P. v. Pijenko
Filed 8/31/07 P. v. Pijenko CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, Plaintiff and Respondent, v. MICHAIL PIJENKO, Defendant and Appellant. | A116048 (Sonoma County Super. Ct. No. SCR34056) |
This case concerns the award of presentence custody credits under Penal Code section 2900.5.[1] The defendant was in custody on charges when a probation hold was placed on him in this case. We hold the trial court correctly declined to award credits to defendant for his time on the probation hold due to his waiver of presentence credits in his plea to those other charges. Accordingly, we affirm.
BACKGROUND
In October of 2004 defendant pleaded guilty to driving under the influence and related prior offenses in Sonoma County Superior Court. He was sentenced to a two-year suspended sentence and placed on probation. On June 16, 2005, defendants probation was summarily revoked because he failed to report to his probation officer and a bench warrant issued. Six weeks later he was arrested and charged with spousal abuse in Sacramento County. Sonoma County placed a hold on defendants custody due to the bench warrant on August 1, 2005.
On May 4, 2006, pursuant to defendants negotiated plea, the Sacramento County Superior Court imposed and suspended a four-year prison term and placed defendant on five years probation with a one-year county jail term condition. Defendant waived eight months of presentence custody credit as part of the negotiated disposition.
Defendant was returned to Sonoma County, where the court revoked his probation and imposed the previously suspended two-year sentence. The court denied defendants request for custody credits for the time he was in custody in Sacramento on the bench warrant from August 1, 2005, when the Sonoma County warrant hold was placed, until May 4, 2006, when defendant was sentenced on the Sacramento charges. Defendant timely appealed.
DISCUSSION
Defendant contends he is entitled to custody credit in this case for the time he spent in custody in Sacramento on the spousal and abuse charge and the Sonoma County warrant hold. We disagree.
Section 2900.5 governs the award of presentence custody credit. It provides: (a) In 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 . . . 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. (Italics added.)
The question posed here is whether the rule requiring that credit shall only be given once for a single period of custody as stated in section 2900.5, subdivision (b) precludes awarding defendant the credit in the Sonoma County case that he waived as part of his plea agreement in the Sacramento County case.[2] Defendant argues the credit must be given to him in the Sonoma County case because, although waived, it was notgiven to him in the Sacramento County case. The argument is specious. It is true that defendant was not given credits on a day-for-day reduction basis against his Sacramento sentence, but he used them in the Sacramento case when he waived them in exchange for his negotiated sentence.[3] To then apply those same credits against his sentence in the Sonoma County action would give defendant the effect of those same credits in both cases, in plain violation of the requirement that credit be given only once for a single period of custody attributable to multiple offenses. ( 2900.5, subd. (b); In re Marquez (2003) 30 Cal.4th 14, 21.) The Supreme Court has made it clear that section 2900.5 was not intended to bestow credit windfalls of this nature. (People v. Bruner (1995) 9 Cal.4th 1178, 1191-1193; In re Marquez, supra, at p. 23.)
Defendants claim that denial of the credit in Sonoma County would result in dead time, defined as time spent in custody for which the defendant receives no benefit (In re Marquez, supra, 30 Cal.4th at p. 20), also fails. Defendant received the benefit of his custody credit when he waived it as part of the negotiated disposition of the Sacramento case. The court correctly rejected his attempt to have the credit he waived in the Sacramento County plea agreement applied also to his Sonoma County sentence.
DISPOSITION
The judgment is affirmed.
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Siggins, J.
We concur:
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McGuiness, P.J.
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Pollak, J.
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[1] All further statutory references are to the Penal Code.
[2] It is undisputed that defendants custody between the imposition of the Sonoma County warrant hold on August 1, 2005, and defendants sentencing in Sacramento on May 4, 2006, is attributable to bothcases.
[3] Defendants claim that there is no evidencethat he received any benefit against his sentence in Sacramento County is belied by documentation that he waived his presentence custody credits as part of the disposition of that case, as well as by the probation officers report in open court that the Sacramento sentence resulted from a negotiated disposition.
