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People v. Susoeff1/29/2004
In January 2002, in Marin County, defendant Rex Susoeff pleaded guilty to, and was convicted of, driving under the influence of alcohol with three prior drunk driving convictions (Veh.Code, §§ 23152, subd. (a), 23550), driving under the influence with a blood alcohol content above 0.08 percent with three priors (Veh.Code, §§ 23152, subd. (b), 23550), and knowingly driving with a license suspended due to a prior drunk driving conviction (Veh.Code, § 14601 .2, subd. (a)). In February 2002, the trial court suspended imposition of sentence and placed defendant on probation conditioned on serving 240 days in jail and completing a residential alcohol treatment program.
In July 2002 the probation department filed a petition to revoke defendant's probation based on his absconding from an alcohol treatment facility. In March 2003 defendant was convicted in San Mateo County of recklessly evading a police officer. (Veh.Code, § 2800.2.) On May 12, 2003, the Marin court revoked defendant's probation and sentenced him to three years in state prison on the original Marin charges plus eight months on the San Mateo charge. After continuing proceedings to consider appellant's request for presentence credit for time served in the treatment program, the court ordered that no credit be allowed. Appellant filed a timely notice of appeal.
Defendant contends that the trial court erred in denying him credit for time spent in the treatment program because the record fails to show an effective waiver of such credit under People v. Johnson (1978) 82 Cal.App.3d 183, 188- 189. Petitioner notes, and respondent concedes, that while the prosecutor at the original sentencing asked the court to require a Johnson waiver, the court did not do so. No knowing and voluntary waiver, as required by current authorities, appears in the record. [FN1] Respondent concedes that, on this record, defendant was entitled to credit for time spent in the treatment program. The parties agree that the judgment should be amended to reflect 97 additional days' credit.
FN1. Defendant notes that when he was paroled from his original jail sentence he signed a form reciting among other things that if he violated any of the governing terms and conditions, he would "lose credit for any time already served on parole and may lose good time credits." As defendant asserts and respondent concedes, defendant's signature on this form is insufficient, under current authorities, to establish the requisite "knowing and intelligent" waiver. (See People v. Salazar (1994) 29
Cal.App.4th 1550, 1553, 1554; People v. Ambrose (1992) 7 Cal.App.4th 1917, 1922-1923.) The issue of what constitutes an adequate Johnson waiver is pending before the California Supreme Court.
DISPOSITION
The judgment is modified to reflect an additional 97 days' credit for presentence custody. As so modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections.
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