Filed 9/12/17 In re Williams CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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In re ORLANDO JOSE WILLIAMS, JR.,
On Habeas Corpus.
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C078709
(Super. Ct. No. 14HC00283)
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Petitioner Orlando Jose Williams, Jr., was convicted of two in-prison offenses. The trial court sentenced him to eight years and subsequently granted his petition for writ of habeas corpus regarding presentence credit, awarding him 90 days credit.
The Attorney General now contends petitioner is not entitled to the presentence credit. We agree. We will reverse the order granting the petition for writ of habeas corpus and direct the trial court to amend the abstract of judgment to strike the 90 days of credit it awarded.
BACKGROUND
Petitioner was convicted of second degree robbery and received a five-year prison sentence in Alameda County in 2006 (the first conviction). The Department of Corrections and Rehabilitation (CDCR) calculated defendant’s “maximum [release] date” as January 1, 2011, taking into consideration the credits to which he was entitled at the time of sentencing. As of September 3, 2009, defendant’s earliest possible release date was November 2, 2010, barring adjustments for future credit losses.
On December 4, 2009, prison officials found heroin on petitioner during a random search. Petitioner pleaded no contest to one count of unlawful possession of a controlled substance by an inmate (Pen. Code, § 4573.6)[1] (the second conviction) and admitted his 2006 prior serious felony conviction. The trial court sentenced him to four years in prison consecutive to the term for his Alameda County case.
Petitioner was also found to have violated prison rules and lost 180 days of credit. CDCR extended his earliest possible release date in relation to his Alameda County sentence from November 2, 2010 to January 1, 2011.
On May 26, 2010, prison officials found contraband, including heroin, in petitioner’s possession. Petitioner was convicted on one count of unlawful possession of a controlled substance by an inmate (the third conviction). Pursuant to section 1170.1, subdivisions (a) and (c), the trial court sentenced him to an aggregate prison sentence of eight years, consisting of six years for his third conviction and a consecutive two years for his second conviction. The trial court awarded petitioner 559 days of presentence credit (373 actual days and 186 conduct days).
Petitioner was once again found to have violated prison rules and lost another 180 days of credit. CDCR determined the earliest possible release date on the sentence for petitioner’s in-prison offenses was May 17, 2016, using January 1, 2011 as the start date for petitioner’s eight-year sentence and incorporating the 559 days of credit awarded by the trial court.[2]
CDCR subsequently informed the trial court that petitioner was not entitled to 559 days of credit because he was serving the sentence on the Alameda County case during his presentence custody. The trial court amended the abstract of judgment nunc pro tunc, striking the 559-day credit, and CDCR calculated petitioner’s earliest possible release date as May 27, 2017. It appears CDCR subsequently revised petitioner’s earliest possible release date to November 8, 2016, but the parties do not refer to that revised date in their appellate briefs.
Petitioner filed a petition for writ of habeas corpus in the trial court seeking to restore the 559 days of credit. The trial court ultimately granted the petition, awarding petitioner 90 days of presentence credit (60 days actual and 30 days conduct). The trial court determined petitioner would have been released on parole from his Alameda County prison term on November 2, 2010, but his earliest possible release date was changed to January 1, 2011 because of the conduct resulting in his second conviction. The trial court also determined that between November 2, 2010 and December 31, 2010, petitioner was in presentence custody within the meaning of section 2900.5 because the sentence for petitioner’s second conviction did not begin until January 1, 2011, and the conduct resulting in the conviction in that case was the but-for cause of petitioner’s custody during the period November 2, 2010 to December 31, 2010.
DISCUSSION
The Attorney General argues petitioner is not entitled to presentence credit for the period from November 2, 2010 to December 31, 2010. We agree.
“In all felony and misdemeanor convictions, . . . when the defendant has been in custody, including, but not limited to, any time spent in . . . prison, . . . all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment . . . .” (§ 2900.5, subd. (a).) “[C]redit 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).) It is the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to section 2900.5. (§ 2900.5, subd. (d).) The agency to which the defendant is committed is responsible for applying the custody credit for the period between the date of sentencing and the date the person is delivered to the agency. (§ 2900.5, subd. (e).)
Custody credit is given under section 2900.5 “ ‘only where’ custody is related to the ‘same conduct for which the defendant has been convicted.’ ” (In re Rojas (1979) 23 Cal.3d 152, 155 (Rojas).) In Rojas a defendant serving a sentence for manslaughter was transferred to jail to await trial on a second degree murder charge. (Id. at pp. 154-155.) The California Supreme Court held he was not entitled to credit under section 2900.5 for the time he spent in jail awaiting trial on his second case. (Rojas, at pp. 154-155.) The Supreme Court explained, “ ‘[t]he crucial element of [section 2900.5] is not where or under what conditions the defendant has been deprived of his liberty but rather whether the custody to which he has been subjected “is attributable to charges arising from the same criminal act or acts for which the defendant has been convicted.” [Citation.]’ . . . [¶] There is no reason in law or logic to extend the protection intended to be afforded one merely charged with a crime to one already incarcerated and serving his sentence for a first offense who is then charged with a second crime. As to the latter individual the deprivation of liberty for which he seeks credits cannot be attributed to the second offense. Section 2900.5 does not authorize credits where the pending proceeding has no effect whatever upon a defendant’s liberty.” (Rojas, at p. 156.)
The defendant in Rojas was in custody because of his previous manslaughter conviction. (Rojas, supra, 23 Cal.3d at p. 157.) He was not in custody as a result of the conduct which resulted in his conviction of second degree murder. (Ibid.) Accordingly, he was not entitled to credit against the sentence for his second degree murder conviction under section 2900.5.
Similarly, in People v. Bruner (1995) 9 Cal.4th 1178, 1195, the defendant was not entitled to custody credit because he did not show he could have been free during any period of his presentence custody but for the same conduct that led to his conviction and sentence. And in In re Joyner (1989) 48 Cal.3d 487, 492, the defendant was convicted and sentenced in Florida and then extradited to California to face charges in this state. The Supreme Court said defendant was not entitled to custody credit from the date a hold was placed against him for the California offenses because the time had been credited against his Florida sentence and he failed to show he would not have been in custody but for the California hold. (Ibid.)
Presentence custody credit determined by the trial court is for “custody prior to sentencing,” i.e., confinement prior to the time the defendant is originally sentenced. (§ 2900.5, subd. (d); see People v. Buckhalter (2001) 26 Cal.4th 20, 33 (Buckhalter); see also People v. Smith (1989) 211 Cal.App.3d 523, 527 [the sentencing court awards credit for all days in custody up to and including the day of sentencing].) Here, petitioner was originally sentenced on his second conviction on June 8, 2010. He was not entitled to any custody credit on that sentence because he was in custody serving the sentence on his Alameda County case when he was charged with, convicted, and sentenced for the second conviction. (Rojas, supra, 23 Cal.3d at pp. 156-157.)
Petitioner was resentenced for his second conviction on November 17, 2011. But the resentencing did not vacate petitioner’s original sentence and restore his presentence status for purposes of determining his custody credit. (See People v. Johnson (2004) 32 Cal.4th 260, 268; Buckhalter, supra, 26 Cal.4th at pp. 29-31, 33 [once a defendant begins serving his or her sentence, accrual of term-shortening sentence credit can only arise under the post-sentence custody credit scheme, which is distinct from the presentence custody credit scheme].) In any event, the parties agree that defendant’s earliest possible release date for the Alameda County case changed, before the resentencing, from November 2, 2010 to January 1, 2011. Hence, defendant was still in custody serving the sentence on his Alameda County case during the period November 2, 2010 to December 31, 2010.[3] Section 2900.5 did not entitle petitioner to presentence custody credit for custody attributable to the second conviction when he was resentenced on November 17, 2011.
Moreover, when petitioner was sentenced on the third conviction he had not been assessed a credit loss for the rules violation arising from the conduct which resulted in that conviction. And there is no basis for us to conclude that petitioner’s custody from November 2, 2010 to December 31, 2010 was attributable to the conduct which led to his third conviction. Therefore, petitioner is not entitled to custody credit under section 2900.5 for his third conviction.
Accordingly, petitioner is not entitled to the 90 days credit awarded him.
DISPOSITION
The order granting the petition for writ of habeas corpus is reversed. The trial court is directed to amend the abstract of judgment to strike the 90 days of credit it awarded and to forward a certified copy of the amended abstract of judgment to CDCR.
/S/
MAURO, J.
We concur:
/S/
NICHOLSON, Acting P. J.
/S/
BUTZ, J.
[1] Undesignated statutory references are to the Penal Code.
[2] Although he was sentenced for his second conviction on June 8, 2010, petitioner could not begin serving that sentence until January 1, 2011. (§ 1170.1, subd. (c) [“In the case of any person convicted of one or more felonies committed while the person is confined in the state prison . . . and [where] the law either requires the terms to be served consecutively or the court imposes consecutive terms, the term of imprisonment for all the convictions that the person is required to serve consecutively shall commence from the time the person would otherwise have been released from prison.”]; In re Tate (2006) 135 Cal.App.4th 756, 764-765.)
[3] At oral argument, petitioner’s counsel argued it is unfair that the result in this case -- denial of presentence credit -- is based simply on the timing of CDCR’s processing and disposition of petitioner’s in-prison rules violation, suggesting that depending on CDCR’s speed in processing, different defendants might obtain different results. We do not address petitioner’s argument because it was raised for the first time at oral argument. (People v. Carrasco (2014) 59 Cal.4th 924, 990.)
