People v. Jackson-Wagner, A101901 (Cal. App. 11/19/2003)

Page 1

Unpublished Opinion

THE PEOPLE, Plaintiff and Respondent, v. GLORIA ANN JACKSON-WAGNER, Defendant and Appellant.

A101901.

Court of Appeals of California, First Appellate District, Division One.

Filed November 19, 2003.

Solano County Super. Ct. No. FCR189069.

Swager, J.

Upon revocation of defendant's probation, the trial court imposed a state prison term, granted her sentence credits for her time spent in custody following her violation of probation, and imposed a restitution fine. Defendant argues that she was improperly denied an award of presentence credits, and asks that we strike the restitution fine as unauthorized. We find that defendant validly waived presentence credits upon entry of her plea, but strike the restitution fine as not authorized by statute.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Pursuant to a negotiated disposition, on November 9, 2001, defendant entered a plea of no contest to inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)).¹ The court suspended imposition of sentence and placed defendant on formal probation for a period of five years, upon the condition, among others, that she satisfactorily complete the Sisters residential treatment program, waive all sentence credits and pay a restitution fine.

After defendant was terminated from the Sisters program for rules violations, she admitted a violation of probation on December 6, 2002, and her probation was revoked. On January 31, 2003, the trial court imposed the middle term of three years in state prison. Defendant was granted a total of 116 days of sentence credits: 78 "actual days" plus 38 days of conduct credits (§ 4019). Another restitution fine of $ 200 was imposed pursuant to section 1202.4, subdivision (b).

DISCUSSION

I. The Waiver of Presentence Custody Credits.

Defendant argues that the trial court erred by failing to award her presentence custody credits for time served in county jail and the Sisters program. Defendant acknowledges her waiver of custody credits as a condition of her plea, but complains that the record does not establish she was expressly informed "that the waiver of credit would apply to a prison term if she violated her probation." She maintains that absent evidence of an express admonition or other indication in the record of her explicit understanding of the "ramifications of her waiver" of custody credits upon her entry of a plea, the scope of the waiver cannot extend to imposition of a "future prison sentence" upon revocation of probation.

Absent a waiver, defendant was entitled to sentence credits upon revocation of her probation and imposition of a state prison term. "Under section 2900.5, a defendant sentenced either to county jail or to state prison is entitled to credit against the term of imprisonment for days spent in custody before sentencing as well as those served after sentencing as a condition of probation. [Citations.] This provision also applies to custodial time in a residential treatment facility. (& sect; 2900.5.)" (People v. Johnson (2002) 28 Cal.4th 1050, 1053, fn. omitted.) However, "a defendant may expressly waive entitlement to section 2900.5 credits against an ultimate jail or prison sentence for past and future days in custody." (People v. Johnson, supra , at pp. 1054-1055; see also People v. Tran (2000) 78 Cal.App.4th 383, 387-388.)

Defendant's challenge to her waiver of credits raises two interrelated issues that are determinative of the validity and extent of a waiver of the rights—in this case, to sentence credits—upon entry of a plea: the voluntariness of the waiver, and the scope of the rights relinquished pursuant to the plea bargain. "As with the waiver of any significant right by a criminal defendant, a defendant's waiver of entitlement to section 2900.5 custody credits must, of course, be knowing and intelligent." (People v. Johnson, supra, 28 Cal.4th 1050, 1055; see also People Salazar (1994) 29 Cal.App.4th 1550, 1553.) Under the general governing test, a plea is valid "if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances." (People v. Howard (1992) 1 Cal.4th 1132, 1175; see also North Carolina v. Alford (1970) 400 U.S. 25, 31; People v. Torres (1996) 43 Cal.App.4th 1073, 1082; People v. Knight (1992) 6 Cal.App.4th 1829, 1831-1832.)

"When a defendant pleads guilty or nolo contendere, whether or not the plea is pursuant to a plea bargain, [she] must be advised of and waive [her] rights of self-incrimination, confrontation and jury trial [citations], and must be advised of the direct consequences of the plea, including the maximum possible penalty. [Citation.] [¶] The validity of a guilty or nolo contendere plea requires a record demonstrating that the defendant understood the nature of the charges and the direct consequences of conviction, including the possible range of punishment." (People v. Lytle (1992) 10 Cal.App.4th 1, 4; see also People v. Crosby (1992) 3 Cal.App.4th 1352, 1354-1355.) "[B]efore a defendant agrees to waive custody credit to which [she] is entitled, [she] should understand the full consequences of the waiver." (People v. Ambrose (1992) 7 Cal.App.4th 1917, 1922-1923.) "An awareness of the [full] consequences of waiving any right should include an understanding of the impact of that waiver on the amount of time a defendant may be incarcerated." (Id. at p. 1922.) "There is no specific formula for advising a defendant of his or her rights, and none is required as long as the record, in light of the totality of circumstances, `shows by direct evidence that the accused was fully aware of [her] rights.' [Citations.]" (People v. Murillo (1995) 39 Cal.App.4th 1298, 1304.) And even in the absence of a specific admonition on the record, a waiver of rights pursuant to a plea is not invalidated if the record otherwise shows, from the totality of circumstances, that it was voluntary and intelligent. (People v. Howard, supra , 1 Cal.4th 1132, 1175; People v. Salazar, supra, 29 Cal.App.4th 1550, 1554, fn. 1.) "The voluntariness of a waiver is a question of law which appellate courts review de novo." (People v. Panizzon (1996) 13 Cal.4th 68, 80.)

A waiver of the right to credits upon imposition of sentence also cannot contravene the terms of the plea bargain. (People v. Harris (1987) 195 Cal.App.3d 717, 720-721.) " ` "`A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound.' " ' (People v. Armendariz (1993) 16 Cal.App.4th 906, 911 [20 Cal.Rptr.2d 311].)" (People v. Vargas (2001) 91 Cal.App.4th 506, 533.) " `While no bargain or agreement can divest the court of the sentencing discretion it inherently possesses [citation], a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain. . . .' [Citation.]" (People v. Cunningham (1996) 49 Cal.App.4th 1044, 1047.) "`When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon.' [Citation.] It is well settled that a disposition harsher than that agreed to by the court or the prosecution may not be imposed on a defendant." (In re Jermaine B. (1999) 69 Cal.App.4th 634, 639; see also People v. Masloski (2001) 25 Cal.4th 1212, 1216-1217; People v. Delgado (1993) 16 Cal.App.4th 551, 554.) "Accordingly, `[w]hen either the prosecution or the defendant is deprived of benefits for which it has bargained, corresponding relief will lie from concessions made.' " (People v. Collins (1996) 45 Cal.App.4th 849, 863, quoting People v. Collins (1978) 21 Cal.3d 208, 214.) "Failure of the state to honor the agreement violates the defendant's due process rights for which the defendant is entitled to some remedy." (People v. Lopez (1998) 66 Cal.App.4th 615, 636; see also People v. Campbell (1994) 21 Cal.App.4th 825, 829.)

Courts interpret the terms of a plea agreement under fundamental contract principles. (People v. Armendariz, supra, 16 Cal.App.4th 906, 911; People v. Ames (1989) 213 Cal.App.3d 1214, 1217;People v. Haney (1989) 207 Cal.App.3d 1034, 1037; Leo v. Superior Court (1986) 179 Cal.App.3d 274, 283; People v. Alvarez (1982) 127 Cal.App.3d 629, 633.) Using the paradigm of contract law, a waiver of rights must be analyzed in terms of the reasonable expectations of the parties. (People v. Kelly (1994) 22 Cal.App.4th 533, 536; People v. Nguyen (1993) 13 Cal.App.4th 114, 120.) "[T]he scope of the waiver is approached like a question of contract interpretation—to what did the parties expressly or by reasonable implication agree?" (In re Uriah R . (1999) 70 Cal.App.4th 1152, 1157.) " `The court should accord an interpretation which is reasonable (Civ. Code, § 1643) and which gives effect to the intent of the parties as it may be interpreted from their entire agreement . . . .' " (People v. Haney, supra, at p. 1038, citation omitted.) The crucial inquiry is whether the ultimate sentence imposed "involves a bargained-for provision related to the plea agreement or a judicially imposed, unrelated, unbargained-for term." (People v. Casillas (1997) 60 Cal.App.4th 445, 453.) A trial court may not accept a proffered plea bargain, then attach a new provision or condition to the final bargain without the defendant's consent. (People v. Jensen (1992) 4 Cal.App.4th 978, 981; People v. Morris (1979) 97 Cal.App.3d 358, 360-362.)

According to the record before us, defendant executed a waiver of rights form that specified she had been advised of and understood the consequences of her plea. The form did not refer to sentence credits. At the entry of plea hearing, defendant reiterated that she understood the consequences of the plea as "set forth on the form." The plea bargain negotiated by defendant called for...