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People v. Fajardo

California Court of Appeals, Second District, Fourth Division
Jul 22, 2008
No. B199719 (Cal. Ct. App. Jul. 22, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. PA041457, Ronald S. Coen, Judge.

Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.


WILLHITE, J.

INTRODUCTION

Defendant Roger D. Fajardo appeals from the judgment entered after the trial court revoked his probation and imposed the previously suspended sentence of four years in state prison. This appeal challenges only the trial court’s refusal to award him pre-sentence credit custody for the 24 days he spent in jail after his arrest on a new criminal charge but before the trial court summarily revoked his probation. We adhere to the analysis we set forth in People v. Huff (1990) 223 Cal.App.3d 1100, recently reaffirmed by Division Seven of this district in People v. Pruitt (2008) 161 Cal.App.4th 637, and conclude that defendant is not entitled to credit for that period. We therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On October 18, 2002, defendant pled nolo contendere to spousal abuse (§ 273.5, subd. (a)) in case No. PA041457. The trial court imposed a four-year sentence, suspended execution of the sentence, and placed defendant on formal probation for three years. Defendant’s probationary term included various conditions, including spending 365 days in county jail and obeying all laws.

All statutory references are to the Penal Code.

On October 14, 2005, the trial court, without objection from defendant or trial counsel, extended the probationary term to October 17, 2006.

On May 16, 2006, the trial court, pursuant to stipulation of all counsel and defendant, continued defendant’s probationary term to October 17, 2007.

During the evening of March 1, 2007, defendant was arrested for committing an act of domestic violence. The next day, he was booked into jail.

On March 6, 2007, the People initiated case No. 7SR01234 against defendant by filing a criminal complaint charging one misdemeanor count of spousal abuse (§ 273.5, subd. (a)). Defendant, who had been in custody since his arrest, was arraigned and bail was set at $50,000. Defendant did not post bail and was remanded to custody.

On March 26, 2007, the trial court summarily revoked defendant’s probation in case No. PA041457 because of his March 1 arrest. Defendant was remanded to custody.

On May 9 and 22, 2007, the trial court conducted a probation violation hearing. It found defendant to be in violation of probation because he had failed to obey all laws. The court declined to reinstate probation and, instead, imposed the previously suspended four-year prison term. The court gave defendant credit for the 58 days he had spend in jail since probation was revoked on March 26, plus 28 days conduct credit for that period. In addition, defendant received credit for the 365 days previously imposed and served.

On May 22, 2007, the misdemeanor case (No. 7SRO1234) was dismissed in the interests of justice (§ 1385) because defendant’s probation violation now required him to serve a four-year state prison term.

On December 11, 2007, defendant moved to correct the presentence credit award received in case No. PA041457. He sought credit (actual time plus conduct credit) for the period beginning with his March 1 arrest and ending with the March 26 probation revocation. The trial court issued a minute order denying the motion. It reads: “Probation was not revoked until March 26, 2007. No prior arrest warrant was issued re the violation. Thus, defendant was not arrested on this case [No. PA041457] on March 1, 2007. Defendant had a pending misdemeanor matter, case [No.] 7SR01234, in which he was arrested March 1, 2007. Defendant is not entitled to credits prior to being placed in custody on the probation violation.”

This defense appeal follows. (§ 1237.1.)

DISCUSSION

Defendant contends that he “is entitled to presentence credit for the time he spent in jail on the dismissed [misdemeanor] charge that was based on the same conduct as the probation violation.” (Capitalization and boldface omitted.) That is, he seeks credit for the 24 days he spent in custody from March 2 (when he was booked into jail) through March 25 (the day before probation was revoked) plus an additional 12 days conduct credit (§ 4019). We reject defendant’s contention.

Section 4019 authorizes two days of good time/work time credit for each completed four-day block of actual custody time. (People v. Pruitt, supra, 161 Cal.App.4th at p. 641, fn. 3.)

The controlling statute is section 2900.5. Subdivision (a) of the statute authorizes presentence custody credit. It provides, in relevant part: “In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in jail . . ., all days of custody of the defendant . . ., including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his . . . term of imprisonment.” However, subdivision (b) of section 2900.5 limits the circumstances in which presentence custody credit may be awarded. It provides: “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.” Thus, the issue in this case is whether the time defendant spent in custody beginning with his March 2 incarceration up to his March 26 probation revocation is “attributable to proceedings related to the same conduct for which [he] has been convicted [in case No. PA041457].)”

Almost 20 years ago, we considered this very point in People v. Huff, supra, 223 Cal.App.3d 1100 (Huff). There, the defendant was on probation for a drug possession conviction when he was arrested for grand theft auto. His probation was summarily revoked. The grand theft prosecution was ultimately dismissed for failure to timely commence trial (§ 1382). A probation revocation hearing was subsequently conducted. The trial court found that the defendant had violated probation because of his theft of the car. Probation remained revoked and the court imposed a two-year sentence on the drug possession charge.

On appeal, one issue was the extent to which credit should have been awarded against the drug possession sentence for the custody period beginning with the defendant’s arrest for grand theft auto. Relying upon our Supreme Court’s (then) recent holding in In re Joyner (1989) 48 Cal.3d 487, we concluded that a defendant could not obtain custody credit on a sentence when his custody was solely attributable to another offense. (Huff, supra, 223 Cal.App.3d at pp. 1104-1105.) Applying that principle to defendant Huff’s situation, we explained: “[I]t is clear that [he] is entitled to no presentence credit against his sentence in this case [the drug possession case] for his time in custody on the new charges [grand theft auto]. . . . That crime formed the basis of the eventual revocation of probation in this case, but [his] custody was attributable to the new charge, not to the narcotics conviction that led to grant of probation more than a year before. [¶] While it is true that the new [grand theft auto] charges were eventually dismissed due to a failure to prosecute, so that there was no resulting sentence against which to credit [defendant’s] time in custody on those charges, that fact does not transmute the custody to time attributable to the old charges.” (Id. at p. 1105.)

By a parity of reasoning, defendant is not entitled to credit for the 24 days he spent in custody following his arrest for misdemeanor spousal abuse but before his probation was summarily revoked. Defendant concedes the authority of our decision in Huff but urges that it “has been called into question by Justice Moreno’s concurring opinion” in In Re Marquez (2003) 30 Cal.4th 14, 27-28. The identical argument was advanced in People v. Pruitt, supra, 161 Cal.App.4th 637. Division Seven of this district, in an exhaustive opinion, analyzed all controlling precedents and rejected the argument. It concluded: “Huff resolved the issue properly and continues to be good law.” (Id. at p. 639.) There is no need for us to repeat Pruitt’s analysis. Suffice it to note, we agree with it.

DISPOSITION

The judgment is affirmed.

We concur: EPSTEIN, P. J. SUZUKAWA, J.


Summaries of

People v. Fajardo

California Court of Appeals, Second District, Fourth Division
Jul 22, 2008
No. B199719 (Cal. Ct. App. Jul. 22, 2008)
Case details for

People v. Fajardo

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROGER D. FAJARDO, Defendant and…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Jul 22, 2008

Citations

No. B199719 (Cal. Ct. App. Jul. 22, 2008)