Opinion
A151423
08-31-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH FRANCISCO DROPKO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. Nos. SCR-674256, SCR-674168, SCR-669938, SCR-661466)
This is an appeal from judgment in which defendant Joseph Francisco Dropko challenges the trial court's calculation of his presentence custody credits. Specifically, defendant contends the trial court erred by refusing to grant him custody credits for time he served in a Nevada prison for an unrelated crime after the Sonoma County Superior Court requested a hold be placed on him for crimes charged in this matter. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. California Proceedings.
On September 18, 2015, an information was filed in Sonoma County charging defendant in case No. SCR-661466 with the crimes of theft of identifying information of another with a prior, unlawful access card activity, shoplifting, possession of tear gas by a previously convicted felon, and forgery not exceeding $950. Defendant thereafter pleaded no contest to the two felony counts, and the trial court granted the prosecutor's motion to dismiss the remaining counts.
On October 22, 2015, a complaint was filed in Sonoma County charging defendant in case No. SCR-669938 with the crimes of unlawful access card activity, a felony, committed while on bail for another felony offense, and petty theft of lost property, a misdemeanor, with an allegation of two prior prison terms. On January 13, 2017, defendant pleaded no contest to the felony count, and the trial court granted the prosecutor's motion to dismiss the misdemeanor count and enhancement allegations.
On November 30, 2015, a complaint was filed in Sonoma County charging defendant in case No. SCR-674168 with the crime of bringing cocaine into jail with a prior prison term enhancement. Defendant initially pleaded no contest to this count, and the trial court granted the prosecutor's motion to dismiss the enhancement allegation. On March 9, 2017, defendant changed his plea to no contest to a single count in an amended complaint of possessing drugs in jail.
On December 5, 2016, an amended complaint was filed in Sonoma County charging defendant in case No. SCR-674256 with the felony crimes of grand theft of personal property and second degree commercial burglary, each committed while on bail for three other felony crimes, with two prison priors alleged. Defendant thereafter pleaded no contest to the burglary count, one prison prior allegation and one on-bail allegation, and the remaining count and allegations were dismissed.
On March 23, 2017, defendant was sentenced to a total prison term of seven years four months. In addition, he was awarded 316 days of custody credits in case No. SCR-674256, 317 days of custody credits in case No. SCR-674168, 3 days of custody credits in case No. SCR-669938, and 325 days of custody credits in case No. SCR-661466. Defendant thereafter filed a timely notice of appeal in case No. SCR-674256, which notice was subsequently amended to include case Nos. SCR-674168, SCR-669938, and SCR-661466.
II. Nevada Proceedings.
On December 31, 2015, defendant was arrested in Nevada on unrelated drug charges while on pretrial release in each of the aforementioned California cases. When arrested, defendant had three outstanding bench warrants against him for failure to appear. On January 27, 2016, Sonoma County issued a request that Nevada place a hold on defendant. He was thereafter convicted of the Nevada charges and, on March 29, 2016, sentenced to 12-36 months in Nevada state prison. On October 17, 2016, defendant was paroled and extradited to California on the Sonoma County hold.
DISCUSSION
Defendant argued below at his sentencing hearing that he should receive custody credit for the time he spent incarcerated in Nevada, from January 27, 2016, the date that the hold requested by Sonoma County was placed on him, to March 29, 2016, the date he was sentenced in the Nevada matter. Defendant reasoned that, "[in] all of his cases previously, every time he was arrested he would bail within 24 hours," evidencing that he would have done the same thing in Nevada but for the Sonoma County hold. The trial court denied his request, finding "zero evidence of his attempts to bail" in Nevada and noting, on the contrary, that he "sat in custody for at least one month [in Nevada] without bailing out." It is this ruling defendant now challenges on appeal.
The governing law is not in dispute. "[Penal Code] section 2900.5, subdivision (b) provides that presentence credits 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.' " (People v. Bruner (1995) 9 Cal.4th 1178, 1183.) As interpreted by the California Supreme Court, this statutory language means 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. 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." (Id. at pp. 1193-1194.)
The high court's interpretation accords with "the purpose of section 2900.5[, which] is to ensure that one held in pretrial custody on the basis of unproven criminal charges will not serve a longer overall period of confinement upon a subsequent conviction than another person who received an identical sentence but did not suffer preconviction custody. However, [notwithstanding this purpose], '[t]here is no reason in law or logic to extend the protection intended to be afforded one merely charged with a crime to one already incarcerated and serving his sentence for a first offense who is then charged with a second crime. As to the latter individual the deprivation of liberty for which he seeks credit cannot be attributed to the second offense. Section 2900.5 does not authorize credit where the pending proceeding has no effect whatever upon a defendant's liberty.' [Citation.]" (People v. Bruner, supra, 9 Cal.4th at pp. 1183-1184, original italics.)
Applying these principles to the facts at hand, we agree with the trial court's reasoning and finding that defendant is not entitled to custody credits for the days he served in Nevada prison once the Sonoma County hold was placed on him and until he was sentenced on the Nevada charges. As the trial court noted, defendant has offered no competent evidence to prove that the misconduct which led to his conviction and sentence in this case was also a "but for" cause of his deprivation of liberty in Nevada. (People v. Bruner, supra, 9 Cal.4th at pp. 1193-1194.) Indeed, in appellate briefing, defendant identifies only his attorney's "assert[ion] in the trial court below he would not have remained in custody in Nevada but for the Sonoma County, California, hold placed on him in January 2016." Clearly, an attorney's assertion in court is not competent evidence to establish a disputed material fact, like this one, relating to whether a defendant's pending criminal charge(s) in California, by itself, prevented his release from prison in another state during a particular period of time. (People v. Odom (1989) 211 Cal.App.3d 907, 910-911.) While defendant insists there is more than mere assertions by counsel to support his entitlement to the additional credits, a close look at his briefs reveals none. Quoting defendant's opening brief: "There is evidence which shows, by the use of common sense and logic, that it was the hold from California which blocked appellant's ability to post bail in Placer County [Nevada]. No other reason why he wouldn't have posted bail is demonstrated." Defendant's "showing" is fatally deficient. It goes without saying, one, that an appellant's argument, unsupported by citation to the actual record, is not evidence and, two, that where, as here, the appellant bears the burden to prove causation, the appellant cannot meet this burden merely by shifting the burden to the respondent to disprove causation. (See People v. Bruner, supra, 9 Cal.4th at pp. 1193-1194.)
Accordingly, following the binding California Supreme Court authority set forth above, we conclude defendant " 'has failed to demonstrate that his presentence custody was, within the meaning of section 2900.5, "attributable to" anything other than' the unrelated acts which were also at issue in the [Nevada] matter. [Citation.]" (People v. Bruner, supra, 9 Cal.4th at p. 1192.)
DISPOSITION
The judgment is affirmed.
/s/_________
Jenkins, J. We concur: /s/_________
Siggins, P. J. /s/_________
Pollak, J.