Opinion
F085784
10-24-2023
THE PEOPLE, Plaintiff and Respondent, v. ALONZO JENKINS, Defendant and Appellant.
Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Merced County No. SUF21358 Mark V. Bacciarini, Judge.
Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
PROCEDURAL AND FACTUAL SUMMARY
On April 17, 1997, in case No. 21358, defendant was charged with attempted murder (Pen. Code, §§ 664/187, a felony; count 1), two robberies (§ 211, both felonies; counts 2 &5), being an ex-felon in possession of a firearm (§ 12021, subd. (a)(1), a felony; count 3), and kidnapping for robbery (§ 209, subd. (b), a felony; count 4). Accompanying many of these charges were several alleged enhancements, including, but not limited to, the personal use of a firearm (§ 12022.5, subd. (a)(1)), inflicting great bodily harm (§ 12022.7), the use of a deadly and dangerous weapon (§ 12022, subd. (b)(1)), that defendant had been convicted of two prior felonies that qualified as both "strikes" (§ 1170.12, subd. (c)) and serious felonies (§ 667, subd. (a)(1)), and that defendant had a prior conviction for which he had served a prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code.
On January 29, 1998, defendant pled no contest to attempted murder with an understanding the premeditation allegation would be stricken. Defendant also admitted the strike priors and one prior serious felony conviction with the further understanding the remaining counts and enhancements would be dismissed by way of a Harvey waiver,and that he would be sentenced to life imprisonment with a minimum term of 27 years.
People v. Harvey (1979) 25 Cal.3d 754.
On March 5, 1998, the date set for sentencing on this plea, the prosecutor informed the trial court of a new case that had been filed involving violations of probation by failing to appear (§ 1320, subd. (b)) and committing an assault with a deadly weapon (§ 245, subd. (a)(1)). Defendant admitted the new violations, and the court found the allegations true. Thereafter, the court sentenced defendant on the original attempted murder case to life in prison with a minimum of 27 years plus an additional five years for a prior serious felony conviction for a minimum of 32 years in prison. With respect to presentence credits, the court found that defendant was entitled to a total of 459 days of presentence credits (411 actual + 48 conduct). In the new case involving the probation violations, the trial court denied probation and imposed a four-year term plus an eight-month consecutive term. The court continued the issue of presentence credits in the probation violations case, and defendant waived his right to be present at the hearing when the credits would be determined. The court also ordered that the sentence for the probation violations be consecutive "to the extent allowed by law" to the attempted murder case.
These probation violation cases are continuously referred to in the transcripts as case No. LBF6121 (assault with a deadly weapon), and case No. 19960 (failure to appear).
On March 19, 1998, the trial court determined that the sentence for the probation violation was for three, not four, years. This resulted in a sentence for the assault with a deadly weapon of three years and eight months for the failure to appear. On the issue of credits, the court stated for the assault with a deadly weapon, defendant had 295 days (197 actual + 98 conduct) of presentence custody. For the failure to appear, the court found that defendant had served almost all that time while in jail for the assault charge, "except for ... six days, there is a period of cross over there. As from November 29th, '95 through .. December 5th of '95 he was also in custody." The court then stated defendant was not entitled to any additional credits because "I have taken care of all the credits and allocated them in the other file, so there would be no credits in this file."
On November 23, 2022, defendant filed a motion, in propria person, under section 1237.1, "for an [o]rder [a]warding [p]resentence [c]redits [p]ursuant to ... [s]ection[] 4019" asserting that he was entitled to "additional presentence credits for actual days served .." (Emphasis omitted.) Defendant argued that in case No. 19960 he was entitled to presentence credits from the time he was arrested in Washington State on May 31, 1995, through his sentencing date in Merced County Superior Court on November 30, 1995, a total of 281 days (178 actual + 103 conduct) pursuant to section 4019. Attached to the motion were the abstract of judgment from appellant's March 5, 1998, sentencing and the Merced County record summary.
On January 23, 2023, the trial court summarily denied defendant's motion for additional presentence credits stating:
"The issue is moot. Petitioner has long served the time on those two cases. In the alternative, petitioner received full credit for his pre-sentence incarceration. Petitioner claims he is entitled to 281 days of total pre-sentence credits. As reflected on the March 19, 1998, amended abstract, petitioner received 295 days of pre-sentence credits."
Appellant filed a notice of appeal on February 21, 2023.
DISCUSSION
Defendant's appellate counsel has filed an opening brief summarizing the pertinent facts and raising no issues, but asking this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes a declaration from appellate counsel stating defendant was advised of his right to file a brief of his own with this court. By letter dated July 24, 2023, we invited defendant to submit additional briefing. Defendant did not file a response.
When presentence custody credit might stem from multiple unrelated incidents, a period of custody can only be credited against a subsequent formal sentence if the prisoner can show the time to be credited was related to the incident for which the sentence was imposed. (People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194.) When presentence custody stems from multiple unrelated incidents, custody may not be credited against more than one case unless each case is a"' "but for" '" cause of the incarceration. (In re Marquez (2003) 30 Cal.4th 14, 23.) The burden is on the defendant to establish any entitlement to additional presentence custody credits. (People v. Jacobs (2013) 220 Cal.App.4th 67, 81.)
Having undertaken an examination of the entire record before this court on defendant's section 1237.1 motion to the trial court, we find no evidence supporting a different calculation of the presentence credits at issue here, or any other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
We affirm the trial court's order denying defendant's motion for additional presentence credits.
[*] Before Levy, Acting P. J., Franson, J. and Pena, J.