Opinion
C082252
04-02-2018
THE PEOPLE, Plaintiff and Respondent, v. AMBER DAWN ZUCKER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CM036107)
Defendant Amber Dawn Zucker entered a guilty plea of no contest to child endangerment (Pen. Code, § 273a, subd. (a); statutory section references that follow are to the Penal Code unless otherwise stated) and an additional count being under the influence of methamphetamine, a misdemeanor was dismissed. The trial court suspended imposition of sentence and granted probation for a term of four years subject to certain terms and conditions including completion of residential treatment, a child abuser's program at "2nd Step."
Two months later, defendant was terminated from the treatment program. Defendant admitted violating probation and was reinstated after entering a Johnson (People v. Johnson (1978) 82 Cal.App.3d 183 (Johnson)) waiver to all past custody credit and to all future credit for days served in residential treatment. Defendant was ordered to complete the residential treatment program (2nd Step). The probation order provided that "[n]o custody time credits will accrue for participation in a residential treatment program, as a condition of probation."
Two years later, defendant punched her children's father. Defendant admitted violating probation by failing to obey all laws. The court reinstated her on an extended probation with an order to participate in a 52-week batterer's treatment program.
Months later, defendant terminated her participation in the batterer's treatment program without permission. Defendant admitted violating probation.
The court sentenced defendant to state prison for the midterm of four years for violating section 273a, subdivision (a). The court awarded 96 (48 actual, 48 conduct) days of presentence custody credit.
Defendant appeals. She contends she did not knowingly and intelligently enter a Johnson waiver and is entitled to all custody credits.
We affirm the judgment.
DISCUSSION
The facts underlying the offense are not relevant to the issue raised on appeal.
In entering her plea to child endangerment, defendant completed a written plea form in which she initialed the box next to the statement that her "attorney has explained to [her] that other possible consequences of [her] plea(s) [and admission(s)] may be . . . [?] . . . [?] [p]articipation in a substance abuse treatment program, batterer's program, or other program(s) as a condition of probation wherein [she] might be required to waive credits." Defendant signed the plea form.
After defendant violated probation on the first occasion, the court said at sentencing that it was inclined to reinstate probation subject to completion of the residential treatment program. The prosecutor objected to reinstatement but requested that the court require defendant to waive all past and future credits if she was to be reinstated on probation. The court explained to defendant, who was represented by counsel, that "the district attorney is asking that I require that you waive all the credits that you've earned through today, and waive any credits that you might receive as a result of being in residential treatment. Do you understand and give up those credits?" Defendant responded, "Yes." The court later reminded defendant, "Also, understand that you are waiving any credits that you might earn as a result of being in residential treatment." Defendant replied, "Okay."
At the continued sentencing hearing, defense counsel noted that defendant had entered a Johnson waiver. The court then reinstated defendant on probation with an order to continue in residential treatment.
When defendant was sentenced to state prison, the supplemental probation report noted that defendant was entitled to 48 actual days and 48 conduct days for a total of 96 days of presentence custody credit. Defense counsel submitted on the calculation. The court awarded credits accordingly.
Defendant now claims her Johnson waiver is invalid. Even though she acknowledges that she personally waived her presentence custody credits, she claims that under the totality of the circumstances, she did not knowingly and intelligently waive her credits. She claims that when she was initially granted probation on June 14, 2012, the probation report showed she had 118 actual days plus conduct days totaling 236 days, but the court imposed a 118-day jail term with credit for time served thus misleading her regarding her conduct credits. In addition, she was scheduled for a Caesarian section childbirth on June 18, 2012 which "made it even less likely that she would have taken time - without being expressly advised - to educate herself as to how many conduct credits she had earned." She argues that when she waived credits, there were four separate periods of incarceration with multiple stays in both local and state custody which "made it unlikely that she knew how many days she had served, and how many total credits she had earned." She claims the December 2012 probation report showed 497 days but it was signed as having been read the day of the hearing with no indication that she reviewed the report with her attorney.
"In all felony and misdemeanor convictions, . . . when the defendant has been in custody, including . . . any time spent in a . . . rehabilitation facility . . . or similar residential institution, all days of custody of the defendant . . . shall be credited upon . . . her term of imprisonment." (§ 2900.5, subd. (a); see People v. Jeffrey (2004) 33 Cal.4th 312, 318 [the provisions of section 2900.5 which entitle defendant to credit against term of imprisonment for days of presentence custody as well as days in custody as condition of probation apply to custodial time in residential treatment].) A defendant is also entitled to good time/work time credit. (§ 4019.) "A sentence that fails to award legally mandated custody-credit is unauthorized." (People v. Taylor (2004) 119 Cal.App.4th 628, 647.)
"A Johnson waiver is a waiver of a statutory right to credit for time served against a subsequent county jail or state prison sentence pursuant to section 2900.5." (People v. Arnold (2004) 33 Cal.4th 294, 307.) " '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.' [Citation.] The gravaman of whether such a waiver is knowing and intelligent is whether the defendant understood [she] was relinquishing or giving up custody credits to which [she] was otherwise entitled under section 2900.5." (Id. at p. 308.)
Relying upon People v. Harris (1991) 227 Cal.App.3d 1223 (Harris), defendant contends she did not knowingly and intelligently waive presentence credit. In Harris, the defendant contended insufficient evidence showed that he knowingly and voluntarily waived credit, arguing the court's inquiry was the first mention of waiving credit; he was not advised as to the consequences or the number of days; and he was not questioned, only his attorney spoke. (Id. at p. 1227.)
Without discussion, the Harris court agreed. (Ibid.) But Harris focused on the sentence. The court convicted the defendant of first degree deliberate and premeditated murder with the special circumstance of lying in wait and the additional finding that the defendant personally used a firearm. At sentencing, the court considered whether to dismiss the special circumstance in order to impose 27 years to life rather than life without the possibility of parole. The court inquired whether the defendant would waive presentence credit (1,519 days) and defense counsel responded in the affirmative. When the court asked counsel if he wanted to speak with the defendant, defense counsel responded in the affirmative. The court then sentenced the defendant to 25 years to life for the murder plus two years for firearm use, noting the defendant waived credit. (Id. at pp. 1224-1227.) Harris determined the "real issue is the proper disposition." (Id. at p. 1227.) Harris concluded the trial court's "remarks make clear that the court would not or might not have dismissed the special circumstance finding without [the defendant's] waiver of credit." (Ibid.) Harris remanded, reinstating the special circumstance and directing the trial court to consider whether the special circumstance should be dismissed pursuant to section 1385 and, if so, to set forth a statement of reasons, and if conditioned on the defendant's waiver of credit, the trial court was required to obtain an adequate waiver from the defendant. (Harris, at p. 1229.)
Here, a knowing and intelligent wavier is supported by the fact that in her written plea form, defendant acknowledged that she had been advised by defense counsel of the consequences of her plea which included the possibility of waiving credit in order to participate in residential treatment programs as a condition of probation. The court granted probation but shortly thereafter, defendant violated her probation and was facing a prison sentence.
Although the court was inclined to reinstate probation subject to completion of the residential treatment program, the prosecutor objected to reinstatement but, in the event probation was reinstated, wanted defendant's waiver of all past and future credit. The court decided that defendant should be given another chance at residential treatment and agreed with the prosecutor that defendant should waive her right to credit in order to obtain another opportunity at probation. The court explained the waiver to defendant, in defense counsel's presence. "[T]he district attorney is asking that I require that you waive all the credits that you've earned through today, and waive any credits that you might receive as a result of being in residential treatment. Do you understand and give up those credits?" Defendant responded, "Yes." The court later reminded defendant, "Also, understand that you are waiving any credits that you might earn as a result of being in residential treatment." Defendant replied, "Okay." At the continued sentencing hearing, defense counsel noted that defendant had entered a Johnson waiver. The court then reinstated defendant on probation with an order to continue in residential treatment.
There was no ambiguity on the record that defendant was waiving her right to credit, all credits, in exchange for continued probation. She argues that when she waived credits, there were four separate periods of incarceration with multiple stays in both local and state custody which "made it unlikely that she knew how many days she had served, and how many total credits she had earned." Defendant was the person who had spent the days in custody/residential treatment so this claim carries no weight. Defendant was represented by defense counsel and defendant, not defense counsel, personally waived her right to credit. Sufficient evidence shows that defendant knowingly and voluntarily waived her credit.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J. We concur: ROBIE, J. MAURO, J.