P. v. Young

Filed 3/14/07 P. v. Young 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of San Diego County, David M. Szumowsksi, Judge. Affirmed in part and reversed and remanded in part.

After the court denied a motion to substitute appointed counsel (People v. Marsden (1970) 2 Cal.3d 118), Orson Young entered a negotiated guilty plea to stalking in violation of a temporary restraining order. (Pen. Code, 646.9, subd. (b).)^[1] He admitted personally using a firearm during the crime. ( 12022, subd. (b)(1), 1192.7, subd. (c)(23).) On June 18, 2004, the court suspended imposition of sentence and placed him on five years' probation including conditions he serve 365 days in custody, report to the probation department as directed, successfully complete a stalking program and not contact, annoy or molest the victim. It ordered Young to pay a $239 fine, a $200 restitution fine, and $1,575 restitution to the victim. On March 10, 2005, the court revoked and reinstated probation after Young admitted failing to report to the probation department and failing to attend stalking classes. The court conditioned reinstatement of probation on Young serving 365 days in custody with credit for 231 served. Young waived good time credit and the court stayed the balance of the 365-day custody condition. On May 11, 2005, the court revoked probation after Young admitted violating the court order he not contact the victim. The court sentenced him to prison for four years: the three-year middle term for stalking enhanced one year for weapon use. It awarded no good time credit for time served and ordered Young to pay a $600 restitution fine and a probation revocation restitution fine in an undesignated amount ( 1202.44.) Young contends the trial court erred in denying good time credit for time he served after he waived past good time credit on March 10, 2005, in increasing the restitution fine from $200 to $600, and in imposing the probation revocation restitution fine.

FACTS

Young and Karen Taylor were married between 1993 and 2000. After their separation, Taylor obtained a restraining order to stop Young from harassing, stalking and molesting her. During November and December 2003, he violated the order several times. He left a message on her cell phone stating, "I'm going to plug you and him [Taylor's boyfriend]." He waited outside her home where he told her "this isn't a joke" and showed her something in his pants that resembled a gun. He knocked on her door and threw tacos at the window, and followed her son to school. On December 26, 2003, he approached Taylor while she was in her car and pulled a butcher knife and mouthed the words, "I'm going to get you." On December 27, 2003, he left Taylor a telephone message saying, "Oh you dead bitch, and I'm outside, okay", and on December 29, 2003, he called her at work threatening to break her windows that night.

After the court revoked and reinstated probation, Young e-mailed Taylor, "I may be dying but you and Joe Perez [Taylor's boyfriend] will never happen," and Young was seen vandalizing her boyfriend's car. After Taylor reported these instances, and after Young tested positive for methamphetamine use, the probation department was unable to contact Young at his last known address and last known phone number.

DISCUSSION

I.

After the court first revoked Young's probation on March 10, 2005, it agreed to reinstate probation on condition Young waive credit for time served. A defendant who has violated probation but has already served the one year maximum local custody allowed by Penal Code, section 18, may waive credit for time served to permit the trial court to commit him to jail rather than prison. (People v. Johnson (1978) 82 Cal.App.3d 183, 188.) Similarly, such a waiver may include both past and future credit for time served. (People v. Johnson (2002) 28 Cal.4th 1050, 1054-1055.) However, the waiver must be knowing and intelligent with awareness of its consequences. (People v. Harris (1987) 195 Cal.App.3d 717, 725.) The question here is whether on March 10, 2005, Young knowingly waived future good time credit should he later be found to have violated probation and sentenced to prison.

Here, the following colloquy occurred on March 10:

"The Court: In order to stay on probation, I want you to give up your good time credits. Do you understand what that means?

The Defendant: Yes.

The Court: Did you talk about that with Mr. Comeau [Defense counsel]?

The Defendant: Yes, Sir, I did.

The Court: You've got 114 good time credit today, and I'm going to knock that down to zero.

The Defendant: Yes, Sir.

The Court: I'm going to reinstate you on probation, same terms and conditions. The commit is going to be for the balance of a year, 365. You've got 231 actual days -- you'll get those credits -- zero good time credits, for a total of 231. I'm staying the balance of your custody pending your successful completion of probation, which includes getting back in the stalking program; I'll reassign you to do that. Talk to probation tomorrow because I want you to go to probation tomorrow.

The Defendant: Yes, Sir."

The same day, the court released Young from custody on probation. On May 4, 2005, Young was taken into custody and remained there until sentenced on June 8. The court awarded 36 days actual credit for the period May 4 through June 8 but denied good time credit for this period. It did not say why it was denying good time credit and Young did not object. In response to Young's contention that the court erred in denying this good time credit, the People argue that Young cannot raise this issue on appeal because he did not object in the trial court, and that he waived future good time credit on March 10, 2005. In support of the argument that Young waived raising the good time credit issue on appeal, the People cite People v. Welch (1993) 5 Cal.4th 228, 234-238 and People v. Scott (1994) 9 Cal.4th 331, 353-356. Neither involved an issue related to credit for time served. In Welch, the high court held that objection to a probation condition is waived if not made at the time the court places the defendant on probation. In Scott the high court held that challenge to the trial court's sentencing choice could not be made on appeal absent objection in the trial court. In anticipation of a response to the argument that he waived the good time credit issue by not objecting in the trial court, Young argues that the rule expressed in Scott does not apply when the sentence is unauthorized. In Scott, the Supreme Court noted that a sentence is unauthorized when it could not be lawfully imposed under any circumstances in the particular case. (Id. at 354.) Applying this principle here, whether the sentence imposed on Young could be lawfully imposed depends on whether on March 10, he waived future credit for time served. If he did, the sentence with no post-March 10 good time credit could be lawfully imposed. If he did not waive future good time credit, the trial court was required at the sentencing hearing held on June 8, to determine whether Young's conduct while in custody entitled him to good-time credit. Because the trial court did not make this determination, its sentence was unauthorized. (See People v. Taylor (2004) 119 Cal.App.4th 628, 647.)

For a defendant to waive custody credit, the waiver must be clear, voluntary and informed. (People v. Eastman (1993) 13 Cal.App.4th 668, 678.) From the colloquy quoted above, it is clear that Young, voluntarily and informed, waived the good time credit on the 231 actual days he served before the hearing, but it appears that Young did not knowingly waive good-time credit for time served after the waiver. Because the trial court did not consider whether or not Young's conduct while in custody between May 4 and June 8, 2005, entitled him to good time credit, it erred. We remand for the trial court to make this determination.

II.

The People concede, as they must, that the trial court erred in increasing the restitution fine from $200 to $600 after it revoked probation. (See People v. Arata (2004) 118 Cal.App.4th 195, 201-202; People v. Chambers (1998) 65 Cal.App.4th 819, 823.)

III.

Since August 16, 2004, Penal Code, section 1202.44 requires the trial court at the time a defendant is placed on probation to impose a restitution fine that is stayed unless probation is revoked. Recognizing that section 1202.44 was enacted into law after Young committed the crime for which he was placed on probation, the People also concede that the trial court erred in imposing a probation revocation restitution fine. (See People v. Callejas (2000) 85 Cal.App.4th 667, 678.)

DISPOSITION

The conviction and sentence are affirmed but for: (1) denial of good time credit for the period May 4 through June 8, 2005; (2) imposition of the $600 restitution fine, and (3) imposition of the probation revocation restitution fine. The matter is remanded for determination whether Young's conduct while in custody between May 4 and June 8, 2005, entitled him to good time credit for this period; modification of the sentence to order Young to pay a $200 restitution fine instead of a $600 restitution fine; and deletion of the probation revocation restitution fine.

BENKE, Acting P. J.

WE CONCUR:

HALLER, J.

AARON, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

^[1] All statutory references are to the Penal Code unless otherwise specified.