Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 198574
Kline, P. J.
James Taveras appeals from convictions of robbery, assault and battery. He contends that the trial court’s imposition of the aggravated term at sentencing violated his right to jury trial, and that the court imposed an unauthorized condition of probation. We affirm.
Appellant’s opening brief argues that the trial court erred in instructing the jury on simple battery, which is not a lesser included offense of any of the offenses with which appellant was charged. In his reply, however, appellant withdraws this contention, conceding that his failure to object to the jury instruction at trial waived the issue.
Statement of the Case
Appellant was charged by information filed on May 4, 2006, with one count of second degree robbery (Pen. Code, § 212.5, subd. (c)) and one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). It was alleged that the robbery was a serious felony within the meaning of section 1192.7, subdivision (c)(19). Appellant pled not guilty.
All further statutory references will be to the Penal Code unless otherwise specified.
Trial began on June 20, 2006. On June 26, the jury returned a verdict of guilty on the first count, second degree robbery. On the second count, it found appellant not guilty of assault with force likely to produce great bodily injury but guilty of simple assault (§ 240) and simple battery (§ 242) as lesser included offenses.
On August 22, 2006, the court sentenced appellant to the upper term of five years in state prison, then suspended execution of sentence and granted appellant probation for a period of three years. Among the terms of probation, appellant was ordered to serve one year in county jail, with a provision that the sentence could be served in Redwood Center, a residential treatment program. The order specified, “Failure to complete the program may result in a loss of credit for time spent in the program.”
Appellant filed a timely notice of appeal on October 5, 2006.
Statement of Facts
Peter Lungreen testified that, at about 3:20 p.m. on March 23, 2006, he was working at Radio Shack on Market Street in San Francisco. He observed a person crouch in front of a display of headphones, take a set of headphones off the shelf, and put it inside his coat. In the 34 years Lungreen had worked for Radio Shack, he had observed people shoplifting on many occasions and had stopped someone from shoplifting on some 20 occasions. Pursuant to his “usual policy,” Lungreen went over to the man, who was now holding a different pair of headphones in his hand, and asked in an “even tone of voice” for the headphones the person had under his coat. The man said he did not have anything in his coat and held up the headphones he had in his hand. Lungreen told the man there was one in his coat and reached with his left hand, touching the man’s coat to indicate where it was. The man “whirled around, rising as he did,” hit Lungreen’s left forearm, bruising it, and ran toward the door. Trying to reach the headphones the man had in his right hand, Lungreen grabbed that hand as the man stepped out of the store. The man hit Lungreen in the mouth with his left fist, causing a swelling on Lungreen’s lip. At this point, Lungreen let the man go: Lungreen was 70 years old, had never had a fight in his life and was “not in that great of shape,” and he was afraid of the man hurting him more. Lungreen never hit the man.
Another employee chased after the man, who ran down the street. As he ran, Lungreen saw him drop the headphones from his hand and saw the other headphones fall to the sidewalk. Lungreen could not positively identify the man because he did not see the man’s face during the incident. The store was monitored by three video cameras, but the incident was not captured on video, Lungreen explained that the incident occurred in a blind spot and that the only monitor set up to record was the one aimed at the counter and cash register.
Mario Campos, assistant manager of the Radio Shack on Market Street, was eating lunch in the back room when he heard the sound of scuffling and voices saying “ ‘give me the merchandise’ ” and “ ‘no.’ ” Campos came out and saw Lungreen and another man “wrestling” in the doorway. Campos saw the man hit Lungreen in the lip with his left fist. He did not see Lungreen hit the man. Campos ran toward the man, who ran out of the store, dropping the merchandise as he ran. Campos and another coworker who no longer lived in California chased the man up the stairs by Tower Records and then around the corner to Noe Street, where Campos tackled the man and lay on him while the coworker called the police. Campos never lost sight of the man during the chase, and identified him at trial as appellant.
San Francisco Police Officer Carlos Manfredi was dispatched to the scene and found Campos and appellant in front of 260 Noe Street. Appellant was calm and cooperative. After speaking with Campos, Manfredi handcuffed and detained appellant. Manfredi did not see any injuries to appellant and appellant did not complain of any. While appellant was transported to the police station by another officer, Manfredi went to the Radio Shack with Campos, talked with Lungreen and was shown the merchandise appellant had taken. Lungreen said he had been struck in the face and Manfredi observed redness and “a little cut” under his inner lip.
Appellant testified that he went to the Radio Shack to look for a pair of head phones that cost under $15. He found headphones for $9.99 at the bottom of a display and was on his knees reading the package when he suddenly felt “a hit to my eye” and grab onto his jacket, coming from his left side. Appellant was blind in his left eye from glaucoma. He testified that when the man hit him in the face, the man’s nail cut into his cheek, leaving an open wound. He had not heard anyone speaking before he was touched, but after he was grabbed he heard a man say, “give me your head phones that’s in your jacket.”
Appellant turned to look up at the man, whom he stated at trial was Lungreen, and said, “what the hell, you just hit me.” Lungreen told him again to give him the headphones that were in his jacket. Appellant opened his jacket to show the only headphones he had were the ones in his hand. Lungreen was still holding onto appellant’s jacket and saying he saw appellant take headphones and put them in his jacket, despite appellant showing the man he did not have them. Appellant stood, threw down the headphones he was holding, grabbed his jacket and tried to shrug Lungreen off, then grabbed Lungreen’s hand and “took him off me.” Appellant was afraid and wanted Lungreen to leave him alone. Lungreen grabbed appellant’s hand and appellant struggled, broke free and walked out of the store. Noticing that Lungreen was following him, appellant turned and told him, “Don’t treat people this way. You are insane.” At this point, Lungreen was by the door of the store. Appellant walked upstairs to Tower Records, retrieved a bag he had left there, and went downstairs to Noe Street. No one from Radio Shack followed him. Appellant denied hitting Lungreen and had no idea how Lungreen got a swollen lip or bruised arm.
Appellant acknowledged that he had been convicted of receiving stolen property and placed on probation three months before the incident in the present case. Appellant knew he could be sent to jail if he violated the terms of his probation, but denied this was why he ran out of the Radio Shack.
Discussion
I.
Appellant contends the trial court violated his constitutional right to a jury trial by sentencing him to the aggravated term based on facts not found by the jury. At sentencing, the court adopted four circumstances in aggravation that had been listed in the probation report: that appellant had engaged in violent conduct indicating a serious danger to society (Cal. Rules of Court, rule 4.421(b)(1)), that appellant’s prior convictions as an adult were of increasing seriousness (rule 4.421(b)(2)), that appellant was on probation when the crime was committed (rule 4.421(b)(4)), and that appellant’s prior performance on probation was unsatisfactory (rule 4.421(b)(5)). The court found no mitigating circumstances.
All further rule references are to the California Rules of Court.
The court struck the first aggravating factor listed in the probation report, that the crime involved great violence, great bodily harm, threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness or callousness.
In People v. Black (2007) 41 Cal.4th 799, 812, our Supreme Court held that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey (2000) 530 U.S. 466] and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” The court explained that this principle followed from the fact that “under the line of high court decisions beginning with Apprendi, supra, 530 U.S. 466, and culminating in Cunningham [v. California] 549 U.S. ___ [127 S.Ct. 856], the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is ‘legally essential to the punishment’ (Blakely [v. Washington (2004)] 542 U.S. [296,] 313), that is, to ‘any fact that exposes a defendant to a greater potential sentence’ than is authorized by the jury’s verdict alone (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 863]).” (Ibid.)
Appellant, in the reply brief he filed shortly after Black was decided, concedes there was no Cunningham error in this case under current California law because he admitted at trial that he was on probation at the time of the offense and this was one of the aggravating factors upon which the court relied. Appellant presses his argument in order to preserve it for further review. We, of course, follow the precedent established in Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant’s reply brief suggests that even without Cunningham error, the trial court abused its discretion in sentencing him to the aggravated term because the evidence in the case did not support finding either that appellant engaged in violent conduct indicating a “serious danger to society” or that appellant’s “prior convictions . . . [were] of increasing seriousness.” (Rules 4.421(b)(1) and 4.421(b)(2).) To the extent appellant is attempting to raise a separate issue of abuse of sentencing discretion for the first time in his reply brief, he offers no explanation for his failure to raise this contention in a timely fashion, and we do not address it. (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26.)
II.
As indicated above, one of the conditions of appellant’s probation was that he serve a one-year term at a residential treatment facility, with a provision that failure to complete the program might result in a loss of credit for time served in the program. Appellant contends this latter condition was unauthorized because the trial court failed to obtain a proper waiver of his right to future custody credits.
“Under section 2900.5, a defendant sentenced either to county jail or to state prison is entitled to credit against the term of imprisonment for days spent in custody before sentencing as well as those served after sentencing as a condition of probation. (In re Rojas (1979) 23 Cal.3d 152, 156 . . .; accord, People v. Bruner (1995) 9 Cal.4th 1178 . . . .) This provision also applies to custodial time in a residential treatment facility. (§ 2900.5.)” (People v. Johnson (2002) 28 Cal.4th 1050, 1053 (Johnson II).) “ ‘[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.’ ([Johnson II], at pp. 1054–1055, italics added; see also People v. Torres (1997) 52 Cal.App.4th 771, 775 . . .; People v. Ambrose (1992) 7 Cal.App.4th 1917 . . . [(Ambrose)].) As noted by the court in Ambrose, supra, at page 1925, when probation is conditioned upon completion of a residential treatment program, custody credit waivers ensure the defendant’s ‘optimum chances of success in [the] treatment program, while reserving an appropriate sentence if, despite the opportunity received, the treatment program and probation are not completed.’ ” (People v. Jeffrey (2004) 33 Cal.4th 312, 318 (Jeffrey).)
“ ‘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.’ ([Johnson II, ] supra, 28 Cal.4th 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. ([People v. ]Burks [(1998)] 66 Cal.App.4th [232,] 236, fn. 3.)” (People v. Arnold (2004) 33 Cal.4th 294, 308 (Arnold).)
Jeffrey and Arnold instruct that the “better practice is for sentencing courts to expressly admonish defendants who waive custody credits under [People v.] Johnson, [1978] 82 Cal.ApP.3d 183 [(Johnson I)], that such waivers will apply to any future prison term should probation ultimately be revoked and a state prison sentence imposed. (See, e.g., People v. Salazar (1994) 29 Cal.App.4th 1550, 1554; [Ambrose, supra,] 7 Cal.App.4th 1917, 1923 . . . .) A sentencing court’s failure to include such an explicit advisement will not, however, invalidate a [Johnson I] 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, supra, 33 Cal.4th at p. 309; Jeffrey, supra, 33 Cal.4th at p. 319.) “This same caveat applies equally to [Johnson I] waivers of future custody credits to be earned in a residential drug or alcohol treatment facility.” (Jeffrey, supra, 33 Cal.4th at p. 319.)
Jeffrey and Arnold arose after the defendants’ probations were revoked and prison sentences were imposed; the defendants challenged the trial courts’ refusal to credit the time they had waived, arguing that they did not understand their credit waivers applied to future prison sentences as well as future jail sentences. (Jeffrey, supra, 33 Cal.4th at pp. 319-320; Arnold, supra, 33 Cal.4th at p. 299.) In the present case, appellant challenges the imposition of the waiver as a condition of probation, arguing his waiver was not knowing and intelligent but offering no explanation of what aspect of the waiver he might not have understood. Under Jeffrey, supra, 33 Cal.4th at page 320, “ ‘[t]o 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.’ ” (Ibid. at p. 320, quoting People v. Burks, supra, 66 Cal.App.4th at p. 236, fn. 3.)
Here, the prosecution filed a sentencing statement requesting that probation be denied and appellant be committed to state prison for three years, the middle term for his offense. The subsequently filed probation report recommended placing appellant on three years’ formal probation, with a one-year jail term that could be served in a residential treatment facility and “no CTS if fails program.” At the sentencing hearing, the trial court announced its tentative decision to place appellant on probation and listed the conditions of probation, which included “[o]ne year county jail to be served in a live-in facility per the [s]heriff’s parole program” and “[n]o credit for time served if he fails to meet the requirements of that program.” After the prosecutor argued for a middle term prison sentence, defense counsel thanked the court for the indicated sentence and the court adopted its tentative decision. In again listing the conditions of probation, the court stated, “You must serve one year in the county jail which may be served in a live-in facility pursuant to the sheriff’s parole program. The Redwood Center would be an appropriate facility to serve the remainder of this time in. It is a good program and I hope that you are allowed to go there and that you take full benefit of that program. [¶] Also, you will not receive any credit for time in that program if you fail to successfully meet their requirements and are discharged from the program.” The court went on to list a number of other probation conditions, then asked, “Do you understand and accept the terms and conditions of your probation?” Appellant replied, “Yes, Your Honor, I do.”
The probation report noted that appellant’s “arrest record stems back to 1992; that record includes violence, numerous arrests, two misdemeanor convictions, and two court probations on which he performed poorly.” Despite this, the probation officer stated, “a recommendation for a state prison term for the theft of a set of earphones does not appear to be merited at this time. However, the defendant appears to be an individual in dire need of an intervention to hopefully deter him from causing further harm to his health, his future, and the wellbeing of this community.”
Appellant argues that the court did not engage in a colloquy such as occurred in Jeffrey, supra, 33 Cal.4th at page 319, Arnold, supra, 33 Cal.4th at page 310, and Ambrose, supra, 7 Cal.App.4th at page 1923-1924 and footnote 4. In Jeffrey, at sentencing, the court told the defendant that in order for it to place her in the treatment program, she would have to “ ‘waive all credits you have accrued previously and credits you would be entitled to on a day-for-day basis for the time spent in the [drug treatment] program,’ ” asked whether she had discussed this with her attorney and, when she said she had, asked whether she was willing to “ ‘waive those credits.’ ” (Jeffrey, supra, 33 Cal.4th at p. 319.) The court then asked defense counsel whether he joined the waiver. (Ibid.) In Arnold, the trial court informed the defendant at the time he entered his no contest plea that he was “ ‘waiv[ing] all credits through today,’ ” the defendant stated he understood, and as part of his plea form the defendant executed a written waiver of “all credits for jail time served” through the date of the hearing. (Arnold, supra,33 Cal.4th at p. 298, 310.) In Ambrose, the court explained to the defendant that waiving his right to future credit for time served in a treatment program meant that if he violated the program, he would go to prison without credit for the time he had been in custody. When the defendant said he waived credits, the court cautioned him to think about it, reminding him he had failed before, and the defendant stated he would “waive my time.” (Ambrose, supra,7 Cal.App.4th at p. 1923, fn. 4.)
Appellant argues that, in contrast to these cases, the court here merely listed a “laundry list” of conditions of probation and asked for appellant to accept the entire list, with “no specific attention to the waiver of future credits.” While the matter of future credits was included within a list of other conditions of probation, however, the court did describe this condition in very specific terms. In reciting its tentative decision, the court noted that appellant’s one year of county jail time could be served in a residential facility in accordance with the sheriff’s parole program and stated there would be “[n]o credit for time served if he fails to meet the requirements of that program.” In announcing its final decision, the court spoke directly to appellant, explaining that the treatment program being recommended for appellant was a good one and stating in no uncertain terms, “Also, you will not receive any credit for time in that program if you fail to successfully meet their requirements and are discharged from the program.” Appellant stated he understood and accepted the conditions of probation.
In People v. Bowen (2004) 125 Cal.App.4th 101, 104, when first placed on probation, the defendant signed an order in which he agreed to waive all custody credits while in a drug treatment program ordered as a condition of probation. His probation was subsequently revoked and reinstated on two occasions; on the second, the court informed the defendant he would “ ‘agree to waive all custody credits’ ” while in the treatment program, and the defendant said he understood and agreed to the probation conditions. (Ibid.) After probation was revoked yet again and the defendant was sentenced to prison, he argued the trial court erred in denying him credit for the time he spent in the treatment program. Bowen rejected this contention, explaining that the order the defendant signed when he was initially placed on probation, and his acknowledgment that he understood and accepted the terms of probation when probation was reinstated, “were straightforward, unconditional waivers of all custody credits to be earned in the residential drug treatment program. Arnold and Jeffrey require nothing more.” (Id. at p. 109.)
So, here, the court told appellant in clear terms that he would not get credit for the time spent in the treatment program if he did not successfully complete the program, and appellant stated he understood and accepted this condition. No more was required.
The judgment is affirmed.
We concur: Haerle, J., Lambden, J.