Stanford Law School - Robert Crown Law Library

Filed 6/28/04 (This opinion should follow companion case of P. v. Arnold, filed same date)

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S105978
v.
) Ct.App.
1/5
A095147
SHELLY J. JEFFREY,
Solano
County
Defendant and Appellant.
Super. Ct. Nos. FC170864 &
FC180308

This is a companion case to People v. Arnold (June 28, 2004, S106444) ___
Cal.4th ___ (Arnold). In Arnold, we interpret the scope and effect of a defendant’s
waiver of custody credits—commonly referred to as a “Johnson waiver” (People
v. Johnson (1978) 82 Cal.App.3d 183 (Johnson)—which enables a sentencing
court to reinstate a defendant on probation after he or she has violated probation
one or more times, conditioned on service of an additional county jail term, as an
alternative to imposing a state prison sentence. Arnold holds that when a
defendant knowingly and intelligently waives jail time custody credits after
violating probation in order to be eligible for reinstatement on probation
conditioned on service of additional jail time, the waiver applies to any future use
of such credits should probation ultimately be terminated and a state prison
sentence imposed.
Arnold involves a waiver of only presentence jail time custody credits. The
instant case, in contrast, involves a waiver of such credits as well as future credits
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to be earned in a residential drug treatment program. As a general matter, the
validity of a Johnson waiver of future credits to be earned in a residential drug or
alcohol treatment facility was recently unanimously established by this court in
People v. Johnson (2002) 28 Cal.4th 1050, 1054-1055. The question in this case
is whether the waiver analysis we adopt in Arnold, respecting the nonavailability
of waived presentence jail time custody credits where probation is terminated and
the defendant sentenced to state prison, applies equally to waived future credits to
be earned in a residential drug or alcohol treatment facility. We conclude that it
does. The result reached by the Court of Appeal in this case is consistent with that
conclusion. Accordingly, the judgment shall be affirmed.
FACTS AND PROCEDURAL BACKGROUND
In September 1998, defendant Shelly Jeffrey was charged in Solano County
Superior Court case No. FC170864 with welfare fraud in excess of $400 (Welf. &
Inst. Code, § 10980, subd. (c)(2)) and five counts of perjury (Pen. Code, § 118).
In January 2000, defendant was charged in case No. FC180308 with possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a)), unauthorized
possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140), and
driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). It was further
alleged that defendant was in unlawful possession of the methamphetamine while
released on bail and on her own recognizance in case No. FC170864.
On January 20, 2000, defendant pled no contest to welfare fraud in case No.
FC170864 and possession of a controlled substance (methamphetamine) in case
No. FC180308, further admitting the on-bail enhancement alleged in the latter
case. Pursuant to the plea agreement all remaining charges were dismissed. In
March 2000, imposition of sentence was suspended and defendant placed on three
years formal probation in both cases. In order for defendant to qualify for
placement in a residential drug treatment program as a condition of probation, she
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was required to waive all presentence custody credits as well as any future credits
that would be earned while in the residential treatment facility.
On June 20, 2000, defendant’s probation officer requested that probation be
revoked because defendant had been discharged from the residential drug
treatment program after one month without completing it. Probation was revoked
and a bench warrant for defendant’s arrest issued that same day.
On March 16, 2001, defendant was returned to court and admitted the
probation violation. On March 30, 2001, she was sentenced to state prison for two
years on the welfare fraud conviction, with a concurrent two-year term for the
possession of methamphetamine conviction. Over defendant’s objection, the
sentencing court awarded defendant credit for only 37 actual days served in
custody after her arrest for the probation violation.
Defendant appealed her sentence, claiming the sentencing court erred by
failing to apply the previously waived custody credits (for both presentence jail
time and postsentence residential treatment facility time) toward her prison term
because her Johnson waiver was not knowing and intelligent regarding the
possible future consequences of the credit waiver if a prison sentence was
ultimately imposed. In an unpublished opinion the Court of Appeal disagreed and
affirmed, concluding defendant’s waiver of all credits was valid and effectual
where “the record is silent concerning the intended scope of defendant’s credit
waiver.” We granted defendant’s petition for review.
DISCUSSION
In Arnold, supra, ___ Cal.4th ___, a companion case to the instant matter,
we interpreted the scope and effect of a defendant’s waiver of presentence jail
time custody credits—oftentimes referred to as a Johnson waiver (Johnson, supra,
82 Cal.App.3d 183)—which enables a sentencing court to reinstate a defendant on
probation after he or she has violated probation, conditioned on service of
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additional county jail time, as an alternative to imposing a state prison sentence,
without running afoul of the sentencing proscriptions of Penal Code section 19.2
We conclude in Arnold that when a defendant knowingly and intelligently waives
local jail time custody credits after violating probation in order to be eligible for
reinstatement on probation and thereby avoid a prison sentence, the waiver is for
all purposes and applies to any future use of such credits should probation
ultimately be terminated and a previously suspended state prison sentence
imposed. (Arnold, supra, ___ Cal.4th at p. ___ [p. 17].)
Briefly, the court in Johnson, supra, 82 Cal.App.3d 183, recognized that
the interplay of Penal Code section 19.2’s long-standing one-year cap on the time
that can be served in county jail as a condition of probation for any single
violation, and Penal Code section 2900.5’s requirement that all local jail time
served be credited against any subsequent county jail term imposed as a condition
of reinstatement of probation, created a dilemma for sentencing courts in those
cases in which the defendant had already served a year or more in county jail as a
condition of probation before subsequently violating probation. In such cases, if
the sentencing court desired to reinstate the defendant on probation, the interplay
of the two statutes forced the sentencing court to choose between sentencing the
defendant to state prison or imposing no additional jail time as a condition of
reinstatement of probation—because applying custody credit for the earlier one
year of county jail time against the new county jail term would result in the
defendant’s having already served the maximum one-year county jail term
permitted under section 19.2 for the new violation. (Arnold, supra, ___ Cal.4th at
[pp. 6-7].) The Johnson court therefore fashioned the rule that “a defendant who
has served one year in jail as a condition of probation and who thereafter violates
probation may be sentenced to an additional period of up to one year in jail if he
knowingly and intelligently waives the provisions of Penal Code section 2900.5.”
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(Johnson, supra, 82 Cal.App.3d at pp. 184-185.) Johnson’s waiver rule has been a
settled rule of criminal procedure in this state for over two decades now.
Our decision in Arnold addressed the further issue that arises when a
defendant has been afforded the benefit of one or more Johnson waivers, in order
to permit the sentencing court to continue or reinstate the defendant on probation
conditioned on service of an additional county jail term as described above, and
the most recent probation violation ultimately convinces the court that probation
must be terminated and the defendant sentenced to state prison. Under those
circumstances, may all the waived custody credits for local time spent in jail as a
condition of probation be recaptured and applied against the state prison sentence
being imposed? Arnold holds that a knowing and intelligent Johnson waiver of
local jail time custody credits is a waiver of such credits for all purposes, and that
such waived credits may not be recaptured and applied against a subsequently
imposed prison sentence in the event probation is revoked and a prison term
imposed due to the defendant’s own unlawful or unsatisfactory conduct while on
probation. (Arnold, supra, ___ Cal.4th at p. ___ [p. 17]; accord, People v. Burks
(1998) 66 Cal.App.4th 232, 236 (Burks).)
The provisions of Penal Code section 2900.5—entitling a defendant
sentenced either to county jail or state prison 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—apply to custodial time in a
residential treatment facility as well as straight county jail time. (Pen. Code,
§ 2900.5, subd. (a); People v. Johnson, supra, 28 Cal.4th at p. 153.) In the instant
case, defendant executed a Johnson waiver of both presentence local jail time
custody credits and future credits to be earned while in a residential drug treatment
facility as a condition of probation.
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The validity of a Johnson waiver of future credits to be earned in a
residential drug or alcohol treatment facility was recently unanimously established
by this court in People v. Johnson, supra, 28 Cal.4th 1050. Citing various cases
upholding custody credit waivers in a wide variety of circumstances, and noting
that the Courts of Appeal have not questioned that a defendant may waive
entitlement to such credits under section 2900.5, we stated: “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.” (People v. Johnson, at pp.
1054-1055, italics added; see also People v. Torres (1997) 52 Cal.App.4th 771,
775; People v. Ambrose (1992) 7 Cal.App.4th 1917 (Ambrose).) As noted by the
court in Ambrose, supra, at page 1925, when probation is conditioned upon
completion of a residential treatment program, custody credit waivers ensure the
defendant’s “optimum chances of success in [the] treatment program, while
reserving an appropriate sentence if, despite the opportunity received, the
treatment program and probation are not completed.”
The question remains whether a Johnson waiver of future custody credits to
be earned in a residential drug or alcohol treatment facility is a waiver of such
credits for all purposes, including application of such credits to a subsequently
imposed prison term in the event probation is revoked. We conclude that it is.
Defendant has presented us with no reason or argument why the rule we announce
today in Arnold regarding waiver of presentence jail time custody credits should
not likewise be applied to similar waivers of future custody credits to be earned in
a residential drug or alcohol treatment facility.
We indicated in Arnold that “The better practice is for sentencing courts to
expressly admonish defendants who waive custody credits under Johnson, supra,
82 Cal.App.3d 183, that such waivers will apply to any future prison term should
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probation ultimately be revoked and a state prison sentence imposed. (See, e.g.,
People v. Salazar (1994) 29 Cal.App.4th 1550, 1554; People v. Ambrose (1992) 7
Cal.App.4th 1917, 1923.) A sentencing court’s failure to include such an explicit
advisement will not, however, invalidate a Johnson waiver by which the defendant
is otherwise found to have knowingly and intelligently relinquished his or her right
to custody credits under section 2900.5.” (Arnold, supra, ___ Cal.4th at p. ___
[pp. 16-17], fn. omitted.) This same caveat applies equally to Johnson waivers of
future custody credits to be earned in a residential drug or alcohol treatment
facility.
Having concluded that waiver of future custody credits to be earned in a
residential treatment facility must be treated the same as waiver of presentence jail
time custody credits for purposes of the scope of the waiver rule we have
announced in Arnold, defendant makes no further argument that persuades us her
waiver of both past and future custody credits was other than knowing and
intelligent under the teachings of Arnold and Johnson. At the original sentencing
hearing, the following colloquy transpired between the court and defendant:
“[THE COURT:] For me to place you in this program, Ms. Jeffrey, you’ll
have to waive all credits you have accrued previously and credits you would be
entitled to on a day-for-day basis for the time spent in the [drug treatment]
program. [¶] Did you have a chance to discuss that with your attorney?
“THE DEFENDANT: Yes, I did.
“THE COURT: Are you willing to waive those credits?
“THE DEFENDANT: Yes.
“THE COURT: You join in the waiver, Mr. Tamayo [defense counsel]?
“MR. TAMAYO: Yes.”
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As in Arnold, supra, __ Cal.4th __, and Burks, supra, 66 Cal.App.4th 232,
there is no indication in this record that at the time defendant entered the Johnson
waiver, she believed she would be able to recapture her waived custody credits,
past or future, for use to reduce a possible future prison term. Defendant
nonetheless urges that “a waiver of credits may be only for a term imposed in
county jail as a condition of probation, or may be for both a probationary term and
a subsequently imposed prison sentence.” Defendant has cited no case in which
such a distinction was ever drawn at the time of entry of a Johnson custody credit
waiver, nor does she point to any factual basis for us to conclude that she
understood her waiver to be anything other than a waiver of custody credits, both
present and future, for all purposes, plain and simple. As Burks explains, on an
otherwise silent record, the waiver of credits must be presumed to be a waiver of
credits for all purposes. “To determine whether a waiver is knowing and
intelligent, the inquiry should begin and end with deciding whether the defendant
understood he was giving up custody credits to which he was otherwise entitled.”
(Burks, supra, 66 Cal.App.4th at p. 236, fn. 3.)
CONCLUSION
Consistent with the rationale and holding in Arnold, supra, ___ Cal.4th
___, the judgment of the Court of Appeal in this matter is affirmed.
BAXTER, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Jeffrey
__________________________________________________________________________________

Unpublished Opinion

XXX NP opn. filed 3/13/02 - 1st Dist., Div. 5
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S105978
Date Filed: June 28, 2004
__________________________________________________________________________________

Court:

Superior
County: Solano
Judge: Luis M. Villarreal

__________________________________________________________________________________

Attorneys for Appellant:

Michael B. McPartland, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass,
Assistant Attorney General, Jeffrey M. Laurence, Sharon G. Birenbaum, René A. Chacón, David M.
Baskind and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael B. McPartland
P.O. Box 4509
Palm Desert, CA 92261-4509
(760) 776-4243

Ryan B. McCarroll
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-1308

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Opinion Information

Date:	Docket Number:
Mon, 06/28/2004	S105978

Disposition
Jun 28 2004	Opinion: Affirmed

Dockets
Apr 17 2002	Petition for review filed   by counsel for appellant Shelly Jean Jeffrey.
Apr 18 2002	Record requested
May 6 2002	Received Court of Appeal record   file jacket/accordian file
Jun 12 2002	Petition for Review Granted (criminal case)   Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Jul 29 2002	Counsel appointment order filed   Michael Mc Partland to repesent aplt. Aplt's brief on the merits is due w/in 30 days.
Aug 26 2002	Request for extension of time filed   for aplt to file the opening brief on the merits, to 9-27.
Aug 30 2002	Extension of time granted   to 9-27-02 for aplt to file the opening brief on the merits.
Sep 26 2002	Opening brief on the merits filed   by aplt
Oct 28 2002	Answer brief on the merits filed   by resp
Nov 18 2002	Request for extension of time filed   for aplt to file the reply brief on the merits, to 12/17.
Nov 22 2002	Extension of time granted   Based upon the representation of Michael B. McPartland, counsel for aplt., that he expects to file aplt's reply brief on the merits between 12-11-02 and 1-11-03, and good cause appearing, it is ordered that the time to serve & file aplt's reply brief on the merits is extended to and including 12-17-02. No further extensions of time are contemplated.
Dec 11 2002	Compensation awarded counsel   Atty McPartland
Dec 16 2002	Reply brief filed (case fully briefed)   by counsel for appellant (Shelly Jeffrey)
Mar 10 2004	Case ordered on calendar   4-7-04, 9am, L.A. (was 1:30pm)
Apr 7 2004	Cause argued and submitted
Jun 28 2004	Opinion filed: Judgment affirmed in full   Majority opinion by Baxter, J. -------------joined by George, C.J., Kennard, Werdegar, Chin, Brown, Moreno, JJ.
Aug 4 2004	Remittitur issued (criminal case)
Aug 25 2004	Compensation awarded counsel   Atty McPartland

Briefs
Sep 26 2002	Opening brief on the merits filed
Oct 28 2002	Answer brief on the merits filed
Dec 16 2002	Reply brief filed (case fully briefed)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website