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P. v. Ramirez

P. v. Ramirez
07:28:2013






P








P. v. Ramirez



















Filed 6/18/13 P. v. Ramirez CA3













NOT TO BE PUBLISHED







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opinion has not been certified for publication or ordered published for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>

THIRD APPELLATE DISTRICT

(Lassen)

----






>






THE PEOPLE,



Plaintiff and Respondent,



v.



DIANA L. RAMIREZ,



Defendant and Appellant.




C071056



(Super. Ct. No.
CR026649)
















Defendant
Diana L. Ramirez appeals following the revocation and termination of her
probation. On appeal, defendant contends
she is entitled to presentence custody credit for time she spent in custody as
drug court sanctions, because her waiver of such custody credit was not knowing
and intelligent. We disagree and shall
affirm the judgment.

FACTUAL BACKGROUND

Defendant
pleaded guilty to possessing
methamphetamine
(Health & Saf. Code, § 11377, subd. (a)). The trial court placed her on probation for
two years under the provisions of Proposition 36, requiring participation in a
drug treatment program, and suspended imposition of sentence.

Defendant
violated her Proposition 36 probation and agreed to participate in a drug court
rehabilitation program in lieu of admitting a third probation violation. In June 2010 the trial court sentenced her to
a state prison term of three years, stayed execution of sentence, continued
defendant on probation, and admitted defendant to participation in drug
court.

In
connection with her admission to drug court, defendant executed a “Lassen
County Drug Court Participant Agreement” (the Agreement), which states in
part: “I UNDERSTAND THAT IF I AM
REMOVED FROM THE PROGRAM AND SENTENCED[,] I AM NOT ENTITLED TO ANY SENTENCE
CREDITS FOR SANCTIONS IMPOSED IN JAIL
.
I understand that if I have any questions concerning sentencing, I
should discuss this with my attorney (or the Court if I am not represented by
an attorney) before starting the program.
I understand I have the right to an attorney prior to signing this
agreement.” (Emphasis in original.) Defendant placed her initials next to this
paragraph and signed the Agreement. The
Agreement was also signed by defendant’s attorney and by the court.

Defendant
violated her probation while participating in drug court, and served 15 days in
jail as drug court sanctions: two days
for the first sanction; three days for the second sanction; four days for the
third sanction; and six days for the fourth sanction. Thereafter, in April 2012 the trial court
found defendant unamenable to treatment, and lifted the stay of execution on her
three-year prison term.

Following
a hearing on the custody credits due
defendant, the court declined to award any presentence custody credit for time
she spent in custody as drug court sanctions, based on defendant’s waiver in
the Agreement of “sentence credits for sanctions imposed” in the form of jail
time.

DISCUSSION

Defendant
contends the trial court erred in failing to award presentence custody credits
for the time served as drug court sanctions, because her waiver of those
credits was not knowing and intelligent.
We disagree, and shall affirm the judgment.

Penal
Code section 2900.5, subdivision (a)href="#_ftn1" name="_ftnref1" title="">[1]
provides that “In all felony and misdemeanor convictions, either by plea or by
verdict, when the defendant has been in custody, including, but not limited to,
any time spent in a jail, camp, work furlough facility, halfway house,
rehabilitation facility, hospital, prison, juvenile detention facility, or
similar residential institution, all days of custody of the defendant,
including days served as a condition of probation in compliance with a court
order, credited to the period of confinement pursuant to Section 4019,
. . . shall be credited upon his or her term of imprisonment . . . .
”

But it is
well established 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 href="http://www.fearnotlaw.com/">state prison sentence imposed.” (People
v. Arnold
(2004) 33 Cal.4th 294, 298 (Arnold).) Such a rule, the >Arnold court reasoned, is “consistent
with law, logic, and sound public policy” (id.
at p. 307), and 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.” (Arnold,
at p. 309.) “[S]uch waived credits
may not be recaptured and applied against a subsequently imposed prison
sentence in the event probation is revoked and a prison term imposed due to the
defendant’s own unlawful or unsatisfactory conduct while on probation.” (People
v. Jeffrey
(2004) 33 Cal.4th 312, 317.)

“The
gravamen of whether such a waiver is knowing and intelligent is whether the
defendant understood [s]he was relinquishing or giving up custody credits to
which [s]he was otherwise entitled under section 2900.5.” (Arnold,> supra, 33 Cal.4th at
p. 308.) Although “[t]he better
practice is for sentencing courts to expressly admonish defendants who waive
custody credits [citation], that such waivers will apply to any future prison
term should probation ultimately be revoked and a state prison sentence
imposed,” a sentencing court’s failure to include such an explicit advisement
“will not . . . invalidate a . . . waiver by which the
defendant is otherwise found to have knowingly and intelligently relinquished
his or her right to custody credits under section 2900.5.” (Arnold,
at p. 309.)

Here, the
record does not support defendant’s claim that her waiver of custody credits
was not knowing and intelligent. She
signed the Agreement and initialed paragraph 22, in which she indicated her
understanding that she is “not entitled to any sentence credits for sanctions
imposed in jail” while participating in drug court. This provision is not (as defendant asserts)
“buried on page four,” so that we might presume defendant missed its
significance: It appears at the top of
the page on which defendant placed her signature and is the only paragraph in
the Agreement printed both in all capital letters and boldface type. Moreover, at the hearing at which the trial
court received the Agreement and assigned defendant to drug court, defendant
answered “yes” when asked by the court whether she had signed the Agreement,
initialed each paragraph, and did so only “after discussing it and reading it
with [her] attorney.” Defendant answered
“no” when asked if she had “any questions” about the Agreement’s
provisions. Defense counsel confirmed to
the court that her client agreed “to all the terms and conditions” of the
Agreement. This exchange, together with
the written Agreement, demonstrates a knowing and intelligent waiver of
defendant’s right to custody credits for the period defendant served jail time
as drug court sanctions. (See >People v. Black (2009)
176 Cal.App.4th 145, 152-155.)

We reject
defendant’s suggestion that her waiver should be deemed ineffective because it
was not supported by a “quid pro quo,” i.e., a benefit for her agreement to
forego custody credits for time served as sanctions during her participation in
drug court. The Agreement shows that, in
exchange for the opportunity to participate in drug court and avoid the
otherwise immediate execution of her prison sentence, defendant agreed to each
of the conditions that appear in its separately enumerated paragraphs,
including the waiver of custody credits for jail time (if any) served as
sanctions.

There was
no error.

DISPOSITION

The
judgment is affirmed.







BUTZ , J.







We concur:







BLEASE , Acting P. J.







MAURO , J.





id=ftn1>

href="#_ftnref1"
name="_ftn1" title="">[1] Undesignated statutory references are to the
Penal Code.








Description Defendant Diana L. Ramirez appeals following the revocation and termination of her probation. On appeal, defendant contends she is entitled to presentence custody credit for time she spent in custody as drug court sanctions, because her waiver of such custody credit was not knowing and intelligent. We disagree and shall affirm the judgment.
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