People v. Salazar, A063893

• Decision Date: 08 November 1994
• Docket Number: No. A063893,A063893
• Citation: 35 Cal.Rptr.2d 221,29 Cal.App.4th 1550
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent v. Carlos Isaguirre SALAZAR, Defendant and Appellant.

Page 221

35 Cal.Rptr.2d 221

29 Cal.App.4th 1550

THE PEOPLE, Plaintiff and Respondent v. Carlos Isaguirre SALAZAR, Defendant and Appellant.

No. A063893.

Court of Appeal, First District, Division 1, California.

Nov. 8, 1994.

[29 Cal.App.4th 1552] Melissa L. Foster, First District Appellate Project, San Francisco, under appointment by the court of appeal, for appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald E. Niver, Supervising Deputy Atty. Gen., Margo J. Yu, Deputy Atty. Gen., San Francisco, for respondent.

STEIN, Associate Justice.

Carlos Isaguirre Salazar (appellant) pled guilty to one count of sale of cocaine. (Health & Saf.Code, § 11352.) The court suspended imposition of sentence and placed appellant on three years of probation upon condition that he serve one year in county jail. Appellant violated probation twice, and each time probation was revoked and reinstated on the condition that he waive credits and serve additional time in county jail. The order reinstating and modifying probation on the second violation stated that appellant waived all prior credits for "all purposes." Following revocation of his probation after a third probation violation the court sentenced appellant to five years in state prison. The court gave appellant credit for all time served in county jail after the date of the second waiver of credits.

ANALYSIS

Appellant contends that when he waived credits in connection with the second probation violation, he did not knowingly and intelligently waive credits against a future prison sentence. He asks that we modify the judgment to award an additional 445 days of custody and conduct credits. He also contends that the court incorrectly calculated all days in custody that were not included in the waiver.

I. The Scope of the Waiver

In People v. Johnson (1978) 82 Cal.App.3d 183, 147 Cal.Rptr. 55, the court held that a defendant may validly waive custody credits pursuant to Penal Code section 2900.5 as a condition of probation. Trial courts now routinely obtain such waivers from repeat probation violators, who, like appellant, have already served substantial amounts of county jail time as a condition of probation, and are approaching the maximum time set forth in Penal Code section 19.2. The waiver allows the court to reinstate probation on the condition Since the Johnson decision, it is well settled that a defendant may waive custody credits as a condition of probation, or in exchange for other sentencing considerations. (People v. Ambrose (1992) 7 Cal.App.4th 1917, 1923, 9 Cal.Rptr.2d 812; People v. Zuniga (1980) 108 Cal.App.3d 739, 742, 166 Cal.Rptr. 549; People v. Harris (1991) 227 Cal.App.3d 1223, 1227-1228, 278 Cal.Rptr. 391; People v. Harris (1987) 195 Cal.App.3d 717, 725, 240 Cal.Rptr. 891.) The waiver, however, must be " 'knowing and intelligent' " in the sense that it was made with "awareness of its consequences." (People v. Harris, supra, 195 Cal.App.3d at p. 725, 240 Cal.Rptr. 891.)

that the defendant serve additional time in county jail, instead of facing "the Hobson's choice of the 'joint' or a 'straight walk.' " (Id. at p. 187, 147 Cal.Rptr. 55.)

In this case, appellant admitted the second probation violation at a hearing on April 22, 1993. The court, in response to appellant's inquiry, informed him that he would be waiving all credits except for the 63 days he had been in custody on the second probation violation. At the conclusion of the hearing, the court stated, without objection, that appellant's prior credits "will be waived for all time and for all purposes." On that same day the court entered an order reinstating probation, on the condition that he serve one year in county jail with 63 days credit for time in custody from his arrest on the second probation violation until the date of sentencing, and on the condition that all prior credits be waived for "all purposes."

Appellant contends that he did not "knowingly and intelligently" waive these credits against a prison sentence upon revocation of probation. He relies on the fact that neither the court nor defense counsel specifically advised him on the record that the waiver of credits would apply to a prison sentence imposed upon subsequent revocation of probation. He argues we must therefore infer that he did not "knowingly and intelligently" waive the credits against a subsequent prison term.

Appellant relies on cases concerning the advice and waivers that must be made on the record before accepting a guilty plea or admission of an enhancement allegation. (See, e.g., People v. Howard (1992) 1 Cal.4th 1132, 1174-1178, 5 Cal.Rptr.2d 268, 824 P.2d 1315; People v. Moore (1992) 8 Cal.App.4th 411, 10 Cal.Rptr.2d 286.) These cases have imposed upon the trial courts the duty to expressly advise the defendant of the constitutional rights waived, and the consequences of the plea. None of these cases extend such an obligation to the trial court when obtaining a waiver of statutory rights pursuant to Penal Code section 2900.5. ¹

No doubt the better course is to specifically advise the defendant on the record concerning the scope of a waiver of credits, as the court did in People v. Ambrose, supra, 7 Cal.App.4th 1917, 9 Cal.Rptr.2d 812. In Ambrose, the court required the defendant to waive any right to custody credit for the time spent in a drug rehabilitation program as a condition of probation. The court specifically warned the defendant that if he violated probation again he would go to state prison and would not receive any credits for the time he had been in custody. (Id. at p. 1923, 9 Cal.Rptr.2d 812.) If the trial court takes the time to create such an unequivocal record, the scope of the waiver is explicit, and not vulnerable to later retraction, when the defendant is faced with state prison.

Nevertheless, having carefully reviewed the entire record, we are confident that appellant understood at the April 22 hearing that he was waiving his prior custody credits, as the court then said, "for all time and for all purposes."

Prior to the April 22 hearing, appellant had already violated his probation once. After the first violation, to increase appellant's incentive to comply with the terms of probation, the court sentenced appellant to five years in state prison, but suspended execution. The court reinstated probation upon The court also made it clear that he was to complete a one-year rehabilitation program regardless of how much time he spent in county jail awaiting a placement. Approximately a month later, appellant was released from county jail, the remainder of the one-year county jail sentence was stayed, and appellant was ordered to report to a residential drug rehabilitation program. He failed to report to the rehabilitation program or appear for a progress report, and was arrested again on February 24, 1993.

the condition that appellant waive all prior custody credits and serve another [29 Cal.App.4th 1555] year in county jail, until he could be transferred to a live-in drug treatment program for one year. Therefore, appellant was already on notice that failure to perform successfully on probation would likely result in a prison sentence.

At the April 22, 1993, probation revocation hearing appellant admitted the second probation violation. The court noted that it could simply lift the stay of the one-year county jail sentence because appellant failed to report to the drug rehabilitation program. In other words, the court did not need to obtain another waiver of credits for the limited purpose of requiring appellant to serve an additional year in county jail, because, in connection with his first probation violation, appellant had already agreed to those terms, yet did not serve a year in county jail or complete a drug rehabilitation program. If, as appellant suggests, he merely agreed to waive credits for the purpose of allowing the court to require him to serve an additional year in county jail, he would have been no worse off having committed the second probation violation than he was after the first.

Even more telling is the fact that, when the court stated that the waiver of credits was for "all time and for all purposes," neither appellant nor his counsel asserted that the court had misstated the scope of the agreed-upon waiver. Nor did appellant seek to correct the court's written order, which unequivocally provided that the waiver of credits was "for all purposes," as opposed to the more limited purpose of modification of probation. Moreover, at the sentencing after the third probation violation, the probation report presented a calculation of credits premised on the assumption that the April 22 waiver of credits was, as stated in the court's order, "for all purposes." Neither appellant nor his counsel suggested that there was any dispute concerning the scope of that waiver. The only discussion of credits concerned the...