Opinion
Rehearing Denied May 27, 1983.
Hearing Granted and Retransferred to Court of Appeal July 20, 1983.
Opinions on pages 552-565 omitted.
Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Mark E. Cutler, Chief Asst. State Public Defender, and Augustus E. Noland, Deputy State Public Defender, for Leland T. Nicholson.
No appearance for Respondent.
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., James T. McNally and Susan Rankin Bunting, Deputy Attys. Gen., for real party in interest.
John K. Van De Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., James T. McNally and Susan Rankin Bunting, Deputy Attys. Gen., for the People.
PUGLIA, Presiding Justice.
In February 1980, defendant was arrested and charged in El Dorado County with two counts of assault with a deadly weapon (Pen.Code, § 245) with personal use of a firearm during the commission of those offenses (Pen.Code, § 12022.5), and with being a convicted felon in possession of a firearm (Pen.Code, § 12021.)
In March 1980, he pled guilty to one count of assault with a deadly weapon and the remaining charges were dismissed. Sentencing was set for April 14, 1980; defendant failed to appear and a bench warrant issued.
In September 1980, defendant was arrested in Stanislaus County and charged with burglary in the second degree (Pen.Code, § 459, 460). El Dorado County placed a hold on defendant with the Stanislaus authorities. Defendant subsequently pled guilty to the burglary charge and was sentenced to the middle term of three years in state prison.
On June 16, 1981, the District Attorney of El Dorado County received defendant's demand for disposition of the pending El Dorado [191 Cal.Rptr. 147] felony conviction (Pen.Code, § 1381). As required, defendant was delivered from state prison to El Dorado County and on July 20, 1981, he was sentenced to the middle term of three years for the assault with a deadly weapon conviction. That sentence was ordered to be served concurrently with the Stanislaus commitment.
In July 1982, pursuant to his motion, the El Dorado Superior Court awarded defendant four days pre-sentence custody plus two days conduct credits. Those credits were for the period February 16 to 20, 1980, prior to defendant's release on bail pending disposition of the El Dorado charges.
Denied additional credits, defendant appealed and also filed a petition for habeas corpus raising the same issues. We have consolidated these two proceedings for disposition.
Defendant asserts that failure of the authorities to return him to El Dorado County immediately following imposition of sentence in Stanislaus County denied him his right to a speedy trial and deprived him of the benefits of concurrency. Redress of the violation, he argues, requires that he be given credit upon his El Dorado term for the interval between imposition of the Stanislaus and the El Dorado sentences.
One serving a term in state prison cannot complain about the denial of right to a speedy trial regarding a pending California criminal charge during his imprisonment unless he first makes a request that he be brought to trial, or as in this instance, that he be sentenced on the pending charge or conviction. (Pen.Code, § 1381; People v. Cave (1978) 81 Cal.App.3d 957, 963, 147 Cal.Rptr. 371; see People v. Ruster (1974) 40 Cal.App.3d 865, 872, 115 Cal.Rptr. 572.) Such is not the case here.
Defendant was not sentenced as originally scheduled because of his failure to appear when he absconded on bail. He was aware of the obligation to appear for sentence and obviously knew from the prompt placing of the El Dorado County hold of that jurisdiction's determination to pursue the prosecution through to completion. The reason for the delay in his Penal Code section 1381 demand does not appear in the record. He was, however, delivered to El Dorado County for sentence well within the mandatory time limits of Penal Code section 1381. There was no violation of defendant's speedy trial rights; in fact, so far as the record reveals his El Dorado County trial accorded fully with all constitutional and statutory requirements relative to timeliness. Failure of the El Dorado court to impose sentence within the time prescribed by statute (Pen.Code, § 1191) was due solely to defendant's waiver by conduct of his rights thereunder, rights he did not reassert until he filed his demand under Penal Code section 1381. To the extent defendant has not received the benefits of concurrency, the fault is not that of the People.
After he absconded from El Dorado County, defendant committed a burglary in Stanislaus County for which he was arrested September 5, 1980. He was subsequently convicted of the burglary and sentenced to state prison on November 7, 1980. He received pre-sentence custody and conduct credits upon the Stanislaus term for the period September 5 to November 7, 1980. Defendant now contends that he is entitled to credit on the El Dorado sentence for the pre-sentence time he was confined in Stanislaus County subject to the El Dorado hold pending completion of the burglary prosecution.
In re Ewing (1978) 78 Cal.App.3d 455, 144 Cal.Rptr. 229, relied on by the People, is distinguishable. There the hold placed by the San Diego authorities "played no part ... in Ewing's ... custody ... in Alameda County." (P. 459, 144 Cal.Rptr. 229.) Here the district attorney stipulated that but for the El Dorado hold lodged with Stanislaus County, defendant would "be able to attempt to bail out."
We conclude therefore that the Stanislaus custody, from the placing of the hold on September 9 to the imposition of sentence on November 7, was attributable to proceedings related to the El Dorado conviction within the meaning of Penal Code section 2900.5, subdivision (b). Despite [191 Cal.Rptr. 148] our conclusion, defendant is not entitled to modification of the judgment to award credit against the El Dorado term because, as we shall explain, he has already received equivalent credit, albeit improperly, upon his other concurrent sentence.
At first blush, In re Rojas (1979) 23 Cal.3d 152, 151 Cal.Rptr. 649, 588 P.2d 789, appears to be factually distinguishable. On closer analysis, however, the principle enunciated there and in In re Hodges (1979) 89 Cal.App.3d 221, 152 Cal.Rptr. 394, is decisive here. Both Rojas and Hodges were sentenced prisoners already serving a term of imprisonment when they were proceeded against and convicted upon subsequent criminal charges. Concurrent sentences were imposed; credit against the subsequently imposed terms for "pre-sentence custody" was denied because petitioners were serving sentences of confinement during the pending of the second prosecutions. Thus the "pre-sentence custody" was attributable not to the terms against which they sought to have it credited but to the pre-existing sentences.
Defendant here points out that when sentence was imposed in Stanislaus County, there was no pre-existing El Dorado County sentence. He is quite correct. The El Dorado sentence had not been imposed, however, only because defendant had unlawfully absented himself and flouted the court's authority. Had defendant submitted to the court as ordered and sentence been imposed, he would not have been entitled to credit against the Stanislaus County term for pre-sentence "custody" attributable to the El Dorado proceeding (Rojas, supra, 23 Cal.3d at pp. 155, 156, 151 Cal.Rptr. 649, 588 P.2d 789; Hodges, supra, 89 Cal.App.3d at pp. 225, 227, 152 Cal.Rptr. 394).
One objective of isolation in prison is deterrence of repeated criminal conduct. Had the El Dorado sentence been imposed as originally scheduled on April 14, 1980, the likelihood is that defendant would have been effectively deterred from committing the Stanislaus burglary. The eventuality can only be expressed in terms of probabilities because the deterrent effect of prison custody can be nullified, for example, by an escape as was the case in In re Hodges, supra.
Accession to defendant's demands would confer a reward for wrongdoing in the form of double credit. Under the circumstances, we regard defendant's status while in custody in Stanislaus County subject to an El Dorado hold to secure his return for sentencing as indistinguishable from that of a sentenced prisoner pending trial on subsequent charges. Accordingly, except for the four day period--September 5 to 8--before the El Dorado hold was placed, defendant was not entitled to additional credit for pre-sentence custody against his Stanislaus term because all the remaining days of such custody were attributable to the El Dorado proceedings. Full credit against the Stanislaus term having nonetheless been given, defendant's attempt in this proceeding again to receive credit for the same custody upon his concurrent El Dorado sentence must be rejected because it would result in windfall double credit. Viewed as a bookkeeping problem, the credits improperly received are exactly offset by those withheld. Defendant's account is in perfect balance and the books should be closed.
The petition for habeas corpus is denied; the order to show cause is discharged. The order appealed from is affirmed.
EVANS and SIMS, JJ., concur.