P. v. Logg

Filed 10/30/06 P. v. Logg CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Amador)

----

After terminating defendant John Allen Logg’s probation in two separate cases, the court imposed a two-year prison term in the first case and a concurrent term of the same length in the second case, but awarded presentence custody credits in the first case only. The court also imposed a separate restitution fine in each case. Defendant argues the court should have awarded presentence custody credits in both cases, and imposed only one restitution fine. Defendant also seeks to correct a miscalculation of the number of days spent in custody. We will correct the credit miscalculation, and otherwise affirm.

FACTS AND PROCEEDINGS

By complaint filed March 20, 2001, defendant was charged with receiving stolen property (Pen. Code, § 496, subd. (a) -- further unspecified section references are to this Code) in Amador County Superior Court No. 01CR0448 (hereafter No. 448). Pursuant to a negotiated disposition, defendant entered a guilty plea on May 2, 2001, and was released on his own recognizance pending a sentencing hearing on June 6, 2001.

On May 17, 2001, defendant stole a bottle of bourbon from a grocery store. He was charged by separate complaint in Amador County Superior Court No. 01CR0754 (hereafter No. 754) with petty theft with a prior (§ 666) and commission of the offense while released on bail or his own recognizance in No. 448 (§ 12022.1).

On July 11, 2001, in No. 754, defendant entered a no contest plea to the section 666 charge in exchange for dismissal of the section 12022.1 charge, and the promise of a 180-day jail term fully concurrent with the sentence in No. 448.

That same day, the court granted probation in Nos. 448 and 754, on condition defendant serve “fully concurrent” 180-day jail terms. The probation officer noted that defendant had been jailed for a total of 92 days as a result of the charges in Nos. 448 and 754, and that total credits rose to 138 days when good conduct credits were added. When the probation officer asked whether the credits would be allocated to one or the other case, the court stated that all credits would be applied to the jail term in No. 448. Defendant offered no objection.

Over the course of the next three years, defendant divided his time between release on probation and incarceration at the Amador or Calaveras County jails.

In January 2002, defendant’s probation was revoked in No. 448 based on offenses committed in Calaveras County. After defendant admitted the probation violation, the court reinstated probation on condition defendant serve a 45-day jail term in No. 448.

In July 2002, defendant’s probation was revoked a second time in No. 448 after he tested positive for amphetamine use. Probation was reinstated in February 2003 on condition defendant serve a 70-day jail term.

On July 15, 2004, a new petition to revoke probation was filed in No. 448, after defendant committed several crimes in Calaveras County.

On September 23, 2004, a petition to revoke probation based on the same conduct was filed in No. 754.

On December 3, 2004, defendant admitted the allegations of both petitions. At the sentencing hearing held one month later, the court terminated probation in both cases, and sentenced defendant to a two-year prison term in No. 448, with a concurrent two-year term in No. 754. The court awarded a total of 434 days of presentence custody credit in No. 448. When defense counsel asked whether any credits would be applied to No. 754, the court responded: “No, he doesn’t get dual credits because everything is to run concurrent to the 434 days in [No. 448], . . .”

DISCUSSION

I

A. Defendant Is Not Entitled to Dual Credits in Nos. 448 and 754

Relying on case authority holding that a defendant is entitled to dual credits where concurrent terms for different offenses are imposed in a single criminal action, defendant contends the court should have awarded presentence custody credits in No. 754 as well as No. 448. We disagree.

Section 2900.5 provides, in pertinent part: “(a) In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including . . . any time spent in a jail, . . . including days served as a condition of probation in compliance with a court order, . . . shall be credited upon his or her term of imprisonment, . . . (b) For the purposes of this section, 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. Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.”^[1]

While it is an “accepted principle that when concurrent sentences are imposed at the same time, presentence custody is credited against all” (People v. Bruner (1995) 9 Cal.4th 1178, 1192, fn. 9), “[t]here is no persuasive indication that section 2900.5 was intended to achieve the goal of making the net time served on separately imposed concurrent terms equal to the net time served on concurrent terms imposed at one time in a single proceeding.” (In re Joyner, supra, 48 Cal.3d at p. 494.) “If an offender is in pretrial detention awaiting trial for two unrelated crimes, he ordinarily may receive credit for such custody against only one eventual sentence.” (In re Marquez (2003) 30 Cal.4th 14, 21.) Thus, “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.” (People v. Bruner, supra, 9 Cal.4th at pp. 1193-1194.) The defendant bears the burden of establishing entitlement to presentence custody credits. (People v. Shabazz (2003) 107 Cal.App.4th 1255, 1258.)

At the combined sentencing hearing for Nos. 448 and 754, defendant did not undertake to establish what segment, if any, of his presentence incarceration was solely attributable to his conduct in No. 754. Similarly, on appeal, defendant eschews a detailed analysis of the periods of his preplea and postplea incarceration to ascertain how many days, if any, were solely attributable to his conduct in No. 754.

Instead, he relies on the exception to the rule of strict causation, cited above, which applies when multiple crimes are prosecuted in a single proceeding and concurrent sentences are imposed. In such a case, presentence custody credits are applied to all of the concurrent sentences even though the presentence custody is not solely attributable to the crime for which the credit is given. (People v. Adrian (1987) 191 Cal.App.3d 868, 875-876; People v. Ayon (1987) 196 Cal.App.3d 1114, 1117.) In defendant’s view, the present case is much closer to one in which a court imposes multiple concurrent terms at the same time in a single proceeding, than it is to one where one or more courts impose concurrent terms at different times in different proceedings.

Defendant’s current view of the sentencing hearing is at odds with what actually transpired in the two cases. From the initial sentencing hearing through sentencing after the final revocation of probation herein, the court consistently viewed defendant’s incarceration as stemming from No. 448. The court’s allocation of credits also demonstrates its intent to require defendant to serve a substantial period of imprisonment in No. 754. Although the sentencing hearings in the two cases were combined, the court treated the cases separately, and sentenced accordingly. The sentencing hearing was not, as defendant posits, like a sentencing hearing on multiple convictions prosecuted in a single criminal action in which the sentencing court crafts a global sentence with the full knowledge that concurrent sentences call for duplicate credits. In the present case, the court proceeded under the assumption that presentence custody credit would be attributable to only one of the two cases. Defendant failure to offer an objection implies that this was his understanding as well. In such circumstances, we decline to revise the court’s sentencing choices to conform to a result that would have been appropriate if the court had conducted a hearing that was different than the one actually conducted.

Defendant’s citation to People v. McNeely (1994) 28 Cal.App.4th 739 (McNeely) fails to assist him. There, the defendant committed two burglaries while released on bail pending sentencing on eight other burglaries. The defendant entered guilty pleas to the new offenses and the court held a joint sentencing hearing, at which it treated all of the charges as having been filed in one case. The court, however, treated the cases separately in one particular: it imposed two restitution fines. The Court of Appeal, Fourth Appellate District, Division One, set aside the second restitution fine, since the aggregate fine exceeded the statutory maximum of $10,000 per case. (Id. at pp. 743-744.) The same Court of Appeal subsequently followed McNeely in People v. Ferris (2000) 82 Cal.App.4th 1272 (Ferris), a case in which the appellate court set aside a second restitution fine imposed on a defendant convicted at a single trial and sentenced at a single sentencing hearing, even though two separate cases were being prosecuted.

McNeely, supra, 28 Cal.App.4th 739, and Ferris, supra, 82 Cal.App.4th 1272, are distinguishable because the trial court in both cases treated separately-filed criminal actions as one, while the trial court herein did not. In addition, the Fifth Appellate District declined to extend McNeely and Ferris, supra, in People v. Enos (2005) 128 Cal.App.4th 1046, 1049 (Enos). Like the instant case, Enos involved separate cases that were treated by the court and parties as separate even though they were resolved by a global plea and a joint sentencing hearing was conducted. We agreed with the reasoning of Enos, supra, in People v. Schoeb (2005) 132 Cal.App.4th 861, in which we upheld multiple restitution fines imposed in separate cases at a joint sentencing hearing. (Id. at pp. 864-865.) For the reasons stated in Schoeb, supra, pages 864-865, we reject defendant’s assertion that McNeely, supra, entitles him to duplicate credits in Nos. 448 and 754.

Defendant’s reliance on the initial plea agreement in No. 754, which called for “fully concurrent sentences,” also fails to assist him. The record makes clear that the court’s use of the word “concurrent” signified no more than the manner in which the probationary jail terms and subsequent prison sentences would be served, not the manner in which credits would be allocated.

B. Credits Were Miscalculated

The probation report listed 11 separate periods of presentence incarceration, and noted that they added up to 290 days of custody. The court awarded custody credits and good conduct credits based on that figure. The probation report incorrectly tallied the number of days served, which actually totaled 294 days. Consequently, defendant should be awarded four additional days of custody credit, as well two additional days of conduct credit that result from the revised custody credit figure, for an aggregate credit award of 440 days, in No. 448.

C. The Two Restitution Fines Are Valid

The court imposed separate restitution fines of $200 in each case, for a total of $400. Defendant contends this figure should be reduced to $200 because the cases, though numbered separately, were prosecuted in the same proceeding. In People v. Schoeb, supra, 132 Cal.App.4th, pages 864-865, we rejected a substantially similar argument, and for the reasons stated therein, as well as our discussion above, we reject it in the present case.

II

DISPOSITION

The judgment is modified to add four additional days of conduct credit and two additional days of good conduct credit in No. 448. As modified, the judgment is affirmed. The trial court is directed to issue an amended abstract of judgment that incorporates these modifications, and to forward a certified copy to the Department of Corrections and Rehabilitation.

MORRISON , J.

We concur:

DAVIS , Acting P.J.

BUTZ , J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line attorney.

^[1] Awarding presentence credits serves the dual purposes of “eliminating the unequal treatment suffered by indigent defendants who, because of their inability to post bail, serve a longer overall confinement for a given offense than their wealthier counterparts [citation], and [] equalizing the actual time served in custody by defendants convicted of the same offense [citation].” (In re Joyner (1989) 48 Cal.3d 487, 494.) “The latter purpose is achieved by awarding credit for all periods of presentence custody attributable to the proceeding, including time served as a condition of probation, and not merely for pretrial confinement resulting from inability to post bail. Both of these purposes are concerned with equalizing the treatment of different individuals each convicted in a single proceeding of the same offense or offenses.” (Ibid.)