PEOPLE v. RAMIREZ

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Court of Appeal, First District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Michael RAMIREZ, Defendant and Appellant.

No. A090876.

Decided: July 25, 2001

Neil Rosenbaum, First Appellate Project, for Appellant. Bill Lockyer, Attorney General, David Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, René A. Chać on, Supervising Deputy Attorney General, Bridget Billeter, Deputy Attorney General, for Respondent.

Michael Ramirez appeals from a judgment imposed after his probation was revoked, claiming that the court imposed an unauthorized sentence by holding him to his agreement to waive credit for time served during the period between his arrest and the revocation of his probation.   We disagree, and will affirm the judgment.

Background

Appellant was 43 years old at the time of the offense at issue here.   Even a cursory review of his criminal history reveals that appellant has an abiding need for effective drug treatment, but lacks the personal motivation to stay away from drugs, even with treatment.   Appellant's criminal history stretches back to 1974, and every crime appears to be a drug offense or a drug-related offense.   He has been granted probation on several occasions, but has never been successful, failing to comply with probation terms and conditions, testing positive for drugs and re-offending.   Appellant's failures have occurred notwithstanding his completion of at least three drug treatment programs, one in 1991, one in 1994 and one in 1996.   At the time of his arrest on July 9, 1999,1 appellant was using an “eight-ball” (i.e., 3.56 grams) of methamphetamine per week, his latest attempt at probation had failed, and he was on “revoked status.”   Appellant pled nolo contendere to a charge of felony possession of methamphetamine.  (Health & Saf.Code, § 11377, subd. (a).)  The court told appellant that it would grant him probation conditioned on his enrollment in, and completion of, a residential treatment program.   The court further told appellant that it would not grant him probation unless he agreed to waive all credits for time served prior to, and while enrolled in, the treatment program.   Appellant agreed without argument or objection.   The court sentenced him to the maximum term of three years in state prison, suspended sentence and placed appellant on probation for a period of five years.

No appropriate program was available immediately, and appellant remained in custody until January 3, 2000, when he was transferred to a residential treatment program.   He left the program two days later.   The trial court revoked appellant's probation, imposed the previously suspended sentence of three years in state prison and refused to credit appellant with any time served between the date of his arrest and the date he left the treatment program.

DISCUSSION

 Appellant points out that he was sentenced to the maximum term authorized by law.   He claims, therefore, that the sentencing court lacked the authority to refuse to award him credits for time served prior to the date probation was revoked, asserting that the failure to award those credits exposes him to a potential term of incarceration in excess of the maximum term.   We find, however, that the court had the authority to require appellant to waive credit for time served as a condition of probation, and further had the authority to refuse to credit appellant with the waived time after probation was revoked.   We find, in short, that the court did not impose an unauthorized sentence after probation was revoked.

Penal Code section 2900.5, subdivision (a), provides, in relevant part, “In all felony and misdemeanor convictions, either by plea or by verdict, when a defendant has been in custody, including, but not limited to, any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment.”

 Notwithstanding the mandatory language of the section, it is settled that a defendant can agree to waive Penal Code section 2900.5 credits as a condition of probation.   We recognized this point in People v. Salazar (1994) 29 Cal.App.4th 1550, 35 Cal.Rptr.2d 221, noting there that “[t]rial courts now routinely obtain such waivers from repeat probation violators who, like appellant, have already served substantial amounts of county jail time as a condition of probation, and are approaching the maximum time set forth in Penal Code section 19.2.   The waiver allows the court to reinstate probation on the condition that the defendant serve additional time in county jail, instead of facing ‘the Hobson's choice of the “joint” or a “straight walk.” ’  [Citation.]”  (Id. at p. 1553, 35 Cal.Rptr.2d 221;  citing People v. Johnson (1978) 82 Cal.App.3d 183, 187-188, 147 Cal.Rptr. 55.)   It also has been recognized that such a waiver serves a rehabilitative purpose in cases where a defendant clearly needs some incentive to enroll in and complete a drug rehabilitation program, and also to remain free from drugs after completion of the program.  (People v. Ambrose (1992) 7 Cal.App.4th 1917, 1925, 9 Cal.Rptr.2d 812.)  “A failure to require waiver of such credits could practically mean that a probationer, while failing the treatment program, simply substitutes easier time in a residential drug treatment facility for custody in jail or prison.   Spaces in such substance abuse programs are frequently a scarce commodity.   The best interests of both society and the probationer are met by encouraging the success of treatment programs by conditioning attendance upon such a waiver, giving the probationer an additional incentive and reason to succeed.  [Citation.]”  (People v. Torres (1997) 52 Cal.App.4th 771, 775, 60 Cal.Rptr.2d 803.)   The need for such an incentive certainly existed here, and the requirement that appellant waive his section 2900.5 credits for all purposes was a reasonable condition of his probation.

Appellant, citing People v. Tran (2000) 78 Cal.App.4th 383, 92 Cal.Rptr.2d 815, contends that a waiver of section 2900.5 credits is not a reasonable condition of probation when it results in confinement for a longer term than the maximum sentence for the crime committed.   Appellant interprets Tran too broadly.   In that case, another division of this court found only that the waiver was an unreasonable condition of probation under the circumstances of that case.   The trial court in Tran had entered judgment imposing the aggravated term on each count to which the defendant had entered a plea of guilty.   It suspended sentence, and placed the defendant on probation on the conditions, among others, that he serve 24 months in county jail, and that he waive credit for that time against any future prison term.   The appellate court reversed, concluding that the condition was not related either to the offense or to the offender.   As there was no requirement that the defendant enroll in and complete some kind of rehabilitation program, the waiver would have no effect on the defendant's attitude towards such a program.   In addition, the court found the condition was not itself a deterrent because the suspended prison sentence already deterred the defendant from future violations.   The court concluded, therefore, that the condition served no purpose other than to increase the time of incarceration beyond the maximum allowed should the defendant fail on probation.  (People v. Tran, supra, 78 Cal.App.4th at p. 390, 92 Cal.Rptr.2d 815.)

Tran does not stand for the proposition that a waiver of section 2900.2 credits is an unreasonable condition of probation in any and all cases where it may lead to incarceration beyond the maximum term.   The court in Tran held only that a waiver of credits is an unreasonable condition where the only purpose served in imposing the condition was to punish the defendant for his offenses by subjecting him to a term greater than the maximum term prescribed by law.2  In the present case, unlike Tran, the purpose of the waiver condition was to provide an incentive for appellant to succeed in the treatment program.

 The defendant in Tran expressly and specifically objected to the waiver of credits at the time the condition was imposed.   The appellate court, accordingly, found that the point was preserved notwithstanding that the defendant also accepted the waiver as a condition of probation.  (People v. Tran, supra, 78 Cal.App.4th at p. 386, 92 Cal.Rptr.2d 815.)   However, absent such a timely objection the point is waived.  (People v. Johnson, supra, 88 Cal.App.4th at pp. 425-426, 105 Cal.Rptr.2d 828.)   Appellant here not only failed to make an objection, but expressly agreed to the condition.   In an attempt to circumvent this difficulty, appellant, relying on dicta from People v. Ambrose, supra, 7 Cal.App.4th 1917, 9 Cal.Rptr.2d 812 3 argues the trial court lacked authority to enforce his waiver of custody and conduct credits because it exposed him to the possibility of confinement beyond the maximum term specified by law.  Ambrose does not hold that a sentence that might cause a defendant to serve time in excess of the maximum allowable for the plea entered can be attacked on direct appeal.   It only suggests a probationer may be entitled to relief “if and when” his or her total custodial time in fact equals the maximum incarceration period.   There is no such possibility here because appellant will be entitled to earn conduct credits while incarcerated.

Ambrose does not support appellant's argument that credit for time served, waived as a reasonable condition of probation, must be credited against a sentence imposed following revocation of probation.   The court in Ambrose was concerned with a situation in which the defendant had been placed in a treatment program where he was not entitled to conduct credits and could, therefore, be confined for a period in excess of the maximum authorized by law.   To the extent Ambrose supports the argument that a defendant is entitled to attack the sentence on appeal from the conviction, its dicta should be applied only to cases that are factually similar to Ambrose itself;  i.e., where the actual term of incarceration can be determined and will exceed the maximum authorized term.4

 In conclusion, we find that except for the specific and limited situation existing in Ambrose, a waiver of future credits does not present a justiciable issue reviewable on appeal because such a waiver does not expose the defendant to incarceration in excess of the maximum term.

The judgment is affirmed.

FOOTNOTES

1.   On July 9, 1999, police, responding to a report of a suspicious person found appellant wandering through a neighborhood.   The police arrested appellant upon determining that he was subject to a “no bail warrant.”   Appellant was searched as an incident to the arrest, and was found to be in possession of one gram of methamphetamine.

2.   The reasoning in Tran was criticized by yet another division of this court in (People v. Johnson (2001) 88 Cal.App.4th 420, 428-430, 105 Cal.Rptr.2d 828.)   As we find other reasons for refusing to adopt the holding in Tran, we need not and do not take any position here on this point, noting only that the reasonableness of a condition of probation necessarily turns on the relevant facts of the case at hand.

3.   The court in Ambrose found that the defendant had made a knowing and intelligent waiver of his right to future custody credits for time served in a residential alcohol treatment center.   It then stated:  “This does not mean, of course, that we would endorse a situation in which denial of future credit enabled the court to impose a term which is longer than the maximum allowable for the offense.   Even if a defendant agrees to such a negotiated disposition, a trial court should not impose a sentence in excess of the maximum allowable for the plea entered.   Appellant would be entitled to discharge from custody at the [treatment program] if and when his total custodial time, including [his] time at the [program] equaled the maximum incarceration period.”  (People v. Ambrose, supra, 7 Cal.App.4th at p.1924, 9 Cal.Rptr.2d 812.)

4.   For example, if appellant Ramirez had not violated his probation, he could only be required to remain in a residential treatment program for a total of three years;  even though he was placed on probation for five years.

STEIN, Acting P.J.

STRANKMAN, J.,* and MARCHIANO, J., concur.