P. v. Stewart
Filed 10/2/07 P. v. Stewart CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. JOHN STEWART, Defendant and Appellant. | D049868 (Super. Ct. No. SCD 194058) |
APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed.
John Stewart appeals from the judgment revoking his probation and reinstating his previously imposed but suspended two-year prison term. Stewart contends that the court erred by not restoring good time custody credits that he had previously waived pursuant to People v. Johnson (1978) 82 Cal.App.3d 183.
FACTUAL AND PROCEDURAL BACKGROUND
On September 30, 2005, Stewart, posing as a customer, stole an expensive diamond ring from a jewelry store. On December 8 Stewart pled guilty to burglary (Pen. Code,[1] 459) and grand theft ( 487, subd. (a)). On January 10, 2006, the court suspended imposition of sentence and placed appellant on probation for three years, conditioned on, among other things, Stewart serving 270 days in jail.
On April 7 Stewart admitted he had violated probation. The court revoked probation. The court also ordered that Stewart serve 365 days in jail. As part of the negotiated settlement, Stewart waived his past good time custody credits ( 4019). The court reinstated probation, but ordered Stewart to serve 365 days in custody.
On July 15 during an argument in a fitness center, Stewart grabbed another man and pushed him against a locker. On July 28 the court summarily revoked probation. On September 5 the court, after a contested hearing, found by a preponderance of the evidence that Stewart had violated two terms of his probation.
On October 3 the court imposed the two-year prison term and awarded Stewart 339 "actual days" credit ( 2900.5) and 78 days of good time credits ( 4019) for a total of 417 days of credit.
DISCUSSION
A trial court faced with a probation violator who has served all or most of the one-year maximum term in the county jail ( 19.2) may decide to revoke probation and impose a state prison sentence. In lieu of that result, the trial court may allow the defendant to waive his entitlement to credits for time served if the waiver is knowing and intelligent with probation conditioned on the waiver. (People v. Johnson, supra, 82 Cal.App.3d at pp. 188-189; 3 Witkin & Epstein, Cal. Crim. Law (2007 supp.) Waiver, 399, p. 241.) Such a waiver is known as a Johnson waiver. (People v. Arnold (2004) 33 Cal.4th 294, 307.) When a probation violator waives credits in order to be sent back to jail rather than prison, the waived credits may not be recaptured when probation is violated again and a prison term is imposed unless the waiver agreement expressly reserved the right to recapture the waived credits. (People v. Burks (1998) 66 Cal.App.4th 232, 234.) In this vein, our Supreme Court has observed:
"A rule that gives back previously waived credits to a defendant as a consequence of his future violation of probation thus rewards him for his own misconduct. It is also unjust enrichment, as the defendant would be getting the benefit of the bargain reached at his original sentencing and later be permitted to revoke the consideration he gave up to obtain the benefit of that bargain. As a matter of sound sentencing policy, the law should not afford probationers incentives or rewards for refusing to comply with the terms and conditions of probation." (People v. Arnold, supra, 33 Cal.4th at p. 308.)
At the April 7, 2006 hearing (Stewart's first probation revocation), the court set forth the agreement the parties had reached on the waiver of credits: "You only waive creditsthe good time [credits] that has been earned so far, but you will earn good time in the future." Later, the following colloquy took place:
"THE COURT: I'm going to reinstate probation. I'm going to order that you serve 365 days. That would be a waiver of your past [section] 4019 good time credits only. Have you had a chance to talk about that with your lawyer?
"STEWART: Noyeah. I talked to him yeah. I had a chance to talk to him.
"THE COURT: And you understand what that is, giving up of just the past good time credits?
"STEWART: Yes, I do, Your Honor.
"THE COURT: And you agree to do that?
"STEWART: Yes, I do.
"THE COURT: All right. Then we'll do that."
There was no indication that Stewart would be able to recapture the waived good time credits in the future should he violate probation again, as he did three months later in the gym fight. Without an express provision in the waiver agreement reserving the right to recapture credits, Stewart cannot reclaim credits he has waived. (People v. Burks, supra, 66 Cal.App.4th at p. 234.) "[A] waiver of custody credits is presumptively applicable to any future time of imprisonment." (Id. at p. 237.) Stewart's waiver provided only that after he waived his then accumulated section 4019 credits, he could earn good time credits in the future. Subsequently, Stewart earned 78 days of good time credits and he was awarded them in accordance with the terms of his waiver. Stewart received the benefit of the bargain he struck on April 7, 2006, when he waived his good time credits. He is not entitled to any additional good time credits.
We agree with our Supreme Court's observation: " 'When a defendant repeatedly makes wrong choices in this situation, it is neither logical nor just to allow him to retract a custody credit waiver that enabled him to prolong his probation, leaving him no worse off after another violation than he was after the violation that prompted that waiver.' " (People v. Arnold, supra, 33 Cal.4th at p. 307, citations omitted.)
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
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[1] All statutory references are to the Penal Code.
