People v. Johnson

• Citation: 51 P.3d 913,123 Cal.Rptr.2d 700,28 Cal.4th 1050
• Decision Date: 19 August 2002
• Docket Number: No. S097755.,S097755.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Dale Howard JOHNSON, Defendant and Appellant.
• Court: United States State Supreme Court (California)

123 Cal.Rptr.2d 700

28 Cal.4th 1050

51 P.3d 913

The PEOPLE, Plaintiff and Respondent, v. Dale Howard JOHNSON, Defendant and Appellant.

No. S097755.

Supreme Court of California.

August 19, 2002.

Gordon B. Scott, under appointment by the Supreme Court, Santa Rosa, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Ronald A. Bass, Assistant Attorney General, Laurence K. Sullivan and Seth K. Schalit, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, J.

Penal Code section 2900.5 provides that the total number of days a defendant spends in custody, either before sentencing or as a condition of probation, "shall be credited" against the defendant's "term of imprisonment." In this case, we resolve two issues regarding that statute: First, we conclude that a defendant can expressly waive entitlement to credits for time served. Second, we hold that such an express waiver is proper and enforceable when a trial court in sentencing a defendant to a maximum term of imprisonment conditions a grant of probation upon the defendant's waiver of custody credits.

I. FACTS

Defendant was charged with two counts of burglary and one count of receiving stolen property. Under a plea bargain, defendant entered a plea of no contest to one count of residential burglary (Pen. Code, §§ 459/460)¹ in return for dismissal of the other charges.

Because the burglary involved "significant planning" by defendant, who had copied a house key entrusted to the cleaning business where he worked, and because the value of the items taken exceeded $12,000, the trial court found that aggravating factors predominated and sentenced defendant to the upper term of six years in state prison. (See § 461, subd. 1.) The trial court further found that defendant, who was then 24 years old and had a drug problem but no prior felony convictions, would benefit from probation. The court suspended execution of sentence and placed defendant on probation for 36 months. The court conditioned its grant of probation upon defendant's agreement to (1) incarceration in county jail until space became available at Turning Point, a residential drug treatment facility, and (2) giving up entitlement to section 2900.5 custody credits, that is, the credits defendant would otherwise receive for the time served in county jail (before and after sentencing) and at Turning Point, in the event defendant were to violate probation and be sent to state prison.

The trial court told defendant: "You make the choices. If you choose to work hard in the program and get something out of it and stay off drugs, you will never have to come back in here, and you're not going to have a problem. If you don't do that, you will come back in here, and you are going to go to prison. So use a six-year [state prison] sentence as a motivating tool to help you make the right choice when you are faced with choices. I am going to give you the opportunity."

Although defendant expressly agreed to a waiver of custody credits, his attorney, presumably to preserve the issue for appeal, "technically object[ed]" for the record. On appeal, defendant argued that the waiver of custody credits was not enforceable because the trial court had imposed the maximum term of imprisonment and thus if defendant violated probation and was sent to state prison, his total time in custody would exceed that allowed by law. The Court of Appeal affirmed the trial court, and we granted defendant's petition for review.

II. DISCUSSION

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. (In re Rojas (1979) 23 Cal.3d 152, 156, 151 Cal.Rptr. 649, 588 P.2d 789; accord, People v. Bruner (1995) 9 Cal.4th 1178, 40 Cal.Rptr.2d 534, 892 P.2d 1277.) This provision also applies to custodial time in a residential treatment facility. (§ 2900.5.)²

Nearly 25 years ago, Justice Bernard Jefferson's concurrence in In re Chamberlain (1978) 78 Cal.App.3d 712, 720, 144 Cal.Rptr. 326 (Chamberlain) pointed out that nothing in the language of section 2900.5 prohibited a defendant from knowingly and intelligently waiving entitlement to custody credits.

In Chamberlain, the trial court suspended a state prison sentence and placed the defendant on probation conditioned upon service of one year in county jail with no credit for the days the defendant had already spent in jail before sentencing. In a petition for habeas corpus filed in the Court of Appeal, the defendant unsuccessfully challenged that order. In a concurring opinion, Justice Jefferson agreed with the majority's denial of relief, but he did so for the following reason: By accepting probation, the defendant had waived his right to custody credits under section 2900.5, and he had done so knowingly and intelligently. But absent such a waiver, Justice Jefferson explained, any period of incarceration without credits would be an illegal sentence under former section 19a (now § 19.2), which "places a one-year limit upon a county jail commitment given as a condition of probation." (Chamberlain, supra, 78 Cal.App.3d at pp. 720-721, 144 Cal.Rptr. 326 (cone. opn. of Jefferson, J.).)

Agreeing with that view, the Court of Appeal in People v. Johnson (1978) 82 Cal.App.3d 183, 188, 147 Cal.Rptr. 55 (Johnson) held that section 2900.5 permits a defendant to "knowingly and intelligently waive" the right to receive credit for "all days of custody [to] be credited to [the defendant's] sentence, including any period of imprisonment as a condition of probation." The court described its holding as a "realistic interpretation" of section 2900.5, which allows a trial judge in a "proper case," acting with the defendant's consent, "[to] formulate a sentence which fits the crime and the criminal." (Johnson, supra, at p. 188, 147 Cal.Rptr. 55.) The court also noted that when a defendant violates probation after spending one year in county jail as a condition of probation, its holding would mean that the sentencing judge would not have to "choose between ignoring the violation or imposing sentence to state prison." (Ibid.) Rather, the judge could "fashion an intermediate disposition by modifying probation" to provide for additional time in county jail. (Ibid.)

Since then, Courts of Appeal, in upholding custody credits waivers in a wide variety of circumstances, have not questioned that a defendant may waive entitlement to such credits under section 2900.5. (See People v. Torres (1997) 52 Cal.App.4th 771, 775, 60 Cal.Rptr.2d 803 [waiver at sentencing of future credits for probationary term in drug treatment program]; People v. Salazar (1994) 29 Cal.App.4th 1550, 1553-1556, 35 Cal.Rptr.2d 221 [waiver at reinstatement of probation of past custody credits]; People v. Ambrose (1992) 7 Cal. App.4th 1917, 1920, 1925, 9 Cal.Rptr.2d 812 [waiver at reinstatement of probation of past and future credits]; People v. Zuniga (1980) 108 Cal.App.3d 739, 743, 166 Cal.Rptr. 549 [waiver at sentencing of past custody credits].) In People v. Tran (2000) 78 Cal.App.4th 383, 92 Cal.Rptr.2d 815 (Tran), which we address later in this opinion, the Court of Appeal set aside a waiver of custody credits by a defendant sentenced to a suspended maximum term in state prison, but the court still acknowledged that defendants could waive custody credits in situations not involving a suspended sentence for the maximum term.

Like the Courts of Appeal that have addressed the issue, we too conclude that 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. 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, 115 S.Ct. 797, 130 L.Ed.2d 697.) 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, 58 Cal.Rptr.2d 458, 926 P.2d 438.) As with the waiver of any significant right by a criminal defendant, a defendant's waiver of entitlement to section 2900.5 custody credits must, of course, be knowing and intelligent. (People v. Harris (1987) 195 Cal.App.3d 717, 725, 240 Cal.Rptr. 891.) 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.³

Defendant acknowledges that trial courts generally have authority to condition probation upon a waiver of credits for time in custody. But he contends that in this case the trial court exceeded that authority because, after imposing the maximum prison term for burglary (six years), it required, as a condition of granting probation, that defendant give up entitlement to custody credits both for time in county jail and at Turning Point, the drug treatment facility. As a consequence, defendant points out, were he to violate probation, he would face the full six-year prison term with no reduction for time spent in county jail or at Turning Point, resulting in a total time in custody in excess of the maximum state prison term for the offense.

In support, defendant relies on People v. Ambrose, supra, 7 Cal.App.4th 1917, 9 Cal. Rptr.2d 812 (Ambrose). That reliance is misplaced, however.

In Ambrose, the Court of Appeal upheld the trial court's requirement, imposed as a condition of probation, that the defendant waive future custody credits for time spent at Diablo Valley Ranch, an alcohol treatment facility. As in this case, the defendant in Ambrose was sentenced to the upper term, execution of...