Opinion
D058989 Super. Ct. No. SCS232148
01-12-2012
THE PEOPLE, Plaintiff and Respondent, v. SANTIAGO DIAZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Esteban Hernandez, Timothy R. Walsh and Ana Espana, Judges. Affirmed without prejudice.
Santiago Diaz pled guilty to possession of methamphetamine and was sentenced to three years in prison. His sole contention on appeal is that the trial court failed to award him all the presentence custody credits to which he is entitled. On this record, there is no showing of error. We affirm the judgment without prejudice to Diaz's right to again raise the issue before the trial court with additional evidence concerning his presentence custody.
FACTUAL AND PROCEDURAL BACKGROUND
On September 5, 2009, Diaz was arrested after he dropped a bag of methamphetamine and a bag of marijuana and then struggled with and fled from the police who had approached him on the street. He was charged with methamphetamine possession, marijuana possession, resisting an officer, two prison priors, and two strike prior convictions. On September 15, 2009, he pled guilty to methamphetamine possession in exchange for dismissal of the balance of the charges and a promise of a three-year sentence to run concurrent "with any parole violations."
At sentencing, the trial court awarded Diaz credit for 307 days of actual custody. Thereafter, Diaz submitted a letter to the court stating that he was entitled to additional actual custody credits based on a period of incarceration that was apparently based on a parole violation. In an ex parte ruling, the trial court denied the motion, without prejudice to its resubmission with proof showing his additional custody was based on the current case.
On appeal, Diaz argues that he is entitled to additional actual custody credits for his custody on the parole violation. As we shall explain, on this record, we cannot determine whether Diaz's claim is valid.
The trial court awarded Diaz 306 days of conduct credit under Penal Code section 4019. Diaz requests that his conduct credits be adjusted in accordance with his corrected actual custody credits.
DISCUSSION
Relevant Legal Principles
A defendant is entitled to custody credits for the time the defendant was in custody prior to being sentenced for an offense. (Pen. Code, § 2900.5, subd. (a).) The presentence custody credits apply to all the custody days from the date of booking to the date of sentencing. (See People v. Macklem (2007) 149 Cal.App.4th 674, 679, 701-702; People v. Smith (1989) 211 Cal.App.3d 523, 525-527.) The reason for providing presentence custody credits is to equalize the total period of confinement for persons convicted of the same offense, and to eliminate the inequalities stemming from the fact that one defendant convicted of the offense was subjected to pretrial custody while another defendant was released pending trial. (People v. Bruner (1995) 9 Cal.4th 1178, 1190-1191; In re Rojas (1979) 23 Cal.3d 152, 156; In re Joyner (1989) 48 Cal.3d 487, 494.)
Subsequent unspecified statutory references are to the Penal Code.
The credits apply if the custody "is attributable to proceedings related to the same conduct for which the defendant has been convicted." (§ 2900.5, subd. (b), italics added.) Thus, custody credits are warranted when "the conduct that led to the conviction and sentence was the sole cause of the custody to be credited." (People v. Bruner, supra, 9 Cal.4th at p. 1180, italics added.) For example, a defendant is entitled to presentence custody credits for incarceration based on a probation violation when the conduct associated with the offense being sentenced was the only reason for the probation violation. (People v. Williams (1992) 10 Cal.App.4th 827, 829, 832-834; see People v. Bruner, supra, 9 Cal.4th at p. 1193, fn. 10.)
In Williams, the defendant had been charged with multiple offenses arising from the same incident; his probation revocation was based on evidence related to all of these offenses; and the defendant ultimately was convicted of only one of the offenses pursuant to a plea agreement. (People v. Williams, supra, 10 Cal.App.4th at p. 830.) The Williams court concluded that even though some of the offenses giving rise to the probation revocation were dismissed, the defendant's jail time for the probation violation was nevertheless based solely on the same conduct as the offense for which he was being sentenced because the dismissed offenses arose from the same incident. (Id. at pp. 829, 832-834.)
On the other hand, when the reason for the presentence custody is based on multiple, unrelated causes, including the offense currently being sentenced, the defendant is not entitled to custody credits unless the defendant can show that but for the current offense he or she could have been free from custody. (In re Joyner, supra, 48 Cal.3d at p. 492; People v. Bruner, supra, 9 Cal.4th at pp. 1180, 1193-1194.) This limitation is premised on the recognition that the statute "does not authorize credit where the pending proceeding has no effect whatever upon a defendant's liberty." (In re Rojas, supra, 23 Cal.3d at p. 156.) For example, under circumstances where a defendant was already serving a prison term for an unrelated offense when he was transferred to jail for trial on a second offense, the defendant was not entitled to custody credits for his time in jail prior to sentencing on the second offense because he would have been in custody regardless of the second offense. (Id. at pp. 154-156.) Similarly, a defendant who was incarcerated in Florida and then subjected to a California hold was not entitled to custody credits based on the California hold absent a showing that he could have obtained release from the Florida authorities if California had not placed the hold. (In re Joyner, supra, 48 Cal.3d at pp. 489, 492.)
Particularly relevant here, when a defendant is incarcerated for violating parole based on multiple, unrelated instances of misconduct, the defendant is not entitled to custody credits for the parole violation term unless the defendant can show that he would not have been held on the parole violation if he had not engaged in the conduct giving rise to the offense for which he is now being sentenced. (People v. Bruner, supra, 9 Cal.4th at pp. 1180, 1193-1194.) Bruner explained that to obtain credit for confinement prior to sentencing, the defendant must "prove the conduct which led to the sentence was a dispositive, or 'but for,' cause of the presentence custody." (Id. at p. 1180.) The Bruner court concluded the defendant did not carry his burden to show custody credits were warranted for his parole revocation term because any one of the multiple matters giving rise to the parole revocation was sufficient to revoke parole; thus, he would have been in custody on the parole revocation term even if he had not committed the offense for which he was currently being sentenced. (Id. at pp. 1182, 1193; see also People v. Shabazz (2003) 107 Cal.App.4th 1255, 1258 [because arrest warrant for parole violation was issued before defendant committed offense currently being sentenced, defendant did not show he would not have been held in jail on parole hold if he had not committed current offense].)
Analysis
The record before us includes the court's minutes, the probation report, and a handwritten letter from Diaz submitted to the trial court to support his request for correction of his custody credits. Diaz has also requested that we augment the record on appeal with a document from the San Diego Sheriff's Department summarizing his booking history. Although Diaz does not show that this document was provided to the trial court, we grant the motion and consider the document to the extent it confirms or clarifies the information that was submitted to the trial court. (See Code Civ. Proc., § 909; People v. Guillen (1994) 25 Cal.App.4th 756, 764.)
The record shows that Diaz was arrested for the conduct associated with the methamphetamine possession offense on September 5, 2009; he was booked into jail on September 6, 2009; he entered his guilty plea to methamphetamine possession on September 15, 2009; and he was released on bail on January 23, 2010. His sentencing hearing was set for March 18, 2010. Meanwhile, he was rearrested and booked into jail on February 11, 2010, apparently for a parole violation, and he was sent to prison on February 18, 2010. He was apparently not produced at his March 18, 2010 sentencing hearing; the trial court ordered the district attorney's office to prepare a writ to obtain his transfer from the prison; and the hearing was reset for May 17, 2010. On May 17, the district attorney's office had not executed the writ; the court again ordered preparation of a writ; and the sentencing hearing was reset for July 15, 2010.
Diaz was brought to the jail (apparently from prison) on June 18, 2010, and he was held without bail in the jail until his sentencing for the methamphetamine possession offense on December 1, 2010. At sentencing, the court awarded him 307 days of custody credit for actual custody time.
The 307 days of actual custody credit were apparently based on (1) 140 days from his booking for the methamphetamine offense (September 6, 2009) until his release on bail (January 23, 2010), and (2) 167 days from his transfer from prison to jail (June 18, 2010) until sentencing (December 1, 2010). Under this calculation, he did not receive credit for the 127 days of custody between his booking for the parole violation (February 11, 2010) and his ensuing incarceration prior to his transfer to the jail on June 18, 2010.
There is no information in the record on appeal showing precisely how the 307 actual custody credits were calculated. From the information we have gleaned from the record and the parties' briefing on appeal, we assume for purposes of our analysis that this was how the calculation was made.
In a pro. per. request to the trial court, and again on appeal with representation by counsel, Diaz argues that he is entitled to credit for the additional 127 days of actual custody that he served because of his parole violation case, which would give him a total of 434 (rather than 307) days of actual custody credit. The trial court denied his request in an ex parte ruling, stating that its denial was "without prejudice" and that Diaz could "resubmit with proof he was in custody on this case" for the number of days he was claiming for actual custody credit.
In his pro. per. request to the trial court, Diaz requested a total of 433 days of actual custody credit, whereas on appeal his counsel calculates the amount as a total of 434 days of actual custody credit.
--------
The Attorney General contends that Diaz has not carried his burden to show he is entitled to credits for his custody on the parole violation, but that this does not preclude him from resubmitting his claim to the trial court with appropriate documentation. We agree.
To prevail on his claim, Diaz has the burden to show that he was incarcerated on the parole violation solely because of the conduct underlying the methamphetamine possession conviction, or, if there were multiple causes for his parole violation, that he would not have been in custody for the parole violation if he had not engaged in the conduct associated with this conviction. The record before us contains no information showing the basis for Diaz's parole violation. Accordingly, the record is too sparse to evaluate his claim for custody credits based on his parole violation, and he has failed to carry his burden on this issue.
As an alternative argument, Diaz asserts that at a minimum he is entitled to 92 additional actual custody credits based on his custody between the date he should have been transferred from prison to jail for sentencing (March 18, 2010), and the date he was actually transferred (June 18, 2010), because the failure to transfer him in timely fashion was due to the district attorney's conduct. The contention is unavailing. As set forth above, the relevant inquiry is not when he was entitled to be transferred from prison to local custody for sentencing on the current offense, but whether the conduct associated with the methamphetamine possession conviction was the dispositive reason for his restraint on the parole violation. That is, to receive presentence custody credits for the days he was incarcerated on the parole violation, Diaz must show that he would not have suffered this restraint if he had not engaged in the conduct resulting in the methamphetamine possession conviction.
We affirm the judgment without prejudice to further proceedings before the trial court on the custody credits issue. (See People v. Guillen, supra, 25 Cal.App.4th at p. 764; People v. Wischemann (1979) 94 Cal.App.3d 162, 174-175.)
DISPOSITION
The judgment is affirmed without prejudice.
________________________
HALLER, J.
WE CONCUR:
________________________
HUFFMAN, Acting P. J.
________________________
NARES, J.