People v. Johnson

Opinion

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.

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.

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

against an ultimate jail or prison sentence for past and future days in custody. As the United States Supreme Court has observed, “‘[tjhe most basic rights of criminal defendants are . . . subject to waiver.’ ” (United States v. Mezzanatto (1995) 513 U.S. 196 , 201 [ 115 S.Ct. 797 , 801, 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 Tinning 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 (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 which was suspended. In upholding the defendant’s waiver of custody credits, the Court of Appeal in Ambrose observed: “This does not mean, of course, that we would endorse a situation in which the denial of

previously served custodial time. Here, defendant, who admittedly suffers from drug dependency, committed a serious residential burglary warranting maximum punishment, but the trial court’s grant of probation gave him a chance to get off drugs and to avoid state prison. On these facts, we cannot say that the trial court’s requirement of a waiver of custody credits as a condition of granting probation lacked any legitimate penal function.

We now address the Court of Appeal’s decision in Tran, supra, 78 Cal.App.4th 383 , which held that waivers of custody credits are improper when a trial court suspends a maximum state prison sentence. We find Tran's reasoning unpersuasive.

In Tran, the defendant deposited bad checks in three bank accounts and then withdrew $40,000 to cover gambling debts. He later pleaded guilty to three counts of grand theft. The trial court imposed the maximum prison sentence, suspended its execution, and placed the defendant on five years’ probation conditioned upon an 18-month county jail term, a waiver of future custody credits, and restitution to the banks of the full $40,000. Under protest, the defendant agreed to waive entitlement to credit for days in custody. On appeal, he challenged that aspect of the trial court’s sentencing order as unauthorized, arguing that if he violated probation and was sent to state prison with no credit for the 18-month jail term, his total custodial time would exceed the maximum prison term. The Court of Appeal agreed. (Tran, supra, 78 Cal.App.4th 383 , 385-390.)

We disagree with Tran, supra, 78 Cal.App.4th 383 , that a trial court, after imposing and suspending a state prison sentence for the maximum term allowed by law, may never condition a grant of probation on a waiver of the custody credits authorized by section 2900.5. In general, defendants may waive provisions that are intended for their benefit, and the provision of section 2900.5 allowing defendants to receive credits against an eventual sentence for time spent in custody before sentencing or while on probation is intended to benefit defendants, as we explained at pages 1054-1055, ante^[4]

Exercising its discretion, the trial court determined that imposing the maximum term for defendant’s crime of residential burglary and conditioning probation on a waiver of section 2900.5 custody credits was necessary to provide defendant with sufficient incentive to comply with the other terms of probation and to successfully complete the rehabilitation program. Defendant makes no claim that, as a result of the waiver condition, the total time he