PEOPLE v. ROBINSON No. D057250.
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ROBINSON, Defendant and Appellant.
Court of Appeals of California, Fourth District, Division One.
Filed January 14, 2011.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McCONNELL, P. J.
On December 5, 2002, Joseph Robinson pleaded guilty to driving under the influence of alcohol causing bodily injury. (Veh. Code, § 23153, subd. (a).) He also admitted allegations that a minor under age 14 was a passenger in his vehicle (Veh. Code, § 23572, subd. (a)), and that he personally inflicted great bodily injury on a nonaccomplice (Pen. Code, § 12022.7, subd. (a)).
The trial court subsequently replaced the appointed attorney who represented Robinson at the change of plea hearing, and Robinson moved to withdraw his guilty plea. Robinson contended his former attorney erroneously informed him that he would get probation plus six months in work furlough in exchange for his plea, and that the offense would no longer count as a strike after he completed probation. On May 7, 2003, the trial court conducted an evidentiary hearing at which both Robinson and his former attorney testified. After the evidentiary hearing, the trial court denied the motion, explicitly finding the attorney's testimony was credible and Robinson's testimony was not credible.
The trial court then immediately conducted a sentencing hearing. The trial court stated its notes from preplea discussions "indicate probation case. Very serious crash. The defendant will do time . . . waived 4019.
Robinson's counsel then conferred with Robinson and informed the court, "My client testified to his understanding what he was told by his lawyer, and his understanding was it was six months work furlough. I don't know if that includes good time credits or____." The trial court responded, "I don't know. All I know is that this is a case where I do remember the district attorney was pounding on the table, wanted to send him to prison because it's—I mean because of his actions. He caused a car containing [a] family to overturn and rear-ending another car, driving that over into an embankment. [¶] So I think I was quite clear with [Robinson's former attorney] what she testified here today, she explained to him what the [district attorney's] position was, and what he was getting. So I don't intend to change my indicat[ion] on that. So he can do it jail time or he can do work furlough."
Robinson's counsel replied, "He would be requesting work furlough, your Honor." The court inquired of Robinson, "You're waiving your good time credits?" Robinson replied, "I do, your honor."
The trial court then suspended imposition of sentence and placed Robinson on probation for three years. The trial court conditioned the grant of probation on, among other requirements, that Robinson pay $2000 in fines and serve 365 days in the custody of the sheriff, with a recommendation that custody be served on work furlough. The trial court awarded Robinson six days of presentence credits.
On July 22, 2003, Robinson was removed from the work furlough program and returned to jail.
On March 30, 2005, the trial court formally revoked Robinson's probation and conducted a sentencing hearing. The trial court reinstated Robinson's probation, conditioned upon him serving 365 days in the custody of the sheriff. The trial court awarded Robinson 241 days of actual custody credits and two days of 4019 credits.
On November 7, 2005, the trial court summarily revoked Robinson's probation. On March 30, 2006, the trial court formally revoked Robinson's probation and conducted a sentencing hearing. Robinson, through his counsel, asked for one last chance at probation. In exchange, he offered to waive 361 days of presentence credits. The trial court explained to Robinson that it intended to impose, then stay, execution of a prison sentence and allow Robinson to remain on probation, conditioned on Robinson serving "one solid year" in jail. The trial court asked Robinson if he understood. Robinson responded, "Yes."
The trial court then sentenced Robinson to five years in prison, consisting of the midterm of two years for the driving under the influence conviction, plus three years for the great bodily injury enhancement. As it indicated it would do, the trial court suspended execution of sentence and placed Robinson on three years of probation, conditioned on Robinson serving 365 days in the custody of the sheriff.
The trial court then asked Robinson's counsel, "I understand the defendant is now willing to waive his actual time to date. Is that true?" Robinson's counsel replied, "Yes, your honor." The trial court also asked Robinson, "In this case I understand that in order to receive this one last grant of probation you are willing to waive all of your local time, which I understand is probably 361 days.
On July 18, 2007, the trial court summarily revoked Robinson's probation and issued a warrant for his arrest. On February 3, 2010, the trial court formally revoked Robinson's probation after Robinson admitted violating the conditions of his probation by failing to report to the probation office.
Robinson subsequently moved for restoration of his actual custody credits, which the People opposed. On March 18, 2010, the trial court denied Robinson's motion and sentenced Robinson to the previously imposed term of five years in prison. The trial court awarded Robinson 465 days of actual custody credits. These credits did not include the 361 days of credits Robinson waived at the March 30, 2006, sentencing hearing.
Robinson's counsel then argued Robinson should also receive 4019 credits because it was not clear from the record of the March 30, 2006, sentencing hearing that Robinson knew he was waiving those credits.
Robinson filed a timely notice of appeal. The trial court denied his request for a certificate of probable cause.
After finding no arguable issues in his own review of the record, appellate counsel filed a brief under People v. Wende (1979)
Both appellate counsel and this court advised Robinson of his right to file a supplemental brief to bring to our attention any issue he believed deserved review. Robinson filed a supplemental brief, contending his waiver of future 4019 credits and his subsequent waiver of 361 days of actual custody and past 4019 credits are invalid because he was not adequately advised of the consequences of the waivers.
We have reviewed the entire record as well as Robinson's supplemental contentions, and have not found any arguable issue. A waiver of presentence credits is knowing and intelligent if the defendant understands he is relinquishing or giving up credits to which he would otherwise be entitled. (People v. Arnold (2004)
Here, the transcript from the May 7, 2003, sentencing hearing shows Robinson understood he was giving up future 4019 credits. Likewise, the transcript from the March 30, 2006, sentencing hearing shows Robinson understood he was giving up his actual custody credits as well as his past 4019 credits. Therefore, we conclude the waivers were knowing and intelligent. As the waivers were not qualified, they were for all purposes. (Arnold, supra, 33 Cal.4th at pp. 308-309.) Although the trial court did not advise Robinson the waivers would preclude the credits from applying to a future prison term if his probation was revoked and a prison sentence imposed, the failure to give such an advisement does not invalidate an otherwise knowing and intelligent waiver. (Id. at p. 309.)
The judgment is affirmed.
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