P. v. Leyva

Filed 8/23/07 P. v. Leyva 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Ronald Louis Leyva appeals following the trial courts denial of his request for presentence custody credit.

Statement of the Case[1]

Defendant was arrested May 27, 2004, and charged with possession for sale of methamphetamine (Health & Saf. Code, 11378 - count one), possession for sale of marijuana (Health & Saf. Code, 11359 - count two, and five counts of possession of a firearm by a convicted felon (Pen. Code, 12021, subd. (a)(1) - counts three through seven). Defendant was also arrested for a parole violation based on the above referenced charges as well as defendants failure to participate in a drug treatment program.

Defendant signed an Optional Waiver, and received a parole violation term of 12 months, and was released from parole on May 28, 2005. On January 31, 2005, defendant pleaded guilty to all charges, and admitted a prior prison term enhancement (Pen. Code, 667.5, subd. (b)). At the sentencing hearing in September 2005, the court agreed with the recommendations of the probation department, and denied presentence custody credit for the 12-month parole violation term. Defendant was sentenced to the three-year upper term on count one, a consecutive one-year term enhancement for the prior prison term, and concurrent three-year terms on the remaining counts. The court awarded nine days presentence custody credit.

In October 2006, defendant filed a request for additional presentence custody credit, which the court denied. Defendant filed a notice of appeal in March 2007 after this court granted defendant relief from default for failure to file a timely notice of appeal.

Discussion

Defendant asserts the trial court erred in denying him presentence custody credit for three months of his 12 month sentence. He argues while the nine months were for mixed conduct, including the new arrest and the failure to complete his drug treatment program, the three months were solely based on the new arrest, and therefore, he should be entitled to credit for this time against his parole violation term.

In People v. Bruner (1995) 9 Cal.4th 1178, the court explained that 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. Accordingly, 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 pp. 1193-1194.) The court approved of decisions applying the general rule that a prisoner is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period. Thus, these cases reason, his criminal sentence may not be credited with jail or prison time attributable to a parole or probation revocation that was based only in part upon the same criminal episode. (Id. at p. 1191; see People v. Williams (1992) 10 Cal.App.4th 827, 832 [burden on defendant].)

Defendant admits that his parole was revoked in part because of the fact that he did not complete his drug treatment program. However he argues that title 15 of the California Code of Regulations, section 2646.1, subdivision (c)(1), provides a suggested period of confinement of five to nine months for [t]echnical [v]iolation of [p]arole.[2] Defendant extrapolates from that suggestion that the fact that he received 12 months necessarily means that three of the months were solely attributed to the charged offense.

Here, defendant concedes the revocation term was based on mixed conduct. Moreover, defendant provides no evidence in the record to establish that three months were added to his term for the new charges alone, providing mere speculation based on the suggested period of confinement in the California Code of Regulations, title 15, section 2646.1. Defendant cannot establish that his new charges were the but for cause of three months of his custody on the parole violation. Therefore, we find no error by the trial court in denying defendant presentence custody credits.

Disposition

The judgment is affirmed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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[1] We omit the underlying facts of this case, because they are not relevant to the appeal.

[2] California Code of Regulations, title 15, section 2646.1 states in relevant part: The ranges represent the suggested period of confinement when a return to custody is imposed as a disposition for a violation of parole. The ranges are suggested for a violation of parole with no prior return to custody. . . . The hearing panel may impose a period of confinement that is outside the assessment range if justified by the particular facts of the individual case and if the facts supporting the term are stated on the record.