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Name: People v. Hilger
Case #: B156790
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 01/09/2003
Subsequent History: Rev. granted 3/19/03: S113526.

Appellant waived his custody credits pursuant to People v. Johnson (1978) 82 Cal.App.3d 183, in order to spend his additional jail time for a probation violation in the county jail instead of state prison. However, when he violated probation again, he was sent to state prison and was not given credit for time served in local custody because he had waived his credits. On appeal, appellant argued that his waivers were invalid because he did not know they applied to the suspended four year prison sentence. The appellate court here agreed, and reversed. A “Johnson waiver” must be knowing and intelligent, meaning that the probationer understands the waiver’s effect on his possible eventual sentence. Here, the trial court did not tell appellant either that he might serve more than the upper term or that his waiver applied to prison time. Therefore, there was no knowing and intelligent waiver. [Editor’s note: this issue is presently pending before the Supreme Court in People v. Arnold, S106444.]