Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CM029670, CM030124
ROBIE, J.
Sentenced to three years and eight months in prison after pleading no contest to charges in two unrelated cases, defendant David Harry Alpern appeals. On appeal, defendant contends the trial court erred in denying his request for additional custody credits. Finding his claims lack merit, we affirm the trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2008, defendant was seen breaking a car window with a rock. A parolee at large, defendant was arrested not only for breaking into a car, but for his parole violations as well. The parole violation was later dismissed, but defendant was charged in Butte County case No. CM029670 with second degree burglary of a vehicle and resisting a peace officer. Defendant was then released from jail on his own recognizance on October 21, 2008.
Then, on December 9, 2008, while out on his own recognizance in case No. CM029670, defendant was seen threatening someone with a gun. After learning defendant was on parole, defendant’s residence was searched. That search uncovered eight bindles of methamphetamine, 12 pipes, and 24 hypodermic syringes.
Defendant was arrested and charged in Butte County case No. CM030124 with possession of methamphetamine for sale, possession of a smoking device, and possession of a hypodermic syringe. Defendant also was found to be in violation of his parole for possessing knives, possessing a simulated firearm, and for a “dirty” drug test.
Defense counsel later explained that, in fact, defendant had not had a “dirty” drug test, but told his parole officer that if he was tested, it would be “dirty.”
On January 6, 2009, while defendant was in custody, the court rescinded its own recognizance release order in case No. CM029670.
On January 20, 2009, defendant pled no contest to second degree burglary of a vehicle in case No. CM029670 and possession of methamphetamine for sale in case No. CM030124. Defendant also stipulated to the upper term of three years and eight months in state prison. In exchange for his plea, the prosecution agreed to drop all remaining charges and allegations, including an unrelated traffic citation, with a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754.
Defendant further waived his right to a formal probation report, but sentencing was continued to allow the probation department (the department) to calculate defendant’s custody credits under Penal Code section 4019. Defendant was thus returned to jail pending formal sentencing.
On January 22, 2009, the department issued its report, calculating defendant’s custody credits. The department concluded defendant was entitled to 43 days’ credit in case No. CM029670, but denied defendant any credit in case No. CM030124.
Relying on People v. Bruner (1995) 9 Cal.4th 1178, the department explained that defendant was not entitled to custody credits for the period of incarceration between December 9, 2008, and January 27, 2009, because “[defendant]’s parole is currently revoked and he would have been arrested and held in custody on the aforementioned parole violations, even if he had not committed the new offenses alleged in CM030124.”
On January 27, 2009, defendant appeared before the court for sentencing. Defendant argued he was entitled to an additional 50 days of custody credit in case No. CM030124 because the parole violations relied on by the department were discovered “during the search of the residence in regard to CM-030124.” The trial court denied defendant’s request, awarding defendant 43 days of credit on case No. CM029670 and none in case No. CM030124. Defendant appeals.
DISCUSSION
On appeal, defendant contends the trial court erred in refusing his request for the 50 days of custody credit in case No. CM030124. He also claims he is entitled to an additional 21 days of actual custody credit in case No. CM029670. Neither claim has merit.
People v. Bruner, supra, 9 Cal.4th at page 1178, held that where credit is sought for presentence custody which was based on multiple unrelated acts of misconduct, the defendant has the burden of proving the conduct which led to the underlying conviction was a “‘but for’” cause of the presentence custody. (Id. at pp. 1193-1194.) In other words, the defendant must prove that “but for” the conduct for which he was convicted, the defendant would not have been subjected to presentence custody. No credit is allowed “unless the conduct leading to the sentence was the true and only unavoidable basis for the earlier custody.” (Id. at p. 1192, italics omitted.) It is insufficient that the conduct which led to the defendant’s underlying conviction was also a basis for a separate revocation matter. (Id. at pp. 1193-1194.) Bruner held “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. Accordingly, 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.” (Ibid.)
Defendant argues, as he did in the trial court, that he falls outside the Bruner “but for” test because his is not a mixed conduct case. Rather, he argues that the conduct giving rise to revocation of his parole “is the exact conduct underlying the charges in [case No. CM030124].” Specifically, defendant claims that any knives or simulated firearms that were found in his possession, were found “during the search of the house when the methamphetamine was found that formed the basis of [case No. CM030124].”
Whether the knives and simulated firearms were found during a search related to case No. CM030124 is irrelevant for purposes of analyzing the Bruner “but for” test, which relies on defendant’s “conduct.” The “conduct” for which defendant was charged in case No. CM030124 was possession of methamphetamine for sale, not possession of knives or simulated firearms. That the knives and simulated firearms were found along with the methamphetamine is irrelevant. Importantly, as noted by defendant, possession of knives and simulated firearms is not a crime. Such possession was, however, a violation of defendant’s parole.
Defendant also contends the prosecution failed to prove he was “serving a term based upon revocation of his parole status” prior to sentencing on January 27, 2009. This too, he claims, entitles him to the additional 50 days of credit in case No. CM030124. Defendant is mistaken.
In its report, the department specifically stated that defendant’s parole was revoked, and he would have been incarcerated regardless of the charges for possession of methamphetamine, syringes, and pipes. If defendant had evidence that, in fact, his parole had not been revoked, it was his burden to produce it. (People v. Shabazz (2003) 107 Cal.App.4th 1255, 1258.) He did not.
Defendant also claims he is entitled to another 21 days of actual custody credit in case No. CM029670. He bases this argument on the fact that, on January 6, 2009, the trial court rescinded its own recognizance release order in case No. CM029670. The People failed to respond to this claim, but we nevertheless find the claim to be without merit.
From January 6, 2009, to January 27, 2009, defendant was in jail on three separate matters: (1) his parole violations; (2) the pending charges in case No. CM029670; and (3) the pending charges in case No. CM030124. Accordingly, defendant has not established that “but for” the trial court rescinding its own recognizance release order in case No. CM029670 he would not have been in custody. On the contrary, as noted by the department, he would have been in custody solely because of his parole violations. Accordingly, we find no error.
DISPOSITION
The judgment and sentence are affirmed.
We concur: BLEASE, Acting P. J., CANTIL-SAKAUYE, J.