Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA047119. Ronald S. Coen, Judge.
Elizabeth A. Missakian, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Nancy G. James, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Appellant Oscar Hugo Donado pleaded no contest to second degree robbery. The court granted Donado probation and ordered him to serve a year in jail. After several probation violations, Donado agreed to waive credits so that he could serve another jail term and be reinstated on probation. Donado failed to surrender as ordered to serve that jail term. The court sentenced Donado to prison. On appeal Donado challenges the trial court’s refusal to give the waived presentence credits back to him.
We conclude Donado is not entitled to recapture the credits he waived in exchange for being reinstated on probation. Donado’s waiver was unambiguous and the trial court fully complied with its obligations under the agreement. Donado -- not the trial court -- bears sole responsibility for his failure to receive the promised jail term.
BACKGROUND AND PROCEDURAL HISTORY
In March 2004, Donado was charged with two counts of second degree robbery. He entered a negotiated plea of no contest to one count. The court granted Donado probation on the conditions that he serve one year in jail, make restitution to the victims, and pay a restitution fine and court security fee.
The facts underlying the charges do not bear on the issue raised on appeal, and we do not summarize them in this opinion.
Donado apparently served his jail term, but he failed to make payments to the probation department. He also was arrested for a misdemeanor failure to appear arising from a 2002 traffic ticket. In November 2004, the court summarily revoked, then reinstated, Donado’s probation on the same terms. The court stated that the probation department was to notify the court “of the smallest of [any future probation] violations.”
A year later, the court again summarily revoked Donado’s probation based on his probation officer’s report that he had reported only sporadically. At a hearing in December 2005, Donado admitted he had violated his probation by failing to report to his probation officer regularly and to make payments toward his financial obligations. The court found Donado in violation, revoked his probation, then reinstated it once again on the same terms. The court strongly admonished Donado regarding any further probation violations: “Here is what is going to happen. You have been convicted of robbery. I am going to send you to the joint. That’s a promise from me to you. One more violation.”
One year later, in November of 2006, the court again summarily revoked Donado’s probation for failing to report regularly and make monthly payments. The probation department report stated that Donado “ha[d] presented a poor attitude toward [the] court ordered terms [of probation]” for two years. Donado had told his probation officer that he “thought [he] didn’t have to report.” Although the court had warned Donado that any more violations would result in state prison, the court agreed to give Donado yet another chance at probation. At the violation hearing on November 22, 2006, the court stated he had “indicated [to counsel that] should defendant waive 180 days of backtime, I would reinstate probation on the original terms and conditions upon admission, with one of the conditions being serve 180 days in county jail.” Defense counsel told the court that Donado wanted to “accept the court’s indicated and surrender after the holidays.” The court told Donado in very plain language, “By waiving the 180 days you will never get it back again. That’s it. You understand that if you go [to] prison, the next time you go to jail you husband [sic] there 180 days.” Donado replied, “That’s fine.” The court asked, “At this time you . . . waive [ ] 180 days [of] your back time credits.” Donado answered, “Yes.” He then admitted violating his probation, and the court found him in violation. Donado asked if he could surrender on January 3, 2007. The court agreed to stay his surrender. The court stated: “Probation is reinstated on the original terms and conditions with the following modifications: [¶] Defendant is to serve 180 days in county jail with zero credits. He is to surrender January 3, 2006 [sic], 8:30 a.m. sharp in this department. Defendant is ordered to appear, 2007. Thank you.” [¶] That’s it Sir. This is your second violation. Next time you go to the joint.”
Donado did not show up on January 3, 2007. The court summarily revoked his probation and issued a no bail warrant. At a hearing one week later, Donado waived his right to a revocation hearing and admitted violating his probation by failing to surrender on January 3. The court found Donado in violation, terminated his probation, and sentenced him to three years in prison. The court reminded Donado that he had waived 180 days of credit at the November 2006 hearing. The court thus awarded Donado 185 days of presentence credit (for the 365 days originally served less the 180 days that Donado had waived).
DISCUSSION
Donado contends the trial court erred by refusing to restore to him the 180 days of presentence credit he agreed to waive in exchange for reinstatement on probation. First, Donado argues that the agreement was ambiguous and must be interpreted in his favor. Second, Donado argues that his waiver is unenforceable due to a failure of consideration, because he did not receive the promised jail term but instead was sentenced to prison.
1. Ambiguity
Donado argues that his agreement with the trial court was ambiguous, and that this court should construe the agreement in his favor. So construed, Donado says, the agreement was that he would not accrue credit on the jail term he was to serve beginning on January 3, 2007, but that he would not lose any credit he previously had earned.
Donado seizes on a single sentence from the transcript of the November 2006 probation violation hearing: “Defendant is to serve 180 days in county jail with zero credits.” Taken alone and out of context, that statement supports Donado’s proposed interpretation. But the agreement -- that Donado would waive 180 days of his previously accrued credits in exchange for reinstatement on probation -- was plain and unambiguous. The trial court’s final statement summarizing the outcome of the hearing creates no ambiguity. The court bluntly had advised Donado that “[b]y waiving the 180 days you will never get it back again.” Donado said he understood this consequence and agreed to it. The court then asked Donado whether he waived “180 days [of] your back time credits,” and Donado replied, “Yes.” The court made the statement that Donado now relies on only after it had advised him of the rights associated with a probation violation hearing, obtained his waiver of those rights, found him in violation of probation, revoked and reinstated his probation, and allowed him to pick the date on which he would surrender to serve the jail term. Donado therefore could not possibly have relied on the court’s arguably inaccurate summary of the credit waiver just before the hearing ended. His ambiguity argument is meritless.
2. Consideration
Penal Code section 2900.5, subdivision (a) requires that all actual custody and conduct credits a defendant has earned be deducted from the defendant’s term of imprisonment. These credits include time served as a condition of probation. (§ 2900.5, subd. (c).) Section 19.2 provides that a defendant may not be committed to a county jail term of more than one year as a condition of probation. However, “a defendant who has served one year in jail as a condition of probation and who thereafter violates probation may be sentenced to an additional period of up to one year in jail if he knowingly and intelligently waives the provisions of Penal Code section 2900.5.” (People v. Johnson (1978) 82 Cal.App.3d 183, 184-185.)
All further statutory references in this opinion are to the Penal Code.
“[W]hen 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 state prison sentence imposed.” (People v. Arnold (2004) 33 Cal.4th 294, 298.) “[T]he waived credits may not be recaptured when probation is violated again, unless the agreement expressly reserves that right. In the absence of such a record, custody credits once waived may not be used again.” (People v. Burks (1998) 66 Cal.App.4th 232, 234.)
With one exception, appellate courts uniformly have rejected defendants’ attempts to recapture credits they previously waived in order to receive or be reinstated on probation. In People v. Zuniga (1980) 108 Cal.App.3d 739, the defendant waived 168 days of presentence credit in order to serve a one-year jail term imposed as a condition of probation. After Zuniga escaped from jail, the trial court sentenced him to prison. On appeal, he sought to recover the waived credit. The appellate court refused to restore the credit, explaining, “Defendant, in effect, bargained for a probationary sentence by initially waiving the provisions of Penal Code section 2900.5. The court complied and granted defendant the leniency of probation. Defendant now seeks to retract his portion of the bargain on the basis that he now has been removed from probation and sentenced to state prison. His argument appeals to neither logic nor justice. [¶] Probation is a form of leniency which is predicated on the notion that a defendant, by proving his ability to comply with the requirements of the law and certain special conditions imposed upon him, may avoid the more severe sanctions justified by his criminal behavior. Once given the opportunity for lenient treatment the choice is his as to whether he merits being continued on probation. [¶] Here defendant not only refused to comply with his conditions of probation but committed an additional crime in making his choice. He cannot use his own misconduct as a basis for setting aside the waiver which he executed as a condition for obtaining leniency in the first instance -- in effect a renegotiation of his sentence on his own terms. [Citation.]” (People v. Zuniga, supra, 108 Cal.App.3d at p. 743.)
People v. Harris (1987) 195 Cal.App.3d 717, discussed infra.
In People v. Burks, supra, 66 Cal.App.4th 232, the defendant served a year in jail as a condition of probation. On his first probation violation, he waived one year of credit in order to be reinstated on probation on the condition that he serve 90 days in jail. On his third probation violation, the court sentenced him to two years in prison. On appeal, Burks sought to recover the waived credit on the ground that he did not understand that his waiver would apply to a future prison term. (Id. at p. 234.) The appellate court rejected the claim, noting that restoration of credits would “improperly bestow[] a windfall on a defendant who repeatedly violates probation.” (Id. at p. 236.) The court further explained that “[w]hen a defendant repeatedly makes wrong choices in this situation, it is neither logical nor just to allow him to retract a custody credit waiver that enabled him to prolong his probation, leaving him no worse off after another violation than he was after the violation that prompted the waiver.” (Id. at p. 237.)
In People v. Arnold, supra, 33 Cal.4th 294, the California Supreme Court disapproved People v. Harris, supra, 195 Cal.App.3d 717. That case had permitted a defendant to recover waived credits where the court did not explicitly tell him that his waiver would apply to any future prison term that might be imposed following revocation of probation. (People v. Arnold, supra, 33 Cal.4th at p. 307.) The Arnold court explained that restoring previously waived credits on a later probation violation that resulted in a prison sentence would reward a defendant for his own misconduct and unjustly enrich the defendant, who would receive “the benefit of the bargain reached at his original sentencing and later be permitted to revoke the consideration he gave up to obtain the benefit of that bargain. As a matter of sound sentencing policy, the law should not afford probationers incentives or rewards for refusing to comply with the terms and conditions of probation.” (Id. at p. 308, fn. omitted.)
Donado’s failure of consideration argument misconstrues the agreement. He agreed to waive credits in exchange for the court reinstating him on probation instead of sentencing him to prison for the probation violation he admitted on November 22, 2006. The court fully performed its part of this agreement: it reinstated Donado on probation on the agreed terms. Donado thus received consideration in two forms of lenient treatment: the court reinstated his probation instead of sentencing him to prison, and it allowed him to remain free for more than a month before surrendering to serve the 180-day jail term he had agreed to. It was Donado who breached the agreement by failing to surrender on the appointed date – a date he chose and agreed to. But for Donado’s own misconduct in not keeping his promise, he would have received the full benefit of his agreement and served a short jail term, rather than a longer prison term. “He cannot use his own misconduct as a basis for setting aside the waiver which he executed as a condition for obtaining leniency in the first instance -- in effect a renegotiation of his sentence on his own terms.” (People v. Zuniga, supra, 108 Cal.App.3d at p. 743.) Moreover, the court imposed the prison sentence after a new admission by Donado that he had violated probation by failing to surrender as agreed and a new finding by the court that Donado again had violated his probation. In short, Donado’s failure of consideration argument is meritless. He alone failed to perform the agreement, and he is not entitled to recapture the credits he waived on November 22, 2006.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, Acting P. J., FLIER, J.