1 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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THE PEOPLE, Plaintiff and Respondent,

v. CHRISTOPHER JOHNNY TEMPLE, Defendant and Appellant. C076517
(Super. Ct. Nos. 62106176, 62098759)

Defendant Christopher Johnny Temple plead ed 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 conv iction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) in exchange for a stipulated term of 12 years and dismissal of pendi ng charges in another

case.

1 Further undesignated statutory refe rences are to the Penal Code.2 On appeal, defendant contends the trial court erred in faili ng to award him 174 days of conduct credit accrued in the dismisse d case. The People respond that defendant waived his right to the credit --and his appellate rights--pursu ant to a stipulation entered after sentencing. We disagree and modify th e judgment to award defendant the disputed 174 days.
FACTUAL AND PROCED URAL BACKGROUND We dispense with a recitation of the fa cts surrounding defendant ’s crimes as they are not relevant to the issue raised on appeal. On August 18, 2010, defendant wa s charged in case No. 62-098759 (the kidnapping case) with kidnapping during a carj acking (§ 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 (§§ 6 67, subds. (b)-(i), 1170.12, subds. (a)-(d)) and three prior prison terms (§ 667. 5, subd. (b)). On May 5, 2 011, defendant was charged in case No. 62-106176 (the murder case) with solicitation of mu rder (§ 653f, subd. (b)), as well as the strike and three prior prison terms. After defendant resolved his cases by pl ea 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 pl eaded 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 accep t 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 s ubmitted 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 defendant3 had 350 actual days served a nd 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 agreeme nt he was to receive credits all the way back including a pr ior case that’s being dismissed .” (Italics added.) The parties agreed that all of defendant’s credits, in bot h cases, were to be applied to the murder case. However, there wa s confusion as to the rate of accrual of conduct credits. In continuing the case for calculation of cred its, the trial court to ld 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 refl ect back on April 11th the defendant was sentenced by this Court to [p rison] for the sentence of 12 years, but we put the matter over until today to iron out th e credits. I believe after sp eaking to counsel back in chambers, we reached a stipulation between [d efendant] 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 calcul ate 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 al so with an agreement th at the People will not file any criminal charges relating to an assau lt or battery that occurred while in custody on a date that is reflected in [defenda nt’s] paperwork that was shown to me.4 “[DEFENSE COUNSEL]: That’s April 15th, 2014 at approximately 1524 hours at the jail. “[THE COURT]: This is a stipulated agreem ent to the credits, so there won’t be any argument or appeal on the i ssue. Correct, Counsel? “[DEFENSE COUNSEL]: Correct.” There is no written record of the parties’ sti pulation in the record before us, other than a minute order prepared after the hearing. Following a brief discussion, the pros ecutor 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] pl ea agreement. The Court feels that is [a] sufficient waiver of any appellate rights.” Neither party disagreed. The abstract of judgment reflects that de fendant received a tota l 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 erre d in failing to award him 174 days of
conduct credit accrued in the kidnapping case. The People respond firs t that defendant waived his right to appeal the credit determina tion pursuant to the parties’ stipulation. Second, the People contend that defendant wa ived 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, intelligen t, 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 of5 those rights by the defendant. ( Id. at pp. 80-82.) In the present case, by contrast, defendant’s appellate rights were only men tioned briefly at the continued hearing on defendant’s custody credits. During the hearing, the trial court asked counsel to confirm “t here 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 necessar ily 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 th at 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 de fendant had orally waived his appellate rights as follows: ‘ “[The Court]: [H]ave you di scussed these [constitutional] rights with your attorney? [¶] [Ro sso]: Yes. [¶] [The Court]: Do you unde rstand 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 wa ive them.” ’ [Citation.] As noted in the decision, however, this was the only mention of appellate rights. The record in that case, unlike th at here, apparently contained no evidence of a written waiver of appellate rights read and signed by the defe ndant after discussion with his attorney and no evidence that an attorney had explaine d 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 defe ndant. Therefore, in accordance with Rosso , we6 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 fo r 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 pr esentence custody (§ 4019). “It shall be the duty of the court imposing the sentence to determine th e 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, provide d 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 2 32, 236, fn. 3.) “ ‘[A] custody credit waiver may be found to ha ve been voluntary a nd intelligent from the totality of the circumstances, even if the sentencing cour t failed to follow the ‘better course’ of specifically advising the defenda nt 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 invite d the parties to “work it out . . . .”7 At the continued hearing, the parties engaged in off-the-r ecord negotiations resulting in a stipulation whereby defendant would receive custody credit for 350 actual days in the kidnapping case, but no cond uct 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 i ssue; the issue is whether he waived a previ ously agreed-upon condition of his plea, post-plea , in a manner sufficient to with stand review for validity of that purported waiver. Defense counsel’s asse rtion that “there won’t be any argument or appeal on the issue” does not amount to a kn owing 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 knowi ng and intelligent waiver of his right to the custody credits under the original plea agre ement, as the People seem to suggest. On this record, we find that defendan t did not knowingly an d intelligently waive his right, to which all parties ha d previously agreed, to have all of the presentence credit from the dismissed case applied to hi s sentence in the instant case.8 DISPOSITION The judgment is modified to add 174 da ys of conduct credit. As modified, the judgment is affirmed. The trial court is di rected 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.