P. v. Arnold

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Filed 3/26/02
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
THE PEOPLE,
Plaintiff and Respondent,
v.
CLEMANTT ARNOLD,
Defendant and Appellant.
C037898
(Super. Ct. No.
CM007751)
Defendant Clemantt Arnold pleaded no contest to possession
of a controlled substance (Health & Saf. Code, § 11350, subd.
(a)) with the understanding he would initially be given
probation. He waived credit for time served in county jail up
to that point. The trial court granted probation and ordered
defendant to serve a short jail term as a condition of
probation. Defendant’s probation was, however, later revoked,
and the trial court imposed a two-year prison sentence. At
sentencing, defendant claimed he was entitled to custody credits

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for the initial period of presentence confinement, but the trial
court declined to award him credit for that period.
On appeal, defendant claims his initial waiver of
presentence custody credits was not a knowing and intelligent
waiver of credit toward a future prison sentence. We agree and
conclude that defendant is entitled to credit for the time
waived. Accordingly, this matter must be remanded to the trial
court to recalculate defendant’s credits.
FACTS
On October 21, 1997, defendant pleaded no contest to
possession of a controlled substance. (Health & Saf. Code,
§ 11350, subd. (a).) Defendant was representing himself at the
time. The plea agreement specified that defendant would
initially be given probation.
The plea form included the following waiver: “I WILL WAIVE
ALL CREDITS FOR JAIL TIME SERVED THROUGH 10-21-97.” At the plea
canvass, the court reiterated that defendant was going to “waive
all time credits through today,” and defendant agreed. But
there was no explicit reference, either in the plea form or at
the canvass, to indicate that the waiver applied to the state
prison sentence the court could impose if defendant violated
probation (as opposed merely to a county jail term that would
likely be imposed as a condition of probation).
At sentencing, defendant clarified that his credit waiver
meant that he would have to serve any additional jail term the
court imposed as a condition of probation. Pursuant to the plea
agreement, the trial court suspended imposition of sentence,

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placed defendant on probation for three years, and ordered him
to serve 60 days in county jail.
In 1998, a petition was filed alleging defendant had
violated probation. Defendant admitted violating probation, and
the matter was set for a dispositional hearing. On June 14,
1999, the trial court agreed to reinstate probation subject to
certain conditions, including defendant’s Johnson waiver of 94
days’ actual credit plus related custody credits. (People v.
Johnson (1978) 82 Cal.App.3d 183.) The 94 days was based on
time served after entry of the initial plea, from October 22,
1997, to date. The court made sure defendant understood what a
Johnson waiver was, explaining it applied to any jail term
imposed as a condition of probation and to any future prison
sentence. The court then asked if defendant agreed “to waive or
give up any credits you have in this case?” Defendant agreed,
and the court indicated defendant had “no credits as of today
due to a Johnson Waiver” when it imposed an additional 90-day
jail term.
In August 2000, another petition was filed alleging
defendant had violated probation. The trial court found
defendant had violated probation and revoked it. The court
imposed a two-year prison sentence.
Defendant claimed he was entitled to approximately 500 days
of custody credits toward his sentence, asserting he “was in
custody a whole year prior to the plea bargain agreement, which
is not mentioned at all in any of these reports.” The court
stated “that on June 14, 1999, when you were reinstated on

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probation, you . . . waived those previous time credits. So you
are not entitled to those.” Defendant responded: “Those time
credits were supposed to be for the 8 days that I was in custody
the previous time, not the previous time before that. That was
the understanding I had at the time of the plea.” Nevertheless,
the court awarded defendant presentence credits solely for time
defendant had spent in custody in 2000 and 2001.1
DISCUSSION
In Johnson, the court held that a defendant may waive
custody credits pursuant to Penal Code section 2900.5.
(Johnson, supra, 82 Cal.App.3d at pp. 188-189.) Such a waiver
allows the trial court to avoid the one-year statutory
limitation on county jail sentences, thereby allowing the court
to impose additional jail time as a condition of probation.
(Id. at pp. 185, 188-189; see also Pen. Code, § 19.2.) A
Johnson waiver may be made for other sentencing considerations
as well. (People v. Salazar (1994) 29 Cal.App.4th 1550, 1553.)
The sole issue in this appeal concerns defendant’s initial
waiver of custody credits. Defendant claims that, at the time
he initially pleaded no contest, he did not make a knowing and
intelligent waiver of presentence custody credits toward a
future prison sentence.
1 According to defendant, he is raising another asserted error
in the trial court concerning the calculation of his custody
credits. This court’s disposition will, of course, require the
trial court to recalculate defendant’s credits.

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Preliminarily, we observe that the later, unequivocal
waiver of defendant’s credits upon reinstatement of probation is
not an issue. At that time, defendant only waived 94 days of
credit and related conduct credit that he had subsequently
accrued. The court’s colloquy of defendant must be understood
in context. Consequently, the waiver did not include the period
of time defendant had previously accrued.
Accordingly, we consider defendant’s initial waiver of
credits. The People concede that “[n]othing in the colloquy
referenced the effect of the waiver on a future state prison
sentence.” The People therefore “concede that on this record,
following [People v. Harris (1987) 195 Cal.App.3d 717 (Harris)],
this Court could reasonably conclude that [defendant’s] original
waiver was not ‘knowing and intelligent’ as that term was used
in Harris.” However, the People claim that Harris was wrongly
decided and that this court should instead follow People v.
Burks (1998) 66 Cal.App.4th 232 (Burks). As we shall explain,
we find Harris to be more persuasive than Burks.
In Harris, supra, 195 Cal.App.3d at pages 721-725, this
court held a Johnson waiver invalid insofar as it was entered
without the defendant knowing the waiver applied to a future
prison sentence. In so holding, this court emphasized: “A
‘knowing and intelligent waiver’ of a right implies that the
waiver was entered into with awareness of its consequences.”
(Harris, supra, at p. 725; cf. People v. Ambrose (1992)
7 Cal.App.4th 1917, 1922 [“An awareness of the consequences of
waiving any right should include an understanding of the impact

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of that waiver on the amount of time a defendant may be
incarcerated.”].)
In Burks, the Third Division of the First District Court of
Appeal concluded that to be valid, a Johnson waiver requires a
defendant to understand that he or she is giving up custody
credits and the waiver is “presumptively applicable to any
future term of imprisonment.” (Burks, supra, 66 Cal.App.4th at
pp. 236-237 & fn. 3.) The court explained that “[i]f a
defendant wants to restrict the waiver of custody credits to
extend the jail time he can serve, but preserve the same credits
for future use against prison time, the burden should be on the
defendant to propose that to the sentencing court for its
approval.” (Id. at p. 236, fn. omitted.) In so holding, the
Burks court emphasized that section 2900.5 treats credits
uniformly and does not establish separate accounts for purposes
of jail terms and prison sentences. (Id. at pp. 236-237.) The
Burks court asserted that “Harris invites the defendant to claim
the waiver was not knowing and intelligent because the court
failed to remind him his waived credits would not be reinstated
if he continued to violate probation.” (Id. at pp. 236-237,
fn. 3.)
We respectfully disagree with Burks and instead follow
Harris. (Burks, supra, 66 Cal.App.4th 232; Harris, supra,
195 Cal.App.3d 717.) The import of Harris is not to ensure a
defendant is reminded that credits will not be reinstated.
Rather, Harris acknowledges that a simple waiver of credits may
be misunderstood so as to apply specifically to whatever jail

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term a defendant is facing as a condition of probation. We
cannot say that a “presumptive consequence,” i.e., the effect of
the waiver on defendant’s prison sentence, is one that is
knowingly and intelligently waived. Burks’s conclusion is
inconsistent with not only Harris, but with Johnson itself.
(See Johnson, supra, 82 Cal.App.3d at p. 188 [“We hold that a
proper interpretation of Penal Code section 2900.5 permits a
defendant to knowingly and intelligently waive the provisions
thereof that require all days of custody be credited to his
sentence, including any period of imprisonment as a condition of
probation.”].)
The People’s argument to the contrary is not persuasive.
The People claim Harris was “somewhat conclusory” and does not
consider whether it was reasonable to believe a defendant
seeking to obtain a jail term and probation, particularly after
a violation of probation, is truly concerned about credit toward
the prison sentence he or she is trying to avoid. But it is
defendant who should make the decision and who must enter a
knowing and intelligent waiver. And here the issue is
defendant’s initial waiver of credits. Defendant might have
been unwilling to waive what appears to have been a substantial
amount of credits, particularly since he was only facing the
specter of a short sentence.
In short, the record indicated that defendant’s initial
waiver was not knowing and intelligent and that defendant was
prejudiced thereby. The record does not indicate that defendant
waived credits with knowledge the waiver applied, not only to

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the jail term the court could impose as a condition of
probation, but also to a future prison term. And defendant did
not have an attorney to explain to him the scope of the waiver.
Accordingly, defendant is entitled to credit for the initial
period of presentence confinement, notwithstanding his waiver.
(Cf. Harris, supra, 195 Cal.App.3d at pp. 725-726.)
DISPOSITION
The judgment is reversed and remanded to the trial court to
recalculate defendant’s custody credits. The court shall
include any additional credit attributable solely to the conduct
in the instant case (see People v. Bruner (1995) 9 Cal.4th 1178,
1193-1194), that was accrued through October 21, 1997. The
trial court shall then enter an amended abstract of judgment and
forward a copy of the same to the Department of Corrections.
BLEASE , Acting P. J.
I concur:
NICHOLSON , J.

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DISSENTING OPINION OF CALLAHAN, J.
For the reasons stated in People v. Burks (1998)
66 Cal.App.4th 232, I respectfully dissent in this case. I am
not persuaded that a waiver of time credits need include an
explicit warning to defendant that he or she is waiving credit
toward a possible prison sentence. In the sense that the waiver
is unequivocal and unqualified, as it was here, it should be
considered “presumptively applicable to any future term of
imprisonment.” (Id. at p. 237.)
CALLAHAN__ __ _, J.

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