P. v. Smith CA2/6 ( 2013 )

Filed 3/27/13 P. v. Smith CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B243068
(Super. Ct. No. 2009039372)
Plaintiff and Respondent, (Ventura County)
v.
DAVID ALLEN SMITH,
Defendant and Appellant.
David Allen Smith appeals a judgment revoking his probation and
sentencing him to a two-year prison term following his earlier conviction for possession
or control of child pornography. (Pen. Code, § 311.11, subd. (a).)1 We conclude that
the trial court's award of 365 days of presentence custody credit is proper, and affirm.
FACTS AND PROCEDURAL HISTORY
On November 6, 2009, the Ventura County prosecutor charged Smith with
possession or control of child pornography. (§ 311.11, subd. (a).) On November 20,
2009, pursuant to a plea agreement, Smith waived his right to a preliminary examination
and pleaded guilty to the charge. The trial court then granted Smith five years of formal
probation with terms and conditions including 365 days of confinement in county jail,
not using or possessing nonprescribed marijuana, and not associating with children
under the age of 18 unless in the presence of an adult approved by the probation officer.
1
All further statutory references are to the Penal Code.
The court imposed various fines and awarded Smith 72 days of presentence custody
credit.
First Probation Violation - June 2011
On June 2, 2011, Smith's probation officer charged that Smith violated the
terms and conditions of his probation by smoking marijuana. The probation officer
reported that the therapist providing Smith's sex-offender treatment opined that Smith's
marijuana use was "a definite risk factor" for his reoffending. The probation officer
concluded that Smith presented "a tremendous threat to the community" by his
continued use of marijuana and access to computers.
At the probation violation hearing, Smith was present in court and
admitted the charged allegations through his attorney. As the probation officer
recommended, the trial court revoked and then reinstated Smith's probation with the
condition that he serve 90 days of confinement in county jail and agree to waive credits
in excess of 365 days. The trial judge stated: "He needs to waive credits in excess of
365." Smith's attorney responded: "He waives credits in excess of 365 also." The trial
judge also remarked: "If I see him back again, I'll send him to prison." Smith then
signed and dated a minute order stating: "Defendant waives credits in excess of 365
days."
Second Probation Violation - June 2012
Nearly one year later, Smith's probation officer charged that Smith again
violated the terms and conditions of his probation by using marijuana and associating
with his former girlfriend's young children.
At the July 31, 2012, contested probation violation hearing, the trial court
received testimony from Smith's probation officer and Smith's former girlfriend. The
court then found Smith violated the terms of his probation. It revoked Smith's probation
and sentenced him to two years in prison. The court imposed various fines and awarded
Smith only 365 days of presentence custody credit based upon his waiver made at the
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2011 first probation violation hearing. Smith did not object to the limited credit
awarded.
Smith appeals and contends that he is entitled to an additional two days of
custody credit because he did not knowingly and intelligently waive his right to future
credit. The two days represent days served in 2009 or 2010 as a confinement condition
of the original grant of probation.2 Smith did not obtain a certificate of probable cause
prior to prosecuting this appeal.
DISCUSSION
Smith asserts that the record of the probation violation proceedings does
not reflect that his attorney or the trial court explained that he was waiving his right to
all future custody credit beyond the 90 days imposed as a condition of reinstating
probation at the first probation violation hearing. (People v. Urke (2011) 197
Cal.App.4th 766, 777 [credit waiver is knowing and intelligent where defendant
understood he was relinquishing custody credit to which he was otherwise entitled].)
Section 2900.5, subdivision (a) provides: "In all felony and misdemeanor
convictions, . . . when the defendant has been in custody, . . . all days of custody . . .
shall be credited upon his or her term of imprisonment . . . ." Subdivision (c) states that
"term of imprisonment" includes "any period of imprisonment imposed as a condition of
probation."
It is well settled that a defendant may waive his entitlement to credit as a
condition of probation. (People v. Johnson (2002) 28 Cal.4th 1050, 1052, 1054-1055
[defendant may waive entitlement to past and future days of custody credit].) Waiver of
entitlement to section 2900.5 custody credit must be "knowing and intelligent." (Id. at
p. 1055.) To determine whether a waiver is knowing and intelligent, the inquiry
2
Smith calculates the two days by referring to the custody worksheet prepared by the
probation officer regarding the notice of second probation violation. That worksheet
states that Smith served 305 actual days plus 152 conduct days for a total of 457 days.
Smith then subtracts 365 days (confinement regarding the original grant of probation)
and 90 days (confinement regarding the first violation of probation), to compute the two
days.
3
"'should begin and end'" with deciding whether the defendant understood he was giving
up custody credit to which he was otherwise entitled. (People v. Jeffrey (2004) 33
Cal.4th 312, 320.)
On an otherwise silent record, a waiver "must be presumed to be a waiver
of credits for all purposes." (People v. Jeffrey, supra, 33 Cal.4th 312, 320.) A
defendant entering a "straightforward and unconditional" waiver of custody credit "has
no reason to believe that the waiver is anything other than a waiver of such credits for
all purposes." (People v. Arnold (2004) 33 Cal.4th 294, 309.) The "better practice" is
for the sentencing court to expressly admonish defendants waiving custody credits that
such waivers will apply to any future prison term should probation be revoked and a
state prison sentence imposed. (Ibid.) The sentencing court's failure to provide such an
express advisement, however, does not invalidate an otherwise knowing and intelligent
waiver. (Ibid.)
Smith did not raise any objection to the limited credit awarded at the
second probation violation hearing held in 2012. He has therefore forfeited his
objection to the validity of the waiver. (People v. Torres (1997) 52 Cal.App.4th 771,
782 [when probationer does not object to credit waiver condition at time of sentencing,
"the matter may not properly even be raised for the first time on appeal"].) Forfeiture
aside, however, we decide from the totality of the circumstances that Smith's waiver
was knowing and intelligent.
Smith was represented by counsel at the probation violation hearing. He
admitted the probation violation through counsel and personally signed the minute order
stating that he was waiving credits in excess of 365 days. In exchange, Smith avoided a
state prison sentence. (People v. Arnold, supra, 33 Cal.4th 294, 308 [defendant who
received benefit of waiver bargain not permitted to revoke that consideration].) In our
de novo review, we determine that Smith's waiver of credit was knowing and intelligent.
(People v. Panizzon (1996) 13 Cal.4th 68, 80 [standard of review].)
4
People v. Urke, supra, 197 Cal.App.4th 766, is factually different. There,
defense counsel stated that he did not explain the credit waiver to defendant. The trial
court also misstated the meaning of the waiver, informing defendant that he would
receive credit for the waived custody days if he were sentenced to state prison. (Id. at
p. 778.) Neither circumstance occurred here.
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
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Patricia M. Murphy, Judge
Superior Court County of Ventura
______________________________
Arielle Bases, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Lawrence M.
Daniels, Supervising Deputy Attorney General, Rene Judkiewicz, Deputy Attorney
General, for Plaintiff and Respondent.
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