P. v. Johnson

Filed 9/13/07 P. v. Johnson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Butte)

Defendant Alvin Mitchell Johnson appeals from the trial courts choice of the principal term for sentencing purposes, arguing that because the trial court chose the last offense of which he was convicted as the principal term, he was unfairly denied credit for time served on the earlier offenses.

We shall conclude the trial court had no discretion in choosing the principal term, and we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The details of the underlying crimes are not relevant to the issues on appeal. Defendant was sentenced for three separate offenses occurring on separate dates.

1. Case No. CM018141

On December 24, 2002, defendant pled no contest to a violation of Health and Safety Code section 11378, possession of methamphetamine for sale. He was placed on probation for a period of three years and ordered to serve 240 days in county jail.

2. Case No. CM019434

On June 25, 2003, while defendant was still on formal probation, he was arrested, and on July 14, 2003, entered a plea of no contest to a second violation of Health and Safety Code section 11378, possession of methamphetamine for sale. He admitted the prior conviction, which constituted a probation violation and resulted in an enhanced sentence pursuant to Health and Safety Code section 11370.2, subdivision (c).

The trial court sentenced defendant in both Case No. CM018141 and No. CM019434. The total prison term imposed was five years.

Pursuant to stipulations and waivers, defendant was given a California Rehabilitation Center commitment.

3. Case No. CM025071

On May 22, 2006, defendant was arrested and later charged with a violation of Health and Safety Code section 11351.5, possession of cocaine base for sale. He pled no contest to the charge and admitted the three year prior conviction enhancement pursuant to Health and Safety Code section 11370.2, subdivision (a).

On August 16, 2006, the trial court sentenced defendant in all three cases as follows. The court determined the charge in Case No. CM025071 was the principal term. As to that count, the trial court imposed the upper term of five years, plus a three year consecutive sentence for the prior drug conviction enhancement under Health and Safety Code section 11370.2, subdivision (a). Criminal proceedings were reinstated in cases CM018141 and CM019434. The trial court designated these the subordinate terms, and sentenced defendant to consecutive terms of eight months (one third the middle term) each. Defendants total prison term was nine years, four months.

The court found 129 days credits in Case No. CM025071, and 240 days credits in each of Cases CM018141 and CM019434.

DISCUSSION

Defendant acknowledges that the 129 days credits awarded in CM025071 was an accurate reflection of the time served and custody credits attributable to that case. However, defendant claims without citation to the record that the total credits attributed by the probation department to case numbers CM018141 and CM019434 was 1,012 days. He argues that because the trial court chose to exercise its discretion by choosing CM025071 as the principal term, he lost 572 days of credit for time served.

Penal Code section 2900.5, subdivision (a) provides that a convicted person shall receive credit against his sentence for time spent in custody. However, credit is given only if it is attributable to proceedings related to the same conduct for which the defendant has been convicted. (Pen. Code, 2900.5, subd. (b).) The application of this statute, is clear when the conduct that led to the conviction and sentence was the sole cause of the custody to be credited. But difficult problems arise when, as often happens, the custody for which credit is sought had multiple, unrelated causes. (People v. Bruner (1995) 9 Cal.4th 1178, 1180.)

Defendants argument is based upon People v. Marquez (2003) 30 Cal.4th 14, and People v. Gonzalez (2006) 138 Cal.App.4th 246. In People v. Marquez, supra, the defendant, who was out on bail (first case), was arrested again (second case) and taken into custody in another county. (30 Cal.4th at pp. 17-18.) He was convicted of both crimes, and was 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. (Id. at p. 18.) 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. (Ibid.)

The Supreme Court agreed that defendants credits should apply to the first case. It held that the defendants 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 Penal Code section 2900.5, subdivision (b). (30 Cal.4th at p. 20.)

In People v. Gonzalez, supra, the defendant pled guilty to domestic violence and was placed on probation. (138 Cal.App.4th at pp. 248-249.) He re-offended during the probationary period, and was charged with auto theft and gun possession. (Id. at p. 249.) While in custody, awaiting trial on the auto theft and gun charges, he was charged with assaulting another inmate. (Ibid.) The defendant was convicted of the auto theft and gun charges, pleaded no contest in the assault action, and admitted the probation violation. (Id. at pp. 249-250.) In awarding custody credits, the trial court allocated the time served between the defendants arrest in the auto theft and gun case to the date of the inmate assault to the domestic violence case. (Id. at p. 250.) As a result, the total credits allocated to the domestic violence case exceeded the sentence imposed in that case. (Id. at p. 251.)

The defendant argued, and the court of appeal 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. The court held that the custody could be attributed to multiple, unrelated causes. (138 Cal.App.4th at p. 252.) It reasoned that the prohibition in Penal Code section 2900.5, subdivision (b) against duplicate credits would not be violated because the defendant did not seek duplicate credits for the period of confinement. (Ibid.)

The Gonzalez court noted that sometimes dead time, i.e., time spent in custody for which a defendant receives no benefit, is unavoidable. (138 Cal.App.4th at p. 253.) The instant case is one of those times. The period defendant spent in custody prior to his arrest for possession of cocaine base for sale was not attributable to the possession of cocaine base for sale charge, thus those credits could not have been allocated to that conviction.

Moreover, the trial court was not at liberty to choose one of the possession of methamphetamine convictions as the principal term. Pursuant to Penal Code section 1170.1, subdivision (a), the principal term, shall consist of the greatest term of imprisonment imposed by the court for any of the crimes . . . . The trial court imposed the upper term of five years for defendants violation of Health and Safety Code section 11351.5, possession of cocaine base for sale. The two other charges upon which the trial court imposed a sentence were violations of Health and Safety Code section 11378, possession for sale of methamphetamine. Section 11351.5 provides that punishment is imprisonment in the state prison. Pursuant to Penal Code section 18, punishment for such a felony is imprisonment for 16 months, or two or three years. Thus, the term of imprisonment for the violation of Health and Safety Code section 11351.5 was the greatest term of imprisonment imposed by the court and the court properly designated that as the principal term.

DISPOSITION

The judgment is affirmed.

BLEASE , Acting P. J.

We concur:

RAYE , J.

MORRISON , J.

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