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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NOT TO BE PUBLISHED 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 This opinion has not been certified for publication 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, 

 Plaintiff and Respondent, 

 v. 

CHRISTOPHER JOHNNY TEMPLE, 

 Defendant and Appellant. 

C076517 

(Super. Ct. Nos. 62106176, 

62098759) 

 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. 
2 

 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.