No. D057250.

THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ROBINSON, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division One.




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)).1 Because of Robinson's admission to the latter allegation, the offense counted as a strike under the "Three Strikes" law. The plea agreement provided for the court to determine the sentence, and for several other charges to be dismissed.

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 4019.2 Work furlough if really serious. Then no work furlough." The trial court further stated it had reviewed Robinson's record as reflected in the probation report and was "inclined to give him work furlough if that's where he wants to do his time." Robinson's counsel stated, "He's willing to waive his good time credits."

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."3

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.4

On July 22, 2003, Robinson was removed from the work furlough program and returned to jail.5 On November 3, 2004, the trial court summarily revoked Robinson's probation and issued a warrant for his arrest.

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.6 Robinson's new counsel questioned whether Robinson had previously waived both past and future section 4019 credits. The trial court informed her, "He waived all future 4019 credits." Robinson's counsel then pointed out that an October 2004 probation report appeared to show Robinson had previously earned 104 days of 4019 credits, not just two days. The court responded, "Well, I will let you and the [probation office] figure that out. If he's entitled to them I'll certainly give it to him. As far as I can see, he's waived them."7

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.8 Is that true, sir?" Robinson replied, "Yes, your Honor." The trial court then stated, "All right. I'll accept the defendant's waiver in this case. The defendant will receive zero custody credits. The defendant having previously waived his 4019 credits, he will not receive [4019 credits] while he is incarcerated locally."9 Robinson's counsel later clarified, "Starting today, [Robinson] will be in a position to gain 4019 credits?" The trial court responded, "He's waived his 4019 credits. They will be revoked."

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.10 The prosecutor pointed out Robinson waived his 4019 credits at an earlier hearing, to which Robinson's counsel replied, "Well, we don't have the transcripts to that. . . ." The trial court ultimately found Robinson was not entitled to 4019 credits, but offered to award Robinson 69 worktime credits under section 2933.1 instead. Robinson's counsel accepted the offer and the trial court awarded the 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) 25 Cal.3d 436, setting forth the facts of the case and requesting we review the entire record to determine whether there are any issues that would result in modification or reversal of the trial court's judgment.

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) 33 Cal.4th 294, 308 (Arnold).) If the waiver was not qualified, it is a waiver for all purposes. (Id. at p. 309.)

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.





1. Further statutory references are also to the Penal Code unless otherwise stated.
2. Section 4019 allows an inmate to earn behavior credits while serving time in jail. The trial court and the parties below referred to these credits in varying ways, including "PC 4019 credits," and "good time credits." For ease, we will refer to these credits as "4019 credits."
3. A note on the trial court's order granting probation states, "Defendant waives all PC 4019—future while on short term work furlough only." A note on the trial court's minute order states, "[D]efendant waives all future PC 4019 credits while in short term work furlough." The court clerk appears to have written both notes. Neither note accurately reflects what transpired at the sentencing hearing, as Robinson did not expressly qualify his waiver and a qualification cannot reasonably be inferred from his or his counsel's exchange with the court. The only reasonable inference from the exchange is that Robinson was waiving his future behavior credits under section 4019 in order to receive a grant of probation rather than a prison sentence.
4. The trial court did not break the presentence credits down. The probation report shows Robinson had previously earned four days of actual custody credits and two days of 4019 credits. The trial court's minute order reflects this same breakdown.
5. On August 12, 2003, the trial court issued an ex parte minute order modifying Robinson's probation to show his return to jail. A note at the bottom of the minute order, apparently written by the court clerk, states, "PC 4019 credits restored from the date of transfer from work furlough into custody." Neither Robinson, his counsel, nor the prosecutor were present when the trial court issued the order, and the trial judge's signature is stamped, not handwritten, on it. From these circumstances and the case history, it appears the note was a clerical error caused by the prior clerical errors noted in footnote 3, ante.
6. The two days of 4019 credits were apparently earned by Robinson before his first sentencing hearing. (See fn. 4, ante.) The minute order shows the trial court awarded Robinson 243 days of actual custody credits and no 4019 credits. This conflicts with the trial court's statements at the sentencing hearing and the information contained in the corresponding probation report.
7. The probation report was prepared to support the summary revocation of Robinson's probation and the issuance of a warrant for his arrest. The report contains no discussion of Robinson's waiver of 4019 credits. Instead, it appears the probation officer who prepared the report was unaware of the waiver and mistakenly calculated 4019 credits as if no waiver existed.
8. The court's minute order refers to all of the credits as actual custody credits. The probation report prepared for the hearing showed the credits consisted of 359 days of actual custody credits and two days of 4019 credits.
9. The court's minute order states "Defendant waives . . . all PC 4019 credit past, present [and] future." As Robinson had previously waived his future 4019 credits, no waiver of future 4019 credits was taken from Robinson at the hearing. In addition, because of the prior waiver, he had no present 4019 credits to waive. However, his waiver of the 361 days of credits included a waiver of two past days of 4019 credits. (See fn. 8, ante.)
10. Robinson's counsel's remarks were apparently prompted by the inaccurate note on the court's minute order stating Robinson had waived all past, present, and future 4019 credits at the hearing. (See fn. 9, ante.)


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