Filed 7/21/17 P. v. Khuri CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE


THE PEOPLE,
Plaintiff and Respondent,
v.
GIOVANNI KHURI,
Defendant and Appellant.

A148542

(Sonoma County Super. Ct.
No. SCR-640229)


Appellant’s counsel has raised no issue on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Counsel advised appellant of his right to file a supplemental brief (see People v. Kelly (2006) 40 Cal.4th 106), and appellant filed a timely brief contending that the trial court could not require him to waive custody credits while in a residential treatment facility, that his waiver was not made knowingly and intelligently, and the trial court abused its discretion in denying appellant’s Romero motion to strike a prior strike conviction. We affirm.
BACKGROUND
Appellant was charged by information in March 2014 with assault by means of force likely to result in great bodily injury (Pen. Code § 245, subd. (a)(4), count one) and battery with serious bodily injury (§ 243, subd. (d), count two.) A great bodily injury enhancement (§ 12022.7, subd. (a)) was alleged as to count one. It was further alleged that counts 1 and 2 were committed while appellant was on felony probation. (§ 1203, subd, (k).)
At a May 2014 hearing, pursuant to a negotiated agreement to grant appellant probation and dismiss count two, appellant plead no contest to count one, and admitted the great bodily injury enhancement. At appellant’s June 16, 2014 sentencing hearing the court ordered him to participate in an 18-month residential treatment program as a condition of his probation. The court then informed appellant that, “imposition of sentence is suspended. In other words, if you violate the terms and conditions of your probation, sir, you will be doing seven years in state prison.”
Appellant was discharged from the residential treatment program on July 6th, 2014 for a rules violation, which constituted a violation of his probation. Probation was summarily revoked and a warrant was issued for appellant on July 10, 2014. He was booked into county jail on July 16.
At a July 25, 2014 hearing, appellant admitted to a violation of probation and the Court ordered appellant to serve 60 days in the Sonoma County Jail and reinstated the previous probation order. The Court informed appellant, “While you’re in the [residential treatment] program, we require that you waive custody credits.” While the court was asking if appellant accepted this condition, appellant interrupted to agree, “Yes, Your Honor.” The Court then reiterated, “When you’re in jail, you get credit for custody credit. But while you’re in the treatment program, that is not the case. [¶] Do you have any questions?” Appellant and his counsel requested clarification regarding appellant’s release from county jail to the residential rehabilitation facility and the Court again asked, “Do you have any questions?” to which appellant replied, “No, Your Honor.” The hearing was then concluded.
On August 2, 2015, Appellant was again discharged from the residential treatment program for a “negative attitude and behavior.” On August 5 probation was summarily revoked and a warrant was issued for appellant’s arrest based on the violation of probation. Appellant was returned to custody on August 10.
On April 7, 2016, while awaiting resentencing following his latest probation violation appellant was charged with possessing drugs in prison. (§ 4573.8.) On April 20, as part of a negotiated plea, appellant pled no contest to the latest charge in exchange for a maximum total sentence of seven years in both cases.
At appellant’s May 25 resentencing hearing the court considered appellant’s personal statements, both written and in court, prior to issuing a sentence. Appellant’s counsel requested the court to strike appellant’s prior strike conviction under Romero. Opposing the Romero motion, the People did “not believe anything about [appellant’s] past, the offenses before the Court or his prospects for the future would cause this case to fall outside the Three Strikes scheme.” Addressing appellant, the court stated, “I’m not doubting your sincerity . . . , but as [the prosecutor] points out, a lot of the decisions are made based on what you were doing in custody while you were pending violation of probation and then you pick up a new law violation. So I’m not going to exercise my discretion to strike the strike under Romero.” Appellant was sentenced to six years in prison.
This appeal followed.
DISCUSSION
Appellant cites People v. Jeffrey (2004) 33 Cal.4th 312 (Jeffrey) in support of his contention that the requirement to waive custody credits while in a residential rehabilitation facility as a condition of being granted probation is unlawful. Appellant is mistaken. Referring to its companion case, People v Arnold (2004) 33 Cal.4th 294, the Supreme Court in Jeffrey noted, “In Arnold, we interpret[ed] the scope and effect of a defendant's waiver of custody credits—commonly referred to as a “Johnson waiver” (People v. Johnson (1978) 82 Cal.App.3d 183 (Johnson)—which enables a sentencing court to reinstate a defendant on probation after he or she has violated probation one or more times, conditioned on service of an additional county jail term, as an alternative to imposing a state prison sentence.” (Jeffrey, at p. 315.) The Court then reaffirmed the logic of Arnold in the context of residential treatment facilities. (Id at pp. 317–318.) “The question remains whether a Johnson waiver of future custody credits to be earned in a residential drug or alcohol treatment facility is a waiver of such credits for all purposes, including application of such credits to a subsequently imposed prison term in the event probation is revoked. We conclude that it is.” (Id. at p. 320.)
The trial court did not err in requiring appellant to waive future custody credits earned during treatment at a residential treatment facility as a condition of receiving probation.
As to appellant’s contention that his waiver of those credits is invalid because it was not knowing and voluntary, appellant failed to object to this condition at sentencing and it is therefore waived. (People v. Torres (1997) 52 Cal.App.4th 771, 782.) Even if appellant had not waived this argument, we would affirm.
Appellant claims he only waived custody credit for time spent in a residential treatment facility because he was under the mistaken belief that he was required to do so as a condition of being granted probation. Appellant was advised by his attorney prior to his original sentencing that he would be required to waive custody credits while in the residential treatment facility as a requirement of receiving probation, although no such waiver was requested. Appellant argues that because he was not required to waive custody credits at his original sentencing hearing on June 16, 2014 when he believed he would be required to do so, his waiver at the July 25, 2014 resentencing hearing (after his first violation of probation) was not knowing and intelligently made.
“As 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.” (People v. Johnson (2002) 28 Cal.4th 1050, 1055.) “To determine whether a waiver is knowing and intelligent, the inquiry should begin and end with deciding whether the defendant understood he was giving up custody credits to which he was otherwise entitled.” (People v. Burks (1998) 66 Cal.App.4th 232, 236, fn. 3.) The trial court explained to appellant that he was required waive custody credits while at the residential treatment facility as a condition of being granted another opportunity on probation. The court asked if he agreed to waive these rights and he answered, “Yes, your Honor.” Appellant’s waiver was knowing and intelligently made.
Finally, appellant contends that the trial court abused its discretion by failing to grant appellants motion to strike a prior strike allegation under Romero. “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ [Citation] Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citation] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 376–377). Because “the circumstances must be ‘extraordinary’ ” to warrant a court to strike a prior strike conviction, “the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Id. at p. 378.) Such extraordinary circumstances are not present here. The trial court did not abuse its discretion in denying appellant’s motion to dismiss a prior strike allegation.
The sentences were consistent with the plea agreements. The sentencing credits, fines, and fees were proper. Appellant was represented by legal counsel throughout the proceedings. The trial court described the constitutional rights he was waiving by entering his no contest pleas and advised him of the consequences of the pleas. There was a factual basis for both pleas.
DISPOSITION
The judgment is affirmed.








SIMONS, J.



We concur.




JONES, P.J.




BRUINIERS, J.