Legal Question in Criminal Law in California
Johnson Waiver?
I have been on adult felony probation since 2000 for a 496(a).My original sentence was 6mos. I've done a total of 11mos on this case and have a 6mo probation violation hanging over my head due to dirty tests.They are telling me that in order to keep me in county (I was stayed the 6mos in hopes of me pulling it together but have since recently relapsed)that I have to sign a Johnson Waiverall my time away or else go to prison. I m affraid that if i do sign it they will send me to prison for a total of 16mos?
2 Answers from Attorneys
Re: Johnson Waiver?
If you don't have a lawyer you should get a lawyer or ask the court to appoint one for you. I am not giving you advice because I don't know all the facts of your case and am not your lawyer. I am explaining a few possible scenarios you might have.
A 496(a) is a case that can send you to prison for 16 months, 2 years or 3 years. If you have no other priors or enhancements. This also an offense that is what is called a "50% offense" meaning that if you go to prison you are entitled to 50% credit. So that you do just over one year on a 2 year sentence. You have almost done that. A recent case, Blakely, says that if the judge wants to sentence you should have the right to a jury trial on the factors to aggravate the sentence. So, the judge may have to sentence you to 16 months or 2 years or allow you to have a jury trial on the sentencing.
If you waive your back time, you could potentially end up serving more time that would otherwise be allowable for that offense.
With only one month or so left on a 2 year sentence, you may end up with a paper commitment, because it takes about 2 weeks to get from the jail to San Quentin and then a few weeks at San Quentin to decide where you will go. By that time you will have served your time. The downside to a prison sentence is having a prison prior. If you commit another felony in the future your sentence on the new case can be increased by one year because you have a prison commitment.
You should get a lawyer to help you out.
Re: Johnson Waiver?
A Johnson waiver applies to a county jail sentence and a prison term. If you can complete the terms of probation then the waiver may be worth while. However, if you are uncertain that you will complete probation. or you received a suspended prison sentence you probably do not want to enter the Johnson waiver.
If you complete probation on a county jail sentence then the case can be reduced to a misdemeanor for all purposes.
You need to review the facts of your case with an attorney and then consider the probability of your completing probation successfully.
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