People v. UC-Menjivar CA1/4

Filed 9/30/15 P. v. UC-Menjivar CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A143182 v. CHRISTOPHER VLADAMIR UC- (Lake County MENJIVAR, Super. Ct. No. CR932230) Defendant and Appellant.

I. INTRODUCTION After appellant Christopher UC-Menjivar committed multiple probation violations, the trial court agreed to continue him on probation in exchange for appellant’s waiver of custody credits for any future violations. Thereafter, at three subsequent hearings the trial court found appellant to have violated the terms of his probation, and extended his probation without applying any custody credits, and without objection by appellant. Now for the first time on appeal, appellant claims that his waiver was ambiguous and not knowingly and intelligently made, and he should have been awarded custody credits toward the three-year county jail sentence he received ultimately. We disagree, and affirm the judgment.

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II. FACTUAL AND PROCEDURAL BACKGROUND In 2009, at the age of 12, appellant was adjudged a ward of the juvenile court and placed on probation in a group home. The wardship petition alleged that appellant had committed assault with a deadly weapon, vandalism, and participated in a criminal street gang. In the following four years, appellant admitted to more than a dozen violations of probation. In 2013, when appellant was 16 years old, he was found unfit for further adjudication in juvenile court, and his case was transferred to superior court. In December 2013, appellant appeared before the court and admitted three probation violations: possession of marijuana, possession of a knife, and dressing in gang colors. At sentencing, the court stated that the probation report recommended a waiver pursuant to People v. Johnson (2002) 28 Cal.4th 1050 (Johnson waiver) for any future violations, and asked if appellant was willing to agree to the waiver. Counsel responded: “Yeah. I spoke with [appellant] about that, and he understands that the Johnson waiver in effect would say although he is being given credit for time served as of now, should he have a violation of probation in the future, for either a violation of the terms and conditions of his probation or a new law violation, he would then have no credits to rely on at that point. You’re back to square one, clean slate, zero. You understand that, [appellant]?” Appellant responded “Yes, sir.” Counsel then inquired: “And you agree to that?” and appellant again responded “Yes, sir.” The court revoked appellant’s probation and stated: “The defendant has now waived credits for any future violations.” The court ordered appellant to serve 196 days in juvenile hall, but applied the 196 credits he had accrued up to that time. Appellant next appeared before the court in February 2014, and admitted three additional probation violations (possessing a knife, being suspended from school, and wearing gang clothing and tattoos). The court revoked his probation and reinstated him on probation essentially with the same terms and conditions as ordered in December 2013, except that his probation term was extended two years. Appellant also was ordered to serve 180 days in juvenile hall with “credit for zero days.”