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People v. Ventimiglia11/24/2004
n in People v. Arnold (2004) 33 Cal.4th 294, (Arnold), which effectively disposed of appellant's Johnson motion.
In Arnold the Supreme Court settled a split in the authorities and held 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.' " (Arnold, supra, 33 Cal 4th.294, 306, citing People v. Burks (1998) 66 Cal.App.4th 232, 234). The Arnold decision observed that: "A rule that gives back previously waived credits to a defendant as a consequence of his future violation of probation thus rewards him for his own misconduct. It is also unjust enrichment, as the defendant would be getting the benefit of the bargain reached at his original sentencing and later be permitted to revoke the consideration he gave up to obtain the benefit of that bargain. As a matter of sound sentencing policy, the law should not afford probationers incentives or rewards for refusing to comply with the terms and conditions of probation." (Arnold, supra, 33 Cal 4th 294 at p. 308.)
DISPOSITION
Accordingly, we deny the petition and affirm the judgment of the trial court.
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