Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court Nos. MCR030103, MCR032408 of Madera County. Eric C. Wyatt, Judge.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, A.P.J., Wiseman, J., and Cornell, J.
Pursuant to a plea agreement covering Madera County Superior Court case Nos. MCR030103 (case No. 103) and MCR032408 (case No. 408), in case No. 103 appellant Adam Michael Venegas pled no contest to attempted evasion of a peace officer (Veh. Code, § 2800.2, subd. (a), Pen. Code, § 664) and admitted a prior prison term enhancement allegation (§ 667.5 subd. (b)), and in case No. 408 he pled no contest to failure to appear (§ 1320.5). The court imposed a prison term of two years six months in case No. 103 and a concurrent 16-month term in case No. 408. The court awarded no presentence credits.
Except as otherwise indicated, all further statutory references are to the Penal Code.
On appeal, appellant contends the court erred in failing to award him 437 days of presentence credits. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Instant Offenses
With respect to case No. 103, the report of the probation officer (RPO), indicates the following. On October 30, 2007, a police officer observed appellant, while driving a motorcycle, fail to signal while making a right turn. The officer attempted to make a traffic stop, but appellant accelerated to approximately 80 to 100 miles per hour. The officer activated his emergency lights and siren, and followed. Appellant drove through three stop signs without stopping, before sliding sideways and coming to rest in a dirt lot. Appellant was arrested and taken into custody.
With respect to case No. 408, the RPO indicates that on June 2, 2008, appellant willfully failed to appear for court after being released on bail in case No. 103.
Except as otherwise indicated, further references to dates of events are to dates in 2008.
Additional Background
In case No. 103, after being arrested and taken into custody on October 30, 2007, appellant was released from custody on April 8. He was arrested again in case No. 103 on June 29. On July 11, while in custody, he was arrested in case No. 408. There is no dispute appellant remained in custody from June 29 through November 6, the date of sentencing.
Parole Agent Fonseca told the probation officer the following. Appellant’s parole was revoked on October 29, 2007, “for the [case No. 103] offense and for traveling beyond fifty miles from his reported residence without authorization.” On April 8, “[appellant’s] parole hold was dropped” and “he was time served on his parole revocation, which was served in ‘local custody’....” When appellant was arrested on June 29, “a parole hold was placed on [appellant] again for absconding parole supervision and traveling beyond fifty miles from his reported residence without authorization.” On September 16, “a Parole Revocation Hearing was held and [appellant] accepted a term of ‘10 months with half.’”
“Technical violations of parole” include “Traveling beyond 50 miles from residence without P&CSD approval[.]” (Cal. Code Regs, Title 15, § 2646.1, subd. (a)(6).) We sometimes refer to this violation as a violation of the travel distance restriction.
“Technical violations of parole” include “Absconding parole supervision[.]” (Cal. Code Regs, Title 15, § 2646.1, subd. (c)(4).)
The probation officer stated appellant was not entitled to presentence credits in case No. 103 because “those credits were attributed to his Violation of Parole as the revocation of parole was not based solely on the new offense.” The officer also stated that appellant was not entitled to presentence credits in case No. 408 “as those credits were attributed to his Violation of Parole and the revocation was based solely on technical violations of parole.”
DISCUSSION
Section 2900.5, subdivision (a) provides in pertinent part: “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 served as a condition of probation in compliance with a court order,... shall be credited upon his or her term of imprisonment....” However, subdivision (b) of section 2900.5 specifies that “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....”
Appellant contends he is entitled to presentence custody credits for the two periods he was in custody prior to sentencing: October 30, 2007, through April 8 (period No. 1) and June 29 through November 2 (period No. 2). For these two periods, appellant contends he is entitled to actual time and conduct credits totaling 437 days. Appellant argues that periods Nos. 1 and 2 were both “attributable to proceedings related to the same conduct” for which he was convicted, within the meaning of section 2900.5, subdivision (b), and that therefore he is entitled to credits for those periods against his sentence on the instant convictions. He bases this claim in People v. Bruner (1995) 9 Cal.4th 1178 (Bruner).
In Bruner, our Supreme Court held that “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. Accordingly, when one seeks credit upon a criminal sentence for presentence time already served and credited on a parole or probation revocation term, he cannot prevail simply by demonstrating that the misconduct which led to his conviction and sentence was ‘a’ basis for the revocation matter as well.” (Id. at pp. 1193-1194.) Rather, as “a general rule... a prisoner is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period.” (Id. at p. 1191.) This rule of “‘strict causation’” “stems from the conclusion that section 2900.5 did not intend to allow credit for a period of presentence restraint unless the conduct leading to the sentence was the true and only unavoidable basis for the earlier custody.” (Id. at p. 1192.) The defendant in Bruner was not entitled to presentence credits, the court held, “[b]ecause defendant has not shown that he could have been free during any period of his presentence custody but for the same conduct that led to the instant conviction and sentence....” (Id. at p. 1195.)
Appellant’s argument focuses on what constitutes the “same conduct” for purposes of the section 2900.5, subdivision (b) requirement that “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....” (§ 2900.5, subd. (b).) He recognizes that his presentence custody for period No. 1 was based on (1) his violation of Vehicle Code section 2800.2, subdivision (a) and (2) his act of traveling beyond fifty miles from his reported residence without authorization. He further recognizes that his presentence custody for period No. 2 was based on (1) the Vehicle Code violation, (2) violating the travel distance restriction and (3) absconding from parole supervision. But, he argues, the criminal offense and the parole violations constituted the “same conduct” within the meaning of section 2900.5, subdivision (b) because the Vehicle Code violation was “another aspect of, and an act in continuation of,” his parole violations.
Appellant’s contention is based on a misinterpretation of Bruner. In that case, the following occurred: Appellant was convicted of possession of cocaine. Prior to his arrest for that offense, he was on parole and an arrest warrant had been issued for three parole violations: credit card theft, absconding from parole, and cocaine use. Appellant sought presentence credits for a period of custody that was based on his arrest on the cocaine possession charge and the parole violations. Thus, his custody “as a parole violator was based in part on the same drug incident that led to the later conviction, but also upon additional, unrelated grounds.” (Bruner, supra, 9 Cal.4th at p. 1180.) As indicated above, the court held the defendant was not entitled to presentence credits toward his sentence for cocaine possession because his custody was based on “multiple, unrelated incidents of misconduct,” (id. at p. 1193) and the defendant could not show that he would have been free from custody but for the conduct upon which the cocaine possession conviction was based and for which he was sentenced.
Under Bruner, appellant suggests, a period of presentence custody based on both a criminal offense and parole violations is “related to the same conduct” (§ 2900.5, subd. (b)) if the offense and the violations occur at or near the same time and place so as to be “part and parcel” of each other. Only if the violations “occur[] at a different time and place than the criminal offense,” he suggests, can it be said that the offense and parole violations constitute “multiple, unrelated instances of misconduct” (Bruner, supra, 9 Cal.4th at p. 1193) rather than the “same conduct” (§ 2900.5, subd. (b)). We disagree. Appellant cites no authority, and we are aware of no published case, supporting this interpretation.
On the application of Bruner to the instant case, we find instructive People v. Stump (2009) 173 Cal.App.4th 1264. In that case the defendant was convicted of driving under the influence of alcohol with a prior felony within 10 years (Veh. Code, § 23152, subd. (a)) and driving with a blood-alcohol content of at least.08 percent with a prior felony within 10 years (Veh. Code, § 23152, subd. (b)). He was arrested and taken into custody on July 16, 2006. He was on parole at the time of his arrest, and he violated the terms of his parole by committing the two offenses and, at the time he committed those offenses, by drinking alcohol and driving without his parole officer’s permission.
The defendant remained in custody through the date of sentencing in May 2008, and he was arraigned “with respect to the July 16, 2006 incident” on December 20, 2006. (People v. Stump, supra, 173 Cal.App.4th at p. 1268.) The court awarded credits for the period of December 20, 2006, through sentencing, but declined to grant credits for the defendant’s period of custody from July 16, 2006, through December 20, 2006. (Ibid.)
On appeal, the defendant challenged the court’s failure to award credits for the earlier period. That period of custody, he asserted, “was ‘attributable to proceedings related to the same conduct for which’ [he was] convicted” because “there was only one ‘single, uninterrupted, incident of misconduct,’ and ‘... a single episode of criminal behavior may [not] be parsed into separate acts in order to deny the award of credit for revocation custody....’” (People v. Stump, supra, 173 Cal.App.4th at pp. 1268, 1271.) The defendant “emphasize[d] the language of Bruner pertaining to ‘unrelated incidents of misconduct.’” (Id. at p. 1271).
The appellate court noted that Bruner was not “directly on point” because “[t]he decision in [that case], inasmuch as it addressed only a fact pattern with completely unrelated incidents – alleged parole violations and a subsequent cocaine possession – did not address a fact pattern such as the one before us, where all of the acts in question were temporally related.” (People v. Stump, supra, 173 Cal.App.4th at p. 1271.) The question presented, the court stated, was “how the Bruner ‘but for’ test should be applied when a defendant engages in a course of illegal conduct, such as drunk driving, that encompasses certain independent acts, none of which would be illegal per se, but each of which happens to be a separate ground for a parole violation, such as driving (without parole officer permission), or consuming alcoholic beverages in any amount?” (Ibid.)
The court answered that question as follows: “In the case before us, the conduct for which defendant was arrested gave rise to two drunk driving charges (violations of Veh. Code § 23152, subds. (a), (b)). It is not the case that ‘but for’ a drunk driving charge defendant would have been free of parole revocation custody. He still would have been held for driving, which is not necessarily a crime in and of itself but may be, and was here, a parole violation. Likewise, he still would have been held for consuming alcohol, which is not necessarily a crime in and of itself but may be, and was here, a parole violation. [¶] Penal Code ‘section 2900.5 did not intend to allow credit for a period of presentence restraint unless the conduct leading to the sentence was the true and only unavoidable basis for the earlier custody.’ (Bruner, supra, 9 Cal.4th at p. 1192.) Here, the conduct of driving under the influence of alcohol, for which defendant was sentenced in the underlying action, was not the ‘only unavoidable basis’ for the custody. The act of driving without permission was a basis for the earlier custody. The act of drinking alcohol, irrespective of driving, was a basis for the earlier custody. ‘“Section 2900.5 does not authorize credit where the pending proceeding has no effect whatever upon a defendant’s liberty.” [Citation.]’ (Id. at p. 1184.)” (People v. Stump, supra, 173 Cal.App.4th at p. 1273.)
Similarly, in the instant case, appellant would not have been free of custody “but for” the charge of violating Vehicle Code section 2800.2, subdivision (a). In period No. 1, he would still have been held for traveling beyond fifty miles from his reported residence without authorization, which is not necessarily a crime but is a parole violation. In period No. 2, he would still have been held for absconding from parole supervision, which is also not necessarily a crime but is a parole violation, as well as for violating the travel distance restriction. Like Stump, this is not a case in which the conduct leading to the sentence was the “true and only unavoidable basis” for the period of custody in question. (Bruner, supra, 9 Cal.4th at p. 1192.) Regardless of the fact the Vehicle Code violation and the parole violations were “temporally related” (People v. Stump, supra, 173 Cal.App.4th at p. 1271), appellant’s argument fails because he cannot establish he would have been free of parole revocation custody but for the Vehicle Code violation charge.
We note further that the following statement from Stump is also applicable here: “[T]he purpose of [Penal Code] section 2900.5 is to ensure that one held in pretrial custody on the basis of unproven criminal charges will not serve a longer overall period of confinement upon a subsequent conviction than another person who received an identical sentence but did not suffer preconviction custody.” (Bruner, supra, 9 Cal.4th at pp. 1183-1184.) “Here, defendant did not serve a longer overall period of confinement for the conviction of driving under the influence than someone who received an identical sentence for a driving under the influence conviction but did not serve the presentence custody. Defendant in the case before us served additional time because he violated the terms of his parole by driving without parole officer permission and by consuming alcohol. We ‘“doubt that the Legislature intended to bestow a special benefit on recidivists.” [Citation.]’ (Id. at p. 1187.) If defendant did not separately serve time on the sentence for those parole violations, the sentence would be negated. (Id. at pp. 1187-1188.)” (People v. Stump, supra, 173 Cal.App.4th at p. 1273.)
DISPOSITION
The judgment is affirmed.