Metropolitan News-Enterprise


Tuesday, August 20, 2002


Page 1


Supreme Court Upholds Conditioning of Probation on Waiver of Credit for Time Served in Custody


By a MetNews Staff Writer


A trial judge may condition a grant of probation on the defendant’s waiver of credit for time served, the state Supreme Court ruled yesterday, even if it results in the defendant ultimately serving more total time in custody than the maximum prison term.

Justice Joyce L. Kennard, writing for a unanimous court, said the First District Court of Appeal was correct in holding that a Sonoma County man was bound by his waiver of custody credits in connection with a negotiated plea to a burglary charge.

Dale Howard Johnson pled no contest to a residential burglary in exchange for the dismissal of other charges. Johnson was accused of copying a house key entrusted to the cleaning business where he worked and taking more than $12,000 worth of property.

Sonoma Superior Court Judge Robert S. Boyd found that the crime involved “significant planning” and imposed the upper term of six years in prison.

But he also found that the crime was a first offense and that the defendant, then 24 years old, could benefit from drug treatment, so he offered to suspend the prison term and place Johnson on probation for three years if he agreed to enter a residential drug treatment facility.

The offer was conditional, however, upon Johnson going to jail until a treatment bed was available and waiving credit for time served in jail and in the treatment facility. Johnson agreed, subject to a “technical” objection allowing him to appeal the enforceability of the waiver.

On appeal, his court-appointed counsel argued that if probation is revoked, and Johnson forced to serve the suspended, maximum prison term-in addition to time already served in jail or in treatment-he would end up serving more time in custody than allowed by law.

Counsel cited Penal Code Sec. 2900.5, which provides that the total number of days a defendant spends in custody either before sentencing or as a condition of probation, “shall be credited” against the defendant’s “term of imprisonment.” The provision is explicitly applicable to time spent in a “residential institution.”

The Court of Appeal disagreed with the defense and affirmed the sentence.

Kennard said the trial judge acted within his authority, noting that the Court of Appeal has on several occasions upheld waivers of custody credit.

“Like 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,” the jurist wrote.

The rule is no different when the defendant has been given a suspended maximum prison term, the imposition of which is mandatory if probation is revoked, Kennard said.

The waiver, Kennard reasoned, serves a “legitimate penal function” by granting the defendant a substantial incentive to complete treatment for his admitted drug dependency. It is, she added, consistent with the general rule that a defendant may waive a statutory provision intended for his or her benefit.

A different result might obtain, the justice said, if the amount of time the defendant must actually serve as a direct consequence of the waiver-without including the time he would serve only if he violated probation-exceeded the statutory maximum.

The case is People v. Johnson, 02 S.O.S. 4348.


Copyright 2002, Metropolitan News Company