P. v. Black
Filed 12/13/12 P. v. Black CA1/5
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
and Respondent,
and Appellant.
A135483
(
Super.
Defendant
Rodger Kevin Black appeals from an order sentencing him to prison following a
violation of probation. He contends: (1)
the court should have limited his prior waiver of presentence credits to a
total of 180 days, the amount he agreed to; and (2) portions of his sentence
must be stayed under Penal Code section 654.
Attorney General concedes the second.
I. BACKGROUND
Defendant
took two containers of weed killer from a store without paying for them and
attempted to punch the store’s security officer when confronted. He pled no contest to
prior and second degree commercial burglary, in exchange for a dismissal of
counts relating to a different incident and a prison prior term enhancement
allegation. (§§ 211, 666, 459,
667.5, subd. (b).)
At
the initial sentencing hearing held
on February 16, 2010, the
court placed defendant on three years formal probation subject to various terms
and conditions, including the completion of a
service of 364 days in jail. The
probation officer was given the authority to release defendant from jail for
participation in a treatment program.
Defendant had at that time served 44 actual days in local custody.
On
January 5, 2011, defendant’s
probation was revoked and reinstated after he admitted a violation. He was ordered to serve 180 days in jail, and
was given credit for 72 actual days in local custody plus 36 days in conduct
credits.
On
March 16, 2011, defendant
admitted a second probation violation.
Due to concerns about the time remaining to place defendant in a
residential treatment program, defense counsel advised the court, “Your Honor,
the status is that Mr. Black is prepared to admit the violation of
probation with the understanding that probation will be simply revoked and
reinstated. . . . [H]e would be waiving 180 days total worth of time credits so
probation has enough time to place him in the program.†The court inquired, “So he’s waiving 180 days
of prior credits?†and defense counsel responded affirmatively. In accepting defendant’s admission to the
probation violation, the following colloquy ensued, “THE COURT: Mr. Black, at this time, do you waive your
right to credit, 180 days of jail you served so far? [¶] DEFENDANT: Yes, sir. [¶] THE COURT: You understand you can’t get that back later
on, that’s going to be credit that you will not receive in the future? [¶] DEFENDANT: I understand.â€
On
February 29, 2012,
defendant’s probation was revoked after he admitted a third violation with the
understanding that he would be sentenced to prison, but for no more than two
years. At sentencing, defense counsel
expressed concern about the number of credits calculated by the probation
officer. In addition to concerns about
the accuracy of the dates that defendant had been in custody, counsel noted
that the probation officer had applied the previous waiver of 180 days credit
by deducting those days from the actual time served and then adding on to the
remaining days the conduct credits to which the defendant was entitled. This meant that defendant was deprived of
both 180 days actual time and the conduct credits he would otherwise have been
entitled to for those 180 days. Counsel
argued that the waiver should be construed to require a deduction of 180 days
from defendant’s total presentence credits (actual and conduct credits
combined), which would result in a greater number of total credits.
Although
the court was initially sympathetic to this argument, it ultimately ruled that
the probation officer’s method of calculating the credits under the time waiver
was correct. It noted that the minute
order from the hearing at which the credits waiver was taken states, “Defendant
waives 180 days of actual time.†Based
on the minute order, the court concluded that defendant had waived 180 days of
actual time, plus any conduct credits that might otherwise have accrued during
those 180 days: “You know the March
16th, 2011, Minute Order says that defendant waives one hundred eighty days of
actual time credits. And I was the judge
so my feeling is it was probably pretty clear we weren’t talking about good
time because the Minute Order reflects we were talking about actual time
credits.†When defense counsel indicated
that defendant had advised him he was not aware he would be effectively
forfeiting conduct credits, the court responded, “I can only go based upon
what’s in the Minute Order and the fact that it says actual time credits. I probably made a point of making sure the
clerk put that in there which suggests to me that we covered that in court, and
at a minimum that [former defense counsel] who represented him at the time
covered that.â€
The
court sentenced defendant to prison for the two-year lower term on the second
degree robbery count, with concurrent two-year middle-term sentences for the
petty theft and commercial burglary counts.
It awarded him 135 days of presentence custody credits (315 days for
time spent in actual custody, less the 180 days for the credits waived) plus an
additional 20 days of conduct credit (15 percent of the custody credits awarded
for time in actual custody, pursuant to section 2933.1, subdivision (c)), for a
total award of 155 days.
II. DISCUSSION
Defendant
argues that the court should have implemented his 180-day credits waiver by
taking the 362 days in total credits to which he would have otherwise been
entitled (315 days actual custody plus 47 days conduct credit under section
2933.1), and then subtracting 180 days from this figure, for a total award of
182 days of credit. This would have
netted him 27 more days of presentence credit than the 155 days he was actually
awarded, which was calculated by taking the 315 days defendant had served in
actual custody, subtracting 180 days, taking the resulting 135 days actual
time, and adding 20 days of conduct credits based on the 135-day figure. We agree with defendant.
A
criminal defendant is ordinarily entitled to credit for all days spent in local
custody, including time spent in jail or a residential
treatment program as a condition of probation. (§ 2900.5; People v. Johnson (2002) 28 Cal.4th 1050, 1053;
315 (Jeffrey).) Presentence credits may be waived for the
purpose of avoiding the one-year limitation on time that can be spent in local
custody as a condition of probation. (See § 19.2; People v. Johnson (1978) 82 Cal.App.3d 183, 188–189.) Such a waiver allows the court to resolve a
probation violation by imposing additional time in local custody rather than
sending the defendant to prison. (See
1917, 1923-1924.)
A
waiver of presentence credits must be “ ‘knowing and intelligent’ in the
sense that it was made with awareness of its consequences.†(People
v. Thurman (2005) 125 Cal.App.4th 1453, 1460 (Thurman).) “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. . . .†(
308–309 (Arnold); see also
766, 777; People v. Burks (1998) 66
Cal.App.4th 232, 236, fn. 3.) A knowing
and intelligent waiver of credits bars any future use of those credits to
reduce a prison term in the event probation is terminated and a prison sentence
imposed. (Jeffrey, supra, 33
Cal.4th at pp. 316–317.)
Defendant
does not dispute that he entered a knowing and intelligent waiver of 180 days
of credits when he admitted his second violation of probation on March 16,
2011. He argues, however, that his
waiver was limited to a total of 180 days, and that he did not knowingly and
intelligently waive any additional time that would otherwise have been awarded
as conduct credits as a result of the 180 days being deducted solely from his
actual time served. The point is well
taken. Defendant was told he was waiving
180 days of credit. Although judges
and lawyers handling criminal cases are well versed in the complexities of
credits calculations, a layperson who is advised that he is waiving 180 days of
credit would understand that 180 days would be subtracted from whatever credits
he would otherwise be entitled to receive, not that he would lose both 180 days
actual time and some number of additional conduct credits that would otherwise
have been awarded.
The
People note that in taking the credits waiver, the trial court asked defendant,
“[D]o you waive your right to credit, 180 days of jail you served so far?â€
They reason that a waiver of actual days in jail amounts to a waiver of
corresponding conduct credits, because conduct credits must attach to the
actual time served. We agree that
conduct credits are calculated based on the amount of actual time in custody,
but do not agree that the reference to jail time was sufficient to alert
defendant that he was losing more than a total of 180 days in credits. The term “jail†could just as easily suggest
to a layperson—even one who had prior experience with probation violations—that
he was waiving a total of 180 days of
the credits he would otherwise receive for the time spent in jail.
Considering the totality of the
circumstances (Arnold,
defendant’s waiver cannot reasonably extend beyond a total of the 180 days
specified.
The
reference in the March 16, 2011 minute order to “actual time†credits does not
alter our analysis. To the extent there
is a conflict between that minute order and the oral proceedings, the oral
proceedings control. (
793, 798, fn. 3.) Although the trial
court construed the clerk’s minute order to reflect a judicial determination
that the defendant had waived 180 actual days plus any conduct credits to which he would be entitled, the
comments at the hearing at which the waiver was taken do not reflect a
conscious decision by the court in this respect. It does not appear from the reporter’s
transcript of the credits waiver that the parties or the court considered the
issue now at hand.
Because
defendant’s credits waiver was limited to 180 days, he is entitled to an
additional 27 days of presentence credits as outlined in the first paragraph of
this section of the Discussion. To
maintain the statutory ratio of actual and conduct credits under section
2933.1, subdivision (c), the breakdown of these credits shall be 24 days actual
custody credit and three days of conduct credit.
Section
654
precludes multiple punishment where an act or course of conduct violates more
than one criminal statute but a
defendant has only a single intent and objective. (People
v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
In such circumstances, the court must impose but stay execution of
sentence on all of the convictions arising out of the course of conduct except
for the offense with the longest sentence.
(People v. Alford (2010) 180 Cal.App.4th
1463, 1466.) Defendant argues that the
sentences on his convictions for petty theft with a prior and commercial
burglary should have been stayed rather than ordered to run concurrently,
because they were committed as part of the same course of conduct and with the
same objective as the robbery count. The
Attorney General commendably concedes the issue, noting, “Courts have routinely
held that a defendant cannot receive multiple prison terms for burglary, theft,
and robbery in circumstances similar to the one at hand. (See People
v. Perry (2007) 154 Cal.App.4th 1521, 1526; People v. Le (2006) 136 Cal.App.4th 925, [930-931];
1023, 1028.)†We will order the judgment
modified accordingly.
III. DISPOSITION
The
judgment is modified to award defendant an additional 27 days of presentence
credits, consisting of 24 days of custody credit and three days of conduct
credit under section 2933.1, subdivision (c), for a total of 339 days actual
custody credits, 23 days of conduct credits under section 2933.1, subdivision
(c) and 362 days in total presentence credits.
The judgment is further modified to stay the sentences for petty theft
with a prior and commercial burglary (counts 2 and 3) pursuant to section
654. The clerk of the superior court
shall prepare a modified abstract of judgment reflecting these modifications
and shall forward a copy of the same to the
NEEDHAM,
J.
We concur.
JONES, P. J.
BRUINIERS, J.
Code.
654, subdivision (a) provides in relevant part, “An act or omission that is
punishable in different ways by different provisions of law shall be punished
under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more
than one provision.â€
