Filed 4/20/16 P. v. Johnson CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068400

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD246084)

ANTHONY JOHNSON,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County,

Kenneth K. So, Eugenia A. Eyherabide and David M. Szumowski, Judges. Affirmed in

part; reversed in part and remanded with directions.

         Sheila L. O'Conner, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, and Samantha L. Begovich, Deputy Attorney

General, for Plaintiff and Respondent.
                                             I.

                                    INTRODUCTION

       Anthony Johnson appeals from an order revoking probation and reinstating

probation. Johnson contends that the trial court erred in concluding that he was entitled

to zero days of Penal Code1 section 4019 conduct credits.2 Johnson argues that the court

erroneously concluded that he waived the section 4019 conduct credits by virtue of a

prior plea agreement. The People concede that "[t]he waiver in this case was not to

future [section 4019] credits potentially earned, but rather for those already earned by the

date of the guilty plea . . . ." We agree. We reverse the award of zero days of section

4019 conduct credits in the order revoking and reinstating probation and remand the

matter for the limited purpose of determining Johnson's eligibility for conduct credits

under section 4019 for the time period after the date of the guilty plea.

                                             II.

                   FACTUAL AND PROCEDURAL BACKGROUND

A.     Proceedings in the trial court

       1.     The information

       In February 2013, the People charged Johnson with two counts of robbery (§ 211).

With respect to each count, the People alleged a firearm allegation pursuant to section


1     Unless otherwise specified all subsequent statutory references are to the Penal
Code.
2     Section 4019 provides credits against a defendant's period of confinement for good
conduct. (See generally People v. Brown (2012) 54 Cal.4th 314.)
                                              2
12022, subdivision (a)(1). The People also alleged that Johnson had suffered three prison

priors (§§ 667.5, subd. (b), 668).

       2.      The change of plea

       On June 21, 2013, the People and Johnson entered into a plea agreement. The

written plea agreement form states that Johnson agreed to plead guilty to one count of

robbery (count 1). The plea agreement form also states, "I have not been induced to enter

this plea by any promise or representation of any kind, except: (State any agreement with

the District Attorney.)." After this statement, the following is handwritten on the form:

"Balance dismissed, stip 365: waive 4019 credits — NOLT with three years stayed.

Prosecution has no objection to interstate compact transfer to Nevada."

       The trial court (Judge So) held a change of plea hearing that same day. During the

plea hearing, the following colloquy occurred:

            "[The court]: The plea bargain in this case is as follows: You are
            pleading guilty to robbery. It's a stipulated 365 days in the custody
            of the sheriff, waiving 4019 credits, three years stayed. The People
            have no objection to the interstate compact transfer to Nevada.

            "Is that your understanding of the plea bargain any [sic]
            representations that have been made to you?

            "[Johnson]: Yes, sir."

       Judge So proceeded to accept Johnson's guilty plea and set the matter for a July 22

sentencing.

       3.      The probation report and sentencing

       On July 22, the probation officer filed a probation report with the court. The

probation report states, "The plea agreement indicated the defendant waived his [section]

                                              3
4019 credits. Therefore, the defendant receives 169 actual days, 0 [section] 4019 credits,

a total of 169 days."

       That same day, the court (Judge Eyherabide) held a sentencing hearing. At the

outset of the hearing, defense counsel stated that Johnson was requesting a work

furlough. Counsel told the court that he had explained to Johnson that a work furlough

"was not explicitly discussed at the time that we entered into the plea." Defense counsel

also requested that certain gang conditions be eliminated from the proposed order

granting probation.

       The prosecutor responded, "I don't believe that work furlough was ever

contemplated.[3] And, based on his record and this particular crime, I would ask that —

since I believe the 4019s are being waived and that it would just be straight custody . . .

[that] the gang conditions remain."

       Judge Eyherabide noted that she was not the trial judge who had accepted the

guilty plea and that there were "no notes" of the plea hearing. Judge Eyherabide denied

Johnson's request to be assigned to work furlough. In the course of denying the request,

Judge Eyherabide stated, "[T]he fact that [the work furlough assignment] is not there

makes me believe the agreement was 365 local custody." The judge also stated:

          "You get half time at work furlough. You waived that. That is not
          an issue. If someone is sentenced to work furlough, it is half time
          too. They get half time. I'm just saying, Mr. Johnson, I'm pretty
          sure that the People contemplated 365 days in local custody. If I'm
          wrong on that, [defense counsel], my suggestion would be to talk to


3      The People were represented by different prosecutors at the change of plea hearing
and at sentencing.
                                              4
            [the prosecutor who represented the People at the change of plea
            hearing]. And if each of you agree that work furlough was
            contemplated and he is eligible, I don't have a problem amending it
            ex parte on a minute order."

       After making these comments, the court imposed a three-year sentence on count

one, with execution of the sentence suspended for three years. The court also placed

Johnson on formal probation, subject to various conditions including the following:

            "That you serve 365 days in the custody of the sheriff with credit for
            169 actual. Mr. Johnson waived his [section 4019] credits, hence,
            zero 4019s, for a total of 169 days' credit."

       4.      Probation revocation and reinstatement

       In March 2015, the probation officer filed a supplemental report recommending

that Johnson's probation be revoked and that a warrant issue for his arrest. The report

stated that Johnson had violated various terms of probation including failing to complete

a substance abuse evaluation, failing to report a change of address, testing positive for

marijuana, and failing to pay various probation costs.4

       The report indicated that Johnson had been in custody from February 4, 2013

through September 9, 2013, and that he was thus entitled to 218 days of actual custody

credits. The report also stated, "Per the offender's Pre Plea agreement dated 06/21/13, he

waived his [section] 4019 credits."




4     It appears that the court issued the requested warrant. The record indicates that
Johnson was in a Nevada county jail from April 19, 2015 through June 12, 2015.
                                              5
       On June 22, 2015, the trial court (Judge Szumowski) held a probation revocation

hearing. At the hearing, Judge Szumowski revoked Johnson's probation. During the

hearing, the following colloquy occurred:

          "The court: What are his local credits?

          "Probation Officer . . . : His local credits are — just a moment.
          They're 225. He previously waived 4019s."

       Judge Szumowski reinstated Johnson on probation, on the condition that Johnson

serve 365 days in local custody, with 225 days of actual custody credits, and zero section

4019 credits.5 The minute order for the hearing states, "Defendant waives

past/present/future [section] 4019 credits while on probation."

       On July 2, the court entered a minute order, nunc pro tunc to June 22, that states

that Johnson was entitled to 283 days of custody credit. The order explained, "The court

has read [and] considered defendant's correspondence dated [June 23, 2015] regarding

custody credits.[6] Custody credits recalculated to also include time served in Clark

County Jail from [April 19, 2015 through June 12, 2015]." The order also stated again,

"Defendant waives past/present/future [section] 4019 credits while on probation."

B.     Proceedings on appeal

       Johnson filed an appeal from the June 22 order.




5      The court's actual order was: "Reinstate you on probation. 365. 225 and 0, 225."
6      The correspondence is not in the record on appeal.
                                             6
       Counsel filed a Wende7 brief and listed the following as an issue appearing in the

record: "Did the court properly find that Mr. Johnson waived his section 4019 custody

credits for the entirety of the probationary period?" (Formatting omitted.)

       After reviewing the record, this court issued an order directing the parties to file

briefs addressing the following two issues:

          "By virtue of the plea agreement, did appellant knowingly and
          intelligently agree to waive only those . . . section 4019 . . . credits
          that he had earned as of the date of the plea?"

          "Assuming that appellant knowingly and intelligently agreed to
          waive section 4019 credits that he might earn after the date of the
          plea, did appellant's waiver extend to all periods of time during
          which appellant was in custody in this case?"

       Johnson filed a letter brief in which he contended that he had not waived any

section 4019 credits earned after the date of his guilty plea, June 21, 2013. The People

filed a letter brief conceding that Johnson had waived only those section 4019 credits

earned as of the date of the plea.8 The People also conceded that a limited remand was

appropriate to permit the trial court to properly determine Johnson's section 4019 credits.




7       (People v. Wende (1979) 25 Cal.3d 436.)
8       In their supplemental brief, the People state, "The waiver in this case was not to
future credits potentially earned, but rather for those already earned by the date of the
guilty plea, July 22, 2013." (Italics added.) The People's letter brief incorrectly states
that the trial court accepted Johnson's guilty plea on July 22, 2013 (the date of
sentencing) rather than the actual date on which the trial court accepted Johnson's guilty
plea, June 21, 2013. As a result, the People's brief is unclear as to whether the People
concede that Johnson was entitled to section 4019 credits for the approximately one-
month period between the time of entry of his guilty plea and sentencing. In any event,
for the reasons stated in part III., post, we conclude that Johnson waived only those
section 4019 credits earned by the date of the guilty plea, June 21, 2013.
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                                               III.

                                        DISCUSSION

                    Johnson waived only those section 4019 conduct credits
                            earned as of the date of his guilty plea

       Johnson contends that the trial court awarded him zero days of section 4019

conduct credits based on the erroneous conclusion that he waived all such credits, even

those earned after the date of his guilty plea.

A.     Governing law

       1.       Section 4019

       Section 4019 provides in relevant part:

            "(a) The provisions of this section shall apply in all of the following
            cases:

            "[¶] . . . [¶]

            "(2) When a prisoner is confined in or committed to the county
            jail . . . as a condition of probation after suspension of imposition of
            a sentence or suspension of execution of sentence, in a criminal
            action or proceeding.

            "[¶] . . . [¶]

            "(4) When a prisoner is confined in a county jail . . . following arrest
            and prior to the imposition of sentence for a felony conviction.

            "[¶] . . . [¶]

            "(b) . . . [F]or each four-day period in which a prisoner is confined in
            or committed to a facility as specified in this section, one day shall
            be deducted from his or her period of confinement unless it appears
            by the record that the prisoner has refused to satisfactorily perform
            labor as assigned by the sheriff, chief of police, or superintendent of
            an industrial farm or road camp.


                                                  8
            "(c) For each four-day period in which a prisoner is confined in or
            committed to a facility as specified in this section, one day shall be
            deducted from his or her period of confinement unless it appears by
            the record that the prisoner has not satisfactorily complied with the
            reasonable rules and regulations established by the sheriff, chief of
            police, or superintendent of an industrial farm or road camp."

       2.      Waiver of section 4019 credits

       "A prisoner may waive presentence credits, including conduct credits, as part of a

negotiated disposition." (People v. Lara (2012) 54 Cal.4th 896, 903, fn. 3.) In People v.

Black (2009) 176 Cal.App.4th 145, 154 (Black), the Court of Appeal outlined the

following law governing a defendant's waiver of section 4019 credits:

            " 'As with the waiver of any significant right by a criminal
            defendant, a defendant's waiver of entitlement to section [4019]
            credits must, of course, be knowing and intelligent.' [Citation.] 'The
            gravamen of whether such a waiver is knowing and intelligent is
            whether the defendant understood he was relinquishing or giving up
            custody credits to which he was otherwise entitled under section
            [4019].' " (Black, supra, at p. 154.)

In other words, a defendant's waiver of section 4019 credits "must be clear, voluntary,

and informed." (People v. Eastman (1993) 13 Cal.App.4th 668, 678 (Eastman).)

       In Black, a defendant who was in custody after having her probation revoked

(Black, supra, 176 Cal.App.4th at p. 149), executed an application and agreement

(Agreement) to participate in a drug court program. (Id. at p. 152.) The Agreement

contained a provision that stated that the defendant agreed to " 'waive all [section] 4019

credits as a condition of participating' " in the program. (Ibid.) The defendant was

released from custody to a drug rehabilitation facility on that same day, September 24,

2007. (Id. at p. 149.)


                                                9
          The Black court rejected the defendant's argument that the waiver was invalid

because her attorney had not discussed the implication of this provision and the court had

not admonished her on the record with respect to the waiver. (Black, supra, 176

Cal.App.4th at p. 149.) However, the Black court concluded that the waiver applied only

to credits accrued prior to September 24, 2007, the date the defendant executed the

Agreement containing the waiver of section 4019 credits:

             "The People's position is that the waiver applies to all section 4019
             credits accrued prior to September 24, 2007, the date defendant
             signed the Agreement. The People concede defendant should have
             been awarded section 4019 credits for any time spent in custody
             after September 24, 2007, and a limited remand for a proper
             calculation of credits is therefore appropriate. On the record before
             us, we cannot detect a basis for disagreeing with the People's
             position." (Black, supra, at p. 155.)

B.        Application

          In this case, the written plea agreement indicates that Johnson was agreeing to

"waive 4019 credits," and during the plea colloquy, Johnson agreed with the trial court

that he was "waiving 4019 credits." This language is sufficient to demonstrate Johnson's

knowing and intelligent waiver of any section 4019 credits that he had earned as of the

date of his guilty plea. (See Black, supra, 176 Cal.App.4th at p. 152.) However, there is

nothing in the written plea agreement or the plea hearing that would suggest that Johnson

agreed to waive any and/or all section 4019 conduct credits that he might earn in the

future.

          We acknowledge that there is evidence in the record that suggests that the parties

may have contemplated that Johnson was agreeing to waive any 4019 credits that he


                                               10
might earn up until the date of sentencing. The July 22 probation report indicates that

Johnson was to earn zero section 4019 credits, and neither Johnson nor his attorney

objected at sentencing when the court awarded zero section 4019 credits.9 In addition,

certain remarks made during the sentencing hearing suggest that the parties may have

viewed Johnson as having waived any section 4019 credits that he might have earned

until the date of sentencing. For example, the prosecutor stated, "I believe the 4019s are

being waived and that it would just be straight custody." (Italics added.) In addition,

Judge Eyherabide stated that the absence of evidence that the parties had agreed to a

work furlough program made her "believe the agreement was 365 local custody." (Italics

added.) However, neither the prosecutor nor the trial judge who presided at the

sentencing hearing were present at the plea hearing. In addition, as noted in the previous

paragraph, there is nothing in either the plea agreement or the plea colloquy that indicates

that Johnson waived section 4019 credits that he might earn after the date of the guilty

plea.

        Accordingly, we conclude that the record does not demonstrate that Johnson

effectuated a "clear, voluntary, and informed" waiver of the right to earn section 4019

credits after the date of his guilty plea. (Eastman, supra, 13 Cal.App.4th at p. 678; see

also Black, supra, 176 Cal.App.4th at p. 152 [concluding defendant's waiver of section

4019 credits did not extend to potential future credits earned after the date of the


9      Defense counsel's failure to object does not preclude this court from correcting any
error as to the proper award of conduct credits on appeal. An error as to the proper
amount of conduct credits constitutes an authorized sentence that may be corrected at any
time. (See, e.g., People v. Johnson (2015) 234 Cal.App.4th 1432, 1457, fn. 12.)
                                             11
waiver].) Under these circumstances, a limited remand to the trial court for a

redetermination of section 4019 conduct credits is appropriate. (See Black, supra, at p.

155.)

                                             IV.

                                       DISPOSITION

        The portion of the June 22, 2015 order awarding zero days of section 4019

conduct credits is reversed. The matter is remanded to the trial court for the limited

purpose of determining Johnson's eligibility for conduct credits under section 4019 for

the time period after the date of the guilty plea, June 21, 2013. In all other respects, the

June 22, 2015 order is affirmed.



                                                                        AARON, J.

WE CONCUR:

HALLER, Acting P. J.

IRION, J.




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