Filed 8/8/17 P. v. johnson CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
DION LAROY JOHNSON, SR.,
Defendant and Appellant.

A150187

(Sonoma County
Super. Ct. No. SCR641274)


Dion Laroy Johnson, Sr., (appellant) appeals from a judgment entered after he pleaded no contest to four felony counts of second degree robbery with a prior serious felony enhancement and the trial court sentenced him to 10 years in state prison. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not do so. Having independently reviewed the record, we conclude there are no issues that require further briefing, and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A felony complaint was filed on October 23, 2013, charging appellant and codefendant Antoine Malrough with four felony counts of robbery (Pen. Code, § 211 ). The complaint alleged that appellant had suffered four prior strike convictions (§ 1170.12) and four prior serious felony convictions (§ 667, subd. (a)(1)).
According to a Rohnert Park Department of Public Safety report, two males committed a robbery at a U.S. Bank on October 26, 2016. The suspects entered the bank wearing dreadlock wigs, sunglasses, black jackets with “Security” written on the back, and gloves. They told the assistant manager and another employee to get on the floor under their desks. One of the suspects jumped over the counter and ordered a teller to open his cash drawer. After taking money from the drawer, that suspect ordered a fourth employee to open his drawer as well and took money from that drawer. None of the employees saw a gun but believed the suspects had guns, “as the suspects kept their hands in their pockets and threatened physical harm during the incident.”
Officers arrived at the scene shortly thereafter. They searched the area and found a black jacket, dreadlock wigs, and sunglasses in a nearby dumpster. A DNA test on one of the wigs identified Antoine Malrough as a contributor of DNA. Appellant’s DNA was also found on a glove found near the scene. Malrough and appellant denied committing the robbery but acknowledged they knew each other.
On July 28, 2016, a Felony Advisement of Rights, Waiver, and Plea executed by appellant, defense counsel, the prosecutor, and the trial court was filed. The form stated that appellant was pleading no contest to all four robbery counts plus one “PC 667(a)” enhancement. It stated the plea was conditioned on a stipulated custody term of “10 yrs CDCR, concurrent to [sentence] in Sacramento case 10F07373” and the trial court’s dismissing “balance of priors.” Appellant initialed a box indicating he understood one of the consequences of the plea to be “Reduced conduct credits” for “Violent Felony - no credit to maximum 15%” and “Prior Strike(s) - no credit to maximum 20%.” The phrase “w/out prejudice” was written next to appellant’s signature.
At a hearing that took place the same day, the prosecutor said the People’s offer was “for stipulated prison term of ten years that will be served concurrent with another prison sentence that is currently being served out of Sacramento County.” Defense counsel stated, “A couple of qualifications to that. It’s being served concurrently with Sacramento, and we anticipate that he will receive time credits from the time that . . . a detainer was placed on him in Sacramento on this warrant. . . .” The prosecutor said, “I’m not trying—credits are a tricky area where I try not to get too involved, but nobody is trying to take any credits away from Mr. Johnson that he would be really entitled to. So whenever the triggering things took place that would begin credits to accrue, the People believe that he’s entitled to all of those. We’re not trying to take anything away from him that he’s entitled to.” Defense counsel stated, “That’s fine.”
Appellant confirmed that was his understanding of the offer. He stated he had filled out the plea form, understood the constitutional rights on the form, and waived them. Defense counsel stated there was a factual basis for the plea “[b]ased on the reports I reviewed.” Appellant then pleaded no contest to each of the four counts and admitted a prior serious felony. The trial court accepted the pleas and admission.
At a hearing on August 25, 2016, appellant moved to withdraw his plea. Defense counsel explained, “Mr. Johnson was specifically advised by me that he would receive concurrent time credits against this sentence, otherwise, he wouldn’t have plead[ed]. And I actually believe that he is entitled to those credits. Probation has said he’s not.” The prosecutor stated, “To avoid that procedure and process, the People have agreed to stipulate to Mr. Johnson receiving those credits in this case or alternatively entering into a modified sentencing agreement which would essentially put him even better off than if he had received those credits which negates the need to withdraw the plea.” Defense counsel maintained that appellant wanted to withdraw plea; the prosecutor argued there was no good cause. The trial court told defense counsel that he would need to file a motion to withdraw the plea, and scheduled an appearance for the filing of such a motion.
At a hearing on September 1, 2016, defense counsel stated he had discussed the matter with the prosecutor and that, based on counsel’s having specifically advised appellant that he would receive time credits, the prosecution “would stipulate that he’s entitled to those time credits from the date of the issuance of the warrant in this matter while he’s being concurrently detained in Sacramento. [¶] So there’s no basis to withdraw the plea as I see it.” Defense counsel asked the court “to get a calculation before the Court.”
The prosecutor stated that, while the People did not necessarily agree that appellant was entitled to all those credits, it understood why that advice had been given and agreed that appellant “would likely be entitled to withdraw his plea because that is a material understanding of what the terms of the negotiation will be, and as a result the People are willing to agree that appellant can have all those credits dating back to when the warrant went out in this case.” The trial court referred the matter to the probation department for a supplemental report on “credit calculations, credit for time served.”
On September 19, 2016, the trial court received a memorandum from the probation officer stating that appellant was sentenced in “10F07373,” the Sacramento County case, on January 23, 2015, and that “[o]nce a sentenced prisoner, the defendant is not entitled to credit for time served.” As to the time before appellant was sentenced in Sacramento County, the probation officer stated that “he is not entitled to presentence credits, as he was awarded credits in 10F07373.”
At a hearing on September 21, 2016, defense counsel stated: “Despite the fact that probation indicates zero credits, I think there’s an agreement that he would receive credits from the time the warrant hold was placed which would be January 29th of 2014.” The prosecutor stated, “the People are agreeable to the credits going back to that date.” The trial court and counsel agreed that appellant would get 967 days of credits for actual custody.
The probation officer stated that conduct credits would be 145 days “per 2933.1.” Appellant said that was not what he had understood “in terms of agreement”; he had “understood that I would get 4019 credits not 2933.1.” That, he stated, was one of his reasons for taking the deal, and he “never would have pled” otherwise. The trial court called on the prosecutor, who stated, “2933.1 is pretty clear. It’s a violent felony.” Appellant then personally asked to withdraw his plea; defense counsel said, “he and I never had a discussion concerning 2933[.1] versus 4019.” The court told appellant that it agreed with the prosecutor that robbery was a violent felony and that “I cannot give 50 percent credits by law for those counts that you pled to. So if you wish to file a motion to withdraw the plea, I can allow you to do that.”
Appellant said he was told that “by law, I had those credits coming.” The trial court reiterated that it “can’t give you those credits even if I wanted to” and that defense counsel could file a motion to withdraw the plea. Defense counsel reiterated that “[t]here was never a discussion concerning conduct credits, whether or not he would receive half time or whatever.” The prosecutor, said he was “confident” that such a discussion did take place “in some regard because there’s a box initialed by Mr. Johnson on his change of plea form that indicates this is a violent felony and no credits for a maximum of 15 percent.” Appellant said he signed the change-of-plea form “without prejudice. I was advised and instructed that because of that I still retained my right and reserved my right to challenge the plea itself. [¶] The 15 percent, 85 percent that was on the plea agreement to my understanding under 2933[.1] it doesn’t start until after prison. This is post sentencing.”
The trial court asked appellant whether it was his understanding that he was “getting half time up until the day you were sentenced”; appellant answered, “Yes.” The court said it would like to see “an argument where he gets half time up until the sentencing and, if not, he wishes to withdraw his plea,” with the prosecution to reply on both points. The court set a date on which the parties would be “coming back for a filing of the motion to withdraw the plea.”
At a hearing on October 5, 2016, defense counsel informed the trial court: “We’re prepared to proceed to sentencing this morning.” He asked the court to confirm that with appellant personally. The court asked appellant whether he wished to proceed to sentencing; he replied, “Yes, Your Honor. As long as I can put my other issues on record in case they’re needed after sentencing.” The court replied, “absolutely”; however, the reporter’s transcript does not reflect that appellant said anything more at that hearing, other than “Thank you” at the end.
The probation officer stated that appellant “had 360 actual days” of custody credits before being sentenced in the out-of-county case and “621 actual days” after that sentencing. Defense counsel argued that appellant was “entitled to half time. The statute reads ‘any felony.’ ” The prosecutor argued that “this doesn’t fall under 4019. This is 2933.1 credits issues. I believe the defendant initialed the ‘15 percent credit box’ on the Tahl waiver [In re Tahl (1969) 1 Cal.3d 122].” The trial court noted that appellant was “doing 70 years to life in prison” and asked if there was “an objection to me giving him 981 plus 980 towards the ten-year sentence that he’s doing concurrent to the 70 years to life.” The prosecutor initially objected but submitted on the issue after a bench conference took place.
The trial court denied probation and sentenced appellant to state prison for a total of 10 years, concurrent to Sacramento County case no. 10F07373. The 10-year sentence consisted of the upper term of five years for count 1; the same term, concurrent, as to counts 2, 3, and 4; and a five year consecutive term under section 667, subdivision (a)(1). The court imposed a restitution fine and awarded credits of “981 actual plus 980 conduct for a total of 1,961 days.”
Appellant filed a timely notice of appeal in which he stated he was challenging the validity of the plea. The trial court granted a certificate of probable cause.
DISCUSSION
Appellant’s counsel has filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436, and asks this court to independently review the entire record to determine if it contains any issues which would, if resolved favorably to the appellant, result in reversal or modification. We have examined the entire record and have found no reasonably arguable appellate issue, and we are satisfied that counsel has fully complied with his responsibilities. (People v. Kelly (2006) 40 Cal.4th 106, 109–110; People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.





_________________________
McGuiness, P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.