Filed 6/28/04 (This opinion should precede companion case of P. v. Jeffrey, filed same date)
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S106444
v.
) Ct.App.
3
C037898
CLEMANTT ARNOLD,
Butte
County
Defendant and Appellant.
Super. Ct. No. CM007751
In this case 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,
conditioned on service of an additional county jail term, as an alternative to
imposing a state prison sentence. We conclude that when a defendant knowingly
and intelligently waives jail time custody credits after violating probation in order
to be reinstated on probation and thereby avoid a prison sentence, the waiver
applies to any future use of such credits should probation ultimately be terminated
and a state prison sentence imposed. The Court of Appeal having concluded
otherwise, the judgment of that court will be reversed.
FACTS AND PROCEDURAL BACKGROUND
Defendant was detained by police and found to be in possession of rock
cocaine base, a pager, and a large amount of cash. On October 21, 1997,
representing himself, he pled no contest to possession of a controlled substance.
1
(Health & Saf. Code, § 11350, subd. (a).) To avoid a state prison sentence, he
entered a Johnson waiver. The trial court informed defendant that as part of his
plea he was “waiv[ing] all time credits through today, and there would be no
immediate state prison in this case.” Defendant indicated on the record that he
understood. As part of the plea form, he executed a written waiver that stated, “I
WILL WAIVE ALL CREDITS FOR JAIL TIME SERVED THROUGH 10-21-
97.” On November 18, 1997, defendant was placed on probation for three years
conditioned on his serving 60 days in the county jail, with credit for 28 days
already served (from the date of entry of the plea to sentencing).
One month after sentencing, a petition was filed in the Butte County
Superior Court alleging that defendant was in violation of the terms of his
probation. Several weeks later, that petition was withdrawn. One year after
sentencing, a second petition was filed alleging that defendant was in violation of
probation. On May 3, 1999, defendant admitted the allegations of that petition.
On June 14, 1999, defendant was reinstated on probation conditioned on his
serving an additional 90 days in the county jail. Defendant again entered a
Johnson waiver, waiving all custody credits for time already served. On this
second occasion the trial court did specifically advise defendant that his waiver of
credits applied to any future prison sentence that might be imposed.
On August 4, 2000, a third petition was filed alleging that defendant was
once again in violation of the terms of his probation. On November 7, 2000, the
petition was sustained. On December 4, 2000, defendant was ordered to undergo a
90-day psychological evaluation pursuant to Penal Code section 1203.03.
Thereafter, on March 5, 2001, defendant was sentenced to the middle term of two
years in state prison. He was awarded 162 days of actual time served, and 80 days
of additional credit. He was not, however, awarded custody credits for the time he
2
served in county jail in 1997 and 1999 under his previously entered Johnson
waivers.
Defendant appealed his sentence. He conceded in his opening brief that
credit for the time he served in county jail under his second Johnson waiver was
unavailable against his prison term, as that waiver was preceded by an express
advisement by the trial court informing him that it applied to, and would preclude
credit against, any possible future prison sentence. Defendant nonetheless
contended that the entry of his first Johnson waiver was not knowing and
intelligent in that he did not understand at that time that he was waiving custody
credits against a possible future prison sentence.
In an unpublished opinion, over the dissent of one justice, the Court of
Appeal agreed, concluding that defendant’s initial Johnson waiver was not
knowing and intelligent regarding whether the waived custody credits would still
be available for crediting against a possible future prison sentence. The Court of
Appeal indicated it was specifically following the rationale of People v. Harris
(1987) 195 Cal.App.3d 717 (Harris), and rejecting the rationale and holding of
People v. Burks (1998) 66 Cal.App.4th 232 (Burks). We granted the Attorney
General’s petition for review.
DISCUSSION
The Johnson court held 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.” (Johnson, supra, 82
Cal.App.3d at pp. 184-185.) Although Johnson’s waiver rule has been a settled
rule of criminal procedure in this state for over two decades, it will be helpful to
begin our analysis with a brief explanation of the statutory framework that gave
rise to the need for the waiver rule in the first instance.
3
Statutory background
Penal Code section 19.21 has long imposed a one-year limitation on the
time that can be served in county jail as a condition of probation upon conviction
of a felony or misdemeanor, or upon recommitment to the county jail as a
condition of reinstatement of probation. (Johnson, supra, 82 Cal.App.3d at
p. 185.)
Section 2900.5, enacted in 1971 (Stats. 1971, ch. 1732, § 2, p. 3686),
originally established a custody credit scheme for the benefit of defendants who
were actually sentenced to state prison.2 Although a defendant committed to state
prison received credit against his or her prison sentence for any local time spent in
jail, including jail time previously served as a condition of probation for the same
offense, the credit scheme first embodied in section 2900.5 had no application to
defendants who were being sentenced to local jail time as a condition of probation
or reinstatement of probation. (See People v. Brasley (1974) 41 Cal.App.3d 311,
1
All further references herein are to the Penal Code.
Originally
enacted
in 1933 as former section 19a (Stats. 1933, ch. 848, § 2,
p. 2217), section 19.2 now provides in full: “In no case shall any person sentenced
to confinement in a county or city jail, or in a county or joint county penal farm,
road camp, work camp, or other county adult detention facility, or committed to
the sheriff for placement in any county adult detention facility, on conviction of a
misdemeanor, or as a condition of probation upon conviction of either a felony or
a misdemeanor, or upon commitment for civil contempt, or upon default in the
payment of a fine upon conviction of either a felony or a misdemeanor, or for any
reason except upon conviction of more than one offense when consecutive
sentences have been imposed, be committed for a period in excess of one year;
provided, however, that the time allowed on parole shall not be considered as a
part of the period of confinement.” (Italics added.)
2
As originally enacted, subdivision (c) of section 2900.5 provided in
pertinent part: “This section shall be applicable only to those persons who are
delivered into the custody of the Director of Corrections . . . .” (Stats. 1971,
ch. 1732, § 2, p. 3686.)
4
314-317 [section 2900.5, as then in effect, applicable only to state prison
commitments]; In re Hays (1953) 120 Cal.App.2d 308, 311 [no statute then in
existence authorized credit against jail sentences for local time previously served
as a condition of probation].)
Hence, prior to the amendment of section 2900.5 in 1976, neither section
19.2 standing alone, nor the interplay of sections 19.2 and 2900.5, provided for
any custody credits to be awarded against jail terms for local time previously
served in jail as a condition of probation. Section 19.2 merely placed a one-year
limitation on county jail terms for any single offense or probation violation, as it
does today, and the custody credit scheme of section 2900.5 in effect at that time,
although mandating credit for jail time previously served as a condition of
probation or otherwise against prison commitments, had no application
whatsoever to new county jail commitments.
In 1976, however, subdivision (c) of section 2900.5, which had limited the
application of the custody credit scheme of that section to state prison
commitments, was amended (Stats. 1976, ch. 1045, § 2, p. 4666), in pertinent part,
to redefine the “term of imprisonment,” i.e., the term against which custody credits
are to be applied, to include any “period of imprisonment imposed as a condition
of probation . . . .” As a result of this amendment, actual time previously served in
county jail, including time served as a condition of probation, would now be
credited against any new “term of imprisonment” served in the county jail for the
same offense, including any new jail term imposed as a condition of continuing or
reinstating the defendant on probation. (See generally People v. Bruner (1995) 9
Cal.4th 1178; In re Rojas (1979) 23 Cal.3d 152, 156.)
Chamberlain and Johnson
Two years after section 2900.5 was amended as explained above, “Justice
Bernard Jefferson’s concurrence in In re Chamberlain (1978) 78 Cal.App.3d 712,
5
720 (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 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 (conc. opn. of Jefferson, J.).)” (People v. Johnson (2002) 28 Cal.4th
1050, 1053-1054.)
Agreeing with Justice Jefferson’s concurrence in Chamberlain that same
year, the Johnson court recognized that the interplay of 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 the amendment of section 2900.5
requiring 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
6
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 having already served the maximum one-
year county jail term permitted under section 19.2 for the new violation. As the
Johnson court put it, “if a defendant has served a year in jail as a condition of
probation, a violation means either a prison sentence or a fatherly (or motherly)
lecture on the evils of crime” because “the court is faced with the Hobson’s choice
of the ‘joint’ or a ‘straight walk.’ ” (Johnson, supra, 82 Cal.App.3d at pp. 185,
187.)
The Johnson court therefore interpreted section 2900.5 as allowing a
defendant to waive custody credits under that section for county jail time
previously served in order to permit a sentencing court to reinstate probation
conditioned on service of an additional period of up to one year in county jail for
the new probation violation, without running afoul of section 19.2’s one-year
limitation on county jail terms, thereby avoiding the necessity of terminating
probation and sentencing the defendant to prison if the court did not see fit to give
the defendant a “ ‘straight walk.’ ” (Johnson, supra, 82 Cal.App.3d at p. 187.)
We recently reaffirmed the validity of the rationale and waiver rule of
Johnson 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 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.)
The precise issue in this case arises when a defendant has been afforded the
benefit of one or more Johnson waivers, in order to permit the sentencing court to
7
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 prison. In that situation, may all the previously 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?
Subsequent case law construing Johnson waivers
One of the first cases to address the scope and extent of a Johnson waiver
was People v. Zuniga (1980) 108 Cal.App.3d 739 (Zuniga). In that case the
defendant, who pled guilty to burglary, received a suspended three-year prison
sentence and was placed on probation for three years conditioned on service of
one year in the county jail. Defendant, who had been in pretrial custody for 168
days, was given the option of being sentenced to state prison or accepting
probation conditioned on the one-year county jail term without credit for the 168
days of presentence confinement. Defendant entered a Johnson waiver, waiving
the presentence custody credit and accepting the probationary terms. After serving
156 days of his one-year term, defendant escaped from jail, was recaptured, and
pled guilty to escape. Probation was revoked and the previously suspended three-
year state prison sentence imposed. He was given credit against his prison term
for the 156 days he served prior to his escape from jail as well as 26 days of work
time credit, but not the earlier 168 days of presentence custody covered under the
Johnson waiver. On appeal, he sought credit for those days, as well as behavior
credits under section 4019. (Zuniga, at pp. 742-743.)
The defendant in Zuniga did not argue his Johnson waiver was not knowing
and intelligent in the sense that he did not understand the waiver would apply to
any future prison sentence imposed. Rather, he argued the waiver should be held
inapplicable given the changed circumstances—that he was going to state prison
8
rather than jail as a condition of probation. The Court of Appeal rejected his
argument, explaining: “Defendant, in effect, bargained for a probationary
sentence by initially waiving the provisions of Penal Code section 2900.5. The
court complied and granted defendant the leniency of probation. Defendant now
seeks to retract his portion of the bargain on the basis that he now has been
removed from probation and sentenced to state prison. His argument appeals to
neither logic nor justice. [¶] Probation is a form of leniency which is predicated
on the notion that a defendant, by proving his ability to comply with the
requirements of the law and certain special conditions imposed upon him, may
avoid the more severe sanctions justified by his criminal behavior. Once given the
opportunity for lenient treatment the choice is his as to whether he merits being
continued on probation. [¶] Here defendant not only refused to comply with his
conditions of probation but committed an additional crime in making his choice.
He cannot use his own misconduct as a basis for setting aside the waiver which he
executed as a condition for obtaining leniency in the first instance—in effect a
renegotiation of his sentence on his own terms. [Citation].)” (Zuniga, supra, 108
Cal.App.3d at p. 743, italics added.)
Unlike Zuniga, the defendant in Harris, supra, 195 Cal.App.3d 717, did
argue that his Johnson waiver was not knowing and intelligent in the sense that he
did not understand the waiver would apply to any future prison sentence imposed.
The defendant in Harris was convicted of assault with a deadly weapon in
1981 and placed on formal probation for four years, a condition of which was that
he serve five months in the county jail. On three successive occasions his
probation was reinstated after findings that he had absconded in violation of the
terms of his probation. In April 1986, after a fourth violation, probation was
finally revoked and defendant sentenced to three years in state prison for the
underlying conviction. The sentencing court credited defendant with 12 months
9
for the time served in county jail on the third probation violation, plus credit for
actual time served and work credits while awaiting judgment and sentence on the
fourth violation, but denied any credit for actual time previously waived pursuant
to Johnson waivers in order that the defendant could be continued on probation
with only additional local jail time. (Harris, supra, 195 Cal.App.3d at pp. 719-
720.)
On appeal, the defendant in Harris contended he should have been awarded
credit against his prison sentence for county jail time served prior to his third
probation violation because “his prior [Johnson] waivers of credit for that time
were not made with the knowledge that he was also waiving credit against a prison
term imposed for a subsequent probation violation.” (Harris, supra, 195
Cal.App.3d at p. 721.) The Court of Appeal reviewed the exchanges that took
place between defendant, counsel, and the trial court at sentencing for the second
and third probation violation hearings when the Johnson waivers were entered. In
those colloquies there was no express mention made of the circumstance that the
waivers would apply to any future prison sentence that might be imposed if
probation was ultimately revoked. The court also reviewed the exchanges that
took place at the hearing on the fourth charged probation violation, at which time
defendant stated he believed his previous waivers were limited to local jail time,
and that he would not have entered those waivers had he known they would apply
to a future prison sentence as well. (Id. at p. 725.) The Court of Appeal accepted
on their face defendant’s hindsight representations about his understanding of the
earlier entered waivers, indicating that “prejudice is apparent by defendant’s own
representation to the [sentencing] court.” (Ibid.) Finding that “[o]n the record
before us, we can only conclude defendant’s ‘Johnson waivers’ were not
knowingly and intelligently made” (ibid.), the Court of Appeal modified the
10
judgment to reflect an award of an additional 29 months, 18 days of credit against
defendant’s prison sentence. (Id. at p. 726.)
In the instant case, the People concede that the trial court did not expressly
advise defendant, in connection with the first Johnson waiver entered both orally
and in writing, that the waiver would apply to any state prison sentence imposed if
probation was ultimately revoked. On the other hand, the trial court did inform
defendant that as of the date of his plea he was waiving “all time credits through
today” (italics added), and that there would be “no immediate state prison in this
case.” Moreover, the entry of plea form defendant executed by defendant
contained a written waiver by which he indicated he was waiving “all credits for
jail term served through 10-21-97.” (Italics added.)
As we have noted, the Court of Appeal below (the same court that decided
Harris) expressly relied on Harris to reverse the judgment in this case and remand
to the trial court to recalculate defendant’s custody credits.3 The court further
indicated it was rejecting the rationale and holding of Burks, supra, 66
Cal.App.4th 232, instead “find[ing] Harris to be more persuasive than Burks.”
Burks, in contrast to Harris, 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
3
We note the Court of Appeal further found significant to its holding the
circumstance that “defendant did not have an attorney to explain to him the scope
of the waiver.” Defendant has not argued that his determination to represent
himself at the initial plea proceeding when the first Johnson waiver was taken was
anything other than free and voluntary. That being the case, it would be
manifestly unfair to the People to reward the defendant for not understanding the
full import of his first Johnson waiver based on his election to proceed without
counsel.
11
right. In the absence of such a record, custody credits once waived may not be
used again.” (Burks, supra, 66 Cal.App.4th at p. 234.)
The defendant in Burks was originally placed on probation after pleading
no contest to a felony charge of stalking. He served one year in county jail as a
condition of the grant of probation. After his first violation, he waived credit for
the year he had served and was sentenced to an additional 90 days in county jail as
a condition of reinstatement of probation. After a second violation, the court
reinstated probation without imposing any additional jail time. Upon his third
violation, probation was revoked and the defendant sentenced to state prison for
three years. He appealed his sentence, contending he was entitled to the credit for
time served that he waived when he was sentenced after his first probation
violation. Because the sentencing court failed to advise him that his waiver would
apply to a future prison term as well as to his county jail time, the defendant
claimed his waiver was not knowing and intelligent. (Burks, supra, 66
Cal.App.4th at p. 234.)
Observing that the defendant’s argument was supported by the holding in
Harris, supra, 195 Cal.App.3d 717, the Burks court nonetheless disagreed with
Harris and elected to instead follow the earlier rule stated in Zuniga, supra, 108
Cal.App.3d 739, to the effect that a defendant “ ‘cannot use his own misconduct as
a basis for setting aside the waiver which he executed as a condition for obtaining
leniency in the first instance.’ ” (Burks, supra, 66 Cal.App.4th at p. 234, quoting
Zuniga, supra, 108 Cal.App.3d at p. 743.)
The Burks court explained: “The question before us is whether a defendant
who is sent to prison after yet another probation violation may regain his waived
credits by asserting he did not understand that his credit waiver would apply to a
future prison term. In Zuniga, the court rejected the argument that once a
defendant is removed from probation, the bargain that got him there may be
12
renegotiated. (108 Cal.App.3d at p. 743.) The theory that a waiver of custody
credits may be set aside because the defendant was inadequately informed of its
consequences was first developed in Harris. There, the judge conducting the
probation violation proceedings followed Zuniga and refused to give the defendant
credit against his prison sentence for the time he had waived when sentenced on
his second and third probation violations. The Court of Appeal, Third Appellate
District decided that consideration must be given to whether the defendant’s
waiver was ‘knowingly and intelligently’ made. (Harris, supra, 195 Cal.App.3d
at pp. 721-722.) It concluded the defendant ‘was not made aware of the trap being
set for him’ when he waived time in order to get a county jail term instead of time
in state prison. Therefore, it modified the judgment to restore the previously
waived credits. (Id. at pp. 724-726.)” (Burks, supra, 66 Cal.App.4th at p. 235.)
The Burks court explained further: “In People v. Salazar [(1994) 29
Cal.App.4th 1550], the Court of Appeal, First Appellate District, Division One
held that a custody credit waiver may be found to have been voluntary and
intelligent from the totality of the circumstances, even if the sentencing court
failed to follow the ‘better course’ of specifically advising the defendant regarding
the scope of his waiver. (29 Cal.App.4th at p. 1554.) Harris was distinguished on
the ground that Salazar had failed to object when the trial court stated his waiver
was ‘for all time and for all purposes,’ supporting the inference that Salazar
understood the waiver would apply to a future prison term. (Id. at pp. 1555-
1556.)” (Burks, supra, 66 Cal.App.4th at p. 235.)
The Burks court in no uncertain terms made clear that “[h]ere, there is
nothing in the record to support an inference that Burks knew his waiver applied to
state prison time.” (Burks, supra, 66 Cal.App.4th at p. 235.) Positing that “[i]t
might be argued that by insisting on a waiver of more credits than was necessary
to comply with the one-year limit on jail commitments, the [sentencing] court
13
must have meant to deprive Burks of credits against a future term of
imprisonment,” the Burks court answered its own inquiry, “However, there is no
indication Burks understood this.” (Id. at p. 236.) “On the other hand,” the court
further observed, “there is also no indication Burks thought he would be able to
use his credits to reduce a future prison term.” (Ibid.) Faced with a silent record
which did not establish one way or the other whether the defendant understood his
Johnson waiver would apply to a future prison sentence if probation was revoked,
the Burks court concluded: “In this situation, we believe the Harris rule
improperly bestows a windfall on a defendant who repeatedly violates probation.
Harris permits such a defendant to renegotiate a sentencing bargain that was
honored by the court but not by the defendant, the very result that was correctly
rejected in Zuniga.” (Ibid.)
Burks and Zuniga state the sounder rule
We conclude that Burks and Zuniga state the correct rule, consistent with
law, logic, and sound public policy, and that Harris must be disapproved.
A Johnson waiver is a waiver of a statutory right to credit for time served
against a subsequent county jail or state prison sentence pursuant to section
2900.5. In People v. Johnson, supra, 28 Cal.4th 1050, we recently recognized
that: “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.) 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.)” (People v. Johnson, supra, 28 Cal.4th at p. 1055.)
The Burks court explained that, “Nothing in the statutory scheme suggests
that custody credits are kept in dual accounts, one for use against jail time and one
for use against prison time. To the contrary, section 2900.5 treats all credits
14
uniformly, wherever accrued and wherever applied. Therefore, a waiver of
custody credits is presumptively applicable to any future term of imprisonment. If
a defendant is told by his counsel that his waiver will not affect future prison time,
but counsel neglects to inform the court of this aspect of the waiver—as happened
in Harris (195 Cal.App.3d at pp. 722-725)—the defendant may seek relief by
claiming ineffective assistance of counsel. He should not be permitted to attack
his waiver by faulting the court for failing to foresee his recidivism and warn him
of its consequences. [¶] Before Burks’s waiver was accepted he faced a state
prison term, which would have been reduced by his custody credits. He chose to
give up those credits in return for the benefits of being reinstated on probation and
serving time in jail instead of prison. Having declined one opportunity to offset
his custody credits against a prison term, he could not reasonably expect to get
another if he violated his terms of probation yet again. ‘Probation is a form of
leniency which is predicated on the notion that a defendant, by proving his ability
to comply with the requirements of the law and certain special conditions imposed
upon him, may avoid the more severe sanctions justified by his criminal behavior.
Once given the opportunity for lenient treatment the choice is his as to whether he
merits being continued on probation.’ (Zuniga, supra, 108 Cal.App.3d at p. 743.)
When a defendant repeatedly makes wrong choices in this situation, it is neither
logical nor just to allow him to retract a custody credit waiver that enabled him to
prolong his probation, leaving him no worse off after another violation than he
was after the violation that prompted the waiver. (Ibid.; People v. Salazar, supra,
29 Cal.App.4th at p. 1555.)” (Burks, supra, 66 Cal.App.4th at pp. 236-237.)
If probationers are continued on probation notwithstanding two, three, or
more probation violations (a not uncommon scenario as we have seen reflected in
the facts of the cases discussed above), and if Johnson waivers are entered, and
one or two additional periods of up to one year of local jail time are imposed as
15
conditions of each successive probation reinstatement, in many instances the
waived credits for the aggregate time served in county jail will equal or be greater
than the suspended prison sentence for the original offense. In such cases, if the
credits can permissibly be “recaptured” (Burks, supra, 66 Cal.App.4th at p. 234)
by the defendant when his own misconduct ultimately leads to revocation of
probation and imposition of a prison term, he will have no prison term left to
serve. In practical effect, under the rule of Harris, a point will be reached in some
cases at which those probationers who have repeatedly been shown the most
leniency may continue to violate probation with impunity, secure in the knowledge
that the spectre of an actual prison sentence is no longer hanging over their heads,
as the credit equivalent of the suspended prison sentence that would be imposed if
probation were ultimately revoked will already be in the bank, having been served
in local jail.
A rule that gives back previously waived credits to a defendant as a
consequence of his future violation of probation thus rewards him for his own
misconduct. It is also unjust enrichment, as the defendant would be getting the
benefit of the bargain reached at his original sentencing and later be permitted to
revoke the consideration he gave up to obtain the benefit of that bargain. As a
matter of sound sentencing policy, the law should not afford probationers
incentives or rewards for refusing to comply with the terms and conditions of
probation.4 The rule of Harris does just that.
4
Indeed, it is not hard to imagine the rule advocated by defendant here and in
Harris ultimately working to the detriment of probationers seeking leniency from
sentencing courts through reinstatement of probation. If county jail time
previously waived as a condition of probation may later be “recaptured” upon
subsequent revocation of probation and imposition of the previously suspended
state prison term, trial courts as a general matter might be more reluctant to
reinstate probation knowing that any county jail time imposed as a condition of
(footnote continued on next page)
16
We therefore adopt the rationale and holding of Burks, supra, 66
Cal.App.4th 232, and disapprove the contrary holding of Harris, supra, 195
Cal.App.3d 717. “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. Johnson, supra, 28
Cal.4th at p. 1055.) The gravaman of whether such a waiver is knowing and
intelligent is whether the defendant understood he was relinquishing or giving up
custody credits to which he was otherwise entitled under section 2900.5. (Burks,
supra, 66 Cal.App.4th at p. 236, fn. 3.) As the Burks court observed, “section
2900.5 treats all custody credits uniformly, wherever accrued and wherever
applied.” (Burks, supra, 66 Cal.App.4th at p. 237.) A defendant entering a
straightforward and unconditional waiver of section 2900.5 credits has no reason
to believe that the waiver is anything other than a waiver of such credits for all
purposes.
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 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
(footnote continued from previous page)
reinstatement would only shorten any future prison term that would ultimately
have to be imposed should the defendant once again violate his or her probation.
17
found to have knowingly and intelligently relinquished his or her right to custody
credits under section 2900.5.
Defendant, in his answer brief before this court, argues that the
straightforward test applied in Burk—i.e., whether the defendant understands he is
waiving or giving up his right to custody credits to which he is otherwise entitled
under section 2900.5—“addresses only one part of the waiver analysis, whether
the credits waiver was knowing and intelligent, without regard to the necessity of
addressing the scope of the waiver.” His latter premise is incorrect, for as we have
explained, a waiver of section 2900.5 custody credits is a waiver of such credits
for all purposes. There is no basis for a probationer receiving the lenient benefit of
reinstatement of probation to suspect that the scope of his or her Johnson waiver is
anything less than a waiver and relinquishment of all statutory entitlement to
custody credit under section 2900.5 in the fullest sense.
In the somewhat analogous situation where a defendant entering a guilty
plea must be advised of all the direct consequences of conviction (see Bunnell v.
Superior Court (1975) 13 Cal.3d 592, 605), it has been observed that “This
requirement relates to the primary and direct consequences involved in the
criminal case itself and not to secondary, indirect or collateral consequences.
[Citations.] A collateral consequence is one which does not ‘inexorably follow’
from a conviction of the offense involved in the plea. [Citation.] [¶] Our courts
have determined that while such consequences as the statutory range of
punishment for the conviction, probation ineligibility and a required term of parole
are direct consequences of a guilty plea [citations], the possibility of increased
punishment in the event of a subsequent conviction is a collateral consequence.
[Citations.]” (People v. Crosby (1992) 3 Cal.App.4th 1352, 1355.) The
possibility that a defendant afforded leniency and placed on probation may
subsequently violate the terms of his probation, warranting additional or harsher
18
punishment, is likewise more akin to a collateral consequence than a direct
consequence of the criminal conduct which brought the defendant before the
sentencing court in the first instance. “He should not be permitted to attack his
waiver by faulting the court for failing to foresee his recidivism and warn him of
its consequences.” (Burks, supra, 66 Cal.App.4th at p. 237.)
In the case at bench, at defendant’s initial sentencing hearing the trial court
informed him that as part of his plea he was “waiv[ing] all time credits through
today, and there would be no immediate state prison in this case.” Defendant
indicated on the record that he understood. As part of the plea form, he then
executed a written waiver that stated, “I WILL WAIVE ALL CREDITS FOR
JAIL TIME SERVED THROUGH 10-21-97.” Nothing in these oral and written
advisements suggested to defendant that his waiver was anything other than a full
relinquishment of his statutory right to section 2900.5 custody credits for all
purposes. Defendant’s suggestion that the admonishments he was given failed to
advise him of the full scope of his waiver is unsubstantiated. He was correctly
informed he was giving up or “waiving all time credits” in the plainest sense of the
term. The unequivocal admonishments afforded defendant no basis to conclude
his waiver of his statutory right to custody credit was merely for the limited
purpose of reinstatement on probation conditioned on service of a county jail term,
but not otherwise operative as against the suspended prison sentence that could be
imposed should he again violate the terms of his probation. Defendant’s
19
suggestion that he misunderstood the full extent of the credit waiver because he
did not have the benefit and advice of counsel at the entry of plea proceeding is
unavailing; he elected to proceed in propria persona at the time he entered his plea
and Johnson waiver and he cannot now be heard to complain that he was
prejudiced by his decision to forgo appointed counsel. Nor are we persuaded that
a different result should obtain because defendant stated at his subsequent
revocation hearing that he did not understand his earlier waiver of all credits for
jail time served would encompass a waiver of credits against a possible prison
sentence. We will not invalidate an ostensibly knowing and intelligent written
waiver of “all credits for jail time” based on such a self-serving statement made
over three years after execution of the waiver in question.
CONCLUSION
The judgment of the Court of Appeal is reversed, and the matter remanded
to that court for further proceedings consistent with the views expressed herein.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.
20
CONCURRING OPINION BY KENNARD, J.
I concur.
I write separately, however, to emphasize that there is no indication
defendant limited the scope of his custody credit waivers in any way. Nor is this a
case in which the trial court, sentencing a defendant who has violated probation to
state prison, concluded that in the interests of justice some adjustment for time
served was appropriate. Those scenarios present questions we leave to another
day.
KENNARD, J.
1
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Arnold
__________________________________________________________________________________
Unpublished Opinion
XXX NP opn. filed 3/26/02 - 3d Dist.Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S106444Date Filed: June 28, 2004
__________________________________________________________________________________
Court:
SuperiorCounty: Butte
Judge: Gerald Hermansen
__________________________________________________________________________________
Attorneys for Appellant:
Shama H. Mesiwala, under appointment by the Supreme Court, and William M. Duncan, underappointment by the Court of Appeal, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves,Assistant Attorney General, Stan A. Cross and Patrick J. Whalen, Deputy Attorneys General, for Plaintiff
and Respondent.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Shama H. MesiwalaCentral California Appellate Project
2407 J Street, Suite 301
Sacramento, CA 95816
(916) 4441-3792
Patrick J. Whalen
Deputy Attorney General
1300 I Street
Sacramento, CA 95244-2550
(916) 324-2785
2
Opinion Information
| Date: | Docket Number: |
| Mon, 06/28/2004 | S106444 |
Parties
| 1 | Arnold, Clemantt (Defendant and Appellant) Represented by William M. Duncan Attorney At Law P.O. Box 439 Hornbrook, CA |
| 2 | Arnold, Clemantt (Defendant and Appellant) Represented by Shama H. Mesiwala Central California Appellate Program 2407 "J" Street, Suite 301 Sacramento, CA |
| 3 | The People (Plaintiff and Respondent) Represented by Patrick J. Whalen Office of the Attorney General P.O. Box 944255 Sacramento, CA |
| Disposition | |
| Jun 28 2004 | Opinion: Reversed |
| Dockets | |
| May 2 2002 | Petition for review filed by counsel (AG) for respondent (People). Filed in Sacramento. |
| May 3 2002 | Received Court of Appeal record 1 doghouse |
| Jun 12 2002 | Petition for Review Granted (criminal case) Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ. |
| Jul 3 2002 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Central California Appellate Program is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's Answer Brief on the Meits shall be served and filed on or before 30 days from the date respondent's opening brief on the merits is filed. |
| Jul 12 2002 | Request for extension of time filed In Sacramento by counsel for Respondent {The People} asking until August 12, 2002 to file Respondent's Opening Brief on the Merits. |
| Jul 22 2002 | Extension of time granted To August 12, 2002 to file respondent's opening brief on the merits. |
| Aug 12 2002 | Opening brief on the merits filed In Sacramento by counsel for Respondent {The People}. |
| Aug 15 2002 | Received: Respondent's amended proof of service. |
| Sep 11 2002 | Answer brief on the merits filed In Sacramento by counsel for appellant {Clemantt Arnold}. |
| Feb 25 2003 | Compensation awarded counsel Atty Mesiwala |
| 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 reversed Opinion by Baxter, J. -----joined by George, C.J., Kennard, Werdegar, Chin, Brown, & Moreno, JJ. Concurring opinion by Kennard, J. |
| Jul 29 2004 | Remittitur issued (criminal case) |
| Aug 3 2004 | Received: Receipt for remittitur - from CA3 |
| Aug 25 2004 | Returned record To 3 DCA. |
| Feb 2 2005 | Compensation awarded counsel Atty Mesiwala - Central California Appellate Program |
| Briefs | |
| Aug 12 2002 | Opening brief on the merits filed |
| Sep 11 2002 | Answer brief on the merits filed |
