P. v. Thoreson

Filed 8/10/07 P. v. Thoreson CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

I. Introduction

Defendant and appellant Steven Alan Thoreson appeals from a judgment entered after a guilty plea and an admitted violation of probation. He contends the judgment should be reversed because (1) his July 8, 2004, prospective waiver of custody credits was not knowing, voluntary and intelligent; (2) the prospective waiver of custody credits on July 8, 2004, was imposed by the court as a matter of routine in violation of People v. Penoli (1996) 46 Cal.App.4th 298 (Penoli); and (3) his April 20, 2005, waiver of custody credits did not apply to credits he received while in the Pate House residential treatment program. We affirm the judgment.

II. Factual and Procedural Background

Defendant pled guilty to one count of substantial sexual conduct with a child under the age of 14. (Pen. Code  288.5, subd. (a).)^[1] On March 25, 2004, he was sentenced to five years of supervised probation, with the condition that he serve one year in the county jail and participate in a residential drug rehabilitation program. At the time of his sentencing, he had accumulated 201 days of custody credit against the required year of incarceration.

On July 8, 2004, Thoreson appeared at a hearing requested by the Sonoma County Probation Department. At that hearing, Thoresons probation officer informed the court that a place had opened up for Thoreson at a residential treatment program called Pate House. The following discussion of waiving the custody credits he had accrued up to that point:

The Court: Very well. It appearsLets see. Hes been in for quite a while, hasnt he?

The Probation Officer: Yes, he has.

The Court: All right. Are you prepared to waive any custodial credits while youre in residential treatment?

The Defendant: Yes.

The Court: All right. Do you need to discuss that with your attorney?

[Public Defender]: Im assuming he already did that.

The Court: Well, lets reaffirm it, then.

[Public Defender]: Okay

The Court: You get custodial credits up to and including Monday, when you will be released to a representative of the Pate House for residential treatment. [] You understand that?

The Defendant: Yes.

The Court: And while youre in residential treatment, you receive no custodial credits, correct?

The Defendant: Uh-huh (affirmative).

The Court: All right.

[Public Defender]: Thank you.

The Court: Very well. He will then be released on Monday, the 12th of July, to a representative of Pate Recovery Home, Inc., for housing and treatment there.

On September 30, 2004, Thoreson appeared in court to admit to a probation violation for drinking alcohol. On April 20, 2005, after having been referred to the Department of Corrections for a 90-day diagnostic study ( 1203.03), Thoreson appeared at a sentencing hearing.

At that time, the court stated that it would permit him to enter a second treatment program at Redwood Gospel Mission. The People stated, if . . . defendant is going to be given the privilege of a second chance, I would ask that he waive all of his credits, current credits. The People also pointed out that due to the severity of defendants conduct, his numerous prior convictions for molestation, the court consider imposing the upper term. The court stated that it agreed, but was limited by the previous plea agreement. The People responded, with that, then, I would even more strenuously ask that there be a waiver of all credits. The court agreed, stating: I think there should be a waiver. Counsel for Thoreson agreed that this would not be an issue.

The probation officer informed the court that Thoreson had accrued 704 days of credit. Of that total, there were 470 days of actual credit, and 234 days of good conduct credit. The probation officer also stated that [h]e would get zero days credit for the treatment program due to the waiver on September 7th for a total of 704. The court then told Thoreson, those are credits toward any future state prison commitment. In other words, its like they never happened. If you violate your probation and this [c]ourt or another [c]ourt sentences you to state prison, you wouldnt get any of these credits that you accrued. Thats over a couple years. Is that what you want to do? Thoreson replied, Yes, maam. A week later, on April 27, 2005, Thoreson entered Redwood Gospel Mission.

In January 2006, Thoreson was terminated from the Redwood Gospel Mission program, based on an allegation (which he strenuously disputed) that he had stolen from other residents in the program.

On January 11, Thoreson was placed in custody. His probation was summarily revoked the next day. At a hearing on February 16, 2006, Thoreson admitted to violating his probation. On April 24, 2006, the court executed the previously suspended sentence of 12 years. Thoreson was granted 119 days of custody credits against this sentence, none of which included any of the time he had previously waived.

This timely appeal followed.

III. Discussion

A. Knowing and Intelligent Waiver

Defendant contends that his waiver of custody credits for time spent in the Pate House program was not knowing, intelligent and voluntary.

Section 2900.5, subdivision (a) provides that a defendant sentenced either to county jail or to state prison is entitled to credit against the term of imprisonment for days spent in custody before sentencing as well as those served after sentencing as a condition of probation. (People v. Johnson (2002) 28 Cal.4th 1050, 1053.) A defendant may expressly waive entitlement to section 2900.5 credits against an ultimate jail or prison sentence for past and future days in custody. (Johnson, at pp. 1054-1055.) Because defendants may waive statutory provisions intended for their benefit, they may give up their right to section 2900.5 custody credits. [Citation.] Therefore, a trial court has discretion to condition a grant or extension of probation upon a defendant's express waiver of past and future custody credits [citation], as long as the defendant's waiver is knowing and intelligent in the sense that it was made with awareness of its consequences. [Citations.] (People v. Thurman (2005) 125 Cal.App.4th 1453, 1460.)

As with the waiver of any significant right by a criminal defendant, a defendants waiver of entitlement to section 2900.5 custody credits must, of course, be knowing and intelligent. (People v. Johnson, supra, 28 Cal.4th at p. 1055; see also People v. Salazar (1994) 29 Cal.App.4th 1550, 1553.) The gravamen of whether such a waiver is knowing and intelligent is whether the defendant understood he was relinquishing or giving up custody credits to which he was otherwise entitled under section 2900.5. (People v. Arnold (2004) 33 Cal.4th 294, 308.) [B]efore a defendant agrees to waive custody credit to which he is entitled, he should understand the full consequences of the waiver. (People v. Ambrose (1992) 7 Cal.App.4th 1917, 1922-1923.) An awareness of the [full] consequences of waiving any right should include an understanding of the impact of that waiver on the amount of time a defendant may be incarcerated. (Id. at p.1922.) There is no specific formula for advising a defendant of his or her rights, and none is required as long as the record, in light of the totality of circumstances, shows by direct evidence that the accused was fully aware of his rights. [Citations.] (People v. Murillo (1995) 39 Cal.App.4th 1298, 1304.) And even in the absence of a specific admonition on the record, a waiver of rights pursuant to a plea is not invalidated if the record otherwise shows, from the totality of circumstances, that it was voluntary and intelligent. (People v. Howard (1992) 1 Cal.4th 1132, 1175; People v. Salazar, supra, at p. 1554, fn. 1.) The voluntariness of a waiver is a question of law which appellate courts review de novo. (People v. Panizzon (1996) 13 Cal.4th 68, 80.)

Defendant argues that his waiver, at the July 8, 2004, hearing, of all custody credits he might accrue while a resident at Pate House should he unsuccessfully complete that program, was not knowing and intelligent. We disagree.

In order to determine whether defendant understood that he had a right to custody credits while at Pate House, and that he was agreeing to give those credits up should he fail to complete the program, we look at the totality of the circumstances. (People v. Murillo, supra, 39 Cal.App.4th at p. 1304.) The record reveals that, upon discovering it was not clear whether defendant had been advised by counsel of the nature and consequences of the prospective waiver of custody credits while at the Pate House program,^[2]the court announced its intention to reaffirm the terms of the waiver. By that term, we infer the courts intent was to obtain a knowing and intelligent waiver from defendant.

The court advised defendant that he would receive custody credits for the time he had already spent in jail. (You get custodial credits up to and including Monday, when you will be released to a representative of the Pate House for residential treatment.) Defendant was asked if he understood this and he replied, yes. The court then told defendant that, in contrast to the custodial credits he received for time spent in jail, he would receive no such credits for the time he spent in residential treatment. (And while youre in residential treatment, you receive no custodial credits, correct?) Defendant stated that he understood this as well.^[3] In asking these two questions, the trial court informed defendant of the two important facts he needed to understand in order to waive prospective custody credits in a knowing and intelligent manner were (1) that he was entitled to custody credits; and (2) that he was waiving them for the period of time he was in Pate House.

Although the court chose to explain defendants entitlement to custody credits by using the example of defendants receipt of custody credits for the time he had spent incarcerated while waiting for a transfer to Pate House, this explanation was sufficient to apprise defendant that he was entitled to these credits. The second question the court asked defendant ensured that he understood he was giving up those credits while in residential treatment.

We do not read this colloquy as one in which defendant was left with no choice in the matter of waiver. Rather, the court used the question form to ensure that defendant did indeed understand his rights and the consequences of giving them up. We do not believe that the use of the word correct? mandated an affirmative response. There is no evidence that defendant was not free to simply reply, No and request further explanation. Further, it is quite clear that defendant understood he was being asked to waive somethingbefore the court reaffirmed his waiver of custody credits, he was asked directly if he wished to waive them. He responded, yes, to this question.

We conclude the waiver was knowing, intelligent and voluntary.

B. Imposition of Waiver as a Matter of Routine

Defendant argues, citing this divisions opinion in Penoli, supra, 46 Cal.App.4th 298, that his waiver of custody credits was obtained as a result of the trial courts standard practice, of requiring such a waiver and, as such was impermissible because it constituted a preconceived determination applicable to all cases in which the question might arise. (Id. at p. 303.) We disagree.

In Penoli this court held that a trial courts imposition as a standard practice a waiver of custody credits for time spent in residential treatment constituted an erroneous failure to exercise the discretion vested in the court by law. (Penoli, supra, 46 Cal.App.4th at p. 303.) In Penoli, the trial court explicitly stated that the waiver of custody credits was a standard practice. Here, in contrast, the court gave no explanation for its imposition of this condition. No such statement, of course, is required. Defendant asserts that the trial courts lack of familiarity with the case necessarily must lead us to conclude that the waiver of credits was a preconceived determination applicable to all cases. However, there is nothing in the record that indicates this condition was a standard one, and, accordingly, we will not find any error.

C. Credit Calculation

Defendant also contends that a subsequent waiver of custody credits which took place on April 20, 2005, does not include a waiver of the 51 days of credit he would have earned at Pate House. He argues that because he (1) did not validly waive the Pate House credits at the July 8, 2004 proceeding and (2) was not asked to waive this time at the April 20, 2005 proceeding, he is still entitled to these 51 days. For the simple reason that we have found a valid waiver of these credits on July 8, 2004, we reject this argument.

IV. Disposition

The judgment is affirmed.

_________________________

Haerle, J.

We concur:

_________________________

Kline, P.J.

_________________________

Richman, J.

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

^[2] When the trial court asked defense counsel whether defendant had discussed the waiver with his attorney, defense counsel replied, Im assuming he already did that. Apparently, defense counsel was not familiar with defendants case, which appears to have been the responsibility of another defense attorney. Defense counsels representation that he assumed counsel had discussed the waiver with defendant is not a sufficient basis on which to conclude that defendant had in fact been advised of the nature and consequences of his prospective waiver of custody credits. For this reason, we do not consider whether the possible existence of an off-the-record conversation between defendant and his counsel is sufficient to establish a knowing, voluntary, and intelligent waiver.

^[3] Defendant argues that, his response, which was transcribed as Uh-huh (affirmative), is unclear, and therefore, it is not clear whether he understood the court. We do not agree. The phrase uh-huh is routinely construed as yes, and the court reporters parenthetical simply underlines the fact that defendant responded in the affirmative when asked if he understood the court.