Opinion
Alameda County Super. Ct. No. 06267804
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sepulveda, J.
We issued an order to show cause in this matter in order to determine whether presentence custody credits earned by petitioner Howard Johnson III were properly applied to reduce his prison sentence. We have found they were not; therefore, we return the matter to the trial court to correct the judgment.
BACKGROUND
Petitioner went on a crime spree in 1996. He was arrested on August 30, 1996, and charged with two counts of second degree robbery (case no. H24496). On September 21, 1996, while in custody, he was arrested and charged with a murder that occurred before the robberies (case no. 130929B). On January 19, 1999, he was arrested a third time, while still in custody, for an attempted robbery that occurred during his 1996 crime spree (case no. 134858).
In February 1999, petitioner entered guilty pleas in all three cases. In case no. H24496, he pleaded guilty to two counts of second degree robbery. In case no. 130929B, he pleaded guilty to voluntary manslaughter and second degree robbery. In case no. 134858, he pleaded guilty to attempted robbery. He also admitted a firearm use enhancement (§ 12022.5) in case no. 134858.
The trial court sentenced defendant to three years in prison for the attempted robbery (the principal term) and then added 10 years for the gun use enhancement. The court then imposed one-year terms (one-third the middle term) for each of the three second degree robberies. Finally, the court imposed a two-year term for the voluntary manslaughter. All terms were run consecutively for a total sentence of 18 years. The trial court also imposed a $2,000 restitution fine.
Petitioner had accumulated 1,458 days of credit (actual and local conduct) for time served prior to being sentenced to state prison. The trial court applied all 1,458 days to case no. H24496. The number of credits far exceeded the two-year sentence imposed in that case. Neither the court nor petitioner’s counsel commented on the excess credits at the sentencing hearing. In fact it appears the parties were unaware of the effect of the trial court’s order.
Petitioner filed a petition for writ of mandate in the trial court, in which he argued for monetary credit against his restitution fine pursuant to Penal Code section 2900.5. He alleged prison officials had told him they intended to use his excess credits (728 days per Department of Corrections calculations) to reduce his parole period. The trial court denied the petition, finding “monetary credit” was available only when presentence credits exceeded the sentence imposed. The court noted petitioner’s 18-year sentence exceeded his 1,458 days of credits, “however allocated.” The trial court stated it was unnecessary to decide whether prison officials were properly applying the presentence credits to petitioner’s parole term.
Section 2900.5, subdivision (a) provides: “In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment, or credited to any fine on a proportional basis, including, but not limited to, base fines and restitution fines, which may be imposed, at the rate of not less than thirty dollars ($30) per day, or more, in the discretion of the court imposing the sentence. If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served. In any case where the court has imposed both a prison or jail term of imprisonment and a fine, any days to be credited to the defendant shall first be applied to the term of imprisonment imposed, and thereafter the remaining days, if any, shall be applied to the fine on a proportional basis, including, but not limited to, base fines and restitution fines.” (Italics added.)
Petitioner renewed his request for credit against his restitution fine by filing a petition for writ of mandate in this court. Upon review of the petition, it appeared to this court that the issue was really whether petitioner’s credits should be applied against his entire 18-year term of imprisonment and that the proper vehicle for relief was a petition for writ of habeas corpus. As no purpose would have been served by denying petitioner’s request for relief based on his mistaken choice of remedy, we deemed his petition to be one for writ of habeas corpus and appointed counsel to represent him. The brief filed by appointed counsel convinced us an order to show cause was warranted in this matter.
We informally asked the Attorney General to clarify whether all of petitioner’s presentence credits were being applied to reduce his 18-year term. The Attorney General confirmed petitioner’s belief that prison officials intend to apply the excess credits to reduce his parole period.
DISCUSSION
As petitioner recognized, the applicable law here is section 2900.5. (In re Marquez (2003) 30 Cal.4th 14, 19; People v. Gonzalez (2006) 138 Cal.App.4th 246, 252 (Gonzalez).) “The statute’s application is clear when the conduct that led to the conviction and sentence was the sole cause of the custody to be credited. But difficult problems arise when, as often happens, the custody for which credit is sought had multiple, unrelated causes.” (People v. Bruner (1995) 9 Cal.4th 1178, 1180; see also Marquez, supra, at p. 19 [credit determination is not a simple matter].)
Petitioner does seek credit for custody from multiple, unrelated causes, but fortunately this case is not that complex.
Subdivision (b) of section 2900.5 provides: “For the purposes of this section, credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted. Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.”
Petitioner claims the credit he is due for the “single period of custody attributable to multiple offenses for which a consecutive sentence [was] imposed.” (§ 2900.5, subd. (b).) He does not ask for duplicate credit. Petitioner apparently remained in jail from August 30, 1996, through the date he was sentenced in February 2000. It is undisputed that all of his nearly four years of credits are attributable to his arrest and custody in case no. H24496. Most of the credits, however, are also attributable to his arrest and custody in case no. 130929B (petitioner was arrested in that case 22 days after his arrest in case no. H24496). Petitioner then served over a year in jail after his arrest in the third case (134858).
Gonzalez, supra, 138 Cal.App.4th 246 involved a similar situation. The defendant in Gonzalez spent time in county jail awaiting the disposition of criminal charges in three different cases. (Id. at pp. 248-249.) He suffered convictions in all three cases. (Id. at pp. 249-250.) The trial court applied the defendant’s presentence credits to two of the cases, but not a third. A substantial number (315 days) of custody credits remained unused. (Id. at pp. 250-251.) The Court of Appeal, noting the defendant’s unused custody credits were attributable both to the third case and one of his other cases (id. at p. 252), concluded the trial court had erred in failing to allow the defendant any custody credits in the third case (id. at p. 254).
If anything, the facts in the instant case are more straightforward than in Gonzalez, supra, 138 Cal.App.4th 246. Petitioner’s sentence in case no. H224982 exhausted two years of credits (730 days). The remaining 728 days should have been applied to his other cases because the credits were earned during a period of custody attributable, in part, to those cases, and consecutive sentences were imposed. (Cf. Cal. Code Regs., tit. 15, § 2344, subd. (c)(2) [for inmates with consecutive sentences determined pursuant to § 1170.2, overlapping credits should be applied first to the principal term, then to the subordinate terms].)
Respondent, without analysis and without discussing Gonzalez, supra, 138 Cal.App.4th 246, insists petitioner’s excess credits should be deducted from his parole period. Respondent cites In re Sosa (1980) 102 Cal.App.3d 1002. The facts and legal issues in Sosa, however, are far removed from those in the instant case. Sosa provides no guidance. It suffices to point out that while presentence credits were applied to a parole period in Sosa, the prisoner in that case had earned presentence credits that exceeded his “total state prison term.” (Id. at p. 1003.) The equation is reversed here—petitioner’s total state prison term exceeds his presentence credits.
Respondent’s return to the order to show cause fails to respond to the arguments advanced in the brief filed by appointed counsel. But for respondent’s suggestion to dismiss the petition on procedural grounds, one could conclude that respondent has implicitly conceded petitioner’s entitlement to relief, so long as it did not involve the use of credits to offset his restitution fine.
Respondent also contends a writ of mandate is not available because petitioner has plain, speedy, and adequate remedies through the prison administrative process. Respondent adds petitioner is not entitled to a writ of mandate because he may seek habeas relief. Finally, respondent urges us to deny relief because the issue identified by this court was not raised in the petition.
Respondent has apparently overlooked this court’s order deeming the petition to be one for writ of habeas corpus. More importantly, respondent does not suggest how prison officials could have provided the relief this court intends to provide, namely an order to the trial court to correct the judgment. Now perhaps we could have summarily denied this petition at the outset because petitioner misunderstood the issue and sought monetary relief instead of the proper application of his presentence credits. But as we have already noted we see no purpose in denying or delaying relief based on petitioner’s mistaken choice of remedy or his misunderstanding of the law, particularly in an area of law that is fraught with peril. And no factual disputes have been pointed out to us.
It is unclear whether the error in this case was inadvertent or an error of law. In either case, petitioner is entitled to relief. (See People v. Jack (1989) 213 Cal.App.3d 913, 917 [trial court had no discretion to exercise; it must award credit according to an established formula].)
DISPOSITION
The petition for writ of habeas corpus is granted. Let a writ of habeas corpus issue directing the Superior Court of Alameda County to correct the judgment and file an amended abstract of judgment that reflects the application of petitioner’s presentence custody credits first against his sentence in case no. H24496, and then against his sentences in case nos. 130929B and/or 134858, until the credits are exhausted.
We concur: Ruvolo, P.J., Reardon, J.
All further statutory references are to the Penal Code.