Filed 11/14/13 P. v. Hart CA1/5


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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,
                                                                         A138076
         Plaintiff and Respondent,
                   v.
                                                                         (Sonoma County Super. Ct.
CHILICO DAVID HART,                                                      Nos. SCR-599406, SCR-607909,
                                                                         SCR-611461 & SCR-620586)
         Defendant and Appellant.

         Chilico David Hart (appellant) was convicted and pled no contest to various
offenses in four criminal cases, and the trial court imposed a total prison term of five
years eight months. Appellant’s counsel has raised no issue on appeal and asks this court
for an independent review of the record to determine whether there are any arguable
issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d
436.) Appellant has filed a supplementary brief contending that his sentence is unlawful
because the total sentence exceeds the maximum authorized sentence, if periods of
probation for which appellant waived custody credits are treated as part of the total
sentence. We find no arguable issues and affirm.




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                                     BACKGROUND
       In June 2011, in SCR-599406, appellant was convicted of burglary (Pen. Code,
§ 459),1 grand theft (§ 487, subd. (a)), receiving stolen property (§ 496, subd. (a)), and
possession of matter depicting sexual conduct of persons under 18 years of age
(§ 311.11). In September, appellant was placed on formal probation for three years, on
the condition that he enter a residential treatment program at Redwood Gospel Mission.
In October, probation was summarily revoked.
       In January 2012, in SCR-607909, appellant was convicted of burglary (§ 459) and
vandalism (§ 594, subd. (a)). Also in January 2012, appellant was convicted of
possession of a controlled substance by a prisoner (§ 4573.6). In March 2012, the trial
court sentenced appellant to a prison term of five years and suspended execution of that
sentence, placing appellant on probation on the condition that he again participate in the
residential treatment program at Redwood Gospel Mission. Appellant waived 349 days
of custody credits, plus future credits for time spent in the treatment program.
       In April 2012, the trial court found appellant violated probation. In May, the court
resentenced appellant to a total prison term of five years.2
       In November 2012, in SCR-620586, appellant pled no contest to a charge of
stalking (§ 646.9, subd. (a)). In January 2013, the trial court added a consecutive eight
months to the sentence imposed on the other three cases, for a total prison term of five
years eight months. The court also imposed various fines. This appeal followed.
                                       DISCUSSION
       We have reviewed the entire record and have found no arguable appellate issues.
       In his supplementary brief, appellant contends the sentence imposed by the trial
court is unlawful because the total sentence exceeds the maximum statutory authorized
sentence, if periods for which appellant waived custody credits are treated as part of the

1   All further undesignated statutory references are to the Penal Code.
2  Appellant appealed from that sentence in People v. Hart (A135870, Dec. 5, 2012),
and we affirmed following our independent review of the record pursuant to People v.
Wende, supra, 25 Cal.3d 436.
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total sentence. His claim is foreclosed by the California Supreme Court’s decision in
People v. Johnson (2002) 28 Cal.4th 1050 (Johnson). Johnson held that, because
“defendants may waive provisions that are intended for their benefit” (id. at p. 1057), a
defendant may expressly waive entitlement to credits for past and future days in custody
against an ultimate prison sentence, provided the waiver is knowing and intelligent (id. at
pp. 1054-1055). In the present case, appellant knowingly and intelligently waived prior
and future custody credits when he was placed on probation in March 2012. Johnson
further held that a trial court may, in addition to conditioning probation on waiver of
custody credits, impose a suspended sentence of the maximum length authorized by law.
(Id. at pp. 1055, 1057-1058.) Johnson pointed out that, “when probation is conditioned
upon completion of a residential treatment program, custody credit waivers ensure the
defendant’s ‘optimum chances of success in [the] treatment program, while reserving an
appropriate sentence if, despite the opportunity received, the treatment program and
probation are not completed.’ ” (Id. at p. 1056.) Johnson further explained that such a
waiver gives a defendant “an incentive to successfully complete the residential treatment
program based on the knowledge that failure to do so would expose him to imposition of
the [maximum] prison sentence unreduced by previously served custodial time.” (Id. at
pp. 1056-1057.) The trial court relied on similar reasoning in requiring the custody credit
waiver in the present case.
       Appellant was adequately represented by legal counsel throughout the
proceedings. The trial court’s sentence and fines are not unlawful. There are no legal
issues that require further briefing.
                                        DISPOSITION
       The judgment is affirmed.




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                    SIMONS, J.



We concur.




JONES, P.J.




BRUINIERS, J.




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