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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Dale Howard JOHNSON, Defendant and Appellant.

No. A091500.

Decided: April 10, 2001

Gordon B. Scott, Santa Rosa, CA, Counsel for Appellant. Bill Lockyer, Attorney General of the State of California, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Seth K. Schalit, Deputy Attorney General, San Francisco, CA, Counsel for Respondent.

Defendant pleaded no contest to first degree burglary.  (Pen.Code, § 459.) 1  The court sentenced defendant to an aggravated state prison sentence, the execution of which was suspended, and placed him on probation.   The court required defendant to waive all his presentence credits, credits that would accrue while he awaited placement in a residential treatment program, and credits that he might otherwise be entitled to for participation in the program itself.   Defendant's sole contention on appeal is that the court's requirement that he waive these credits resulted in an unauthorized sentence.   We disagree and affirm the judgment.



Defendant's statement of the underlying facts is sufficient for purposes of this appeal as they have no real bearing on the issue before us.   Defendant was charged with, and pleaded no contest to, first degree burglary (§ 459);  additional charges of commercial burglary (§ 459) and receiving stolen property (§ 496, subd. (a)) were dismissed on motion of the People as part of the negotiated disposition.   The sentence to be imposed was apparently left open to the court.   The court sentenced defendant to the aggravated term of six years in state prison, the execution of which was suspended, and placed him on felony probation on condition that he participate in a residential treatment program.   He was to remain in custody in county jail until a bed became available in the program.   As a part of the disposition, the court required that defendant waive all his presentence credits, credits that would otherwise accrue while he remained in county jail awaiting transfer to the residential treatment program, and whatever credit he might otherwise be entitled to for the time he remained in the treatment program.   This timely appeal followed.



 Relying on the recent decision in People v. Tran (2000) 78 Cal.App.4th 383, 92 Cal.Rptr.2d 815, defendant contends that the trial court “improperly required a waiver of past and future custody credits as a condition of probation after it had already sentenced appellant to the aggravated term of six years and then suspended execution.   Because appellant had already been sentenced to the maximum sentence allowed by law, the requirement that appellant waive custody credits increased his potential custody time to greater than the longest sentence allowed by law [and was therefore] an unauthorized sentence.”   We disagree.

In Tran, Division Two of this court determined that a sentence which included the imposition of the maximum state prison sentence permissible under the law, the execution of which was suspended to permit a defendant to be placed on probation with a condition that he serve 18 months in county jail, which was conditioned upon his waiver prospectively of all credit for that 18-month sentence against his potential future prison term, was not a reasonable condition of probation and constituted an unauthorized sentence.   The court reasoned that unlike a requirement that a defendant waive future credit for time to be served in a residential treatment program (approved in People v. Ambrose (1992) 7 Cal.App.4th 1917, 1921, 9 Cal.Rptr.2d 812), the required waiver in Tran could not serve any legitimate purpose such as positively impacting the defendant's attitude toward a treatment program or deterring him from future probation violations.   The court found that there was no basis for believing that the defendant would not abide by the conditions of his probation and that the lengthy prison sentence which he faced if he did violate them was a sufficient deterrent.  (People v. Tran, supra, 78 Cal.App.4th at p. 390, 92 Cal.Rptr.2d 815.)   The only purpose of the waiver, the court found, was “to lengthen appellant's prison sentence beyond the maximum allowed if he were to violate probation.”  (Ibid.)

In People v. Ambrose, supra, 7 Cal.App.4th 1917, 9 Cal.Rptr.2d 812, Division Two of this court determined that a trial court could require that a defendant waive future credit for participation in a drug treatment program as a valid condition of probation.   As the court explained, “We are cited to no case, nor has our research discovered any, which precludes a knowing and intelligent waiver of future custody credit.   Here, the waiver served important purposes in (a) resolving in advance the issue as to whether custody credit would apply at all to time spent at the ranch;  and (b) allowing the trial court to deny credit for an unsuccessful stay at the ranch, thus avoiding a windfall to appellant.”  (People v. Ambrose, supra, 7 Cal.App.4th at p.1921, 9 Cal.Rptr.2d 812, italics in original.)   The court explored other situations in which waivers of credits had previously been upheld, noting that People v. Harris (1991) 227 Cal.App.3d 1223, 1227, 278 Cal.Rptr. 391 had approved the waiver of custody credits already accrued.   Such a waiver, if knowingly and intelligently made, could be given by a defendant in order to receive other sentencing considerations.   Similarly, where a defendant has already served a year in county jail as a condition of probation and then violates his probation, a trial court may, with his valid waiver, strike all custody credit already accrued by a defendant.   In People v. Johnson (1978) 82 Cal.App.3d 183, 147 Cal.Rptr. 55, the court upheld such a practice in order to permit the sentencing court the option of continuing defendant on probation and sentencing him to additional jail time, rather than sending him off to state prison.   Such an additional county jail sentence would otherwise be prohibited by section 19.2, which provides that a defendant may not serve more than one year in county jail as a condition of probation.

The Ambrose court did express one concern about future credit waivers, noting “This does not mean, of course, that we would endorse a situation in which the 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.”  (People v. Ambrose, supra, 7 Cal.App.4th at p.1924, 9 Cal.Rptr.2d 812.)   The Tran court relied in large part on this dicta in reaching its similar conclusion.

This case differs significantly from Tran. First, Tran did not involve the waiver of future custody credits that would otherwise be earned while the defendant was in an alcohol or drug treatment program.  Ambrose, the case upon which Tran so heavily relies, did involve a waiver relating to a treatment program. As the court there noted in finding such a waiver valid, the waiver served important purposes because it allowed “the trial court to deny credit for an unsuccessful stay at the ranch [the treatment program], thus avoiding a windfall to appellant” and resolved in advance the issue as to whether custody credit would apply at all to time spent at the ranch.   (People v. Ambrose, supra, 7 Cal.App.4th at p.1921, 9 Cal.Rptr.2d 812.)   The Tran court distinguished its facts from those of Ambrose, stating, “Unlike the waiver in Ambrose, this waiver cannot have any effect on appellant's attitude toward a residential treatment program.   All of appellant's local time is to be served in the county jail.”  (People v. Tran, supra, 78 Cal.App.4th at p. 390, 92 Cal.Rptr.2d 815.)   Here, and apparently in Ambrose, the court asked defendant to waive his credits for time spent in the program to reinforce his professed interest in completing a treatment program.   The trial court specifically expressed concern that defendant only admitted he had a drug problem and requested an opportunity to participate in a treatment program after learning that probation had recommended a six-year state prison sentence.

Second, it is not at all clear that any credits would have been implicated in the treatment program defendant was to participate in.   The factual question of whether the Turning Point program that defendant was to enter constitutes “custody” for purposes of section 2900.5 2 cannot be answered on the basis of the record before us.   Until that factual question is resolved, we will not hold that a probation condition requiring a waiver of credits for the time defendant was to serve in that program is invalid under Tran.

Third, the defendant in Tran specifically objected in the trial court to the condition of probation requiring a waiver of custody credits.   Here, defendant specifically waived past and future credits and voiced what can only be described as a vague and ambiguous objection.   After the trial court engaged in a colloquy with defendant regarding the meaning of the waiver of credits, the court inquired if he was willing to waive all his past and future credits, to which defendant responded, “All right.”   At that point his attorney interjected, “He would [ ] technically object on the record that he accepts the waiver.”   It is difficult to discern the meaning of this statement;  at best it is ambiguous, at worse it could be deemed nonsensical.   The court then explained the three periods of credits that defendant would specifically be waiving and again inquired if he was willing to do so;  defendant responded, “Yes sir.”   The district attorney expressed concern that if defendant was objecting to the waiver that it would not be an intelligent waiver, to which defense counsel responded that there was case law permitting a defendant to object to the waiver but still accept it.   Defense counsel stated specifically “the objection preserves any issue later on down the road on appeal if there's a development in the cases.   But he can still accept the waiver.”   This discussion occurred on May 30, 2000, some three months after the Tran decision was published;  presumably the Tran decision was not one of the anticipated developments in case law.   The district attorney again interjected that defendant was “either waiving them [the credits] or he's not.”   The court then stated its understanding of defense counsel's objection, stating, “So you're saying that if he files an appeal and for some reason his conviction is set aside, he would want to be able to claim credits under that condition;  right?”  (Italics added.)   Defense counsel responded, “If there's a legal basis for it.”   Counsel then went on to reiterate his earlier inarticulate objection, stating, “So he's just wants to object on the record that he will accept the waiver, and he will waive the credits.”

In Tran the court specifically noted that “[d]efense counsel objected” to the court's announced requirement of a waiver of credits, “arguing that ․ the sole effect here would be to increase a potential prison sentence beyond the statutory maximum sentence if appellant failed on probation.”  (People v. Tran, supra, 78 Cal.App.4th at p. 386, 92 Cal.Rptr.2d 815.)   The Tran court explicitly relied upon the defendant's clearly articulated objection, indicating, “Appellant's acceptance of this condition of probation does not preclude him from challenging it on appeal.   His objection at the time of sentencing suffices to preserve the point for appeal.”  (Ibid., citing People v. Welch (1993) 5 Cal.4th 228, 236-237, 19 Cal.Rptr.2d 520, 851 P.2d 802.)

In the present case, by contrast, defense counsel never clearly articulated the basis for his objection to the waiver of credits requirement and tacitly agreed with the trial court's understanding that he only wished to preserve his right to claim the credits in the future, if defendant's conviction was reversed on appeal.   This objection did not apprise the trial court of the basis for the objection now being raised on appeal and did not give the trial court the opportunity to correct the alleged error.   As the court stated in People v. de Soto (1997) 54 Cal.App.4th 1, 9, 62 Cal.Rptr.2d 427, “Without any specifically articulated reasons for the objections, the [sentencing] court had no real basis upon which he could evaluate the claims and correct the errors, if any existed.”  (Some italics added.)   This holding is presaged in the Scott decision, where the court noted that if an objection is required, it must be “timely and meaningful,” or it is waived.   (People v. Scott (1994) 9 Cal.4th 331, 351, 36 Cal.Rptr.2d 627, 885 P.2d 1040;  People v. Smith (1998) 64 Cal.App.4th 1458, 1468, 76 Cal.Rptr.2d 75 [“not only a timely but a specific objection or motion to preserve an issue for appeal” is required], italics omitted.)   By never specifically articulating that he was objecting to the required credits waiver because it potentially exposed defendant to serving more than the maximum sentence permitted by law, defense counsel denied the sentencing court the opportunity to modify its proposed sentence to rectify the perceived problem.   The trial court might well have elected to impose the same state prison suspended sentence without requiring a waiver of custody credits, to sentence to a lesser suspended state prison term with the same waiver requirement, to forego entirely the concept of probation and sentence defendant directly to state prison, or it might have otherwise modified the sentence imposed, had it been aware of the issue.   Thus the issue now before us was not preserved for appeal.3

 Defendant might claim that an objection below was not required because the sentence imposed was unauthorized and therefore in excess of the court's jurisdiction.   A similar argument was made in People v. Hester (2000) 22 Cal.4th 290, 295, 92 Cal.Rptr.2d 641, 992 P.2d 569, where the Supreme Court upheld the validity of California Rules of Court, rule 412(b), which provides that a defendant who agrees to a specified prison term as part of a negotiated disposition abandons any claim that the sentence violates section 654.   The court noted that the general rule that a defendant need not object in order to preserve a challenge to a sentence on the grounds that it violates section 654, because the imposed sentence would be unauthorized, is subject to an exception.  “Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction.   The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process.  [Citations.]  ․ In adopting [rule 412(b) ], the Judicial Council merely codified one of the applications of the case law rule that defendants are estopped from complaining of sentences to which they agreed.”  (People v. Hester at p. 295, 92 Cal.Rptr.2d 641, 992 P.2d 569, some italics omitted;  see also In re Giovani M. (2000) 81 Cal.App.4th 1061, 1065, 97 Cal.Rptr.2d 319 [minor waived any right to claim on appeal that court was precluded from sustaining a charge, which was arguably a necessarily included offense of another count also sustained, even if it could be viewed as act in excess of jurisdiction].)

This reasoning applies equally to the case before us.   The court, rather than following probation's recommendation and sentencing defendant directly to six years in state prison, gave him an opportunity to be placed on probation and enter a treatment program, this despite defendant's earlier protestations that he did not have a drug problem.   The court noted that defendant was being given a significant break because of his age and noted the seriousness of the residential burglary charge.   Despite the defendant's alleged commission of the second burglary that was dismissed as part of the plea negotiation, the court elected to suspend the aggravated term of six years in state prison (the aggravated term was selected due to the premeditation involved, defendant's abuse of his position of trust, and the fact that over $12,000 in property was taken).   The defendant agreed to this disposition being offered by the court and in return knowingly, intelligently, and repeatedly waived his right to past and future local custody credits.   As the court stated, “Well, given the fact that you are getting a very significant break, I'm asking that you waive credits․ That means that you are facing the full six years if you violate.”   To permit defendant to now rely on the Tran decision to vitiate the deal that he struck with the court would truly be to allow him to “trifle with the courts by attempting to better the bargain through the appellate process.”  (People v. Hester, supra, 22 Cal.4th at p. 295, 92 Cal.Rptr.2d 641, 992 P.2d 569.)

 Finally, we respectfully disagree with the fundamental rationale, and much of the reasoning, of the Tran decision.   A criminal defendant may enter into bargains and engage in waiver.  “Ordinarily, criminal defendants may waive rights that exist for their own benefit.   ‘Permitting waiver is consistent with the solicitude shown by modern jurisprudence to the defendant's prerogative to waive the most crucial of rights.’  [Citation.]  ‘An accused may waive any rights in which the public does not have an interest and if waiver of the right is not against public policy.’ ”  (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371, 58 Cal.Rptr.2d 458, 926 P.2d 438, quoting excerpt from People v. Robertson (1989) 48 Cal.3d 18, 61, 255 Cal.Rptr. 631, 767 P.2d 1109 [permitting capital defendant's waiver of presence at sentence-modification and sentencing hearing, reviewing cases wherein waiver of crucial rights by capital defendants approved].)   In Cowan, the court permitted the waiver of the statute of limitations by a criminal defendant, finding that to do otherwise would “ ‘deprive[ ] the trial court of essential discretionary authority to determine whether or not the defendant should be able to waive the statute of limitations in the unique circumstances of the particular case.’ ”  (Cowan v. Superior Court, supra, 14 Cal.4th at p. 374, 58 Cal.Rptr.2d 458, 926 P.2d 438.)   The court concluded, “Just as a defendant may ‘waive the most crucial of rights' [citation], so too should a defendant be allowed to waive the statute of limitations.”  (Id. at pp. 372-373, 58 Cal.Rptr.2d 458, 926 P.2d 438.)   The Cowan court specifically noted that the statute of limitations statute, like section 2900.5, does not prohibit waiver.   The right to custody credits under section 2900.5, like the statute of limitations, works to the benefit of a defendant by permitting credit toward his state prison sentence for time spent in local custody.4  We see no logical reason why such credit cannot be waived.

In People v. Zuniga (1980) 108 Cal.App.3d 739, 166 Cal.Rptr. 549, the court approved the waiver of credits otherwise due a defendant under section 2900.5, under a contract theory.   The defendant had pleaded guilty to burglary and admitted a prior conviction.   The court sentenced him to three years in state prison, the execution of which was suspended, placed him on probation, and made a condition of that probation that he serve a year in county jail.   The court required the defendant to waive, as a part of this disposition, his right to 186 days of presentence credit.   Upon the revocation of his probation, the defendant claimed he was entitled to those presentence credits, which the trial court denied based on his previous waiver.   Upholding the determination of the trial court, the Zuniga court stated, “Defendant, in effect, bargained for a probationary sentence by initially waiving the provisions of Penal Code section 2900.5.   The court complied and granted defendant the leniency of probation.   Defendant now seeks to retract his portion of the bargain․ His argument appeals to neither logic nor justice.”  (People v. Zuniga, supra, 108 Cal.App.3d at p. 743, 166 Cal.Rptr. 549.)   Defendant's argument here suffers the same lack of appeal.

The Tran court concludes, and the Ambrose court indicates, however, that such a waiver is invalid if it would result in a defendant serving more time than the maximum permitted by law, thus invalidating such waivers if the defendant is sentenced to the maximum sentence allowable.   First, this holding ignores the fact that a defendant is eligible to receive substantial credits toward his state prison sentence, after he is remanded to the custody of prison officials.   No attempt is made in Tran to determine whether the waived local custody credits would even result in defendant remaining in custody longer than the maximum that he was sentenced to, once those additional credits are taken into consideration.   If the court meant to say that a defendant who waives local custody credits and is sentenced to the maximum permissible state prison sentence will serve more time than someone who does not waive those credits, that undeniably is true and the potential certainly exists that the total time he ends up serving, including the time that he served in local custody and waived credit for, may exceed the term he was sentenced to (depending on the total credits waived and the credits received in state prison, as compared to the sentence imposed).   That potential, however, exists equally for a defendant who is sentenced to less than the maximum prison sentence, say a mitigated term;  apparently that potentiality was not of concern to the Tran court.   Why these two classes of defendants should be treated differently is not readily apparent from the Tran decision and would create an illogical anomaly.   As respondent points out, defendants who receive maximum terms, who presumably need the most motivation to perform well on probation, would be prohibited under the Tran rationale from waiving their custody credits, while those who receive lesser sentences would not, even though their credit waiver could potentially result in their serving more time than the term they were sentenced to.

The Tran court also reasons that “The only purpose served by the waiver condition is to lengthen appellant's prison sentence beyond the maximum allowed if he were to violate probation.   The waiver condition does not serve to deter him from future violations;  the suspended prison sentence is a sufficient deterrent.”  (People v. Tran, supra, 78 Cal.App.4th at p. 390, 92 Cal.Rptr.2d 815.)   The Tran decision also concludes that the waiver is not “necessary to persuade him to take seriously his conditions of probation because there is no basis for believing he will not do so.”  (Ibid.) The trial court in Tran had apparently concluded that a waiver of custody credits was necessary to provide further motivation to defendant to abide by the terms and conditions of his probation;  the Tran decision ignores this implicit finding and cites nothing to support its contrary conclusion.   Indeed, common sense would support the trial court's conclusion that holding a greater potential sentence over a defendant's head would be a greater incentive for that defendant to succeed on probation.5

 We conclude that the trial court properly required defendant to waive his custody credits, including his presentence credits, future credit for time spent in county jail awaiting transfer to the program, and future credit that would otherwise be available for the time spent in the treatment program.   Although this waiver may result in defendant actually serving a total time in custody which exceeds the term to which he was sentenced, and even though that term was the maximum term of six years, this mere potentiality does not invalidate his waiver.   Defendant entered into a bargain with the trial court;  he received a benefit in a chance at probation in return for his waiver of these custody credits.   We will not permit defendant to trifle with the courts by first accepting this offer of leniency and then seeking to reap its benefits without suffering its detriment by challenging on appeal the very bargain which he entered into.6



The judgment is affirmed.


1.   All further references are to the Penal Code.

2.   Section 2900.5, subdivision (a) provides that a defendant shall be credited upon his term of imprisonment with all days he has spent in local custody, including those served as a term of probation.   The court noted in Ambrose that the term “in custody” as used in section 2900.5, subdivision (a) has never been precisely defined.  (People v. Ambrose, supra, 7 Cal.App.4th at pp.1921-1922, 9 Cal.Rptr.2d 812, citing People v. Reinertson (1986) 178 Cal.App.3d 320, 326, 223 Cal.Rptr. 670.)

3.   In order to forestall any future claims of ineffective assistance of counsel based on the inadequacy of defense counsel's objection below, we will address the merits of defendant's argument on appeal.

4.   We can discern no rights of the public in the interest waived.   Further, public policy would not be offended by such a waiver.   This is not a situation wherein defendant would be submitting himself to a sentence of unknown duration.   He was sentenced to a discrete, and known, term of six years.   He was aware of what periods of credit and potential credit he was waiving.   To permit a defendant to suffer such a limited and known detriment, in return for the great benefit of the opportunity to be placed on felony probation, does not offend the public policy embodied in section 1170, subdivision (a)(1) (providing for uniformity in sentencing through fixed determinate sentences), as claimed by defendant, even where it might result in his ultimately serving more than the maximum sentence provided for the crime to which he pleaded no contest.   Indeed, finding that such a waiver violates public policy could well lead to an end result that defendants who most ardently seek one last chance at a felony probation disposition (those most likely to receive a maximum state prison suspended sentence conditioned upon waiver of custody credits) may end up with a straight state prison sentence if this option is no longer open to trial courts.   As the United States Supreme Court explained in rejecting the proposition that waiver of trial by jury in criminal cases is against public policy, “ ‘ “[T]o deny [a defendant] in the exercise of his free choice the right to dispense with some of these safeguards ․ is to imprison a man in his privileges and call it the Constitution.”  [Citation.]’  Faretta v. California (1975) 422 U.S. 806, 815, 95 S.Ct. 2525, 45 L.Ed.2d 562,” as quoted in People v. Trejo (1990) 217 Cal.App.3d 1026, 1032, 266 Cal.Rptr. 266 [finding no violation of public policy in permitting defendant to waive right to twelve-person jury and agree to jury of six in criminal case].  (Id., at p. 1033, 266 Cal.Rptr. 266.)

5.   Interestingly, counsel for defendant appeared to take the position at oral argument that the requirement of a waiver of custody credits would be acceptable, even when the court was imposing a maximum state prison suspended sentence, if it occurred in the context of a probation revocation proceeding.   This would be so, argued counsel, as the court would then be justified in believing that the defendant needed additional motivation to comply with the terms and conditions of probation.

6.   In light of our determination that the trial court's requirement of a waiver of local custody credits did not result in an unauthorized sentence, we need not enter into counsel's debate as to the proper disposition if we disapproved of the waiver requirement.   We would not, however, necessarily embrace the remedy being sought by defendant, the disposition in the Tran case, which would result in our directing the trial court to enter a probationary sentence that does not require a waiver of custody credits.   Further, even if we were concerned about defendant's waiver because he might potentially serve more than the maximum sentence, it is not clear why only that part of the waiver which would result in defendant serving more than the maximum sentence permitted under the law would be invalid.   As the court in Ambrose indicated under the facts of that case, if the sentence thus imposed resulted in the defendant serving more than the maximum permitted by law, he “would be entitled to discharge from custody ․ if and when his total custodial time, including time at the ranch, equaled the maximum incarceration period.”  (People v. Ambrose, supra, 7 Cal.App.4th at p.1924, 9 Cal.Rptr.2d 812.)


REARDON, Acting P.J., and CHIANTELLI, J.*, concur.

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