Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. No. 06CM4323 Louis F. Bissig, Judge.
Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Detjen, J. and Franson, J.
This is an appeal from a postjudgment order denying defendant’s request for additional custody and conduct credit. We affirm the order.
FACTS AND PROCEDURAL HISTORY
In 2006, defendant Michael Wayne Todd pled guilty to one count of possession of heroin, a violation of Health and Safety Code section 11350, subdivision (a), and he admitted two prior prison term allegations under Penal Code section 667.5, subdivision (b). The trial court stayed imposition of sentence and admitted defendant to probation. After several revocations and reinstatements of probation, defendant was re-admitted to probation on May 19, 2008. He was ordered, among other conditions, to remain in contact with his probation officer and to enroll in a drug rehabilitation program. Defendant kept his first probation appointment and, on July 2, 2008, enrolled in the Visalia Rescue Mission residential drug treatment program. Thereafter, he failed to contact his probation officer and, on August 11, 2008, was dismissed from the drug treatment program.
All further section references are to the Penal Code.
On September 30, 2008, the probation department petitioned for revocation of defendant’s probation, requesting a hearing date of October 7, 2008. On October 9, 2008, the trial court issued a bench warrant for defendant. The warrant stated defendant “failed to appear for [f]urther proceedings re violation of probation.”
Throughout all of this, defendant was on parole arising from a prison sentence imposed in an unrelated case (Tulare County case No. 04CM1545). Defendant absconded from parole supervision on March 5, 2009. He was arrested in Arizona and returned to custody in California on March 13, 2009. Once he was back in prison, defendant sent a section 1203.2a notification requesting that he be sentenced in the present case. The notification was dated April 15, 2009, and filed April 20, 2009.
Section 1203.2a provides, in relevant part: “If any defendant who has been released on probation is committed to a prison in this state or another state for another offense, the court which released him or her on probation shall have jurisdiction to impose sentence … in the absence of the defendant, on the request of the defendant …. [¶] The probation officer … must within 30 days after being notified in writing by the defendant or his or her counsel … report such commitment to the court which released him or her on probation. [¶] Upon being informed by the probation officer of the defendant’s confinement, … [i]f sentence has not been previously imposed and if the defendant has requested the court … to impose sentence in the case in which he or she was released on probation in his or her absence and without the presence of counsel to represent him or her, the court shall impose sentence and issue its commitment, or shall make other final order terminating its jurisdiction over the defendant in the case in which the order of probation was made….”
On May 20, 2009, the trial court revoked defendant’s probation, stating: “[B]ased on his [section 1203.2a] letter … and his status, I’ll find him in violation of probation and order that he be transported for a sentencing hearing.” The trial court ordered preparation of a presentence report by the probation officer. The clerk pointed out that a bench warrant had been issued and was still outstanding; the clerk asked whether the warrant should be recalled. The trial court stated: “No, because [the Department of Corrections and Rehabilitation] might release him, we’d better leave that in place.” The trial court continued the matter to June 23, 2009.
On June 23, 2009, the trial court sentenced defendant to the upper term of three years for possession of heroin, plus two years on the prior prison term enhancements. It awarded 73 days of custody credits, which did not include any credits for the period of incarceration after March 13, 2009, the date of his arrest for violation of parole.
Defendant filed a timely notice of appeal. He contended in that appeal that the trial court had lost jurisdiction to sentence him, since it did not act within 30 days of its receipt of the section 1203.2a request. This court concluded defendant had failed to comply with section 1203.2a and had, through counsel, consented to sentencing outside the 30-day statutory period. (People v. Todd (Apr. 27, 2010, F058275) [nonpub. opn.].) Defendant also contended he was entitled to additional sentencing credits under an amendment to section 4019. This court rejected that claim. The Supreme Court denied defendant’s petition for review without prejudice to any relief appropriate after the Supreme Court decides People v. Brown, S181963, involving retroactive application of amendments to section 4019.
While the previous appeal was pending, defendant filed a motion in the trial court seeking additional custody credits for the period from March 4, 2009 (when defendant contends he was arrested on the parole violation) through his sentencing hearing on June 23, 2009. He argued that his custody during that time was “solely attributable to the conduct for which [he] was sentenced in this case.” After a hearing on the motion, it was denied. The trial court found that defendant’s probation revocation was based on his violations of probation in 2008, not on the fact that he also violated parole in 2009.
Defendant timely filed the present appeal.
DISCUSSION
Defendant contends on appeal, as he did in the trial court, that his probation was revoked because he absconded from parole supervision in March 2009. Under People v. Bruner (1995) 9 Cal.4th 1178, 1191, a person who is in custody in two different criminal cases is entitled to custody credit in both cases if the sole reason for custody in both cases was the same conduct by the defendant. But if the custody in the two cases arises either from different conduct in each case or from conduct that is only partially the same in both cases, the defendant is entitled to credits only in the first case for which he is incarcerated. (Id. at p. 1192.)
In the present case, defendant violated the terms of his probation months before he absconded from parole supervision. A petition for probation revocation was filed as a result of that earlier conduct and a bench warrant was issued when defendant failed to appear on the earlier probation violation allegation. The record amply supports the trial court’s conclusion that these earlier violations, occurring prior to parole revocation, were at least part of the basis for revocation of defendant’s probation. Accordingly, the trial court correctly refused further custody credits.
Defendant says, however, that the probation officer’s report filed at defendant’s June 23, 2009, hearing supports his claim. That report states: “[T]he undersigned is of the opinion that the defendant is not entitled to pre-sentence credits from the March 13 return to custody; but for the parole violation (absconding) in 04CM1545, the defendant would not have been in custody.” Defendant interprets this to mean that the parole violation was the reason he was being held for violation of probation. In reality, the probation officer meant that, as the trial court more colloquially phrased the matter, if not for the coincidence that defendant was arrested for absconding, the trial court would not have “got[ten] our hands on him, ” since he had not been arrested on the bench warrant in the seven months since it had been issued. In other words, the arrest for the parole violation was the mechanism by which defendant was brought before the trial court on the probation violation, but it was not the cause for revoking probation.
Similarly, defendant misses the mark in contending he stipulated to, and the trial court accepted, violation of parole as the basis for the probation revocation. At the May 20, 2009, hearing, the trial court stated: “I will be ordering that -- I will -- based on his [section 1203.2a] letter, I’ll -- and the -- and his status, I’ll find him in violation of probation and order that he be transported [from prison] for a sentencing hearing.” We take the trial court’s comment to be merely a reference to the procedure to be employed for the revocation hearing—i.e., that it would occur in the defendant’s absence and that he did not contest the grounds set forth in the previously filed petition for revocation—and not a reference to substantive matters, such as the grounds for revocation of probation. Defendant points to nothing in section 1203.2a that permits a probationer to limit the factual basis upon which a trial court premises the revocation of probation and we decline to read such a limitation into the statute.
DISPOSITION
The order denying defendant’s motion to correct presentence credits is affirmed.