Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 07F08499 & 07F04857.
BLEASE, Acting P. J.
Defendant Kaniah McCauley appeals from a judgment entered after the trial court revoked her probation. She contends (and the People agree) the court erred in imposing a cumulative jail sentence in excess of one year in case No. 07F08499 (case 8499) in violation of Penal Code section 19.2. We agree and shall remand for resentencing.
Further section references are to the Penal Code unless otherwise stated.
BACKGROUND
Given the issues raised on appeal, we need not describe the facts of defendant’s offenses.
In November 2007, defendant pled no contest in case 8499 to possessing hydrocodone. The court suspended imposition of judgment and placed defendant on four years’ formal probation on the condition (among others) that she serve 270 days in county jail; execution of the jail time was suspended pending her successful completion of a Proposition 36 drug program. After defendant violated her probation, she was deleted from the Proposition 36 program probation and admitted to drug court.
This conviction was the subject of a previous appeal in this court, case no. C061135. Defendant moved successfully to incorporate by reference the record in case No. C061135. (Cal. Rules of Court, rule 8.147.)
In the same proceeding, defendant was sentenced in case No. 07F04857 for methamphetamine possession, but no jail term or sanction was imposed in case No. 07F04857, and no incarceration was ever served in that case.
In October 2008, defendant again violated her probation in case 8499; probation was reinstated on the condition defendant serve an additional 60 days of jail time, for a total of 330 days’ jail time, again, suspended for defendant’s participation in drug court. When defendant failed drug court, she was ordered to serve the 330 days’ jail time, with 68 days of custody credit. She was released on April 11, 2009, and her probation was reinstated.
In October 2009, defendant was arrested for methamphetamine possession and was found thereafter to have violated her probation in case 8499. The court then reinstated her probation on the condition (among others) that she serve 65 days in county jail.
The parties agree that, with the last reinstatement of probation, the court effectively sentenced defendant to jail for 395 days in case 8499.
DISCUSSION
When circumstances warrant, a court may sentence a felon to probation instead of prison, and condition that probation on serving time in county jail. (§ 1203.1, subd. (a).) Such a county jail sentence cannot, however, exceed one year. (Id., § 19.2.) Moreover, if the defendant thereafter violates probation, the court may exercise its discretion to reinstate probation conditioned on the defendant’s serving additional jail time, but the time the person had already spent in custody ordinarily counts against the one-year cap on county jail time. (§ 2900.5 [prisoners entitled to credit for time spent in custody].)
Section 19.2 reads: “In no case shall any person... as a condition of probation upon conviction of either a felony or a misdemeanor... except upon conviction of more than one offense when consecutive sentences have been imposed, be committed for a period in excess of one year....”
Courts (and defendants) recognize the potential downside of a probationer’s accruing custody credits against the one-year jail sentence cap: It could force a court to remand a defendant to prison for a probation violation even if both the court and defendant preferred that the additional time be spent in county jail. To avoid such an undesired result, the seminal case of People v. Johnson (1978) 82 Cal.App.3d 183 (Johnson) fashioned the remedy of permitting a probationer to waive his custody credits. (Id. at p. 188; see People v. Hilger (2005) 131 Cal.App.4th 1528, 1531-1532.)
In Johnson, the Court of Appeal “recognized that the interplay of Penal Code section 19.2’s long-standing one-year cap on the time that can be served in county jail as a condition of probation for any single violation, and Penal Code section 2900.5’s requirement that all local jail time served be credited against any subsequent county jail term imposed as a condition of reinstatement of probation, created a dilemma for sentencing courts in those cases in which the defendant had already served a year or more in county jail as a condition of probation before subsequently violating probation. In such cases, if the sentencing court desired to reinstate the defendant on probation, the interplay of the two statutes forced the sentencing court to choose between sentencing the defendant to state prison or imposing no additional jail time as a condition of reinstatement of probation--because applying custody credit for the earlier one year of county jail time against the new county jail term would result in the defendant’s having already served the maximum one-year county jail term permitted under section 19.2 for the new violation. [Citation.] The Johnson court therefore fashioned the rule that ‘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.’ [Citation.]” (People v. Jeffrey (2004) 33 Cal.4th 312, 317.)
A defendant may validly waive the one-year statutory limit on jail time imposed by section 19.2, or the custody credits to which he or she would otherwise be entitled in order to permit a court to reinstate probation on the condition that he or she serve a county jail term. (People v. Burks (1998) 66 Cal.App.4th 232, 234.) In particular, trial courts now routinely obtain so-called “Johnson waivers” from defendants who are approaching the maximum time set forth in section 19.2: a valid Johnson waiver allows the court to reinstate probation on the condition the defendant serve additional jail time, thus eliminating the “Hobson’s choice of the ‘joint’ or a ‘straight walk.’” (Johnson, supra, 82 Cal.App.3d at p. 187.) Of course, as with any waiver, a Johnson waiver must be knowing and intelligent, meaning the probationer understands the waiver’s effect on his or her possible eventual sentence. (People v. Ambrose (1992) 7 Cal.App.4th 1917, 1922–1923; Johnson, supra, 82 Cal.App.3d at p. 188.)
Here, however, defendant never made a Johnson waiver or other waiver of the benefits of section 19.2, and the parties agree the excessive jail sentence appears to have been unintentional. They urge us to remand the matter to the trial court for resentencing in accordance with sections 19.2 and 2900.5. We shall do so.
DISPOSITION
The matter is remanded to the trial court for resentencing in accordance with this opinion. In all other respects, the judgment is affirmed.
We concur: ROBIE, J. MAURO, J.