 81 Cal.Rptr. 577, 460 P.2d 449 and In re Yurko (1974) 10 Cal.3d 857, 864-865, 112 Cal.Rptr. 513, 519 P.2d 561.) It follows from these principles that, before a defendant agrees to waive custody credit to which he is entitled, he should understand the full consequences of the waiver. Appellant clearly understood that the full consequence of his waiver would be to deny him any custody credit for time spent at the ranch. ⁴

In People v. Harris (1991) 227 Cal.App.3d 1223, 278 Cal.Rptr. 391, the Second Appellate District recognized that the defendant could knowingly and intelligently waive custody credit already accrued. "A defendant may waive custody credit in order to receive other sentencing considerations, if the waiver is knowing and intelligent. [Citations.]" (Id. at p. 1227, 278 Cal.Rptr. 391.) It is true the Second District also implicitly disapproved the trial court's practice of withholding from appellant the total time he was waiving--in that case, more than four years. (Ibid.)

However, in the present case, the trial court did not withhold any information from appellant. Appellant was ordered to remain in the county jail "until bed space is available at the residential program," and then to remain in the program "until you successfully complete said program to the satisfaction of the Program Director and your supervising Probation Officer." Under these conditions, it was impossible to inform appellant of the potential magnitude of the right he was agreeing to waive, because no one, including the trial court, could determine in advance how long the relevant period would be. The mere fact that the right to custody credit could not then be defined with mathematical precision does not render the waiver invalid. In fact, the trial court's action made appellant's situation more certain, not less; it resolved in advance the uncertain question of the extent to which time spent at the ranch could produce custody credit. Here, appellant possessed all the relevant facts, to the extent they could be ascertained, and made a knowing and intelligent waiver of future custody credit. Ther...