Filed 4/1/15 P. v. Temple CA3

                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----




THE PEOPLE,                                                                                  C076517

                   Plaintiff and Respondent,                                     (Super. Ct. Nos. 62106176,
                                                                                         62098759)
         v.

CHRISTOPHER JOHNNY TEMPLE,

                   Defendant and Appellant.




         Defendant Christopher Johnny Temple pleaded no contest to solicitation of murder
(Pen. Code, § 653f, subd. (b))1 pursuant to People v. West (1970) 3 Cal.3d 595 and
admitted a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) in
exchange for a stipulated term of 12 years and dismissal of pending charges in another
case.



1   Further undesignated statutory references are to the Penal Code.

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       On appeal, defendant contends the trial court erred in failing to award him 174
days of conduct credit accrued in the dismissed case. The People respond that defendant
waived his right to the credit--and his appellate rights--pursuant to a stipulation entered
after sentencing. We disagree and modify the judgment to award defendant the disputed
174 days.
                  FACTUAL AND PROCEDURAL BACKGROUND
       We dispense with a recitation of the facts surrounding defendant’s crimes as they
are not relevant to the issue raised on appeal.
       On August 18, 2010, defendant was charged in case No. 62-098759 (the
kidnapping case) with kidnapping during a carjacking (§ 209.5, subd. (a); count one) and
carjacking (§ 215, subd. (a); count two). It was further alleged that defendant had
sustained one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and
three prior prison terms (§ 667.5, subd. (b)). On May 5, 2011, defendant was charged in
case No. 62-106176 (the murder case) with solicitation of murder (§ 653f, subd. (b)), as
well as the strike and three prior prison terms.
       After defendant resolved his cases by plea agreement and then successfully moved
to withdraw from his pleas, on March 7, 2014, he again entered a written plea agreement
resolving both of his pending cases. He pleaded no contest to solicitation of murder and
admitted the prior strike allegation in exchange for a stipulated term of 12 years in state
prison and dismissal of the kidnapping case. At the end of the change of plea hearing, the
trial court (Pineschi, J.) stated, “So I’ll accept the plea as given and the admission, and
I’ll refer this gentleman to [the] Probation Department for a credits memo update. And
that’s the only reason we’re going to have Probation become involved, to establish [an]
update on his credits.”
       The probation department submitted a credit memo shortly thereafter. According
to the credit memo, defendant had 1088 actual days served and 544 “case law credit,” for
a total of 1,632 days in the murder case. The credit memo also indicated that defendant

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had 350 actual days served and 174 “case law credits,” for a total of 524 days in the
kidnapping case. (We assume, as do the parties, that “case law credit” is the term that
particular probation officer chose to use for conduct credits.)
       Defendant appeared for sentencing on April 11, 2014. After pronouncing
defendant’s sentence, the trial court (Curry, J.) asked: “Do we know his credits to date?
It’s my understanding, just so it’s clear, pursuant to plea agreement he was to receive
credits all the way back including a prior case that’s being dismissed.” (Italics added.)
The parties agreed that all of defendant’s credits, in both cases, were to be applied to the
murder case. However, there was confusion as to the rate of accrual of conduct credits.
In continuing the case for calculation of credits, the trial court told defense counsel:
“Whatever the People and you agree on, I would stipulate to that amount.”
       The parties appeared before the trial court on April 24, 2014, and the following
discussion occurred:
   “[THE COURT]: The record should reflect back on April 11th the defendant was
sentenced by this Court to [prison] for the sentence of 12 years, but we put the matter
over until today to iron out the credits. I believe after speaking to counsel back in
chambers, we reached a stipulation between [defendant] and the prosecution. Correct me
if I’m wrong, [defense counsel]. I think it was concluded that he would have --
   “[DEFENSE COUNSEL]: Additional 350 days on [the kidnapping] case [.]
   “[THE COURT]: Right. We’re going to calculate the credits for the abstract as of
today’s date, April 24th. His actual number of days is going to be 1,438 plus conduct
credit of 544 for total of 1,982 days.
   “[DEFENSE COUNSEL]: That’s correct.
   “[PROSECUTOR]: That is what the People would stipulate to. I believe the defense
would stipulate to that as well. That is also with an agreement that the People will not
file any criminal charges relating to an assault or battery that occurred while in custody
on a date that is reflected in [defendant’s] paperwork that was shown to me.

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    “[DEFENSE COUNSEL]: That’s April 15th, 2014 at approximately 1524 hours at
the jail.
    “[THE COURT]: This is a stipulated agreement to the credits, so there won’t be any
argument or appeal on the issue. Correct, Counsel?
    “[DEFENSE COUNSEL]: Correct.”
    There is no written record of the parties’ stipulation in the record before us, other than
a minute order prepared after the hearing.
        Following a brief discussion, the prosecutor asked, “Do we need a personal
acceptance of those credits from defendant?” The trial court responded, “It was
stipulated by all parties as far as [the] plea agreement. The Court feels that is [a]
sufficient waiver of any appellate rights.” Neither party disagreed.
        The abstract of judgment reflects that defendant received a total of 1,982 days of
custody credit, consisting of 1,438 actual days and 544 days of conduct credit.
        Defendant filed a timely notice of appeal.
                                       DISCUSSION
        Defendant contends the trial court erred in failing to award him 174 days of
conduct credit accrued in the kidnapping case. The People respond first that defendant
waived his right to appeal the credit determination pursuant to the parties’ stipulation.
Second, the People contend that defendant waived conduct credit in the kidnapping case
pursuant to the same stipulation. We find no valid waivers.
                                              I
                                 Waiver of Appellate Rights
        In People v. Panizzon (1996) 13 Cal.4th 68 (Panizzon), our Supreme Court held
that a criminal defendant could expressly waive the right to appeal, so long as the waiver
was knowing, intelligent, and voluntary. (Id. at p. 80.) In upholding the defendant’s
waiver in Panizzon, the court found it significant that the written change of plea form
included express advisements of the defendant’s appellate rights, and express waiver of

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those rights by the defendant. (Id. at pp. 80-82.) In the present case, by contrast,
defendant’s appellate rights were only mentioned briefly at the continued hearing on
defendant’s custody credits.
       During the hearing, the trial court asked counsel to confirm “there won’t be any
argument or appeal on the issue” of custody credits. Although defense counsel answered
in the affirmative, the record is otherwise silent with respect to defendant’s purported
waiver. As the People necessarily concede, there is nothing in the record to suggest that
defendant expressly waived his right to appeal, either orally or in writing. Furthermore,
there is nothing in the record to support the conclusion that any purported waiver was
knowing, intelligent, or voluntary. As such, the present case is closer to People v. Rosso
(1994) 30 Cal.App.4th 1001, a case Panizzon distinguished, than it is to Panizzon.
       In distinguishing Rosso, the Panizzon court wrote: “In that case, the reviewing
court rejected the People’s claim that the defendant had orally waived his appellate rights
as follows: ‘ “[The Court]: [H]ave you discussed these [constitutional] rights with your
attorney? [¶] [Rosso]: Yes. [¶] [The Court]: Do you understand each and every one of
these rights? [¶] [Rosso]: Yes, I understand. [¶] [The Court]: Do you waive and give
up these rights and your right to appeal? [¶] [Rosso]: Yes, I waive them.” ’ [Citation.]
As noted in the decision, however, this was the only mention of appellate rights. The
record in that case, unlike that here, apparently contained no evidence of a written waiver
of appellate rights read and signed by the defendant after discussion with his attorney and
no evidence that an attorney had explained the right to appeal to the defendant.
Consequently, People v. Rosso, supra, stands in sharp contrast to the instant situation and
does not call for a different result.” (Panizzon, supra, 13 Cal.4th at pp. 84-85.)
       In Rosso, as here, there was no written waiver of appellate rights read and signed
by defendant after discussion with counsel, or evidence that counsel or the court
explained the right to appeal to defendant. Therefore, in accordance with Rosso, we



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conclude on this record that defendant did not waive his right to appeal custody credit
issues.
                                                II
                                   Waiver of Conduct Credits
          Criminal defendants are entitled to credits for actual time spent in custody prior to
sentencing or as a condition of probation (§ 2900.5), and to additional credits for conduct
and work performed during presentence custody (§ 4019). “It shall be the duty of the
court imposing the sentence to determine the date or dates of any admission to, and
release from, custody prior to sentencing and the total number of days to be credited
pursuant to this section.” (§ 2900.5, subd. (d); see People v. Vargas (1988)
204 Cal.App.3d 1455, 1469, fn. 9.)
          A defendant may waive entitlement to credits for past and future days in custody
against an ultimate prison sentence, provided the waiver is voluntary, knowing and
intelligent. (People v. Johnson (2002) 28 Cal.4th 1050, 1054-1055.) “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. Burks (1998) 66 Cal.App.4th 232, 236, fn. 3.) “ ‘[A]
custody credit waiver may be found to have been voluntary and intelligent from the
totality of the circumstances, even if the sentencing court failed to follow the ‘better
course’ of specifically advising the defendant regarding the scope of his waiver.’ ”
(People v. Arnold (2004) 33 Cal.4th 294, 306, quoting Burks, supra, 66 Cal.App.4th at
p. 235.)
          Here, defendant pleaded no contest to solicitation of murder with the
understanding that he would receive presentence custody credits accrued in the
kidnapping case as well. When questions were raised about the credit calculation, the
trial court continued the hearing and invited the parties to “work it out . . . .”



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       At the continued hearing, the parties engaged in off-the-record negotiations
resulting in a stipulation whereby defendant would receive custody credit for 350 actual
days in the kidnapping case, but no conduct credits. While the plea agreement
contemplated that defendant would receive all of his accrued credits in both cases, the
stipulation departed from the agreement, stripping 174 days of conduct credit from
defendant’s benefits under the plea bargain.
       Although the People contend defendant waived his right to conduct credits in
exchange for an agreement that no additional charges would be filed against him, why he
waived is not the issue; the issue is whether he waived a previously agreed-upon
condition of his plea, post-plea, in a manner sufficient to withstand review for validity of
that purported waiver. Defense counsel’s assertion that “there won’t be any argument or
appeal on the issue” does not amount to a knowing and intelligent waiver on the part of
defendant. Nor does defendant’s failure to object (on his own) to the trial court’s
summary of the stipulation constitute a knowing and intelligent waiver of his right to the
custody credits under the original plea agreement, as the People seem to suggest.
       On this record, we find that defendant did not knowingly and intelligently waive
his right, to which all parties had previously agreed, to have all of the presentence credit
from the dismissed case applied to his sentence in the instant case.




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                                     DISPOSITION
       The judgment is modified to add 174 days of conduct credit. As modified, the
judgment is affirmed. The trial court is directed to prepare an amended abstract of
judgment and to forward a certified copy to the Department of Corrections and
Rehabilitation.



                                                       DUARTE               , J.



We concur:



      BLEASE               , Acting P. J.



      BUTZ                 , J.




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