P. v. Tupper CA3 ( 2013 )


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  • Filed 3/11/13 P. v. Tupper 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    NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
    (Butte)
    ----
    THE PEOPLE,                                                                                  C070979
    Plaintiff and Respondent,                                     (Super. Ct. No. SCR76775)
    v.
    KIM ASHLEY TUPPER,
    Defendant and Appellant.
    Defendant Kim Ashley Tupper pleaded guilty to felony corporal injury of a
    spouse, cohabitant, or child’s parent (Pen. Code, § 273.5, subd. (a)).1 Imposition of
    sentence was suspended and he was placed on three years’ formal probation. He was
    continued on probation after admitting to violating his probation by failing to enroll in a
    batterer’s treatment program. After he admitted to violating probation a second time, the
    1        Undesignated statutory references to follow are to the Penal Code.
    1
    trial court terminated probation and sentenced defendant to three years in state prison
    with 387 days’ presentence credit (230 actual, 128 conduct, and 29 state custody).2
    On appeal, defendant contends the trial court failed to award credits for time he
    spent in a residential rehabilitation facility. We affirm.
    DISCUSSION
    We dispense with facts of defendant’s crime and probation violations, as they are
    unnecessary to resolve this appeal.
    Defendant’s sole claim is that he was entitled to custody credits for the 91 days he
    spent in a residential rehabilitation facility.
    Pursuant to a condition of his probation, defendant entered the Skyway House
    Residential Treatment Program on June 2, 2011, and remained there until leaving on
    August 31, 2011. A defendant is entitled to custody credit under section 2900.5,
    subdivision (a), for time spent in a residential rehabilitation facility if the placement was
    “custodial” and the custody was attributable to the proceedings relating to the conduct for
    which the defendant has been convicted. The award of credits did not include the 91
    days spent in the residential treatment program.
    Defendant admits that the initial grant of probation included condition number 20,
    which states in pertinent part: “No custody time credits will accrue for participation
    in a residential treatment program, as a condition of probation” (boldface type in
    original), but claims he never agreed to the condition.
    It is well settled that a defendant may waive custody credits as a condition of
    probation, or in exchange for other sentencing considerations. (People v. Salazar (1994)
    
    29 Cal.App.4th 1550
    , 1553.) A “Johnson waiver” (see People v. Johnson (1978) 
    82 Cal.App.3d 183
    ) allows a criminal defendant to waive entitlement, past or future, to the
    2      Defendant’s conduct credits were limited because he had a prior serious and
    violent felony conviction.
    2
    custody credits authorized by section 2900.5 against a jail or prison sentence. In a later
    case, also entitled People v. Johnson (but dealing with a different defendant), our
    Supreme Court explicitly endorsed this concept. (People v. Johnson (2002) 
    28 Cal.4th 1050
    , 1054-1055 [“[l]ike the Courts of Appeal that have addressed the issue, we too
    conclude that 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”].)
    However, “[a]s with the waiver of any significant right by a criminal defendant, a
    defendant’s waiver of entitlement to section 2900.5 custody credits must, of course, be
    knowing and intelligent. [Citation.]” (People v. Johnson, 
    supra, at p. 1055
    .) “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. [Citation.]” (People v. Arnold (2004) 
    33 Cal.4th 294
    ,
    308.)
    The better practice is for sentencing courts to expressly admonish defendants who
    waive custody credits. “A sentencing court’s failure to include such an explicit
    advisement will not, however, invalidate a Johnson waiver by which the defendant is
    otherwise found to have knowingly and intelligently relinquished his or her right to
    custody credits under section 2900.5.” (People v. Arnold, 
    supra,
     33 Cal.4th at p. 309.)
    The trial court did not explicitly admonish defendant about the waiver of custody
    credits for time spent in a rehabilitation facility. Nonetheless, when granting probation
    the trial court informed defendant that “Special Condition 20 is imposed.” Also, before it
    granted probation, the trial court told defendant that probation would be subject to “the
    strict terms and conditions of probation that are set forth in the [probation] report,”
    among which were condition number 20. Defendant’s counsel stated that defendant
    agreed to the strict conditions, and defendant signed the portion of the probation form
    which stated that he had read and understood the probation conditions.
    3
    Condition number 20 was not reiterated when probation was continued, but the
    new probation order stated that the “[o]riginal terms in full force and effect except as
    modified herein this date.” The new probation order did not withdraw condition number
    20 or indicate that defendant was entitled to custody credits for time in a residential
    treatment program.
    Defendant signed a document stating he had read and understood condition
    number 20, the trial court informed him that the condition would be imposed, and counsel
    agreed to the imposition of probation subject to the specified conditions, including, by
    inference, the limit on conduct credits. Looking at the totality of the evidence, defendant
    made a knowing and intelligent waiver of his right to conduct credits for time spent in the
    residential treatment program.
    DISPOSITION
    The judgment is affirmed.
    NICHOLSON          , J.
    We concur:
    RAYE           , P. J.
    BLEASE          , J.
    4
    

Document Info

Docket Number: C070979

Filed Date: 3/11/2013

Precedential Status: Non-Precedential

Modified Date: 4/18/2021