Filed 5/31/17 P. v. Marshall CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sutter)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

JASON LEE MARSHALL,

Defendant and Appellant.
C082639

(Super. Ct. No. CRF151600)




Sentenced to state prison after violating probation, defendant Jason Lee Marshall contends the trial court erred in calculating his sentence by failing to award four days of presentence custody credit for time spent in a residential rehabilitation facility. Because the record shows defendant knowingly and intelligently waived such credit as a condition of probation, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 4, 2015, an information was filed charging defendant with first degree residential burglary (Pen. Code, § 459), and alleging that the offense was a violent felony (§ 667.5, subd. (c)(21)) and that defendant had six prior prison terms (§ 667.5, subd. (b)).
After originally pleading not guilty and denying the enhancements, on October 26, 2015, defendant withdrew his plea, entered a plea of no contest to first degree residential burglary, and admitted three prior prison terms in return for a nine-year suspended state prison sentence and five years’ formal probation. The agreement also specified that defendant would serve one year in county jail, modifiable to early release into a long-term residential substance abuse treatment program when a bed became available. After finding that defendant had knowingly and intelligently entered the conditional plea, the trial court accepted it (but without dismissing the remaining prior prison term allegations), then referred the matter to probation for a report and recommendation.
The probation report, filed November 23, 2015, recommended acceptance of the plea with an addendum titled “Drug Conditions.” These included the following: “You will participate in and successfully complete any program of substance abuse counseling, [up] to and including residential treatment, deemed appropriate by the Probation and Mental Health staff, follow all program directives, not terminate said counseling without the consent of the probation officer, pay any designated fees required by the program, sign a release allowing for the exchange of information, and that no custody time credits accrue for participation in a residential treatment program.” (Italics added.) Defendant initialed this condition and others on the addendum and signed the addendum on November 10, 2015, under a line that stated: “I acknowledge that the above terms and conditions have been reviewed with me, and that they will be ordered as a condition of formal supervision or PC 1210 Probation.”
At the sentencing hearing on November 23, 2015, defense counsel stated that defendant wanted to undergo treatment far away; he had been accepted by the Salvation Army program in San Francisco, and was also interested in the Delancey Street program there. The trial court agreed to any arrangements necessary for defendant to be transported to and from interviews by such programs.
The trial court then imposed the agreed disposition and read out the terms and conditions of defendant’s probation, including the one quoted above (with the last clause reworded, “And you will not be earning any custody credits while you’re in such program”). The court asked defendant: “[D]o you accept probation on these terms and conditions?” Defendant said, “Yes.”
On January 28, 2016, defendant was arrested in Yuba City for violating his probation.
On February 1, 2016, Sutter County probation department filed a declaration alleging that defendant had violated probation by failing to complete his residential treatment program, by failing to report to the probation officer, by failing to keep the probation officer informed of his whereabouts, and by unlawfully possessing drug paraphernalia in violation of Health and Safety Code section 11364. The trial court revoked defendant’s probation and ordered him held without bail.
After hearings on March 11, 2016, and April 1, 2016, the trial court found by a preponderance of the evidence that defendant had violated probation on all grounds alleged. The evidence showed, among other things, that defendant was admitted to the Salvation Army residential treatment program on January 8, 2016, and left without the consent of probation or the court on January 12, 2016. The court referred the matter to the probation department for a supplemental report and recommendation.
The supplemental probation report recommended terminating probation and imposing the previously suspended nine-year prison sentence.
On June 3, 2016, the trial court terminated defendant’s probation and ordered the previously suspended nine-year sentence imposed. The court awarded defendant 315 days of presentence custody credit, consisting of 274 actual days and 41 conduct days. The court did not award any credit for the four days defendant spent in the Salvation Army program, and defense counsel did not object to that omission.
DISCUSSION
Defendant contends the trial court erred by not including his four days in residential rehabilitation when calculating his presentence custody credits, because section 2900.5, subdivision (a) provides that actual days of custody credit shall include “any time spent in a . . . rehabilitation facility, . . . including days served as a condition of probation in compliance with a court order.” (See also People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.) However, a defendant may validly waive section 2900.5 credits as a condition of probation, or in exchange for other sentencing considerations, provided the waiver is knowing and intelligent--i.e., with awareness of its consequences. (People v. Johnson (2002) 28 Cal.4th 1050, 1054-1055; People v. Salazar (1994) 29 Cal.App.4th 1550, 1553.) Such waiver may include future custody credits. (People v. Ambrose (1992) 7 Cal.App.4th 1917, 1923-1925.)
In defendant’s opening brief, he fails to cite the case law on waiver or the facts showing waiver that we have set out above. In his reply brief, in response to the Attorney General’s discussion of these matters, he argues for the first time that the record does not show his waiver was knowing and intelligent. We deem this argument forfeited because it was not raised in the opening brief. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) In any event, it lacks merit.
Defendant asserts, citing to the transcript of his change of plea hearing: “There is nothing in the record to indicate [defendant] knew that this [waiver] would be a condition of his probation prior to entering into the plea agreement.” However, the trial court made clear when accepting defendant’s no contest plea that it was conditional and that the probation department could make further recommendations. The probation department’s “Drug Conditions” addendum included the waiver of custody credits for time spent in rehabilitation as a condition of probation. Defendant initialed and signed his acknowledgment and acceptance of this condition. Defendant then repeated his agreement to this condition, restated more plainly by the court, on the record at the hearing before the court granted probation. If these facts do not establish a knowing and intelligent waiver, we cannot imagine what set of facts would do so.
DISPOSITION
The judgment is affirmed.


/s/
Blease, Acting P. J.

We concur:


/s/
Hull, J.


/s/
Mauro, J.