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Filed 3/13/02
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A095147
v.
SHELLY JEAN JEFFREY,
(Solano County
Super. Ct. Nos. FC170864,
Defendant and Appellant.
FC180308)
Shelly Jean Jeffrey appeals from a judgment, contending that the trial court erred
when sentencing her to prison for a probation violation because it refused to give her
presentence credits for all of the time she had served in county jail and in an uncompleted
drug treatment program. Defendant concedes that she waived those credits at the time
probation was first imposed, but argues she did not make a knowing and intelligent
waiver of them as against a subsequently imposed prison term. We conclude defendant
was not entitled to such credits because she never expressly reserved her right to reclaim
them against any future prison term, and affirm the judgment.
BACKGROUND
A criminal complaint filed against defendant in case number FC170864 charged
her with wrongfully obtaining welfare benefits by misrepresenting that her son lived with
her during the second half of 1997, when he did not do so (Welf. & Inst. Code, § 10980,
subd. (c)(2)). She was also charged with five counts of perjury by declaration (Pen.
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Code, § 118), one each month from July through November 1997, in conjunction with
making the same false claim for welfare benefits. In a separate complaint filed in case
number 180308, defendant was alleged to have been in possession of a controlled
substance (Health & Saf. Code, § 11377, subd. (a)). This complaint also alleged that, at
the time of this offense, defendant was out on bail on her own recognizance in case
number FC170864 within the meaning of Penal Code section 12022.1.
On January 20, 2000, in accordance with a plea agreement, defendant pleaded no
contest to one count of obtaining welfare aid by misrepresentation (Welf. & Inst. Code,
§ 10980, subd. (c)(2)), and to one count of possession of methamphetamine (Health &
Saf. Code, § 11377, subd. (a)). Defendant also admitted the Penal Code section 12022.1
enhancement. Pursuant to the plea agreement, all other charges were dismissed.
On March 24, 2000, the trial court suspended imposition of sentence and granted
defendant three years probation in both cases. In return for the court's placing her in a
residential drug rehabilitation program, she was required to waive all time credits she had
accrued previously, along with all credits she would be entitled to receive on a day-for-
day basis for the time spent in the drug treatment program. Defendant acknowledged she
had discussed the waiver of time credits with her counsel, who joined in the waiver.
In June 2000, the probation office filed a request for defendant's probation to be
revoked due to her discharge from the drug treatment program on June 4, 2000, prior to
completion. The superior court revoked defendant's probation and issued a bench
warrant for her arrest.
On March 16, 2001, defendant admitted the probation violation. On March 30,
2001, the superior court ordered that probation remain revoked and sentenced defendant
in each case to prison for concurrent two-year terms. She received credit against that
sentence only for the 37 days earned after her probation had been revoked. This appeal
followed.
DISCUSSION
Defendant's sole contention on appeal is that the court prejudicially erred by
refusing to accord her presentence credits for time she had served in county jail prior to
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her original grant of probation and for the time she had spent in the drug treatment
program after being placed on probation. Defendant asserts that she did not make a
knowing and intelligent waiver of those credits as against a subsequently imposed prison
term. We find no error on the record before us.
The parties agree that a defendant may waive custody credits as a condition of
probation, or in exchange for other sentencing considerations. (People v. Salazar (1994)
29 Cal.App.4th 1550, 1553.) Such a waiver, however, must have been knowing and
intelligent in the sense that it was made with awareness of its consequences. (People v.
Harris (1987) 195 Cal.App.3d 717, 725.)
Here defendant contends she was not "fully aware" that her March 24, 2000
waiver of presentence credits and future credits for time served in the drug treatment
program included a waiver of such credits against a subsequently imposed prison term.
She argues that since a grant of probation had been part of the plea agreement entered
into prior to the sentencing hearing, it would have been reasonable for her to assume that
the purpose of her waiver of credits at the sentencing hearing was so the trial court would
have the option, following any future probation violation, to impose a full year in county
jail as a condition of a subsequent grant of probation. Although this explanation is
plausible under the circumstances, the record of the proceedings below is silent as to
defendant's subjective understanding of the scope of her waiver.
Thus, we are faced with the question whether the credit waiver is enforceable as
against a future term of imprisonment where, as here, the record is silent concerning the
intended scope of defendant's credit waiver. In People v. Burks (1998) 66 Cal.App.4th
232, the court enforced the waiver under similar circumstances, placing the burden on the
defendant to prove an express agreement limiting the waiver if a future probation
violation resulted in a prison sentence. In Burks the defendant had served one year in
county jail as a condition of his initial grant of probation. After violating the terms of the
probation, the defendant waived his custody credits to allow the trial court to reinstate
probation on the condition that he serve an additional 90 days in county jail. Following
the defendant's second probation violation, the trial court reinstated probation without
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imposing further jail time. However, upon the defendant's third probation violation, the
trial court sentenced the defendant to two years in state prison, without permitting
recapture of the waived custody credits. (Id. at p. 234.)
As in the present case, the defendant in Burks contended he did not understand at
the time of the credit waiver that it would apply to a future prison term, and, therefore,
the waiver was not knowing and intelligent. (People v. Burks, supra, 66 Cal.App.4th at
pp. 234-235.) In Burks, as here, there was nothing in the record to support an inference
that the defendant knew his waiver would be applied to a prison sentence imposed for a
future probation violation. Nevertheless, the Court of Appeal affirmed the trial court's
decision to refuse recapture of the credits. The court concluded that "If a defendant
wants to restrict the waiver of custody credits to extend the jail time he can serve, but
preserve the same credits for future use against prison time, the burden should be on the
defendant to propose that to the sentencing court for its approval." (Id. at p. 236.) The
court reasoned that nothing in the statutory scheme governing custody credits suggested
that such credits are kept in dual accounts, one for use against jail time and one for use
against prison time. "To the contrary, [Penal Code section 2900.51] treats all credits
uniformly, wherever accrued and wherever applied. Therefore, a waiver of custody
credits is presumptively applicable to any future term of imprisonment." (Id. at pp. 236-
237.) The court determined that to conclude otherwise would bestow a windfall on a
defendant who violates probation, and would allow a defendant "to renegotiate a
sentencing bargain that was honored by the court but not by the defendant . . . ." (Id. at
p. 236.) The court further noted that if a defendant was informed by defense counsel that
the waiver would not affect future prison time, but counsel neglected to inform the court
of this aspect of the waiver, the defendant could seek relief by claiming ineffective

1
Subdivisions (a) and (c) of Penal Code section 2900.5 require all time spent by a
defendant in custody, and all work time and good time credits accrued under Penal Code
section 4019, to be deducted from the defendant's term of imprisonment, including any
term served as a condition of probation.
4

assistance of counsel. (Id. at p. 237.) Defendant makes no ineffective assistance of
counsel claim here.
We agree with the analysis in Burks and conclude the same principles apply in this
case. We find nothing in the current record to overcome the presumption that
defendant's waiver was applicable to any future term of imprisonment. The transcript of
the March 24, 2000 sentencing hearing shows the court informed defendant that she
would waive all credits she had accrued previously and credits she would be entitled to
accrue for time spent in the residential treatment program. The court also confirmed with
defendant that she had received an opportunity to discuss the waiver of credits with her
attorney. Next, when the court asked whether defendant was willing to waive those
credits, she responded "yes." In addition, the court asked her attorney whether he joined
in the waiver, to which counsel also responded "yes."
Defendant argues that recapture of her credits is mandated under People v. Harris,
supra, 195 Cal.App.3d 717. We disagree. In Harris, the defendant had been informed
by the trial court prior to each waiver of custody credit that, if the defendant waived
credits, the defendant could become subject to further time "in the county jail." (Id. at
pp. 722-724.) There is no similar comment in this case, providing an objective basis for
our defendant's conclusion that her waiver was effective only so long as any custody time
imposed was local. Furthermore, we agree with the court in Burks, that a defendant who
waives custody credit in order to receive a grant of probation properly bears the burden of
establishing on the record that the custody credit waiver was limited in scope. To the
extent that the holding in Harris may be interpreted as supporting a different allocation of
that burden, then, like the court in Burks, we disagree with Harris. On the record before
us, defendant has not met her burden to show her credit waiver was limited in scope.
5

DISPOSITION
The judgment is affirmed.
_________________________
Simons, J.
We concur:
_________________________
Jones, P. J.
_________________________
Stevens, J.
6