Opinion
H035707
08-12-2011
THE PEOPLE, Plaintiff and Respondent, v. DENNIS L. STRONG, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. Nos. SS073011, SS051567)
The trial court sentenced defendant Dennis L. Strong to two years and eight months in prison after it revoked defendant's probation in three cases. It awarded defendant 645 days of presentence credit allocated between two of the cases. On appeal, defendant contends that the trial court erred by not awarding presentence credit for the third case. We agree. We therefore modify and affirm the judgment.
BACKGROUND
Three separate offenses that occurred on three separate dates spawned the sentencing at issue.
1. Case No. SS042867 (drug case-count 2C).
On October 29, 2004, the trial court placed defendant on Proposition 36 drug probation for 18 months and ordered defendant to serve 15 days in jail following a conviction for possession of a controlled substance.
2. Case No. SS051567 (petty theft case--count 1B).
On September 1, 2005, the trial court placed defendant on formal probation for three years and ordered defendant to serve 92 days in jail following convictions for possession of a controlled substance and petty theft. It gave defendant 92 days credit (62 actual; 30 conduct) for time spent in custody from July 2, 2005, until September 1, 2005. In the drug case, the trial court revoked Proposition 36 probation, placed defendant on formal probation for three years, and ordered defendant to serve 270 days in jail. It gave defendant 110 days credit (74 actual; 36 conduct) for time spent in custody from October 30, 2004, until November 10, 2004, and from July 2, 2005, until September 1, 2005.
3. Case No. SS073011 (firearm case--count 1A).
On December 5, 2007, the trial court placed defendant on formal probation for three years and ordered defendant to serve 63 days in jail following a conviction for possession of a firearm by a felon. It gave defendant 63 days credit (43 actual; 20 conduct) for time spent in custody from October 24, 2007, until December 5, 2007. In the drug case, the trial court revoked probation, reinstated probation, and ordered defendant to serve 365 days in jail. It gave defendant 324 days credit (216 actual; 108 conduct) for time spent in custody from October 30, 2004, until November 10, 2004, from July 2, 2005, until September 1, 2005, and from October 24, 2007, until December 5, 2007. In the petty theft case, the trial court revoked probation, reinstated probation, and ordered defendant to serve 365 days in jail. It gave defendant 306 days credit (204 actual; 102 conduct) for time spent in custody from July 2, 2005, until September 1, 2005, and from October 24, 2007, until December 5, 2007.
The probation report shows that the three periods of custody in the drug case correspond to 117 actual days and the two periods of custody in the petty theft case correspond to 105 actual days. However, at the hearing, the probation officer announced without explanation that the "The custody credits need to be corrected." He then stated that the drug case had 216 actual days and the petty theft case had 204 actual days. Because there was no explanation of the correction, it is unclear why the reported days spent in custody do not correspond to the actual days of credit awarded.
On May 27, 2008, petitions for violation of probation were filed in all three cases for defendant's failure to report to his probation officer and comply with his substance abuse treatment. Defendant failed to appear at the hearing, and the trial court revoked probation and issued a bench warrant. The People placed defendant in custody on March 25, 2010, and he admitted violating probation on April 6.
On April 22, the trial court revoked probation and sentenced defendant in all three cases. It determined that the charge in the firearm case was the principal term and imposed a lower term of 16 months. It gave defendant 144 days credit (72 actual; 72 conduct). It then sentenced defendant to a consecutive term of eight months (one third the middle term) for the drug case. It gave defendant 501 days credit (251 actual; 250 conduct). And it sentenced defendant to a consecutive term of eight months (one third the middle term) for the petty theft case. It gave defendant no credits over defendant's objection and argument that (1) "the sole basis for his custody on all three cases is the probation violation, and therefore, he satisfied the but for strict causation test," and (2) he had been awarded credits in the petty theft case in 2005 and 2007 "So now this Court would essentially be taking those credits away from him at the time of sentencing him to prison."
There is no probation report for the sentencing hearing to indicate how the 72 actual days for the firearm case and 251 actual days for the drug case were calculated. And there was no explanation at the sentencing hearing.
DISCUSSION
Defendant argues that the trial court erred by failing to award credits against the sentence for the petty theft case because the majority of the 501 days credited to the drug case was attributable to both the drug case and the petty theft case and the 501 days credit in the drug case exceed the eight-month sentence in the drug case by 261 days.
Penal Code section 2900.5, governs the award of presentence custody credits. That section provides, in pertinent part: "(a) In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, . . . all days of custody of the defendant, . . . including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment, . . . If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served. . . . [¶] (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. Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed." (§ 2900.5, subds. (a), (b).)
Further unspecified statutory references are to the Penal Code.
Subdivision (b) of section 2900.5 (hereafter section 2900.5(b)), expressly prohibits the double-crediting of custody credits against separate consecutive sentences imposed for multiple offenses. (See also People v. Bruner (1995) 9 Cal.4th 1178, 1193 (Bruner) ["credit windfalls are not within the [statute's] contemplation"].)
Here, on December 5, 2007, the trial court sentenced defendant to serve 365 days in jail as a condition of probation in the drug case. When this probation was revoked on April 22, 2010, it gave defendant credit for serving 501 days. Also on December 5, 2007, the trial court sentenced defendant to serve 365 days in jail as a condition of probation in the petty theft case. When this probation was revoked on April 22, 2010, defendant had at least 306 days of credit since the trial court had awarded 306 days on December 5, 2007. But the trial court could not award 306 days of credit under section 2900.5 because there was only a single period of custody attributable to the drug case and petty theft case and the trial court imposed a consecutive sentence for the petty theft case.
The question remains, however, whether the trial court erred by refusing to award defendant 261 days of "dead time" custody credits (time spent in custody for which a defendant receives no benefit) from the drug case against the eight-month sentence for the petty theft case.
As the Fifth District Court of Appeal has observed, and later described as "surely an understatement, '[c]redit determination is not a simple matter.' " (People v. Adrian (1987) 191 Cal.App.3d 868, 875, quoting People v. Chew (1985) 172 Cal.App.3d 45, 49.) There is little difficulty under section 2900.5 where the custody credit is for pretrial custody that resulted solely from conduct that led to a later conviction and the imposition of a sentence; however, "difficult problems arise when, as often happens, the custody for which credit is sought had multiple, unrelated causes." (Bruner, supra, 9 Cal.4th at p. 1180.)
Pursuant to section 2900.5(b) "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." We must determine whether the "custody to be credited" (261 days), i.e., the difference between the total custody credits awarded in the drug case (510 days) and defendant's eight-month sentence for the drug case (249 days), can be deemed "attributable to proceedings related to the same conduct for which the defendant has been convicted," i.e., to the petty theft case.
We have accepted defendant's point that he had 261 days of "dead time" for purposes of analysis. Subtracting 261 from 510 leaves 249, though 249 days appears to exceed eight months. Thus, defendant appears to have more than 261 days of "dead time." Since 261 days exceed eight months and defendant can be credited with no more than eight months "dead time," it is of no moment whether defendant has 261 days of "dead time" or something exceeding 261 days.
Defendant's argument is based upon In re Marquez (2003) 30 Cal.4th 14 (Marquez), and People v. Gonzalez (2006) 138 Cal.App.4th 246 (Gonzalez).
In Marquez, the defendant, who was out on bail (first case), was arrested again (second case) and taken into custody in another county. He was convicted of both crimes and sentenced. The time he spent in jail from his second arrest until he was sentenced in the second case was credited to the prison term in the second case. He appealed both convictions. The conviction in the second case was reversed. The defendant then sought to have his credits applied to his sentence in the first case.
The Supreme Court agreed that the defendant's credits should apply to the first case. It held that the defendant's custody had been attributable to both charges until the conviction in the second case was reversed and the charges were dropped, at which point the custody was properly characterized as being attributable to the first case, that case being the " 'proceedings related to the same conduct for which the defendant has been convicted' " pursuant to section 2900.5(b). (Marquez, supra, 30 Cal.4th at p. 20.) "To deny petitioner credit for his time spent in custody between [the two sentencing dates] would render this period 'dead time,' that is, time spent in custody for which he receives no benefit." (Ibid.)
In Gonzalez, the defendant pleaded guilty to domestic violence and was placed on probation. He reoffended during the probationary period, and was charged with auto theft and gun possession. While in custody, awaiting trial on the auto theft and gun charges, he was charged with assaulting another inmate. The defendant was convicted of the auto theft and gun charges, pleaded no contest in the assault action, and admitted the probation violation. In awarding custody credits, the trial court allocated the time served between the defendant's arrest in the auto theft and gun case to the date of the inmate assault to the domestic violence case. As a result, the total credits allocated to the domestic violence case exceeded the sentence imposed in that case.
We acknowledged that sometimes "dead time" is unavoidable. (Gonzalez, supra, 138 Cal.App.4th at p. 253.) But the defendant argued, and we agreed, that the credits could be applied to the auto theft and gun case even though it was not the sole reason for the presentence confinement. We held that the custody could be attributed to " 'multiple, unrelated causes.' " (Id. at p. 252.) We reasoned that the prohibition in section 2900.5(b) against duplicate credits would not be violated because the defendant did not seek duplicate credits for the period of confinement. "[T]he choice in this case is not between awarding credit once or awarding it twice. The credits for the [relevant] period of incarceration were only awarded against a single case, the domestic violence case. However, once the few days of custody left to complete the sentence in the domestic violence action were credited to defendant, the remaining custodial time should have been characterized as solely attributable to the auto theft and gun case and allocated accordingly. Otherwise the vast majority of the time served during the [relevant] period of incarceration would become 'dead time' that was not attributable to any case . . . ." (Gonzalez, supra, at p. 254.)
Here, defendant's 510 days credit in the drug case exhausted the eight-month prison term. The remaining credit of 216 days should have been applied to the petty theft case because those credits were earned during a period of custody attributable, in part, to the petty theft case. Unlike the defendants in Bruner, supra, 9 Cal.4th 1178, In re Joyner (1989) 48 Cal.3d 487, In re Rojas (1979) 23 Cal.3d 152, and People v. Shabazz (2003) 107 Cal.App.4th 1255, who sought to recover duplicate credits and therefore were required to comply with the "strict causation" rule, which prohibits custody being "credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credits was also a 'but for' cause of the earlier restraint" (Bruner, supra, at p. 1194), defendant does not seek duplicate credit. Accordingly, the strict causation rule does not apply in this case. (See Gonzalez, supra, 138 Cal.App.4th at p. 254.)
For these reasons, we conclude that defendant is entitled to custody credits of 261 days against his eight-month sentence for petty theft.
DISPOSITION
The judgment is modified to award defendant 261 days total credit for time served as to count 1B. As so modified, the judgment is affirmed.
Premo, J. WE CONCUR:
Rushing, P.J.
Elia, J.