Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04-1413
NICHOLSON, J.
Defendant appeals after felony probation was revoked and he was remanded to serve a state prison term. He asserts that the trial court erred in denying him custody credits during the time he was in jail awaiting the probation revocation hearing. We conclude that the trial court did not err because the custody time was attributable to an earlier, unrelated misdemeanor case for which defendant had not yet served his jail time.
BACKGROUND
On March 7, 2007, the trial court convened concerning two cases relating to defendant: sentencing on defendant’s guilty plea in case No. 04-1413 and violation of probation on case No. 02-1282.
As to case No. 04-1413, the court sentenced defendant to three years eight months in state prison after his guilty plea of two counts of felony attempting to evade a peace officer while driving recklessly (Veh. Code, § 2800.2), along with misdemeanor driving on a suspended license (Veh. Code, § 14601.2, subd. (a)) and unauthorized interception of public safety communications (Pen. Code, § 636.5). The court suspended execution of the sentence and granted felony probation. As a condition of probation, the court ordered defendant to serve 180 days in county jail. The court ordered defendant to contact the jail within seven days to set up his jail time.
As to case No. 02-1282, which was the violation of misdemeanor probation from an earlier, unrelated matter, the court terminated probation and sentenced defendant to county jail for 180 days, to be served concurrently with the felony probation jail term in case No. 04-1413.
Defendant arranged to turn himself in to do his jail time on July 31, 2007. However, he did not show up. He was arrested on September 23, 2007, in Medford, Oregon (and convicted of resisting arrest in connection with that arrest), and he was returned to California and appeared in court on November 21, 2007. The court set a hearing for December 4, 2007.
On December 4, 2007, the court acted concerning both cases (case Nos. 02-1282 and 04-1413). As to case No. 02-1282, the court remanded defendant to jail to begin serving his 180-day misdemeanor term. As to case No. 04-1413, the court set a hearing on the probation violation for December 20, 2007.
On December 20, 2007, the court found that defendant violated probation in case No. 04-1413. On January 29, 2008, the court remanded him to serve his state prison term of three years eight months.
The court addressed the matter of custody credits for case No. 04-1413. Court and both counsel agreed that, because defendant was serving time on his misdemeanor sentence starting on December 4, 2007, he should not receive custody credits for the felony state prison term from December 4, 2007, to the date of sentencing on January 29, 2008. Not including that period of incarceration, defendant had 80 actual days. He was therefore given credit for 80 actual days, plus 40 days of conduct credit, for a total of 120 days of presentence credit toward the state prison term in case No. 04-1413.
DISCUSSION
Defendant asserts that the trial court erred by not giving him custody credit in the felony case (case No. 04-1413) for the period between December 4, 2007, and January 29, 2008. He claims that the felony case (case No. 04-1413) was the sole reason for his incarceration and, therefore, custody credits were mandatory. We disagree.
Penal Code section 2900.5 provides, in pertinent part: “(a) In 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,... including days served as a condition of probation in compliance with a court order,... shall be credited upon his or her term of imprisonment.... [¶] (b) 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....”
“If an offender is in pretrial detention awaiting trial for two unrelated crimes, he ordinarily may receive credit for such custody against only one eventual sentence.” (In re Marquez (2003) 30 Cal.4th 14, 21.) Thus, “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.” (People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194.) The defendant bears the burden of establishing entitlement to presentence custody credits. (People v. Shabazz (2003) 107 Cal.App.4th 1255, 1258.)
Defendant’s contention that his presentence custody was attributable solely to the felony case (case No. 04-1413) is based on a false premise. That premise is that the misdemeanor case (case No. 02-1282) was fully resolved when the trial court terminated probation and ordered defendant to serve 180 days in jail concurrently with the 180-day probation condition in the felony case (case No. 02-1282). The premise is false because the termination of probation in the misdemeanor case (case No. 02-1282) did not resolve the case; there was still the matter of serving the jail term.
Defendant centers his argument around the trial court’s termination of probation in case No. 02-1282, which occurred during the hearing in which the trial court imposed the sentence in case No. 04-1413 but suspended execution and granted probation. After the court had granted probation and had imposed a 180-day jail term as a condition of probation in case No. 04-1413, the prosecutor raised the issue of what to do in case No. 02-1282. As to case No. 02-1282, the prosecutor said: “Why don’t we just terminate probation unsuccessfully today, order a hundred eighty days sentence, and order him to do that in the misdemeanor file as a term of felony probation.” The trial court agreed, making it the order of the court.
Contrary to defendant’s argument, this order did not terminate case No. 02-1282; instead, it terminated only the probation the court had granted in that case. Having terminated probation, the court ordered defendant to serve 180 days in jail. The additional language used by the prosecutor that it would be served “as a term of felony probation” did not mean that it would not be served also as the sentence for case No. 02-1282. The court did not dismiss case No. 02-1282. Therefore, when defendant was caught in Oregon and returned to California after failing to turn himself in to serve his jail term, the trial court properly remanded him to jail on the misdemeanor case (case No. 02-1282) while proceedings to revoke probation in the felony case (case No. 04-1413) were pending.
Accordingly, defendant’s argument that he should have been given additional custody credit because he was incarcerated solely for the felony case (case No. 04-1413) is without merit. He has failed to carry his burden of showing that he was entitled to additional custody credits.
Defendant filed a request for judicial notice of the trial court’s August 16, 2008, order denying his motion to correct the presentence custody credits. The request is granted.
Defendant also filed a motion to expedite his appeal because his release date is approaching. The motion is denied.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J., RAYE, J.