Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. VCF 155375 Joseph A. Kalashian, Paul A. Vortman and Melinda M. Reed, Judges.
Judge Kalashian ruled on the motion to suppress evidence, Judge Vortman ruled on the motion to dismiss, and Judge Reed presided over appellant’s trial and sentencing.
James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
A jury convicted Gregory McDonald of possession for sale of cocaine base (Health & Saf. Code, § 11351.5). In a bifurcated trial, the court found true allegations that McDonald was convicted of, and served separate prison terms for, assault with force likely to produce great bodily injury in 1991 and 1996. (Pen. Code, § 667.5, subd. (b).) At sentencing, the court struck punishment on one of the prior prison term allegations and sentenced McDonald to five years in state prison comprised of the four-year midterm on the crime plus one year for the other prison term.
All subsequent statutory references are to the Penal Code.
On appeal, McDonald contends the trial court erred in denying his motion to suppress evidence (§ 1538.5, subd. (m)) and his pretrial motion to dismiss, which was based on asserted violations of his constitutional rights to a speedy trial and due process. He also contends he is entitled to 195 days of custody credit for time served in another county. As we shall explain, while we disagree that the trial court erred in denying his motions to suppress evidence and to dismiss, we agree he was entitled to receive additional custody credits. Accordingly, we will affirm his conviction, but will reverse and remand for a calculation of those credits.
FACTS
On May 3, 2005, during the course of an investigation into a missing adult who was rumored to have been murdered, Tulare Police Detective Edward Hinojosa contacted McDonald, who had been identified as a person of interest in the disappearance, in an alley in Tulare. Hinojosa patted McDonald down and found a plastic baggie containing 9.6 grams of rock cocaine. McDonald admitted owning the drugs, but denied intending to sell them. Hinojosa opined McDonald possessed the cocaine with the intent to sell it because it was more than ordinary users possess for personal use.
McDonald testified in his defense that he intended to smoke the rock cocaine at a hotel with two female acquaintances. Although McDonald admitted possessing the rock cocaine, he denied selling or intending to sell it. McDonald also admitted he never told Hinojosa when arrested that he intended to share the cocaine with the two women.
DISCUSSION
I. The Suppression Motion
McDonald contends the trial court erroneously denied his suppression motion because Hinojosa’s patdown search of his clothing for weapons was not justified by the circumstances and the search exceeded the permissible scope of a search for weapons. We disagree.
A. The Suppression Hearing
Hinojosa testified as follows at the suppression hearing. In May 2005, he was investigating a missing person’s report with suspicious circumstances. The missing person, Joe Noland, was rumored to have been taken out to the country, shot and buried somewhere near Pixley. Hinojosa received information the alleged killer was known by the moniker “Blue,” he usually drove a black car or sometimes a maroon sports utility vehicle, and he was going to be on the west side of Tulare, which is known as a high crime rate area for prostitution and narcotics trafficking and use. Noland’s ex-wife gave Hinojosa the license plate number of the black car, which she had seen on the west side.
The rumor later turned out to be unfounded because Noland was actually in custody under a different name.
The police ultimately traced the plate number to McDonald’s wife, who was the car’s registered owner and a sergeant with the California Department of Corrections. McDonald’s wife confirmed his moniker was “Blue” and provided his true name and date of birth. She told Hinojosa McDonald was not there, but she would tell him to call when he returned. Hinojosa drove by McDonald’s residence and saw a burgundy sports utility vehicle parked in the driveway. Hinojosa also read a police report in which two prostitutes he knew from previous contacts stated “Blue” had slapped them around and threatened that if they messed with him, he already had killed one person and would be willing to kill them also. The prostitutes also provided information about the car “Blue” drove.
McDonald never called back, so Hinojosa went looking for him and found him on the west side. McDonald was either leaning against or standing next to a black car under a carport in an alley known for a lot of crack cocaine use, prostitution and other crimes. Hinojosa knew it was McDonald because of the car’s license plate, which had the license number with which he was familiar. Hinojosa and his female partner, Detective Canaba, got out of their unmarked detective vehicle; they were in plain clothes with their badges and service weapons exposed. Hinojosa approached McDonald, identified himself and said he needed to speak with him. According to Hinojosa, McDonald was not under arrest or detained; it was a consensual encounter. McDonald started making spontaneous statements that he knew what everyone was saying about him, he knew Hinojosa was looking for him, and said something to the effect that “I didn’t do anything to Joe.” McDonald became very nervous and fidgety; he kept reaching for his pockets despite Hinojosa’s asking him twice not to put his hands in them.
Hinojosa felt concerned for his safety because (1) he did not know McDonald, (2) he knew McDonald may have been involved in a homicide, (3) McDonald might have access to firearms as he was married to a correctional sergeant who would have weapons, (4) McDonald was twice Hinojosa’s size, and (5) they were in a high-crime alley. Hinojosa explained that every time he talks to someone he doesn’t know, especially with information “of this nature,” he always pats the person down, and admitted he more than likely would have patted McDonald down even if McDonald had not been reaching towards his pockets; the decision to pat McDonald down, however, was based on the totality of the circumstances.
Hinojosa told McDonald he was going to pat him down to make sure he didn’t have any weapons on him. McDonald responded, “There is no need for that.” Hinojosa explained it was an officer safety issue and asked McDonald to turn around and put his hands on the trunk. McDonald complied. While Hinojosa was patting down the outer portions of McDonald’s pockets, he felt “bulky items.” Hinojosa believed one of the items was “possibly narcotics,” so he asked permission to go into his pockets and see what he had. McDonald said he could not. Hinojosa asked McDonald if he had crack cocaine in his pockets; McDonald said he did. Hinojosa reached into McDonald’s right front pocket and retrieved a plastic baggy that contained a white rocky substance, which based on Hinojosa’s training and experience he recognized to be crack cocaine. Hinojosa thought McDonald had crack cocaine in his pockets because he had received information about McDonald selling narcotics on the west side and from the way one of the round bulky items felt — in Hinojosa’s training and experience it resembled the way narcotics are packaged.
The trial court denied the suppression motion. The court explained: “The officer may encounter this gentlem[a]n, he has articulable facts. The defendant is larger than him, the police says it’s a rumor and in a high crime area known for both burglaries, prostitution, narcotics activity. He was questioning him about a violent felony. [¶] There’s certainly, I think it’s easy to second guess officers in the field, but in those types of circumstances, I think the reasonable thing would have been a pat down. Once he felt that object, based upon his training experience, felt the drugs, he asked the defendant if he had crack cocaine. The defendant said yes, and it turned into a probable cause detention and it was perfectly within constitutional [g]rounds 1538.5.”
B. Analysis
“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362 (Glaser).)
1. The Patdown Search
McDonald first contends there was insufficient cause to search him for weapons. We disagree. In Terry v. Ohio (1968) 392 U.S. 1, 27 (Terry), the court concluded officers may undertake a properly limited search for weapons if “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” (Ibid.; Glaser, supra, 11 Cal.4th at p. 364.) Officers need not be certain the suspect is armed. However, they must have specific and articulable facts to support their suspicion that the suspect is armed and dangerous. (Terry, supra, 392 U.S. at p. 30.)
Hinojosa testified he performed a patdown search for weapons because he did not know McDonald, who was under investigation for murder, McDonald might have access to weapons since his wife was a correctional officer, McDonald was twice his size, and they were in a high-crime alley known for narcotics activity and prostitution. In addition, McDonald was visibly nervous and fidgety, and kept reaching for his pockets despite being asked not to do so. While McDonald points out that an officer may not pat down an individual based simply on the type of crime he is investigating, citing People v. Sandoval (2008) 163 Cal.App.4th 205, 212-213, that was not the sole reason for the patdown. Instead, as Hinojosa explained, he patted down McDonald based on the totality of the circumstances, including the information he received, the location, and McDonald’s size. These facts provided a sufficient basis under Terry for Hinojosa’s decision to search McDonald for weapons.
2. The Scope of the Search
Relying on People v. Valdez (1987) 196 Cal.App.3d 799 (Valdez), McDonald argues that even if the patdown search for weapons was justified, Hinojosa exceeded the scope of a permissible Terry search when he “pressured Mr. McDonald into admitting his possession of the cocaine in order to gain information to search him.” The People respond the search was justified because (1) this case falls within the “plain feel” exception of Minnesota v. Dickerson (1993) 508 U.S. 366 (Dickerson), and (2) McDonald’s admission that the object was crack cocaine gave Hinojosa probable cause to arrest him for narcotics possession, thus justifying the warrantless search as one incident to arrest.
While a warrantless protective patdown search is permitted on the basis of reasonable suspicion less than probable cause and must be strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, when an officer lawfully pats down a suspect’s outer clothing “and feels an object whose contour or mass makes its identity immediately apparent” as contraband, the officer may lawfully remove the object. (Dickerson, supra, 508 U.S. at pp. 373, 375-376.) The “plain feel” exception has been applied in situations where officers immediately determine an object is contraband during pat-down searches. (People v. Dibb (1995) 37 Cal.App.4th 832, 836-837 (Dibb); People v. Limon (1993) 17 Cal.App.4th 524, 536.)
Here, Hinojosa testified that while patting the outer portions of McDonald’s pockets he felt a bulky item that resembled the way narcotics are packaged, which led him to immediately suspect that McDonald possessed narcotics. To confirm his suspicion, Hinojosa asked for permission to check McDonald’s pockets. After McDonald denied permission, Hinojosa asked him if he had crack cocaine in his pockets and McDonald said he did. There was no evidence that Hinojosa manipulated McDonald’s pockets or continued a physical invasion of his privacy, actions that would have amounted to an overstepping the bounds of a permissible search according to Dickerson. (See Dickerson, supra, 508 U.S. at p. 378 [holding officer’s continued exploration of the defendant’s pocket after concluding it contained no weapon was unrelated to the search for weapons and “therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize, [citation], and that we have condemned in subsequent cases.”].)
It is not clear that the bulky item’s identity as contraband was “immediately apparent” when Hinojosa first felt it. Even if it was not, the patdown search did not exceed the permissible scope of a Terry protective search, as McDonald admitted in response to Hinojosa’s query that the object in his pocket was crack cocaine.
This is analogous to People v. Avila (1997) 58 Cal.App.4th 1069, 1075 (Avila), in which the Court of Appeal explained that if a police officer finds contraband while performing a permissible Terry patdown search, “the officer cannot be expected to ignore that contraband.” There, while performing a justified Terry search, the officer felt a hard object while patting down one of the defendant’s pant legs. Not knowing whether the object was a weapon, he asked the defendant what it was without removing it; the defendant said it was “meth,” an illegal narcotic. (Avila, supra, 58 Cal.App.4th at p. 1075.) Stating that “the Fourth Amendment was not designed to protect a defendant from his own candor” (Ibid.), the Court of Appeal concluded the defendant had confessed to a crime and held the officer’s retrieval of the methamphetamine was lawful as a search incident to a lawful arrest. (Ibid., citing Dibb, supra, 37 Cal.App.4th 832 [when an officer has probable cause to arrest a person for narcotics possession, the warrantless search becomes justified as a search incident to arrest].)
Here, McDonald essentially confessed to the crime of possessing a controlled substance following the patdown search. At this point, Hinojosa clearly had probable cause to arrest McDonald and the subsequent seizure of the crack cocaine was justified as incident to his arrest.
McDonald’s reliance on Valdez, supra, 196 Cal.App.3d 799, is misplaced. In that case, police officers executed a search warrant at a yard used by someone other than the defendant; the affidavit supporting the warrant contained no facts connecting the defendant to the sale of narcotics at the yard. When one of the officers, who saw the defendant standing nearby, yelled that they were police officers with a search warrant, the defendant started to turn away. The officer detained the defendant and performed a lawful Terry patdown search, during which he felt a 35-millimeter plastic film canister in the defendant’s front shirt pocket. (Valdez, supra,196 Cal.App.3d at pp. 802, 803-804, 806.) Believing the canister contained narcotics, the officer kept his hand on the bulge in the pocket and asked the defendant, “What is this?” The defendant removed the canister from his pocket and gave permission to open it. When the officer did so, he found cocaine. (Ibid.) The appellate court held that the search of the film canister during the Terry patdown search was unlawful as a film canister is not a “distinctive drug-carrying item” the tactile perception of which during a patdown search for weapons furnishes probable cause to arrest the detainee. (Valdez, supra, at p. 806.) The court also noted the officer’s question was not justified by the patdown search for weapons since the officer knew it was not a weapon. (Id. at p. 807.)
The court explained: “Unlike such items as heroin balloons, which an officer can identify as contraband merely by feeling them, a film canister cannot be identified as containing drugs merely by feeling it. Indeed, [the officer] testified that in his prior experience the canisters he has searched during the execution of search warrants either have contained drugs or were empty. We conclude that a film canister is not a distinctive drug-carrying item equivalent to a heroin balloon, a paper bindle, or a marijuana-smelling brick-shaped package, which may be seized upon observation. [Citations.] Rather, the canister is akin to a common product like a pill bottle, a pack of cigarettes, or a plastic bag which may not be seized merely because it may also be commonly used to store narcotics.” (Id. at pp. 806-807, second italics added.)
Unlike the film canister involved in the Valdez case, Hinojosa suspected the item he felt was narcotics because of its shape and because it “resembled the way narcotics are packaged.” Thus, he felt a distinctively packaged item that appeared to be narcotics, as opposed to a common product that may or may not contain narcotics. After Hinojosa felt the item, unlike the officer in Valdez who asked only what the film canister was,he specifically asked McDonald if he had “crack cocaine.” McDonald, unlike the defendant in Valdez, confessed to the crime of possessing a controlled substance.
McDonald asserts Hinojosa could not ask him about the item in his pocket because Hinojosa knew it was not a weapon and the patdown search was complete. Hinojosa did not testify, however, that once he felt the bulky items he considered the patdown search complete. Although Hinojosa suspected the item was narcotics, as part of his lawful search for weapons he was justified in questioning McDonald further in an effort to dispel any doubt about the nature of the object. (See Avila, supra, 58 Cal.App.4th at p. 1075.) We thus conclude his questioning about the item was reasonable and permissible under the Fourth Amendment.
II. The Pretrial Motion to Dismiss
McDonald claims his federal and state constitutional rights to a speedy trial and due process were violated when the trial court denied his motion to dismiss.
A. Background
After McDonald’s arrest following the May 2005 incident, the Tulare County District Attorney filed a felony complaint under case number VCF145211. On July 21, 2005, the court dismissed the case after granting McDonald’s motion to suppress evidence.
The prosecution re-filed the felony complaint on November 22, 2005 with case number VCF155375. The court issued an arrest warrant on December 1, 2005.
On January 25, 2006, McDonald was arrested in Solano County for second-degree burglary and identify theft. That same day, a hold was placed on him for the Tulare County arrest warrant, which McDonald acknowledged notice of by his signature. McDonald remained in custody in Solano County until May 2008. On May 20, 2008, he pled guilty to the Solano County charges and received a three year prison sentence, which was a paper commitment pursuant to section 1170, subdivision (a)(3), as the 1290 days of custody credit he received in Solano County, comprised of 860 days actual credit plus 430 good time/work time credits, exceeded the three year sentence.
On May 22, 2008, McDonald, who was still in custody, appeared in Tulare County for arraignment on the re-filed charges. McDonald filed a Serna motion to dismiss the complaint based on the four-month delay from the July 2005 dismissal of the original case to the November 2005 re-filing, and the nearly three-year delay to the May 2008 arraignment. McDonald asserted the delay in prosecution violated his speedy trial right under the California Constitution, as well as his due process rights under the California and federal Constitutions. The prosecution filed an opposition, pointing out that (1) McDonald failed to demonstrate prejudice and (2) he was responsible for the delay.
Serna v. Superior Court (1985) 40 Cal.3d 239.
McDonald filed a supplement to the motion, in which he asserted he was prejudiced by the delay in part because he lost the opportunity to be sentenced either concurrent with or consecutive to his Solano County sentence. The prosecution filed a supplemental opposition.
After oral argument, the trial court denied the motion, finding that the delay was not the prosecutor’s fault. The court noted the case involved unusual circumstances that do not arise often and explained: “But the delay that occurred wasn’t the fault of the district attorney’s office or the law enforcement agency or the court. The delay occurred because Mr. McDonald was addressing his case in Solano County. And I’m surely not going to be critical of anyone because of the length of the delay, but it surely wasn’t the fault of the People in this case.... [¶] If there was any prejudice, the prejudice resulted because of Mr. McDonald’s conduct and not the conduct of anyone else. So the Court’s going to deny the motion under Serna.”
B. Analysis
The state and federal Constitutions guarantee a criminal defendant the right to due process and a speedy trial. (U.S. Const., 5th Amend., 6th Amend.; Cal. Const., art. I, § 15, cl. 1.) “Under the federal Constitution,... the filing of a felony complaint is by itself insufficient to trigger speedy trial protection. [Citation.] The United States Supreme Court has defined the point at which the federal speedy trial right begins to operate: ‘[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.’ (United States v. Marion (1971) 404 U.S. 307, 320.)” (People v. Martinez (2000) 22 Cal.4th 750, 754-755 (Martinez).) McDonald conceded in his motion in the trial court that because he was not formally accused within the meaning of the Sixth Amendment when the delay occurred, his federal right to a speedy trial was not at issue. While on appeal he asserts his federal speedy trial right was violated, he acknowledges the federal right did not attach until the filing of the information on June 17, 2008, after the complained-of delay. Accordingly, his federal speedy trial right does not apply here.
In California, a defendant’s right to a speedy trial is protected by statute and the state Constitution. (§ 1381 et seq.; Cal. Const., art. I, § 15, cl. 1.) McDonald does not argue that he was denied his statutory rights under section 1381 et seq. He focuses only on the constitutional right to a speedy trial. In contrast to the federal right, the speedy trial right under the California Constitution is triggered by the filing of a felony complaint. (People v. Martinez, supra, 22 Cal.4th at p. 754.) Thus, McDonald’s state constitutional speedy trial rights attached upon the re-filing of the complaint in November 2005.
The interests protected by the state Constitution’s speedy trial guarantee are (1) avoiding prolonged imprisonment, (2) relieving anxiety and public suspicion, and (3) preventing unfairness at trial, which can arise when the passage of time places the means of proving innocence out of the defendant’s reach, as by the loss of witnesses or the dulling of memory. (Martinez, supra, 22 Cal.4th at pp. 767-768.) When the defendant “is not subject to restraints following arrest and has not been held to answer or formally charged … the first two concerns are implicated little or not at all, and the state Constitution’s speedy trial guarantee serves primarily the interest in fair adjudication.” (Id. at p. 768, fn. omitted.) In such a case, the defendant must “affirmatively demonstrate that the delay has prejudiced the ability to defend against the charge.” (Id. at p. 766.) If the defendant meets the burden of establishing prejudice, the trial court then weighs the prejudice against the justification for the delay to decide whether defendant has been deprived of his right to a speedy trial. (Serna, supra, 40 Cal.3d at p. 249.)
In addition to his state speedy trial right, McDonald contends the delay also violated his due process rights. Under both the federal and state Constitutions, delay occurring after the commission of a crime, but before arrest or filing of any charges, is evaluated under the due process clauses. (United States v. MacDonald (1982) 456 U.S. 1, 7; Scherling v. Superior Court (1978) 22 Cal.3d 493, 505 (Scherling).) In order to establish a denial of due process, the defendant must show there was no justifiable reason for the delay or that it was intentional and that he was prejudiced by the delay. (United States v. Marion, supra, 404 U.S. at p. 324; Scherling, at p. 505.) Under either clause “actual prejudice” must be shown. (United States v. Lovasco (1977) 431 U.S. 783, 789-790; Scherling, at pp. 505-506.)
Thus, under both the California speedy trial provisions and the federal and state due process clauses, McDonald has the burden to show actual prejudice on account of the delay. On appeal, the only prejudice McDonald asserts he suffered as a result of the delay is the loss of the right to concurrent or consecutive sentencing on the Solano County case. Our Supreme Court, however, has rejected the contention that, under the California Constitution’s speedy trial right, the loss of the possibility of concurrent sentencing alone is sufficient to meet the defendant’s initial burden to demonstrate prejudice. (People v. Lowe (2007) 40 Cal.4th 937, 942, 945 (Lowe).) Instead, such a defendant “must show that the delay has impaired the ability to defend against the charged crime because, for instance, a witness has become unavailable. If the defense makes that initial showing, the trial court may then... consider the defendant’s loss of an opportunity to serve a concurrent sentence in weighing all of the prejudice to the defendant against the prosecution’s justification for the delay.” (Lowe, supra, 40 Cal.4th at p. 946.) The court further reasoned, “The likelihood of serving a sentence on a pending charge concurrently with a sentence already being served in another case is speculative. Sometimes imposition of concurrent sentences is legally barred. [Citations.] Even when concurrent sentences are permitted, they often are not imposed because of the presence of certain aggravating factors.” (Ibid.)
We note that in his moving papers before the trial court and at oral argument on the motion below, McDonald also contended he was prejudiced because he had been unable to locate witnesses he claimed were necessary to his defense. He does not renew this argument on appeal, instead pointing only to the loss of concurrent or consecutive sentencing to establish prejudice.
Although Lowe considered a defendant’s constitutional right to a speedy trial (Lowe, supra, 40 Cal.4th at p. 946), a defendant claiming a delay deprived him of due process also has the burden of demonstrating resulting prejudice. Therefore, the reasoning and decision in Lowe is directly applicable here. Since McDonald failed to demonstrate the delay impaired the ability to defend against the charged crime, the loss of the opportunity to benefit from concurrent sentencing alone was insufficient to meet his burden to show prejudice. (Lowe, supra, at pp. 945-946.)
McDonald contends that we are not bound by the holding in Lowe because the case is distinguishable since (1) Lowe dealt only with state constitutional guarantees, not federal ones, (2) unlike the defendant there, here there is no speculation regarding whether McDonald would have received concurrent sentences, and (3) his case does not present the concern in Lowe that “the probation violation ‘tail’ could wag the new criminal case ‘dog.’” We are not convinced. In reaching its decision in Lowe, the Court directly cited federal cases where courts “uniformly rejected defense claims of prejudice” when the only prejudice alleged was the loss of the opportunity to serve concurrent sentences. (Lowe, supra, 40 Cal.4th at p. 945.) The Court even observed that the United States Supreme Court’s decision in Smith v. Hooey (1969) 393 U.S. 374, 377-378, “cannot be said to hold that an unjustified delay in bringing a defendant to trial violates the defendant’s speedy trial right under the federal Constitution when, as here, the only prejudice alleged by the defendant is the loss of the opportunity to serve the sentence on the pending charge concurrently with the sentence in another case.” (Lowe, supra, 40 Cal.4th at p. 945.)
McDonald’s other two points are essentially disagreements with the rationale for the holding in Lowe. He argues an absence of speculation regarding imposition of concurrent sentences because he would have served less time whether the subordinate terms were imposed concurrently or consecutively. He speculates that the Tulare County sentencing court would use the Solano County convictions for second degree burglary and fraud as base terms, and the Tulare County conviction for possession for sale of cocaine base as the subordinate term. His argument remains speculative under Lowe, falling far short of demonstrating actual prejudice. Because there is no persuasive way to distinguish this case from Lowe, we must follow the precedent of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In sum, the trial court did not err in denying McDonald’s motion to dismiss.
III. Calculation of Custody Credits
As explained in Section II, ante, when McDonald was arrested on the Solano County charges on January 25, 2006, a hold was placed on him for the Tulare County arrest warrant. He remained in custody in Solano County until his sentencing there on the Solano County charges. At that time, Solano County awarded him custody credits totaling 1290 days, comprised of 860 days actual credit plus 430 days good time/work time credits. McDonald was sentenced to three years, or 1095 days, in prison. Since his custody credits exceeded the prison sentence, he did not serve time in prison, but instead was transported to Tulare County, where he appeared on May 22, 2008 for his arraignment on the charges in the instant case. At sentencing following his conviction on the Tulare County charges, McDonald requested the trial court award him custody credits extending back to when he was arrested in Solano County and the Tulare County hold was placed on him.
The trial court denied the request for credits from McDonald’s January 2006 arrest to his May 2008 sentencing in Solano County, explaining it was prohibited by law from awarding those credits because “it is not a but for this case defendant would have been released situation.” However, the trial court did award 136 days actual credit from May 21, 2008 to October 3, 2008, the date of sentencing in the Tulare County case, and 78 days actual credit from May 4, 2005 to July 21, 2005, when McDonald was in custody when the first charges were filed; when good time/work time credits of 106 days were added in, McDonald’s credits totaled 320 days. On appeal, McDonald contends he is entitled to credit for 195 days of “dead time,” i.e. the difference between the 1290 days custody credit awarded in the Solano County case and his three-year, or 1095 day, sentence on the Solano County charges.
Whether McDonald is entitled to additional custody credits turns on the interpretation of section 2900.5, which governs the award of presentence custody credits. That section provides, in pertinent part: “(a) In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody,... all days of custody of the defendant,... including days credit to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment,... 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.... [¶] (b) 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.”
The application of section 2900.5 “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 (Bruner); see also In re Marquez (2003) 30 Cal.4th 14, 19 (Marquez) [credit determination is not a simple matter].)
Pursuant to section 2900.5, subdivision (b) (hereafter section 2900.5(b)), “... 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.” We must determine whether the “custody to be credited” (§ 2900.5(b)) in this case, i.e. the difference between the total custody credits awarded in the Solano County case (1290 days), and McDonald’s three-year sentence on the Solano County charges (1095 days) can be deemed “attributable to proceedings related to the same conduct for which [McDonald] has been convicted” (Ibid.), i.e. to the Tulare County proceedings.
We agree that since McDonald’s presentence credits in Solano County exceeded his actual sentence there, he is entitled to custody credits for the time spent in custody in Solano County between the end of his Solano County sentence, which includes credit for actual custody and good time/work time credits, and May 20, 2008, the date his Tulare County sentence was pronounced. Although McDonald was placed in custody on January 25, 2006 due to his arrest on the Solano County charges, Tulare County placed a hold on him that same day. Once the Tulare County hold was placed on him, his custody became attributable to the pending criminal charges in two counties: Tulare and Solano. Had Solano County dropped its charges at that time, McDonald’s subsequent custody would have been attributable solely to the Tulare County hold. Thus, once he completed his 1095 day sentence on Solano County charges, all remaining custody is properly characterized as “attributable to the [Tulare County] proceedings related to the same conduct for which [McDonald] has been convicted.” (§ 2900.5(b).) (See Marquez, supra, 30 Cal.4th at p. 20 [explaining that once Monterey County placed a hold on the defendant, who was in custody in Santa Cruz County for crimes committed there, “his custody was attributable to the charges in both counties”; therefore once Santa Cruz dismissed its charges, all custody following Monterey County’s hold was “properly characterized as ‘attributable to [the Monterey County] proceedings related to the same conduct for which the defendant has been convicted.’ (§ 2900.5(b).)”].)
The case of People v. Gonzalez (2006) 138 Cal.App.4th 246 (Gonzalez) is instructive. There, the defendant spent time in county jail awaiting the disposition of criminal charges in three different cases. (Id. at pp. 248-249.) Ultimately, he agreed to a negotiated disposition 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). In so concluding, the court explained that section 2900.5(b)’s prohibition against duplicate credits would not be violated by awarding credits because the defendant did not seek duplicate credits for the same period of confinement. (Gonzalez, supra, 138 Cal.App.4th at p. 252.)
Here, McDonald’s sentence on the Solano County charges exhausted three years of credits. The remaining credit should have been applied to his Tulare County case because the credits were earned during a period of custody attributable, in part, to that case. Unlike the defendants in the cases the People cite, Bruner, supra, 9 Cal.4th 1178, In re Joyner (1989) 48 Cal.3d 487, In re Rojas (1979) 23 Cal.3d 152, and People v. Shabazz (2003) 107 Cal.App.4th 1255, who sought to recover duplicate credits and therefore were required to comply with the “strict causation” rule, which prohibits custody being “credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credits was also a “but for” cause of the earlier restraint” (Bruner, supra, 9 Cal.4th at p. 1194), McDonald does not seek duplicate credit. Accordingly, the strict causation rule does not apply in this case. (See Gonzalez, supra, 138 Cal.App.4th at p. 254.)
For these reasons, we conclude that McDonald is entitled to custody credit for the time after he completed service of his sentence on the Solano County charges to May 20, 2008. Accordingly, we will remand to the trial court to calculate the custody credits for that period.
DISPOSITION
The judgment is reversed and remanded to the trial court. The trial court is directed to prepare and file an amended abstract of judgment crediting the period in custody from the completion of his Solano County sentence to May 20, 2008, against the sentence in this case. The court is directed to send a certified copy of the amended abstract of judgment to the Department of Corrections.
WE CONCUR: Vartabedian, Acting P.J., Cornell, J.