Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS071494
Premo, J.
Defendant Regino Gonzalez entered a negotiated plea of no contest to aiding a parolee’s escape. The trial court sentenced defendant to three years in prison. On appeal, defendant contends that the trial court erred by failing to award him 122 days of presentence custody credits. We disagree and affirm the judgment.
BACKGROUND
In a section entitled “PENAL CODE SECTION 2900.5--TIME SERVED CREDITS,” the probation report noted that defendant had served 82 days in jail from his arrest until the date of the sentencing hearing and accrued 40 days of good/work time credits. In another section, it explained the following: “[Defendant was] paroled from prison a little over 5 months prior to the instant matter. Even though he didn’t suffer any prior parole violations, he had absconded supervision and had been a ‘Parolee At Large’ for 8 days prior to his arrest.” At the sentencing hearing the following colloquy took place.
“[The prosecutor]: With regard to the credits, I had forgotten to address that issue. He was a parolee at large at the time so there’s another reason for his custody so I don’t believe he’s entitled to credits on this offense.
“[Defense counsel]: I don’t know the answer to that question at this time. I’m not sure when his parole was--if he went before the parole board or not, whether there’s previous credit issues.”
The trial court announced, “No credits will be allowed,” and signed the court minutes that stated, “No credits are given to the defendant due to he was a parolee at large at the time of the incident & arrest.”
DISCUSSION
Preliminarily, the People argue that defendant has forfeited his claim by failing to present it at the time of sentencing. We disagree.
The People point out that defendant stated that he did not know whether there was a credit issue and failed to raise the issue at a subsequent hearing. They then rely on Penal Code section 1237.1, which provides: “No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits,unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.” (Italics added.)
Further unspecified statutory references are to the Penal Code.
But the plain language of section 1237.1 specifically bars an appeal only with respect to errors in the “calculation” of presentence custody credits. And the legislative history of section 1237.1 reveals that it was adopted to promote judicial economy by avoiding utilization of the appellate process for the minor ministerial act of calculating credits. (People v. Acosta (1996) 48 Cal.App.4th 411, 422-423; see also People v. Mendez (1999) 19 Cal.4th 1084, 1100.)
Here, the actual calculation of custody credits is not the issue. The parties do not dispute that 122 days is the appropriate calculation of presentence credits. Instead, they only dispute whether defendant is entitled to have those credits applied to his current sentence.
In any event, we observe that defendant’s claim was presented to the trial court, albeit not by defendant directly. The issue was flagged in the probation report; the prosecutor raised the issue; and the trial court decided the issue against defendant.
Section 2900.5 governs the circumstances in which custody credits will be awarded. Subdivision (a) of that section provides that “[i]n all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including . . . any time spent in a jail, . . . all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment. . . .” Subdivision (b) of section 2900.5 further states that, “[f]or 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.”
In People v. Bruner (1995) 9 Cal.4th 1178, 1194-1195 (Bruner), the court discussed the application of section 2900.5, subdivision (b). There, the defendant sought presentence credit on his prison term for cocaine possession where he had served presentence custodial time for a parole revocation based on the same cocaine possession as well as based on absconding from parole supervision, a dirty drug test, and theft of a credit card. The court held, consistent with two prior cases--In re Rojas (1979) 23 Cal.3d 152 and In re Joyner (1989) 48 Cal.3d 487--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.” (Bruner, supra, 9 Cal.4th at pp. 1193-1194.) Under this “ ‘strict causation’ ” standard, 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.)
Thus, the burden of proof belongs to the defendant. As noted in Bruner, this burden may be difficult to meet “because it requires a prisoner seeking credit for a multiple-cause presentence restraint to ‘prove a negative’--i.e., that the restraint would not have occurred but for the current crimes alone.” (Bruner, supra,9 Cal.4th at p. 1193.) But this burden “arises from the limited purposes of the credit statute itself. The alternative is to allow endless duplicative credit against separately imposed terms of incarceration when it is not at all clear that the misconduct underlying these terms was related.” (Ibid.)
Accordingly, to receive credit for the time served defendant had the burden under Bruner to show that his presentence restraint would not have occurred but for the current crime.
Defendant argues that “there is a complete absence of proof that there ever was another proceeding, such as a parole revocation hearing, for which custody was imposed.” This analysis is erroneous.
Defendant’s point might have force if the record was barren. However, the probation report noted that defendant had absconded parole supervision and was a parolee at large as of eight days before his arrest in this case. From this, we can infer that defendant was subject to arrest for violating his parole before his arrest in this case. Thus defendant failed to prove that his restraint would not have occurred but for the current crimes alone. Defendant cites no authority for the proposition that the evidence and inference is insufficient absent evidence of a return to physical custody, parole hold, or arrest warrant. Nor are we aware of authority for the proposition that the immediate reason for an arrest establishes the sole cause of an entire subsequent period of presentence custody for purposes of awarding credit. Given the record in this case, defendant was obligated to offer evidence relating to the parole violation. He could have submitted documentation or testimony that explained, for example, that parole authorities did not consider his violation sufficiently significant or, more importantly, that they would not have issued a hold or warrant had he not been arrested in this case. In short, in the absence of an affirmative indication to the contrary, the trial court was entitled to conclude that defendant did not meet his burden of proving that he could have been free during his presentence custody but for the conduct that led to his conviction and sentence. (Bruner, supra, 9 Cal.4th at p. 1195.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.