P. v. Sewell
Filed 9/18/07 P. v. Sewell CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. SCOTT GRIFFIN SEWELL, Defendant and Appellant. | D049713 (Super. Ct. Nos. SCD 194014, SCD 157908) |
APPEAL from a judgment of the Superior Court of San Diego County, Timothy Walsh, Judge. Affirmed in part; reversed in part with directions.
Scott Griffin Sewell appeals, contending he was erroneously deprived of custody credits in his probation revocation case for the time he spent in custody after being arrested for a new offense.
On April 25, 2001, Scott Griffin Sewell pled guilty to burglary (Pen. Code,[1] 459) and admitted he had served a prior prison term within the meaning of section 667.5, subdivision (b) in case No. SCD 157908. The trial court sentenced Sewell to four years in prison, suspended execution of the sentence and placed Sewell on three years of felony probation.[2]
On September 28, 2005, Sewell was arrested for a new offense. On April 27, 2006, Sewell pled guilty to residential burglary ( 459/460) in case No. SCD 194014. Sewell also admitted violating his probation in case No. SCD157908. The court sentenced Sewell to four years in prison in accordance with the terms of the plea bargain. The court also revoked Sewell's probation and sentenced him to a concurrent term of four years for the probation violation. Determination of pre-sentence custody credits was to be determined at a later hearing; Sewell waived his presence at the future hearing. Nothing in the record on appeal indicates the hearing was held.
While in prison Sewell filed two motions regarding his pre-sentence custody credit awards. In response, the trial court issued two ex parte orders on October 2, 2006. In case No. SCD 194014, the court awarded Sewell 318 days of pre-sentence custody credits consisting of 212 actual days and 106 days of conduct credit. In case No. SCD 157908, the court awarded Sewell 309 days of pre-sentence custody credits consisting of 207 actual days and 102 days of conduct credit. The custody credits in case
No. SCD 157908 did not include the time Sewell spent in custody after his September 28, 2005, arrest and until his sentencing on April 27, 2006, in case No. SCD 194014.
Sewell is correct, as the People concede, that he was entitled to custody credits in case No. SCD 157908 for the time spent in custody after his arrest in case No. SCD 194014.
"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)." (People v. Bruner (1995) 9 Cal.4th at 1178, 1180.) In other words, if the 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. (People v. Williams (1992) 10 Cal.App.4th 827, 834-835.)
Sewell's probation violation custody was attributable to the same criminal conduct for which he pled guilty in case No. SCD 194014. As the Supreme Court has noted, the charge in case No. SCD 194014 "made it impossible for [Sewell] to obtain his freedom." (People v. Bruner, supra, 9 Cal.4th at pp. 1186-1187.) Accordingly, Sewell was entitled to dual application of the time he spent in custody between his arrest on September 28, 2005, and the day of sentencing on April 27, 2006, as pre-sentence custody credits in case No. SCD 157908.[3]
DISPOSITION
The portion of the judgment awarding credits is reversed. In all other respects, the judgment is affirmed. The matter is remanded to the trial court with directions to order the preparation and filling of a supplemental probation report and to hold a new hearing on the issue of credits. After that hearing, the trial court shall prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
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[1] All statutory references are to the Penal Code.
[2] Sewell's probation was summarily revoked on May 24, 2002, and an arrest warrant was issued. Sewell was not arrested until December 30, 2004. On January 6, 2005, the court formally revoked and then reinstated Sewell's probation. The court also extended the probation term to January 5, 2007.
[3] We grant Sewell's unopposed motion to expedite the appeal.
