Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC149273
Horner, J.
On this appeal from a judgment of conviction for identity theft (Pen. Code, § 530.5 ), and a sentence of three years in state prison, defendant David Lawrence Miller contends the trial court erred by refusing to award presentence custody credit from the date of his initial arrest to the date of sentence. We agree, and modify the judgment accordingly.
All further unspecified statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
David Lawrence Miller was found guilty of second degree commercial burglary and defrauding an innkeeper. He was sentenced to 16 months in prison and paroled in December 2005.
On January 12, 2006, Miller was arrested. The circumstances leading to the arrest can be briefly stated. In the early morning hours of January 11, 2006, Miller was staying at a hotel and arranged for a woman he met through a telephone dating network to come to his hotel room. Miller paid a limousine service to bring the woman to his hotel room. Several hours after the hotel meeting, the woman reported to the police that Miller had sexually assaulted and battered her. In the course of the investigation, the police determined that the credit card of a different “David L. Miller” had been used to pay for the hotel room and the limousine service.
After his arrest, Miller was held briefly in Marin County but the District Attorney initially declined to pursue charges. Miller remained in custody, however, because the Board of Parole placed a “hold” on him, charging him with violating parole by committing new offenses on January 11, 2006, which included oral copulation of a non-consenting adult, sexual battery, and credit card theft or the illegal use of a credit card.
On February 14, 2006, the Board of Parole Hearings conducted a parole revocation hearing. The Board heard testimony from two investigating police officers, and Miller, but did not hear testimony from any victims. The Board revoked Miller’s parole after finding that he had sexually assaulted and battered the woman who had come to his hotel. The charge of credit card theft was dismissed due to insufficient evidence. Miller was returned to prison for 12 months.
Miller successfully challenged the parole revocation. On December 19, 2006, in a published opinion, this court granted habeas relief and set aside the parole violation finding. (In re Miller (2006) 145 Cal.App.4th 1228.) We held that Miller had been improperly denied his right to confront and cross-examine the adverse witnesses against him. (Id. at p. 1241.) We directed the Board either to promptly hold a new hearing or to release Miller, and “[a]ll references to the parole violation based on the February 14, 2006 parole revocation hearing” were to be stricken from his record. (Id. at pp. 1241-1242.) The Board chose not to conduct a new hearing and closed the case.
While the habeas proceeding was pending in this court, the District Attorney initiated criminal charges arising from the January 11, 2006 incident by rearresting Miller on September 19, 2006. Two months later, on November 15, 2006, an information was filed charging Miller with four counts of identity theft (§ 530.5), including his unlawful use of a credit card on January 11, 2006, to obtain services from the limousine company that brought the woman to his hotel room (count four).
On March 6, 2007, as part of a negotiated bargain, Miller pleaded guilty to the fourth count of the information, with the understanding that he could receive a maximum sentence of three years. The court granted the District Attorney’s motion to strike sentencing enhancement allegations, and to dismiss the other counts with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754).
At sentencing on April 4, 2007, the court imposed the maximum term of three years. The court awarded presentence custody credit for the time Miller was briefly held in local custody in Marin County (January 12, 2006 through January 26, 2006) and for the time from his rearrest on criminal charges to the date of sentence (September 19, 2006 through April 4, 2007) for a total credit of 319 days, representing 213 days of actual custody and 106 days for good conduct and work. Miller also requested an award of presentence credit for the time he served in prison custody on the parole violation charges (January 27, 2006 to September 18, 2006). The court denied the request for the additional credit on the grounds that the circumstances that led to the parole hold did not “look like the same set of circumstances” that led to the criminal charge of identity theft, and Miller had not been held in custody on the criminal charges during that time. The court noted that if any credit was due for the time served in custody on the dismissed parole violation proceeding, such credit should be determined by the Department of Corrections. Miller timely appeals challenging the denial of presentence custody credit.
Miller’s appeal is properly before us. Section 1237.1 provides, in pertinent part, that “[n]o 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.” The issue Miller raises on appeal was sufficiently presented at sentencing to satisfy the requirement of section 1237.1.
DISCUSSION
Miller’s sole contention on appeal is that the trial court erred by not awarding him presentence credit for the time he spent in custody on the parole violation charges because all of that time was attributable to conduct that led to his conviction for identity theft. We agree with Miller that he is entitled to the requested credit.
“Section 2900.5 provides, in general, that a defendant sentenced to imprisonment shall receive credit for time spent in custody from the date of arrest. (Id., subd. (a).) In particular, the issue before us arises under section 2900.5, subdivision (b), which 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.’ ” (People v. Williams (1992) 10 Cal.App.4th 827, 831-832.)
Unlike the situations discussed In re Marquez (2003) 30 Cal.4th 14, 20-21, and People v. Huff (1990) 223 Cal.App.3d 1100, 1105, cited by the Attorney General, in this case there can be no question that the parole violation charges and the conviction for identity theft stemmed from the same course of conduct committed on January 11, 2006. The Attorney General argues that Miller is not entitled to any additional credit because the identity theft offense to which he pleaded guilty was not established at the parole violation hearing, the Board did not rely on that criminal conduct in deciding to revoke his parole, and he was not being held on criminal charges during the time for which he seeks additional presentence custody credit. However, “as [Section 2900.5] plainly contemplates,” presentence credit extends to custody which is “ ‘attributable to the proceedings related to the conduct for which [defendant] was convicted and sentenced’ [Citation.]” (People v. Williams, supra, 10 Cal.App.4th at p. 835.) The statute does not limit such credit “solely to the conduct described in the count of which [a defendant] is convicted.” (Id. at p. 834.) Nor does the statute require that a defendant be placed on a criminal hold before presentence credit may be awarded for time spent in custody during proceedings related to the same conduct for which the defendant has been convicted.
Even assuming we were to consider the case as a situation involving multiple unrelated incidents, we would still conclude that Miller is entitled to the additional credit he requested. In People v. Bruner (1995) 9 Cal.4th 1178, the Supreme Court held that in cases where there are multiple, unrelated incidents, a period of presentence custody stemming from such misconduct “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.” (Id. at pp. 1193-1194.) In a case involving “mixed conduct,” the trial court is required to consider two questions: “(1) Would [defendant] have been at liberty (free of incarceration for probation [or parole] violation) absent his custody (as a probation [or parole] violator) being attributable to proceedings related to the same conduct for which he was subsequently sentenced? If so, presentence credits are applicable. (2) Conversely, would [defendant] have been returned to custody as a probation [or parole] violator on grounds having nothing to do with the proceedings relating to the same conduct for which he was subsequently so sentenced, i.e., for violating some other condition of probation [or parole]? If so, such presentence credits are inapplicable.” (People v. Williams, supra, 10 Cal.App.4th at pp. 832-833, cited approvingly in Bruner, supra, 9 Cal.4th at pp. 1193-1194, fn. 10.) Here, we answer the first question “yes,” and the second question “no.” Miller would have been at liberty absent his custody for the alleged commission of the new offenses on January 11, 2006. And, he would not have been returned to custody as a parole violator for reasons entirely unrelated to the new offenses. Consequently, presentence credits were applicable from the time of Miller’s initial arrest on January 12, 2006 to the date of his sentence on the identity theft conviction.
People v. Shabazz (2003) 107 Cal.App.4th 1255, cited by the Attorney General, does not support the denial of presentence custody credit. In Shabazz, the defendant was in custody on a parole violation warrant before he was arrested on new forgery charges. (Id. at p. 1258.) He continued to be on parole hold while he was tried and sentenced on the forgery charges. (Ibid.) Under those circumstances, the court held that the defendant was not entitled to presentence custody credit because he could not “show that the forgery for which he was sentenced in this case was a but for cause of his presentence custody. In other words, defendant [could not] establish that but for the conduct underlying his sentence in this case, he would have been free from custody. To the contrary, even if he had not committed the July 12, 2002, forgery, he would have been arrested on the March 31, 2001, parole arrest warrant. Therefore, defendant was not entitled to presentence custody credit in this case.” (Ibid.) However, the Shabazz court noted, “In the event defendant’s parole was never revoked or he was denied any credits by the Board of Prison Terms, he can seek a modification of the presentence credit order in the superior court.” (Id. at p. 1259, citing to In re Marquez, supra, 30 Cal.4th at pp. 19-24.) In this case we are dealing with the eventuality addressed in Shabazz, that is, a situation in which Miller’s parole was never revoked because of the reversal of the finding of a parole violation. Consequently, at sentencing on the current criminal charge, the court should have granted the request for additional presentence custody credit for the time spent in custody based on the related parole violation proceeding.
The Attorney General also argues that a defendant will not always receive a benefit for time spent in custody (known as “dead time”) and that “sometimes this result is unavoidable.” (In re Marquez, supra, 30 Cal.4th at p. 20.) But, this is not such a case. The reversal of the finding of a parole violation still left Miller with his later sentence on the identity theft conviction for which the trial court should have awarded presentence credit for all the time he spent in custody from the date of his initial arrest on January 12, 2006 to the imposition of sentence on April 4, 2007. The judgment is modified accordingly.
DISPOSITION
The conviction is affirmed. The judgment is modified to reflect an award of 448 days of actual local time credit and 224 days of local conduct credit for a total presentence custody credit of 672 days. The trial court is directed to prepare an amended abstract of judgment reflecting this modification, and to send a certified copy of the amended abstract of judgment to the Department of Rehabilitation and Corrections.
We concur: McGuiness, P. J. Pollak, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.