Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 02292040
Margulies, J.
After defendant Antoine Fowler was placed on probation in San Francisco, he was arrested, convicted, and sentenced to a jail term in San Mateo County for a crime unrelated to his San Francisco conviction. While defendant was serving his San Mateo County jail term, he was returned to San Francisco and found to have violated his probation on the basis of the San Mateo County crime. Defendant contends that he should have been granted custody credit for the entire period of his incarceration in San Mateo County because the commission of that crime ultimately led to the revocation of his probation. We conclude, on the contrary, that defendant was not entitled to custody credit until the completion of his San Mateo County sentence. Because he was granted excess custody credit, we remand for recalculation and modification of the judgment.
I. BACKGROUND
In January 2007, defendant pleaded guilty in San Francisco Superior Court to a charge of stalking (Pen. Code, § 646.9, subd. (a)) and was placed on three years’ probation. The jail term imposed as a condition of probation was limited to the 57 days he had already served. As a result of a subsequent probation violation in March 2007, defendant served an additional 244 days in jail, from his arrest on March 13 to his release on November 11, after waiving custody credit for the earlier 57 days.
Defendant was arrested again on December 9, 2007, in San Mateo County for credit card fraud. On December 12, San Francisco Superior Court summarily revoked his probation because he failed to appear for a hearing. Although there is no indication that the San Francisco court was aware of the reason for defendant’s absence, it is now clear that he failed to appear because he was in custody in San Mateo County. A bench warrant was issued.
Defendant was convicted on February 5, 2008 of the San Mateo charges and given a six-month jail sentence. On the same day, he filed a notice under Penal Code section 1381 regarding the San Francisco probation violation. On February 25, the San Francisco court issued an order directing defendant’s transfer to San Francisco custody. On March 7, while defendant was still in custody in San Mateo County, the bench warrant resulting from his failure to appear was served. By March 10, defendant had been transferred to San Francisco. On May 14, he was found to have violated probation on the basis of the San Mateo County conviction, his probation was revoked, and he was ordered to serve a two-year prison term. Defendant was awarded 359 days of custody credit, as well as related conduct credit.
II. DISCUSSION
Defendant contends that he should have been awarded 402 days of custody credit, based on (1) the 244 days served in connection with the earlier probation violation and (2) the 158 days elapsed from the date of his San Mateo County arrest until the date of his sentencing in San Francisco on the probation violation.
Defendant does not contend he should be granted custody credit for the 57 days served originally, apparently because he waived custody credit for that time in connection with the 2007 probation violation.
Defendant’s argument depends upon his contention that custody credit is required if “[t]he conduct [San Mateo County crimes] which underlies the term to be credited [the sentence imposed after the violation of probation in the present case] was also a ‘but for’ cause of the earlier [San Mateo County] restraint.” (People v. Bruner (1995) 9 Cal.4th 1178, 1193–1194 (Bruner).) In fact, this contention turns the applicable legal standard on its head. Under Penal Code section 2900.5, a defendant is not entitled to presentencing custody credit unless “the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted.” (Id., subd. (b), italics added.) In other words, a defendant does not receive credit for time served prior to sentencing unless the time served was attributable to the conduct underlying the conviction for which his or her sentence was imposed. Defendant’s interpretation, which seeks credit if the presentence custody related to the grounds for the probation revocation, rather than the original conviction on which the probation was based, is contrary to the plain statutory language.
The error in defendant’s logic is his contention that “[t]he two-year prison sentence in the present case was imposed because of the violation of probation.” In fact, the prison sentence was imposed as a result of his stalking conviction. The probation violation resulted in the requirement that defendant serve the sentence.
Directly controlling on this issue is People v. Pruitt (2008) 161 Cal.App.4th 637 (Pruitt). The defendant in Pruitt pleaded no contest to burglary and was placed on probation. He was later arrested and jailed on an unrelated charge of receiving of stolen property. Several months after he was arrested, while he continued in custody on the receiving charge, his burglary probation was summarily revoked. The receiving charge was thereafter held to constitute a probation violation; the defendant’s original sentence was imposed; and the receiving charge was dismissed. In calculating his sentence, the trial court refused to grant credit for the time spent in custody on the receiving charge prior to the summary revocation of the defendant’s probation. (Id. at pp. 640–641.) The Court of Appeal affirmed the trial court’s calculation of custody credit, holding that the defendant was not entitled to custody credit for the receiving charge detention because it was not based on the conduct that led to his original conviction. (Id. at p. 649.) Following Pruitt, because the San Mateo County charges were unrelated to the conduct underlying defendant’s original conviction for stalking, he is not entitled to credit for presentence custody attributable to the San Mateo County arrest and conviction.
That does not end the appeal, however. For the reasons discussed below, it appears defendant was awarded excess custody credit. Because such an award constitutes a sentence in excess of the trial court’s jurisdiction, it must be corrected when discovered on appeal. (People v. Huff (1990) 223 Cal.App.3d 1100, 1106 (Huff); People v. Macias (1979) 93 Cal.App.3d 788, 792.)
Under Penal Code section 2900.5, defendant was not entitled to presentence custody credit unless he could show that his detention was attributable solely to the conduct underlying his conviction. Illustrative is In re Joyner (1989) 48 Cal.3d 487 (Joyner), in which the defendant was arrested in Florida on criminal charges after issuance of a warrant for his arrest on different charges in California. A hold was placed in Florida in connection with the California charges, and the defendant was extradited to California after his sentencing in Florida. Sentence on the California charges was set to run concurrently with the Florida sentence, but the defendant was refused any presentence custody credit. (Id. at pp. 489–490.) On appeal, the defendant claimed he should have been given custody credit for the time served in Florida following the California hold. Rejecting this claim, the Supreme Court held that he was entitled to custody credit only if his detention following the hold was attributable solely to the California charges. Because the pendency of the Florida charges provided an independent basis for his detention, he was unable to make this showing. (Id. at p. 492.)
As explained in Bruner, supra, 9 Cal.4th 1178, Penal Code section 2900.5 “is intended only to prevent inequalities in total confinement among defendants, each similarly sentenced in a single proceeding, which inequalities arise solely because one defendant suffered presentence confinement while another did not. Section 2900.5 is not intended to bestow the windfall of duplicative credits against all terms or sentences that are separately imposed in multiple proceedings. . . . [¶] . . . The rule of ‘strict causation’ [applied in Joyner] stems from the conclusion that section 2900.5 did not intend to allow credit for a period of presentence restraint unless the conduct leading to the sentence was the true and only unavoidable basis for the earlier custody.” (Bruner, at pp. 1192–1192, fn. omitted.) Accordingly, Bruner held, a defendant is entitled to custody credit only if he or she would have been free during the period of presentence confinement but for the conduct leading to the original conviction. (Id. at p. 1195.)
In order to avoid the “windfall of duplicative credits,” defendant cannot be granted custody credit for any time served for the duration of his San Mateo County sentence, even if that time was spent in San Francisco custody awaiting probation revocation proceedings. So long as he was serving his San Mateo County sentence, defendant cannot demonstrate that he would have been free but for the probation revocation proceedings.
Defendant argued in the trial court, citing Huff, which featured a factual situation identical to that in Pruitt, that he was entitled to custody credit beginning with the date of his probation revocation in December. In both Pruitt and Huff, however, the charges associated with the crimes that were held to constitute a probation violation were dismissed following the finding of a probation violation. Once the charges were dismissed, there was no other basis for the defendants’ detention following the probation revocation than the probation violation itself. Further, because of the dismissal of the other charges, there was no duplicative credit associated with the detention following revocation of probation. In effect, the probation violation retroactively became the sole basis for the defendants’ detention once the charges were dismissed. In defendant’s case, the San Mateo County charges were not dismissed. Rather, the San Mateo County sentence created, for the period of its duration, a basis for defendant’s confinement independent of the probation revocation. Under Joyner and Bruner, defendant is not entitled to credit for a period of time during which the probation revocation was not the sole basis for his confinement.
The trial court did not explain the basis for its award of custody credit, but in order to arrive at 359 days of credit the court must have begun counting in late January. Since at that time defendant was still in jail in San Mateo County awaiting conviction and sentencing, not even subject to a hold based on the San Francisco probation revocation, there was no basis for awarding custody credit at that time. Only after defendant had fulfilled his obligation to San Mateo County was he entitled to begin receiving presentence custody credit for his incarceration in San Francisco.
We lack sufficient evidence in the record to determine the exact date on which defendant’s custody credit should begin under the foregoing principle. Defendant was arrested on December 9, 2007, and given a six-month jail term. The sentence would have been completed, at the latest, by June 9. It is likely, however, that the sentence would have been shortened by one-third pursuant to Penal Code section 4019, subdivisions (b), (c), and (f) (see People v. Fabela (1993) 12 Cal.App.4th 1661, 1663–1664), which would have resulted in the termination of defendant’s sentence over a month prior to his May 14, 2008 sentencing on the probation violation. In addition, there may have been other factors affecting the length of his San Mateo County sentence not reflected in the record. Accordingly, we must remand to the trial court for a determination of when defendant’s San Mateo County sentence ended or, if the sentence was not formally ended, when it would have been completed in the ordinary course. If defendant would have been released by San Mateo County prior to May 14, defendant is entitled to custody credit from that likely date of release until May 14, in addition to the 244 days attributable to his 2007 confinement.
III. DISPOSITION
The matter is remanded to the trial court for a determination of the proper custody and conduct credit in accordance with this decision and modification of the judgment to reflect that credit.
We concur: Marchiano, P.J. Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.