Filed 3/27/13 P. v. Smith CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.
DAVID ALLEN SMITH,
Defendant and Appellant. 2d Crim. No. B243068 (Super. Ct. No . 2009039372) (Ventura County)

David Allen Smith appeals a judgment revoking his probation and sentencing him to a two-year prison term fo llowing his earlier convi ction for possession or control of child pornography. (Pen. Code, § 311.11, subd. (a).) 1 We conclude that
the trial court's award of 3 65 days of presentence custody credit is proper, and affirm.
FACTS AND PROCEDURAL HISTORY On November 6, 2009, the Ventura County prosecutor ch arged Smith with possession or control of child pornography. (§ 311.11, su bd. (a).) On November 20, 2009, pursuant to a plea agreem ent, Smith waived his right to a preliminary examination and pleaded guilty to th e charge. The trial court then gr anted Smith five years of formal probation with terms and conditions including 365 days of confinement in county jail, not using or possessing nonpres cribed marijuana, and not associating with children under the age of 18 unless in the presence of an adult approved by the probation officer.

1 All further statutory references are to the Penal Code.2 The court imposed various fines and awarde d Smith 72 days of presentence custody
credit.
First Probation Violation - June 2011 On June 2, 2011, Smith's probation o fficer charged that Smith violated the
terms and conditions of his probation by smoking marijuan a. The probation officer reported that the therapist pr oviding Smith's sex-offender treatment opined that Smith's marijuana use was "a definite risk factor" for his reoffending. The probation officer concluded that Smith presented "a trem endous threat to the community" by his continued use of marijuana and access to computers. At the probation violation hearin g, Smith was present in court and admitted the charged allegati ons through his attorney. As the probation officer recommended, the trial court revoked and th en reinstated Smith's probation with the condition that he serve 90 days of confinemen t in county jail and agree to waive credits in excess of 365 days. The trial judge stated : "He needs to waive credits in excess of 365." Smith's attorney responded: "He waiv es credits in excess of 365 also." The trial judge also remarked: "If I se e him back again, I'll send him to prison." Smith then signed and dated a minute order stating: "Defendant waives credits in excess of 365 days."
Second Probation Viol ation - June 2012 Nearly one year later, Smith's proba tion officer charged that Smith again violated the terms and conditions of his pr obation by using mar ijuana and associating with his former girlfriend's young children. At the July 31, 2012, contested proba tion violation hearing, the trial court received testimony from Smith's probation officer and Smith's former girlfriend. The
court then found Smith violated the terms of his probation. It re voked Smith's probation and sentenced him to two years in prison. The court imposed various fines and awarded Smith only 365 days of presen tence custody credit based upon his waiver made at the3 2011 first probation violati on hearing. Smith did not object to the limited credit
awarded. Smith appeals and contends that he is entitled to an additional two days of custody credit because he did not knowin gly and intelligently waive his right to future credit. The two days represent days served in 2009 or 2010 as a confinement condition of the original grant of probation. 2 Smith did not obtain a cer tificate of probable cause prior to prosecuting this appeal.
DISCUSSION
Smith asserts that the record of th e probation violation proceedings does not reflect that his attorney or the trial cour t explained that he was waiving his right to all future custody credit beyond the 90 da ys imposed as a condition of reinstating probation at the first proba tion violation hearing. ( People v. Urke (2011) 197 Cal.App.4th 766, 777 [cred it waiver is knowing and intelligent where defendant
understood he was relin quishing custody credit to which he was otherwise entitled].) Section 2900.5, subdivisi on (a) provides: "In all felony and misdemeanor convictions, . . . when the defe ndant has been in custody, . . . all days of custody . . . shall be credited upon his or her term of impr isonment . . . ." Subdivision (c) states that "term of imprisonment" includes "any period of imprisonment imposed as a condition of probation."
It is well settled that a defendant may waive his entitlement to credit as a condition of probation. ( People v. Johnson (2002) 28 Cal.4th 1050, 1052, 1054-1055 [defendant may waive entitlement to past and future days of custody credit].) Waiver of entitlement to section 2900.5 custody cred it must be "knowing and intelligent." ( Id. at p. 1055.) To determine whether a waiver is knowing and inte lligent, the inquiry

2 Smith calculates the two days by referring to the custody worksh eet prepared by the probation officer regarding the notice of se cond probation violati on. That worksheet states that Smith served 305 actual days pl us 152 conduct days for a total of 457 days. Smith then subtracts 365 days (confinement regarding the or iginal grant of probation) and 90 days (confinement regard ing the first violation of pr obation), to compute the two days.4 "'should begin and end'" with deciding whet her the defendant understood he was giving up custody credit to which he was otherwise entitled. ( People v. Jeffrey (2004) 33 Cal.4th 312, 320.) On an otherwise silent record, a waiv er "must be presumed to be a waiver of credits for all purposes." ( People v. Jeffrey
, supra , 33 Cal.4th 312, 320.) A defendant entering a "straightforward and unco nditional" waiver of custody credit "has no reason to believe that the waiver is anyt hing other than a waiver of such credits for all purposes." ( People v. Arnold (2004) 33 Cal.4th 294, 309 .) The "better practice" is for the sentencing court to expressly admonish defendants waiving custody credits that such waivers will apply to any future pris on term should proba tion be revoked and a state prison sentence imposed. ( Ibid. ) The sentencing court's fa ilure to provide such an express advisement, however, does not inva lidate an otherwise knowing and intelligent waiver. ( Ibid. ) Smith did not raise any objection to the limited credit awarded at the second probation viola tion hearing held in 2012. He has therefore forfeited his objection to the validity of the waiver. ( People v. Torres (1997) 52 Cal.App.4th 771, 782 [when probationer does not object to cr edit waiver condition at time of sentencing, "the matter may not properly even be raised for the first time on appeal"].) Forfeiture aside, however, we decide from the totality of the circumstances that Smith's waiver was knowing and intelligent. Smith was represented by counsel at th e probation violati on hearing. He admitted the probation violation through coun sel and personally signed the minute order stating that he was waiving credits in excess of 365 days. In exchange, Smith avoided a state prison sentence. ( People v. Arnold
, supra , 33 Cal.4th 294, 308 [defendant who received benefit of waiver barg ain not permitted to revoke th at consideration].) In our de novo review, we determine that Smith's wa iver of credit was knowing and intelligent. ( People v. Panizzon (1996) 13 Cal.4th 68, 80 [standard of review].)5 People v. Urke
, supra , 197 Cal.App.4th 766, is f actually different. There,
defense counsel stated that he did not explain the credit waiv er to defendant. The trial
court also misstated the mean ing of the waiver, informing defendant that he would receive credit for the waived custody days if he were sentenced to state prison. ( Id. at p. 778.) Neither circum stance occurred here. The judgment is affirmed.
NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.6 Patricia M. Murphy, Judge
Superior Court County of Ventura

________________ ______________

Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney Ge neral, Lawrence M. Daniels, Supervising Deputy Attorney General, Rene Ju dkiewicz, Deputy Attorney General, for Plain tiff and Respondent.