P. v. Nix

Filed 10/17/06 P. v. Nix CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Cheryl Marie Nix appeals from judgments entered in three cases, contending that the trial court erred in awarding presentence custody credits. (Pen. Code, § 2900.5, subd. (b).)^[1] We affirm.

On June 10, 2005, appellant was sentenced to two years state prison in case number 2004040413 after pleading guilty to commercial burglary of a Costco store (§ 459) and admitting six prior felony convictions (§ 1203, subd. (e)(4)). The trial court awarded 222 days presentence custody credit. (§ 4019.)

In two other cases (case number 2002019628 and case number 2002020650) for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), the trial court revoked probation and imposed 16 month sentences to be served concurrent to the two-year sentence in the Costco case. Appellant was awarded 222 days presentence custody credit, and like the Costco case, ordered to pay fines and restitution.

Dual Custody Credits

A defendant who is sentenced to prison is entitled to credit for days spent in presentence custody. (§ 2900.5, subd. (a).) Section 2900.5, subdivision (b) provides that presentence "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." (Emphasis added.) Where the defendant is in custody for multiple reasons, our Supreme Court has formulated a rule of "strict causation" that precludes an award of credits "unless it is demonstrated that the claimant would have been at liberty . . . were it not for a restraint relating to the proceedings resulting in the later sentence." (In re Joyner (1989) 48 Cal.3d 487, 489; see also In re Rojas (1979) 23 Cal.3d 152, 156.)

In People v. Bruner (1995) 9 Cal.4th 1178, 1192, our Supreme Court stated: "The 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. Moreover, as Rojas and Joyner made clear, section 2900.5 is intended to provide equitable treatment for one held in pretrial custody on mere charges of crime, not to give credit for time already being served and credited on another term or sentence for unrelated violations."

Appellant claims that she is entitled to 392 days presentence custody credit based on 262 days actual custody and 130 days conduct credit. (§ 4019, subd. (a)(4).) Appellant was arrested in the Costco case (Case No. 2004040413) on September 22, 2004, entered a change of plea on April 8, 2005, and was sentenced June 10, 2005. She was in custody the entire 262 days.

The trial court awarded 222 days presentence custody credit (148 actual days plus 74 days local conduct credit) based on an "actual time in custody worksheet" prepared by the probation officer. The worksheet stated that appellant was not entitled to custody credit from December 10, 2004 through April 8, 2005 because appellant was in custody on two other cases for being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); Case No. 2004004232) and shoplifting at a Target store (§ 484; Case No. 2004040413).

The custody credit worksheet stated in pertinent part: "On 4-8-05, the defendant was ordered to serve 180 days with credit of 180 days in case 2004004232 concurrent to any other time, and 90 days with credit of 90 days in case 2004021451, concurrent to any other time. Therefore she is not entitled to dual credits in this matter."

This calculation is reflected in the reporter's transcript. At the April 8, 2005 hearing, appellant entered a change of plea in the Costco case (Case No. 2004040413) and admitted violating probation in the two drug cases (Case Nos. 2002019628 and 2002020650). At the same hearing, appellant entered a change of plea in the Target shoplifting case and the under-the-influence case. In the Target shoplifting case (Case No. 2004021451), the trial court sentenced appellant to 90 days county jail, "concurrent with case [n]umber 40413. Since you have actually served 98 actual [days], that 90 days is deemed served. Period. That case is gone."

In the under-the-influence case (Case No. 2004004232), the trial court sentenced appellant to 180 days county jail, "concurrent with case [n]umber 40413. And since you've already served 198 actual, that 180 days is deemed served."

The record indicates that the time in custody from December 10, 2004 through April 8, 2005 was for conduct unrelated to the Costco case.^[2] Applying the Joyner/Bruner strict causation rule, appellant is not entitled to dual credits.

The Law pre-Rojas/Joyner/Bruner

Citing People v Schuler (1977) 76 Cal.App.3d 324, appellant argues that when a defendant is convicted on multiple offenses and is ordered to serve concurrent sentences, the same presentence custody credits are to be credited against the term imposed for each crime. Schuler is distinguishable because it involved the calculation of custody credits earned in prison before the conviction was reversed. (Id., at pp. 328-329) There, several cases were consolidated for sentencing, the trial court imposed concurrent sentences at the same sentencing hearing, and custody credits were earned after the sentences were imposed.

Unlike People v. Schuler, supra, appellant was sentenced at different times. On April 8, 2005, the trial court sentenced appellant on the Target shoplift and the under-the-influence cases. On June 10, 2005, appellant was sentenced on the Costco case and drug possession cases. "[I]f the multiple crimes are prosecuted in a single proceeding and concurrent sentences are ordered, it makes no difference that the crimes were committed at different times. The credits become effective 'together' on each crime at the time of sentencing. Quite a different result occurs when there are two or more proceedings leading to sentencing at different times." (People v. Adrian (1987) 191 Cal.App.3d 868, 876, citing People v. Schuler, supra.)

Appellant finally argues that she was not in custody in the Target shoplift and the under-the-influence cases when she entered the change of plea on April 8, 2005. The trial court, however, found that she was in custody and awarded credit for time served. The record also reflects that appellant was in custody for violating probation in other cases. (Ante, fn. 2.)

The burden is on appellant to establish entitlement to presentence custody credit. (People v. Bruner, supra, 9 Cal.4th at pp. 1193-1194 & fn. 10; People v. Shabazz (2003) 107 Cal.App.4th 1255, 1257-1258; People v. Huff (1990) 223 Cal.App.3d 1100, 1105.) "After Joyner, the defendant has the burden in every mixed conduct case to prove entitlement to presentence custody credits by showing that such custody was 'strict[ly] caus[ed]' by the same conduct for which [s]he is convicted and to be sentenced." (In re Nickles (1991) 231 Cal.App.3d 415, 424.)

Appellant has failed to show that the trial court erred in calculating and awarding presentence custody credits.

The judgments are affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Ken W. Riley, Judge

Superior Court County of Ventura

______________________________

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Jack Newman, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] All statutory references are to the Penal Code unless otherwise stated. Pursuant to section 1237.1, appellant filed a motion in the Ventura County Superior Court to correct the award for presentence custody credits. The motion was denied March 10, 2006.

^[2]Appellant can not show that the custody time from December 10, 2004 through April 8, 2005 was solely related to the Costco burglary because there were a multitude of probation violations in other cases during this same time period. For example in case number 2002020650 (drug probation case), the probation report states: "[O]n September 1, 2004, the defendant failed to appear in Court for a violation of probation arraignment, probation was revoked, and a bench warrant was issued for her arrest. On April 8, 2005, the defendant admitted a violation of probation, probation was revoked, and the matter was continued for violation of probation sentencing."

The record reflects that appellant violated probation five times in Case No. 2001003180 and violated probation twice in cases 2002019628, 2002020650, 2002028184, 2002015038, and 2002018375 for failure to participate and complete a drug treatment program, use and possession of controlled substances, failing to appear, and new theft offenses.