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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.”


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         Appellant appeared again in July 2014 and admitted three more probation
violations (violating curfew, associating with gang members, and violating Penal Code
section 459 (burglary)).1 The parties agreed to a disposition of 30 days in juvenile hall.
The probation officer stated that appellant had credits: 13 days actual and 12 days of
conduct credit for 25 days. The court sentenced him to 30 days in juvenile hall and
stated: “With credits as follows[:] 13 actual, 12 behavior, total 25. It’s a half-time case.
He’s ordered to report to the probation department within 48 hours of your discharge
from custody.” However, the minute order relating to that hearing stated: “The defendant
will serve a period of thirty days in the Lake County Juvenile Hall, with credit for zero
days previously served and credit for zero days of behavior credits for a total of zero
days.”
         In September 2014, appellant admitted two probation violations (possessing a
weapon and dressing as a gang member). The court inquired if there was any agreement
as to sentencing and defense counsel responded: “[A]ccording to the report, there was a
Johnson waiver entered, it says for all past and future credits. I don’t know whether that
would apply to his current period in custody, however.” The court responded “[t]ypically
not.” Later during the hearing defense counsel stated: “He’s got 286 days of credit that
he Johnson waived away. . . . [I]f the Court is going to enforce the Johnson waiver I
believe he should get credit for his current period of incarceration on this latest
violation.” The prosecutor reminded the court that appellant’s credits were waived up to
the time of sentencing. The probation officer clarified that “the defendant entered a
Johnson waiver waiving past, present, and future custody credits. That would include up
to the time of sentencing, all presentence credits.” The court imposed a term of three
years in county jail and stated: “He waived all his credits. He has zero credits.” The
court advised appellant that credit for presentence incarceration is calculated by the
probation department, but “[y]ou have none because you waived all those credits. That’s
why I put you [on] probation again last time.”

         1
             All further undesignated statutory references are to the Penal Code.


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                                             III.
                                       DISCUSSION
       Appellant argues his Johnson waiver at the December 2013 sentencing only
applied to the sentence imposed at that hearing, and did not waive other past or future
credits.
       Preliminarily, we note that respondent argues appellant has waived his right to
raise this argument by failing to raise the issue in the trial court. Section 1237.1 states:
“No appeal shall be taken by the defendant from a judgment of conviction on the ground
of an error in the calculation of presentence custody credits, unless the defendant first
presents the claim in the trial court at the time of sentencing . . . .” (§ 1237.1.) An error
in the calculation of the custody credits means a mathematical or clerical error. (People
v. Delgado (2012) 210 Cal.App.4th 761, 767.) Section 1237.1 does not apply barring an
appeal where principles of statutory construction and constitutional law are at issue.
(People v. Delgado, at p. 767.)
       Appellant contends that because the issue he raises on appeal does not involve an
arithmetic or clerical error the forfeiture provision in section 1237.1 is inapplicable. (See
generally People v. Aguirre (1997) 56 Cal.App.4th 1135, 1139.) We agree. The sole
issue raised relates to whether appellant’s waiver of all credits, no matter how calculated
and applied, had been knowingly made. Therefore, we evaluate his claim on the merits.
       “A Johnson waiver is a waiver of a statutory right to credit for time served against
a subsequent county jail or state prison sentence pursuant to section 2900.5.” (People v.
Arnold (2004) 33 Cal.4th 294, 307 (Arnold).) “ ‘To determine whether a waiver is
knowing and intelligent, the inquiry should begin and end with deciding whether the
defendant understood he was giving up custody credits to which he was otherwise
entitled.’. . .” (People v. Jeffrey (2004) 33 Cal.4th 312, 320 (Jeffrey), quoting People v.
Burks (1998) 66 Cal.App.4th 232, 236, fn. 3.)
       In Arnold, the Supreme Court held that when a defendant knowingly and
intelligently enters into a Johnson waiver to avoid a prison sentence, thus waiving local
jail time custody credits if he violates probation, then the waiver is for all purposes and


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applies to any future use of such credits should probation ultimately be terminated and a
previously suspended state prison sentence imposed. (Arnold, supra, 33 Cal.4th at
pp. 308-309.) “Arnold holds that a knowing and intelligent Johnson waiver of local jail
time custody credits is a waiver of such credits for all purposes, and that such waived
credits may not be recaptured and applied against a subsequently imposed prison
sentence in the event probation is revoked and a prison term imposed due to the
defendant’s own unlawful or unsatisfactory conduct while on probation. [Citations.]”
(Jeffrey, supra, 33 Cal.4th at p. 317.) The waiver can also apply to future custody credits.
“[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.” (Johnson, supra, 28
Cal.4th at pp. 1054-1055, italics added.)
       In Jeffrey, a companion case to Arnold, the court addressed whether the waiver of
future custody credits is a waiver of such credits for all purposes, including application to
a subsequently imposed prison term if probation is revoked. (Jeffrey, supra, 33 Cal.4th
312.) Jeffrey involved the waiver of future credits to be earned in a residential treatment
program. The Jeffrey court held that the rule in Arnold applies equally to the waiver of
future custody credits. (Id. at p. 318.) The court concluded there was no indication in the
record that at the time defendant entered into the Johnson waiver, she believed she would
be able to recapture her past or future custody credits to reduce a possible future prison
term. (Id. at p. 319.)
       Appellant argues that the Johnson waiver only applied to the credits for the
sentence imposed at the waiver hearing itself. He asserts the waiver advisement was
ambiguous because he may have only understood it to apply to the credits earned on the
date of the waiver hearing. This suggestion is unreasonable in part because appellant
actually received 196 days of accrued credit at the waiver hearing in December 2013.
Since appellant served no time in custody as the result of the violations he admitted at
that hearing, he could not have understood the Johnson waiver applied only to those
credits earned up to December 2013.



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       Further, at the December 2013 hearing defense counsel and the court both clearly
articulated that the waiver would apply to future violations. The court stated: “The
defendant has now waived credits for any future violations.” (Italics added.) Defense
counsel advised the court that appellant “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.”
       We disagree that this advisement was ambiguous. The court, appellant, and
appellant’s counsel all agreed that appellant’s current credits applied and the Johnson
waiver impacted any violations of probation in the future. Like Jeffrey, there is nothing
said or implied that would have led appellant to believe he could recapture his past or
future custody credits if his probation was revoked and a jail or prison term was later
imposed. (See Jeffrey, supra, 33 Cal.4th at pp. 319-320 [the defendant does not point to
“any factual basis for us to conclude that she understood her waiver to be anything other
than a waiver of custody credits, both present and future, for all purposes, plain and
simple”].)
       Appellant argues that the trial court was “inconsistent” in its application of the
Johnson waiver and this demonstrates it was ambiguous. There were a total of three
hearings after the waiver hearing, held over a period of nine months. At the February
2014 hearing on three probation violations, the court ordered appellant to serve 180 days
in juvenile hall with “credit for zero days.” At the July 2014 hearing where appellant
admitted three probation violations, the court adopted the parties’ recommendation of 30
days in juvenile hall. When sentencing appellant, the court ordered him to serve 30 days
in juvenile hall, but itemized 25 days of accrued credit. The minute order, however,
stated that appellant was sentenced to 30 days with zero custody credits. At the third
hearing in September 2014, where the court imposed three years in county jail, it stated
that appellant had waived his credits and he had “zero credits.”



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       Based on this record, we do not find the court’s course of conduct supports the
claim that the December 2013 waiver was ambiguous, or was not knowingly and
intelligently made. If at the July 2014 hearing the court initially stated that appellant had
accumulated 25 days of credit, it is unclear that those credits were being awarded. Even
if so, the court’s statement was the result of a momentary failure to recall that a Johnson
waiver had been made the previous December. That error was corrected in the hearing
minute order. Likewise, at the September 2014 hearing, once reminded that a Johnson
waiver was in place, the court did not hesitate to enforce it; again without objection by
appellant.
       Therefore, we conclude that the credit waiver entered on December 2013 was not
ambiguous, and that it was knowingly and intelligently made. The court clearly stated
that the waiver applied to “any future violations,” and neither appellant nor his counsel
expressed any question as to its meaning. In fact, defense counsel echoed this same
understanding in counsel’s advisement to appellant, who stated he understood what was
being explained. That appellant understood the scope of the waiver is supported by the
absence of any objections after December 2013 when appellant was told at subsequent
probation violation hearings that he was not being credited for any time served as a result
of those violations.
       Division One of this court has held that when appellant and his counsel did not
object to the court’s characterization of the Johnson waiver as for “all time and for all
purposes,” the record contained no affirmative evidence that appellant was not advised or
failed to understand the scope of the waiver. (People v. Salazar (1994) 29 Cal.App.4th
1550, 1555.) “Appellant’s silence in the face of each of these clear indications that the
court considered the . . . waiver to be ‘for all purposes’ supports the inference that he
understood the scope of the waiver.” (Id. at p. 1555; Burks, supra, 66 Cal.App.4th at
p. 236 [on an otherwise silent record, the waiver of credits is presumed to be a waiver for
all purposes].)
       Finally, we note that although it would have been preferable for the trial court to
advise appellant directly, the failure to do so does not invalidate the waiver. (Arnold,


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supra, 33 Cal.4th at p. 309 [trial court should expressly advise a defendant that he or she
is giving up his or her entitlement to custody credits, but the failure to do so will not
invalidate a Johnson waiver where “the defendant is otherwise found to have knowingly
and intelligently relinquished his or her right to custody credits under section 2900.5”].)
                                             IV.
                                      DISPOSITION
       The judgment is affirmed.




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                                     _________________________
                                     RUVOLO, P. J.


We concur:


_________________________
REARDON, J.


_________________________
RIVERA, J.




A143182, People v. UC-Menjivar


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