Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-503508
McGuiness, P.J.
Appellant Vernon David Phy challenges the denial of presentence custody credit against his six-year prison term. Appellant contends the trial court erred by denying him credit for time served on a parole revocation term that was allegedly based on the same conduct underlying his conviction. We affirm.
Factual and Procedural Background
In 2002, appellant was convicted in case number MCR-396703 of two felonies, possession of methamphetamine (Health & Saf. Code, § 11350, subd. (a)) and evading a pursuing police officer while driving with disregard for the safety of others (Veh. Code, § 2800.2, subd. (a).) He received a sentence of four years eight months. After he was paroled and returned to custody on two different occasions, he was released on parole a third time in June 2006. Appellant absconded and on October 23, 2006, a parole violation bench warrant issued for his arrest.
The conduct giving rise to appellant’s conviction in this case took place on December 31, 2006, when appellant and Jane Doe drank alcohol and took a prescription drug, Klonopin. When appellant began to act strange and appeared sleepy, Doe attempted to wake him. He appeared to wake up and they began to “play fight,” although unexpectedly appellant began to punch Doe in the face and placed his hand over her nose and mouth, cutting off her air supply and almost causing her to lose consciousness. A neighbor at the scene reported that appellant stated “[t]hat bitch deserved it” and attempted to strike the neighbor with a closed fist when she attempted to detain him. Appellant repeated the same comment to an arresting officer. Doe, who was suffering from multiple injuries, claimed appellant assaulted her for two hours and told the officer appellant was on parole with a condition precluding him from contacting her.
The Board of Parole Hearings (Board) held a parole revocation hearing on January 18, 2007. At the hearing, appellant executed an “optional waiver” accepting an “assessment offer,” which subjected him to a 12-month parole revocation term. The Board found eight violations of appellant’s parole, as follows: (1) absconding parole supervision, (2) associating with “prohibited or non-gang validated persons,” (3) battery with great bodily injury, (4) attempted manslaughter, (5) use of alcohol, (6) illicit use of a prescription, (7) failure to attend a batterer’s program, and (8) failure to register as a narcotic offender pursuant to Health and Safety Code section 11590.
In an information filed in this case on March 22, 2007, the Sonoma County District Attorney charged appellant with inflicting corporal injury upon a former cohabitant (Pen. Code, § 273.5, subd. (a)), and making criminal threats (Pen. Code, § 422). The information contained allegations that appellant had a prior strike conviction (Pen. Code, § 1170.12) and two prior prison commitments (Pen. Code, § 667.5, subd. (b).) On May 2, 2007, appellant pleaded no contest to inflicting corporal injury upon a former cohabitant and admitted the strike. In exchange, the prosecutor agreed to dismiss the criminal threat charge and the prior prison term sentence enhancement.
The trial court sentenced appellant to the middle term of six years in state prison. The court denied appellant custody credits for the time he had served on his parole revocation term in case number MCR-396703, explaining that appellant was in custody for reasons other than just the new offense.
Appellant filed a timely notice of appeal.
Discussion
Appellant contends the trial court erred when it refused to award custody credit against his prison term in this case for the time he spent serving his parole revocation term in case MCR-396703. He also argues that, at a minimum, the court should have awarded presentence credit for the portion of the parole revocation term attributable solely to the conduct giving rise to his conviction in this case.
Penal Code section 2900.5 governs the award of presentence custody credit. Subdivision (b) of that statute provides in relevant part that presentence custody “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.” (Italics added.)
“A defendant is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period.” (People v. Johnson (2007) 150 Cal.App.4th 1467, 1485.) In People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194, our Supreme Court held that “where a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a ‘but for’ cause of the earlier restraint.” The court continued, “[a]ccordingly, when one seeks credit upon a criminal sentence for presentence time already served and credited on a parole or probation revocation term, he cannot prevail simply by demonstrating that the misconduct which led to his conviction and sentence was ‘a’ basis for the revocation matter as well.” (Id. at p. 1194.)
The defendant in People v. Bruner suggested the “strict causation” rule adopted by the court was unfair “because it requires a prisoner seeking credit for a multiple-cause presentence restraint to ‘prove a negative’—i.e., that the restraint would not have occurred but for the current crimes alone.” (People v. Bruner, supra, 9 Cal.4th at p. 1193.) It was asserted that “[i]n parole and probation cases involving multiple violations . . . the record will rarely disclose which misdeeds were the dispositive causes of revocation.” (Ibid.) The Supreme Court acknowledged the difficulty but concluded “it arises from the limited purposes of the credit statute itself. The alternative is to allow endless duplicative credit against separately imposed terms of incarceration when it is not at all clear that the misconduct underlying these terms was related. . . . [S]uch credit windfalls are not within the contemplation of [Penal Code] section 2900.5.” (Ibid., fn. omitted.) The court described the defendant’s burden as “onerous” although “not necessarily impossible.” (Id. at p. 1193, fn. 10.)
Appellant claims this case is one of the rare instances in which “the defendant is able to meet his burden and present documentary evidence demonstrating that the criminal conduct for which he was convicted and sentenced was ‘the true and only unavoidable basis’ for his continued parole hold and his parole revocation.” As support for this contention, appellant relies heavily upon an entry in the “summary of revocation hearing and decision” in which the basis for the revocation is listed as “PC [probable cause] on charges based on a OR/police reports [sic].” Appellant contends this statement constitutes “affirmative proof” that the Board revoked his parole based on the new charges established by police reports, purportedly confirming that the conduct underlying his conviction was the “but for” cause of his parole revocation and continued custody. We disagree.
Appellant’s parole was revoked based upon eight different violations, at least three of which—absconding, failure to attend a batterer’s program, and failure to register as a drug offender—have no relationship to the conduct that led to his conviction in this case. Contrary to appellant’s contention, the statement in the parole revocation decision that probable cause on the “charges” was established based on police reports does not signify that his parole was revoked based solely on the new offenses. Appellant seems to believe that the reference to “charges” in the statement explaining the basis for the Board’s decision is synonymous with the newly filed charges in this case. Not so. The reference to “charges” plainly refers to the charged parole violations, as is evident from the page of the revocation decision that describes all eight violations as “charges.”
The facts of this case bear a remarkable similarity to the facts in In re Nickles (1991) 231 Cal.App.3d 415 and People v. Purvis (1992) 11 Cal.App.4th 1193. In In re Nickles, the defendant’s parole was revoked based on five different grounds, three of which were attributable to new criminal charges against the defendant. Two of the grounds—absconding while on parole and failure to drug test—were not related to the new criminal charges. (In re Nickles, supra, 231 Cal.App.3d at p. 417.) The appellate court confirmed that the defendant was not entitled to presentence custody credit for the time served for violating his parole, concluding he had failed to show that, but for the three grounds of parole revocation attributable to his criminal offenses committed while on parole, he would not have served a parole revocation term. (Id. at pp. 423-424.) In People v. Purvis, the defendant was charged with seven parole violations, two of which were for conduct that also supported new criminal charges. The other five charged violations were for absconding, providing false identification to an officer, using methamphetamine, using alcohol, and failing to comply with a parole officer’s directions. (People v. Purvis, supra, 11 Cal.App.4th at p. 1196.) The Court of Appeal upheld a determination that the defendant was not entitled to presentence custody credit for the time served for violating his parole, stating that “[i]n the absence of an affirmative indication to the contrary we must conclude that defendant would have been confined for these other parole violations regardless of the present offenses.” (Id. at p. 1198.)
Like the defendants in In re Nickles and People v. Purvis, appellant has not met his burden to show that, but for the conduct underlying his conviction in this case, he would not have served a parole revocation term. Taken together or considered separately, the three parole violations that are unrelated to appellant’s conviction in this case support revocation of parole and imposition of a term of confinement. As appellant acknowledges, the recommended parole revocation term for absconding ranges from five to nine months, and that same range is prescribed for failing to register as a drug offender. (Cal. Code Regs., tit. 15, § 2646.1, subds. (c)(4) & (j)(3).)
Appellant’s reliance on People v. Williams (1992) 10 Cal.App.4th 827 is misplaced. In People v. Williams, “the defendant was arrested for kidnapping and sexually assaulting a minor. His probation in an earlier matter was revoked on two grounds, failure to ‘obey all laws’ and ‘new charges.’ He was also charged with multiple sex offenses in the new case, but he subsequently entered a negotiated plea to one count only. The Court of Appeal concluded he was entitled to credit against his sentence for time spent in custody on the probation revocation because this custody arose from the identical conduct that led to the criminal sentence. First, the court reasoned, the record of the probation revocation disclosed no basis for a conclusion that the ‘obey all laws’ violation related to anything other except the kidnapping-assault case. Second, the court concluded, the mere dismissal of certain counts in the criminal proceeding, all of which counts stemmed from the same criminal episode, did not mean that the revocation was based on conduct different from that leading to the criminal sentence. [Citation.]” (People v. Bruner, supra, 9 Cal.4th at pp. 1193-1194, fn. 10.) Thus, the only basis for revoking the defendant’s probation in People v. Williams was the conduct underlying the new criminal charges. That is not the case here.
Finally, we address appellant’s contention that he is “at least entitled to credit for the portion of the 12-month revocation term which was attributable solely to the conduct underlying the new conviction.” He argues that, but for the conduct underlying his new conviction, he would have received a shorter parole revocation term, and the trial court should have credited him for the portion of his parole revocation term attributable solely to the new offenses. Appellant presents no authority to support this novel argument, nor does appellant explain how a trial court could be expected to parse out an aggregate parole revocation term and assign to each parole violation some portion of the overall term. Here, the Board found eight violations of parole and sentenced appellant to an aggregate revocation term of 12 months, without specifying what portion of the term was attributable to each violation. Even assuming it were proper to give presentence custody credit in a “mixed conduct” case for some portion of a parole or probation revocation term attributable to the new offenses, the record here does not support such an apportionment. It is entirely conceivable that appellant would have received a 12-month term based solely on the three violations that are unrelated to his conviction in this case.
Disposition
The judgment is affirmed.
We concur: Siggins, J., Jenkins, J.