P. v. Levell

Filed 8/21/07 P. v. Levell CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct. (People v. Buckhalter (2001) 26 Cal.4th 20, 30, citing People v. Bruner (1995) 9 Cal.4th 1178, 1180 (Bruner) and Penal Code sections 2900, subd. (c), 2900.1, and 2900.5, subds. (a), (b).) The trial court in this case sentenced defendant Ray Eleigh Levell to three years in prison based on his conviction for false imprisonment (Pen. Code, 236, 237) and a prior prison term enhancement (Pen. Code, 667.5, subd. (b)).[1] The court awarded 194 days of presentence credit, but no credit for time served during a presentence parole revocation term. Defendant appeals from the trial courts post-judgment order denying his motion for additional presentence credit. We conclude that defendant has shown that 108 days of his parole revocation term were solely attributable to the same conduct that led to his conviction and sentence in this case. We therefore find that the trial court erred in denying additional presentence credit and direct the court to modify the abstract of judgment accordingly.

                                                                                                                                                                  I.            Discussion

Penal Code section 2900.5 provides that a convicted person shall receive credit against his sentence for all days spent in custody, including presentence custody (subd. (a)), but only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted (subd. (b), italics added). (Bruner, supra,9 Cal.4th at p. 1180.) As summarized by the California Supreme Court, if 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. (Id. at pp. 1193-1194.) In other words, when one seeks credit upon a criminal sentence for presentence time already served and credited on a parole or probation revocation term, he cannot prevail simply by demonstrating that the misconduct which led to his conviction and sentence was a basis for the revocation matter as well. (Id. at p. 1194; see also People v. Shabazz (2003) 107 Cal.App.4th 1255, 1258 (Shabazz) [Defendants sentence may not be credited with presentence custody time attributable to a parole or probation revocation based in part upon different criminal conduct.].)

The corollary to the mixed conduct rule is that if the sentencing court finds that time served on a revocation term was based solely on the same conduct that led to the later criminal sentence, the defendant is entitled to presentence credit for the revocation period. (See Bruner, supra, 9 Cal.4th at pp. 1193-1194, fn. 10, citing People v. Williams (1992) 10 Cal.App.4th 827 (Williams) approvingly.) In Williams, the defendants probation was revoked on the basis of the defendants failure to obey all laws and new charges. (Id. at pp. 829-830.) The only proof that the defendant violated the obey all laws condition of his probation was the same conduct that led to his criminal sentence. (Id. at p. 833.) In short, appellants presentence custody was attributable to proceedings relating to the same conduct for which he was convicted[.] (Id. at p. 834.) The court thus concluded that the defendant was entitled to credit against his criminal sentence for the time spent in custody as a result of the probation revocation.[2] (Id. at pp. 834-835.)

With the general principles established, we turn to the facts in this case.

On August 9, 2004, while defendant was on parole in Santa Clara Superior Court case number C9953010, he was involved in a domestic violence dispute with his girlfriend. On December 3, 2004, defendant waived his right to a violation of parole hearing. The Board of Prison Terms (Board) revoked defendants parole on the following grounds: (1) absconding, (2) commission of assault with a deadly weapon, and (3) commission of false imprisonment.  The latter two grounds arose from his conduct in the August 9 dispute, the subject of the current case. Defendant served a full 325‑day parole revocation term from October 3, 2004 to August 23, 2005.

Defendant ultimately was convicted of false imprisonment in connection with the domestic violence dispute.[3] On June 6, 2006, the court sentenced defendant to three years in prison and awarded 194 days of presentence credit (130 days actual custody credit and 64 days conduct credit), none of which was based on his parole revocation confinement.

Defendant concedes that the conduct for which he was convicted and sentenced in this case was only a basis of the parole revocation; the parole revocation was the result of mixed conduct, both absconding and the conduct that led to his conviction.[4] Defendant therefore is not entitled to presentence credit for the time served on the parole revocation term unless he can show that the conduct which underlies the term to be credited was also a but for cause of the earlier restraint. (See Bruner, supra, 9 Cal.4th at pp. 1193-1194.) Defendant claims that the domestic violence incident (i.e., the conduct which underlies his conviction and sentence) was the but for cause of an identifiable portion of his presentence restraint. He argues specifically that but for the assault with a deadly weapon, he would have earned worktime credit during his revocation term and would not have been in custody for the final one-third of the term (108 days). Thus, he should be awarded 108 days of presentence credit in the case before us.

On January 26, 2007, the trial court heard and denied defendants motion for additional presentence credit with the exception of one additional day of credit based on a clerical error. In so holding, the trial court summarily rejected defendants argument as unpersuasive. We respectfully disagree.

A defendant who serves a parole revocation term in county jail, as did defendant, generally is entitled to receive one-third worktime credit pursuant to Penal Code section 2931 and the California Code of Regulations.[5] Under the formula set forth in section 2931, a defendant would serve only 217 days of a 325-day term, a difference of 108 days. (See  2931, subd. (b).) As made clear in the Boards Summary of Revocation Decision, defendant was deemed ineligible for any worktime credit during his parole revocation term because of the finding that he committed assault with a deadly weapon. The Board cited section 3057, which precludes worktime credits for [p]arolees who were revoked for conduct described in, or that could be prosecuted under . . . paragraph (1) . . . of subdivision (a) of Section 245 (assault with a deadly weapon). ( 3057, subd. (d)(2)(C).) Section 3057 does not cite an absconding violation as a basis for denying worktime credits. Absent proof of some other basis for the denial of section 2931 credit (see generally 2932, 2933, 3057; Cal. Code Regs., tit. 15,  2743)which is lacking in this casewe must conclude that defendants final 108 days in custody on the parole revocation term are solely attributable to the domestic violence assault. In short, defendant has shown that 108 days of presentence custody are solely attributable to the same conduct that led to his conviction.

We recognize that this case differs somewhat from the example cited in Bruner, supra, 9 Cal.4th at page 1193, footnote 10, in which the defendant established entitlement to presentence credit for custody served based on a probation revocation. Instead of the entire period being solely attributable to the conduct underlying the defendants criminal sentence, only a portion of defendants revocation term is so attributable. However, in view of the rationale underlying entitlement to presentence credit, we find this difference to be immaterial.

According to the California Supreme Court, there are two purposes for awarding presentence credits: (1) 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 (2) equalizing the actual time served in custody by defendants convicted of the same offense [citation]. (In re Joyner (1989) 48 Cal.3d 487, 494 (Joyner); see also Bruner, supra, 9 Cal.4th at pp. 1183-1184 [the purpose of section 2900.5 is to ensure that one held in pretrial custody on the basis of unproven criminal charges will not serve a longer overall period of confinement upon a subsequent conviction than another person who received an identical sentence but did not suffer preconviction custody].) The second purpose is relevant to this case. Defendant served 108 days of presentence custody based only on his commission of the assault. Another defendant convicted of the same offense, absent nearly identical circumstances, would not be subject to this additional time in custody. The potential inequity in this situation is appropriately addressed 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. (See Joyner, supra, 48 Cal.3d at p. 494.) We see no basis to deny such credit in this case simply because the extra time defendant served in custody did not constitute an entire revocation term. Additionally, we reject the Peoples contention that there is no valid rationale for awarding credit in this case. The Peoples argument focuses on the fact that defendants presentence custody was not due to an inability to post bail and disregards the broader purpose of presentence credit.

The People also suggest that unless we reject defendants claim, trial courts will be required to look behind the ruling of the parole board to determine whether the board granted or denied goodtime or worktime credit for [a] mixed conduct term. This argument does not persuade us to deny credit in this case. Our holding does not shift the burden from the defendant to prove that he or she is entitled to presentence credit. (See, e.g., Shabazz, supra, 107 Cal.App.4th at p. 1258 [the burden is on the accused to establish entitlement to presentence custody credit].)

As our Supreme Court has acknowledged, [c]redit determination is not a simple matter and section 2900.5, subdivision (b), in particular, is difficult to interpret and apply. (In re Marquez (2003) 30 Cal.4th 14, 19, internal quotation marks omitted.) We strive, however, for a fair and reasonable result according to the established principles. (See Joyner, supra, 48 Cal.3d at p. 495.) As defendant has shown that he could have been free during the last 108 days of his parole revocation term but for the same conduct that led to the instant conviction and sentence, we conclude he is entitled to credit on his sentence for the 108 days of presentence restraint. (See Bruner, supra, 9 Cal.4th at p 1195.) He also is entitled to 54 days of corresponding conduct credit. (See 4019.) The trial court erred in concluding otherwise.

                                                                                                                                                               II.           Disposition

The trial courts order denying in part defendants motion for additional presentence credit is reversed. The trial court is directed to modify the abstract of judgment to provide for 239 days of actual custody credit and 118 days of conduct credit pursuant to section 4019.

_______________________________

Mihara, J.

I CONCUR:

_____________________________

Duffy, J.

I CONCUR IN THE JUDGMENT ONLY:

______________________________

Bamattre-Manoukian, Acting P.J.

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[1] All further statutory references are to the Penal Code unless otherwise noted.

[2] We note that the California Supreme Court in Bruner overlooked a factual distinction between Williams and the case before it. Williams involved a probation revocation, not a parole revocation, as in Bruner. The general principle for which Bruner cited Williams is appropriately applied in the parole revocation context, but it may be inappropriate in a probation case for reasons not addressed in Bruner or Williams. Unlike a parole revocation, a termination of probation does not lead to the defendant serving a probation revocation term. It instead leads to the defendant serving a criminal sentence for a prior conviction that was previously imposed but suspended, or, in a case in which imposition of sentence was suspended when probation was granted, serving a newly imposed criminal sentence for the prior conviction. In other words, the defendants presentence custody is not solely attributable to the conduct leading to conviction in the new case, but also is attributable to a prior criminal conviction. This issue was not addressed in Bruner, which refers generally to parole or probation and parolee and probationer in its discussion. (See Bruner, supra, 9 Cal.4th at p. 1193.) We limit our analysis and holding to the context of a parole revocation.

[3] Defendant was not charged with assault with a deadly weapon and the jury acquitted defendant of an additional count of dissuading a witness.

[4] Both parties rightly acknowledge that both the false imprisonment finding and the assault finding are based on the same conduct that led to defendants conviction. It is immaterial that defendant was ultimately charged and convicted in this case of only false imprisonment; the mere dismissal of certain counts in the criminal proceeding, all of which counts stemmed from the same criminal episode, d[oes] not mean that the revocation was based on conduct different from that leading to the criminal sentence. (Bruner, supra, 9 Cal.4th at p. 1193, fn. 10, citing Williams, supra, 10 Cal.App.4th at pp. 832-834.)

[5] The California Code of Regulations provides: Worktime Credits. . . . (c) Detention in a county jail facility or community correctional facility shall result in the application of time credits equal to those provided in Penal Code Section 2931. (Cal. Code Regs., tit. 15, 2743, subd. (c).) Section 2931 states, in relevant part: Total possible good behavior and participation credit shall result in a four-month reduction for each eight months served in prison or in a reduction based on this ratio for any lesser period of time. ( 2931, subd. (b).)