Johnson Waiver California - Penal Code Section 2900.5
The so-called Johnson waiver "is commonly employed where the court is hesitant to impose a prison sentence, but a defendant has already served most of the one year maximum permitted in county jail.
In such a case, the court may wish to impose enough additional jail time to compel the defendant to recognize the seriousness of his actions, while the defendant wishes to avoid a prison term; by waiving his credits, the defendant submits to additional jail time, but avoids prison." (People v. Eastman (1993) 13 Cal.App.4th 668, 678 16 Cal. Rptr. 2d 608, citing Johnson, supra, 82 Cal.App.3d at p. 188.)
In People v. Johnson (1978) 82 Cal.App.3d 183, the defendant was convicted of receiving stolen property. Thereafter, he was placed on probation on condition that he serve one year in jail. He served that term. He violated his probation by committing grand theft.
Through his attorney, he suggested that additional jail time be considered.
The lower court declined to consider additional jail time on the basis that it had no authority to do so. the court sentenced the defendant to prison. (Johnson, supra, 82 Cal.App.3d 183, 185.)
On appeal, the Johnson court held, "that a proper interpretation of Penal Code section 2900.5 permits a defendant to knowingly and intelligently waive the provisions thereof that require all days of custody be credited to his sentence, including any period of imprisonment as a condition of probation." (Johnson, supra, 82 Cal.App.3d at p. 188.)
Thus, the Johnson court concluded "that where a defendant who has spent a year in the county jail as a condition of probation subsequently commits a probation violation, the sentencing judge should not be forced to choose between ignoring the violation or imposing sentence to state prison.
The court should be free to choose either of these options in the exercise of its discretion but it should also have the power, with the consent of the defendant, to fashion an intermediate disposition by modifying probation to provide for additional time up to one year in jail." (Ibid.)
Originally, Penal Code section 2900.5 established a custody credit scheme for the benefit of defendants who were actually sentenced to state prison. Thus, a defendant committed to state prison received credit against his or her prison sentence for any local time spent in jail, including jail time previously served as a condition of probation for the same offense.
However, the credit scheme first embodied in Penal Code section 2900.5 had no application to defendants who were being sentenced to local jail time as a condition of probation or reinstatement of probation.
Ultimately, in 1976 subdivision (c) of Penal Code section 2900.5, which had limited the application of that section's custody credit scheme to state prison commitments, was amended to redefine the term against which custody credits were to be applied, to include any period of imprisonment imposed as a condition of probation.
As a result of this amendment, actual time previously served in county jail, including time served as a condition of probation, would be credited against any new term of imprisonment served in the county jail for the same offense, including any new jail term imposed as a condition of continuing or reinstating the defendant on probation. (People v. Arnold, supra, 33 Cal.4th 294, 300-301.)