P. v. Ewing>

















Filed 6/25/12 P. v. Ewing
CA4/2













NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. RICHARD BENO EWING, Defendant and Appellant.

E053816 (Super.Ct.No. FMS900250) OPINION

APPEAL
from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San
Bernardino County.
Rodney A. Cortez, Judge. Affirmed
with directions.

Gerald
J. Miller, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, James D. Dutton and
Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.

>I

>INTRODUCTION

On May 28, 2009, a complaint charged defendant and appellant Richard
Beno Ewing with possession of cocaine under Health and Safety Code section
11350, subdivision (a). The complaint
also alleged that defendant had previously suffered a prison prior within the
meaning of Penal Codehref="#_ftn1"
name="_ftnref1" title="">^[1] section 667.5, subdivision (b).

On June 3, 2009, defendant pled guilty to count 1 and admitted the
prison prior. On June 15, 2009, the trial court sentenced defendant to three years’
probation under section 1210.1. On November 3, 2009, defendant admitted violating his section 1210.1
probation, and was placed on general felony probation and admitted into drug
court. Defendant failed to appear for
drug court review on April 20, 2010, and probation was
revoked. On May
9, 2011, defendant was sentenced to four years in prison.

On June 10, 2011, defendant filed a href="http://www.fearnotlaw.com/">notice of appeal. On appeal, defendant contends that the trial
court erred in failing to award him presentence conduct credits under section
4019. For the reasons set forth below,
we shall remand this case to the trial court for calculation of section 4019
credits.

>II

>ANALYSIShref="#_ftn2" name="_ftnref2" title="">^[2]>

Defendant contends that
the trial court erred in failing to award any custody credits under section
4019, including credits he claims he earned after May
9, 2011, the day defendant was remanded into custody for immediate delivery to
the Department of Corrections.

A. Procedural Background

On November 3, 2009, defendant admitted violating his section 1210.1
probation. He was then placed on general
felony probation and admitted into drug court.


On March 9, 2010, defendant was provided with the terms of drug court
and agreed to them. Specifically,
defendant initialed and signed a drug court application and agreement, which
stated, “I also waive all P.C. 4019 credits as a condition of participating in
the drug court treatment program.”
Defendant also confirmed that he could “read and understand English,”
and that he had time to read the “statement of rights and the Agreement [and]
placed [his] initials in each box to the left of each paragraph of this
Agreement to signify that [he] understand[s] and adopt[s] as [his] own, the
statements, which correspond to those lines.”


On April 20, 2010, defendant failed to appear for drug court
review. Probation was revoked and a
warrant was issued for his arrest.
Defendant was arrested on April 27, 2011. On May 9, 2011, the trial court found
defendant no longer amenable for drug court and terminated him from the
program. Probation was revoked and
terminated, and defendant was “remanded to the custody of the sheriff for immediate
delivery to the Department of Corrections.”
That same day, defendant was sentenced to four years in prison, with 72
days actual custody credit. The court
found that “PC 4019 credits were waived in order to participate in Drug Court program.”

B. Discussion

Defendant does not argue
that his waiver of section 4019 credits is invalid. Instead, defendant argues that he is entitled
to section 4019 credits prior to and after his participation in the drug court
program. The People, however, argue that
defendant waived all past and future section 4019 credits. We agree in part with both parties. For the reasons set forth below, we shall
remand this case for calculation of section 4019 credits accrued >after defendant signed his waiver.

Here, there is no dispute
that defendant initialed and signed a drug court application and agreement,
which stated, “I also waive all P.C. 4019 credits as a condition of
participating in the drug court treatment program.”

In People v. Black (2009) 176 Cal.App.4th 145, 152, a defendant signed
the exact same waiver: “‘I also waive
all [section] 4019 credits as a condition of participating in the DRUG COURT
TREAEMENT PROGRAM.’” In >Black, the People argued that the waiver
applied to all section 4019 credits accrued prior
to the execution of the waiver. (>Black, at p. 155.) The People, however, conceded that “defendant
should have been awarded section 4019 credits for any time spent in custody >after September 24, 2007 [the date the
waiver was executed], and a limited remand for a proper calculation of credits
[was] therefore appropriate.” (>Black, at p. 155.) In Black,
we agreed with the People’s position. (>Ibid.)
“On the record before us, we cannot detect a basis for disagreeing with
the People’s position.” (>Ibid.)


Moreover, cases discussing
waiver of appeal have found that “[a] broad or general waiver of appeal rights
ordinarily includes error occurring before
but not after the waiver because the defendant could not knowingly and
intelligently waive the right to appeal any unforeseen or unknown future
error.” (People v. Mumm (2002) 98 Cal.App.4th 812, 815, italics added.) “Thus, a waiver of appeal rights does not
apply to ‘“possible future error” [that] is outside the defendant’s
contemplation and knowledge at the time the waiver is made.’” (Ibid.,
quoting People v. Panizzon (1996) 13
Cal.4th 68, 85.)

Based on the above, we find
that defendant waived his section 4019 credits prior to the execution of his
waiver, but not after. Therefore, the
trial court erred in failing to award section 4019 custody credits for time
defendant spent in custody after the execution of the agreement.

>III

>DISPOSITION

The case is remanded for
the limited purpose of calculating conduct credits under section 4019 for the
time spent in custody after May 9, 2011. The trial court is directed to determine
defendant’s conduct credits eared after May 9, 2011; to amend its minutes
accordingly; to correct the abstract of judgment; and to forward a certified
copy of any revised order to the Department of Corrections and
Rehabilitation. In all other respects,
the judgment is affirmed.

NOT TO BE PUBLISHED IN
OFFICIAL REPORTS



MCKINSTER

J.





We concur:



RAMIREZ

P.
J.

KING

J.