P. v. Tupper























Filed 3/11/13 P. v. Tupper 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(Butte)

----






>

THE PEOPLE, Plaintiff and Respondent, v. KIM ASHLEY TUPPER, Defendant and Appellant.

C070979 (Super. Ct. No. SCR76775)

Defendant
Kim Ashley Tupper pleaded guilty to felony corporal injury of a spouse,
cohabitant, or child’s parent (Pen. Code, § 273.5, subd. (a)).href="#_ftn1" name="_ftnref1" title="">[1] Imposition of sentence was suspended and he
was placed on three years’ formal probation.
He was continued on probation after admitting to violating his probation
by failing to enroll in a batterer’s treatment program. After he admitted to violating probation a
second time, the trial court terminated probation and sentenced defendant to
three years in state prison with 387
days’ presentence credit (230 actual, 128 conduct, and 29 state custody).href="#_ftn2" name="_ftnref2" title="">[2]

On appeal,
defendant contends the trial court failed to award credits for time he spent in
a residential rehabilitation facility. We affirm.

DISCUSSION

We dispense
with facts of defendant’s crime and probation violations, as they are
unnecessary to resolve this appeal.

Defendant’s
sole claim is that he was entitled to custody credits for the 91 days he spent
in a residential rehabilitation facility.


Pursuant to
a condition of his probation, defendant entered the Skyway House Residential
Treatment Program on June 2, 2011,
and remained there until leaving on August
31, 2011. A defendant is
entitled to custody credit under section 2900.5, subdivision (a), for time
spent in a residential rehabilitation facility if the placement was “custodial”
and the custody was attributable to the proceedings relating to the conduct for
which the defendant has been convicted.
The award of credits did not include the 91 days spent in the href="http://www.mcmillanlaw.com/">residential treatment program.

Defendant
admits that the initial grant of probation included condition number 20, which
states in pertinent part: >“No custody time credits will accrue for
participation in a residential treatment program, as a condition of probation”
(boldface type in original), but claims he never agreed to the condition.

It is well
settled that a defendant may waive custody credits as a condition of probation,
or in exchange for other sentencing considerations. (People
v. Salazar (1994) 29 Cal.App.4th 1550, 1553.) A “Johnson
waiver” (see People v. Johnson (1978)
82 Cal.App.3d 183) allows a criminal defendant to waive entitlement, past or
future, to the custody credits authorized by section 2900.5 against a jail or
prison sentence. In a later case, also entitled People v. Johnson (but dealing with a different defendant), our
Supreme Court explicitly endorsed this concept.
(People v. Johnson (2002) 28
Cal.4th 1050, 1054-1055 [“[l]ike the Courts of Appeal that have addressed the
issue, we too conclude that a defendant may expressly waive entitlement to
section 2900.5 credits against an ultimate jail or prison sentence for past and
future days in custody”].) However,
“[a]s 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.
[Citation.]” (>People v. Johnson, supra, at p.
1055.) “The gravamen 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
under section 2900.5. [Citation.]” (People
v. Arnold
(2004) 33 Cal.4th 294, 308.)

The better
practice is for sentencing courts to expressly admonish defendants who waive
custody credits. “A sentencing court’s
failure to include such an explicit advisement will not, however, invalidate a >Johnson 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.”
(People v. Arnold,> supra, 33 Cal.4th at p. 309.)

The trial
court did not explicitly admonish defendant about the waiver of custody credits
for time spent in a rehabilitation facility.
Nonetheless, when granting probation the trial court informed defendant
that “Special Condition 20 is imposed.”
Also, before it granted probation, the trial court told defendant that
probation would be subject to “the strict terms and conditions of probation
that are set forth in the [probation] report,” among which were condition
number 20. Defendant’s counsel stated
that defendant agreed to the strict conditions, and defendant signed the
portion of the probation form which stated that he had read and understood the
probation conditions.

Condition
number 20 was not reiterated when probation was continued, but the new
probation order stated that the “[o]riginal terms in full force and effect
except as modified herein this date.”
The new probation order did not withdraw condition number 20 or indicate
that defendant was entitled to custody credits for time in a residential
treatment program.

Defendant
signed a document stating he had read and understood condition number 20, the
trial court informed him that the condition would be imposed, and counsel
agreed to the imposition of probation subject to the specified conditions,
including, by inference, the limit on conduct credits. Looking at the totality of the evidence,
defendant made a knowing and intelligent waiver of his right to conduct credits
for time spent in the residential treatment program.

DISPOSITION

The
judgment is affirmed.







NICHOLSON , J.







We concur:







RAYE , P. J.







BLEASE , J.