People v. Burks

Opinion

PARRILLI, J. We hold that when a defendant agrees to waive custody credits after violating probation, the waived credits may not be recaptured when probation is violated again, unless the agreement expressly reserves that right. In the absence of such a record, custody credits once waived may not be used again.

Lonnie Ray Burks appeals from a judgment sentencing him to two years in state prison following his third violation of probation. Probation was originally granted after Burks pleaded nolo contendere to a felony charge of stalking. Burks served a year in county jail as a condition of the grant of probation. After his first violation, he waived credit for the year he had served and was sentenced to 90 days in county jail. After his second violation, the court reinstated probation without imposing any jail time. Burks now contends he is entitled to the credit for time served that he waived when he was sentenced after his first probation violation. Because the court failed to advise him that his waiver would apply to a future prison term as well as to his county jail time, Burks claims his waiver was not knowing and intelligent. Although this argument is supported by People v. Harris (1987) 195 Cal.App.3d 717 [240 Cal.Rptr. 891] (Harris), we disagree with Harris and follow the earlier rule stated in People v. Zuniga (1980) 108 Cal.App.3d 739, 743 [166 Cal.Rptr. 549] (Zuniga)—a defendant “cannot use his own misconduct as a basis for setting aside the waiver which he executed as a condition for obtaining leniency in the first instance.”

Penal Code, section 2900.51 requires all time spent by a defendant in custody, and all “work time” and “good time” credits accrued under section 4019, to be deducted from the defendant’s term of imprisonment, including any term served as a condition of probation. (§ 2900.5, subds. (a) and (c).) Section 19.2 provides that a defendant may not be committed to a county jail term of more than a year as a condition of probation. A defendant may waive these statutory requirements, however. (People v. Johnson (1978) 82 Cal.App.3d 183, 187-188 [147 Cal.Rptr. 55]; People v. Bailey (1983) 140 Cal.App.3d 828, 831-832 [189 Cal.Rptr. 918].) It is now common practice for defendants to waive custody credits so as to avoid going to state prison [235]after a probation violation. The waiver allows the court to reinstate probation on the condition that the defendant serve more time in jail. (People v. Salazar (1994) 29 Cal.App.4th 1550, 1555 [35 Cal.Rptr.2d 221].)