Filed 10/17/17 P. v. Peralta-Martinez CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FIVE
| THE PEOPLE, Plaintiff and Respondent, v. JOAQUIN PERALTA-MARTINEZ, Defendant and Appellant. |
A150009
(Solano County Super. Ct. No. FCR312351)
|
Appellant Joaquin Peralta-Martinez appeals from a judgment sentencing him to 16 months in the county jail after the court revoked his probation for a conviction of receiving stolen property. He contends he is entitled to additional presentence custody credits. We disagree and affirm.
BACKGROUND
On March 5, 2015, appellant pleaded no contest to receiving stolen property in case number FCR312351 and to possession for sale of marijuana in case number FCR311104. (Pen. Code, § 496, subd. (a); Health & Saf. Code, 11359.) At the time, appellant was on probation for misdemeanor assault in case number FCR300848.
On April 2, 2015, the court suspended the imposition of sentence and placed appellant on four years of formal probation for the receiving stolen property and marijuana charges, conditioned on his serving up to 365 days in county jail pending his placement in a residential treatment facility. The court reinstated appellant’s probation in case number FCR300848. On April 2, 2015, appellant was placed in a Salvation Army rehabilitation facility.
On May 18, 2016, appellant admitted a probation violation in all three cases arising from his use of illegal drugs and his failure to attend substance abuse treatment. On July 1, 2016, the court reinstated appellant on probation in case numbers FCR312351 and FCR311104, but ordered him to serve 365 days case in case number FCR300848, and awarded him 366 days in credits (183 days of actual custody plus 183 days of conduct credit under Penal Code section 4019).
On November 16, 2016, following appellant’s admission of a second probation violation for absconding from probation services, the court sentenced appellant to 16 months in the county jail for the stolen property offense in case number FCR312351 and terminated his probation on the marijuana charge in case number FCR311104. (Pen. Code, § 1170, subd. (h).) The court awarded appellant 300 days of credit on case number FCR312351, but rejected appellant’s argument that he was entitled to an additional 264 days of credit. The court noted that credit for those dates had already been applied to appellant’s misdemeanor offense in case number FCR300848, for which appellant had been sentenced on July 1, 2016.
DISCUSSION
Penal Code section 2900.5 governs the award of presentence custody credit. Subdivision (a) of that section provides that “n all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, . . . all days of custody of the defendant, including days. . .credited to the period of confinement pursuant to Section 4019, . . . shall be credited upon his or her term of imprisonment. . . . If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served.” (Pen. Code, § 2900.5, subd. (a).) Subdivision (b) states that “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. [i]Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.” (Id. at subd. (b), italics added.) The burden is on the accused to establish entitlement to presentence custody credits. (People v. Bruner (1995) 9 Cal.4th 1178, 1193–1194 & fn. 10.)
“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. Once the pretrial custody is credited against the sentence for one of the crimes, it, in effect, becomes part of the sentence, bringing the case within the embrace of the rule in [In re Rojas (1979) 23 Cal.3d 152]. In such circumstances, the pretrial custody ceases to be ‘attributable’ to the second crime, thus prohibiting its being credited against the sentence subsequently imposed for that crime. [Citation.]” (In re Marquez (2003) 30 Cal.4th 14, 21.)
Appellant had already been awarded credit for the dates at issue in connection with the sentence on the misdemeanor assault charge. He has not carried his burden of showing he was entitled to have those credits applied to the 16-month jail term imposed after his probation was revoked in the receiving stolen property case.
DISPOSITION
The judgment is affirmed.
NEEDHAM, J.
We concur.
JONES, P.J.
BRUINIERS, J.
