Fear Not Law Articles: P. v. Earp

P. v. Earp

Filed 9/7/06 P. v. Earp CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

----

THE PEOPLE,

Plaintiff and Respondent,

EUGENE RAY EARP,

Defendant and Appellant.

C049425

(Super. Ct. No. 090437 & SCM004043)

In 1991, at a disposition hearing on a probation violation, defendant Eugene Ray Earp waived his accrued presentence credits as a condition of being reinstated on probation. Some of those credits had accrued shortly after his 1986 offense, and other credits accrued between the 1991 act constituting the probation violation and the hearing. In 2005, when probation was revoked and he was sent to prison, defendant was not awarded any of those credits.

On appeal, defendant contends his waiver applied only to the credits that accrued in 1991 and did not extend retrospectively to the credits that had accrued in 1986.

We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of defendant's offenses are not at issue and need not be recounted.

In 1986, in case No. 090437, defendant pled no contest to one count of lewd and lascivious acts with a child under age 14. (Pen. Code, § 288, subd. (a).)^{^[1]} Four other counts of that offense, involving two other victims, were dismissed with a Harvey waiver.^{^[2]} Defendant was sentenced to state prison for eight years. Execution of sentence was suspended and he was placed on probation for eight years.

Prior to this grant of probation, defendant had been incarcerated at the Butte County Jail and at the Department of Corrections, the latter for the purpose of a diagnostic study (§ 1203.03). He had accrued 249 days of custody credit and 124 days of conduct credit.

In 1991, defendant admitted an allegation that he had violated his probation. During further incarceration at the Butte County Jail and another diagnostic study at the Department of Corrections, he accrued additional custody and conduct credits. His probation was reinstated on conditions including a Johnson waiver.^{^[3]} The trial court advised defendant, â€

Description	In 1991, at a disposition hearing on a probation violation, defendant waived his accrued presentence credits as a condition of being reinstated on probation. Some of those credits had accrued shortly after his 1986 offense, and other credits accrued between the 1991 act constituting the probation violation and the hearing. In 2005, when probation was revoked and he was sent to prison, defendant was not awarded any of those credits. On appeal, defendant contends his waiver applied only to the credits that accrued in 1991 and did not extend retrospectively to the credits that had accrued in 1986. Court affirm the judgment.
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