P. v. Guess

Filed 10/25/07 P. v. Guess CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

The defendant was convicted, after jury trial, of attempted pimping of a minor and lewd or lascivious act on a child without force. The court, after holding a hearing on appellants claim of presentence credit, sentenced the defendant to nine years in prison and gave him 15 days of credit for actual time served plus two days of conduct credit for a total of 17 days.

The appellant raises a single issue in this appeal, namely that he is entitled to additional presentence custody credit because of a period of nine months that he spent in prison resulting from parole revocation. We will affirm the judgment of the trial court.

Defendant was a parolee living in Sacramento, California with a condition of his parole that he not travel without prior approval outside the 50 mile radius of his residence. Additionally he was required under his parole to obey all laws. He was arrested on March 18, 2005, and charged with two counts of pimping a minor, lewd and lascivious act on a child by force and possession of cocaine.

Shortly after the arrest a parole hold was placed on the appellant and he signed an optional hearing waiver with the parole board. His parole was revoked and he received a nine month sentence. Notwithstanding evidence before the parole board that the defendant contributed to the delinquency of both minors and that the 13 year old victims had said that they had been working for him every day the week preceding his arrest as well as turning over money earned for each of the four nights, the board found probable cause that the appellant violated parole based upon traveling beyond the 50 file radius of his residence without permission. It also found three acts of pimping and pandering and two acts of contributing to the delinquency of a minor and possession of cocaine.

At his trial the defendant was acquitted of possession of cocaine and the jury deadlocked on one count of pimping a minor. It convicted him of the lesser including charges of attempted pimping of a minor and lewd or lascivious action on a child without force.

During the hearing held by the careful trial judge, counsel for appellant conceded that appellant would have been in violation of parole if he had driven from his home in Sacramento to San Jose for a purpose not relating to any of his charges.

Appellant makes the claim that his act of traveling beyond the 50 mile radius is related to the conduct for which he was convicted and sentenced and thus he is entitled to the nine month credit.

The venue for pimping and pandering may mostly be determined by economic forces. That is, the defendant may have done better in his enterprise in San Jose than he could in Sacramento. That is not to say that he could not have done it in Sacramento, except for the fact that these two 13 year old girls, runaways, would be much more difficult to track down by their parents in San Jose than in Sacramento. Moreover, his choice of San Jose may have stemmed entirely from the fact that his parole officer was in Sacramento. In other words, we believe that the venue does not specifically bear on the crime or if it does, it bears to the defendants disadvantage.

In People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194, the court explained that where a period of presentence credit 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.

That court approved of decisions applying the general rule that a prisoner is not entitled to credit for presentence confinement unless he shows that conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period. Thus, these cases reason, the criminal sentence may not be credited with jail or prison time attributable to a parole or probation revocation that was based only in part upon the same criminal episode. (People v. Bruner, supra, 9 Cal.4th at p. 1191.)

Moreover, we believe the reliance that appellant puts on People v. Williams (1992) 10 Cal.App.4th 827, 832 is not justified.

The trial courts order is a careful and well reasoned explanation of why appellants claim for additional credit is unfounded, particularly as there is no showing by appellant 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.

Thus we find no error by the trial court in denying defendant presentence custody credits.

Disposition

The judgment is affirmed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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