Filed 5/15/17 P. v. O’Neill CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(El Dorado)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

NEAL ALLEN O'NEILL,

Defendant and Appellant.
C079461

(Super. Ct. No. P12CRF0165)




Defendant Neal O’Neill pleaded guilty to driving under the influence (DUI) of alcohol and driving with a .08 percent or higher blood-alcohol level. Defendant also admitted he had suffered a prior serious or violent felony pursuant to Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), and served two separate prior prison terms following a felony conviction (§ 667.5, subd. (b)).
After being charged, but before entering his plea, defendant committed two DUI’s in Colorado. The Colorado court released him on work release. Meanwhile, when he missed a court appearance in this case, the court issued a bench warrant. When defendant returned to the Colorado authorities to report for his work service, he was taken into custody in Colorado and told he no longer qualified for work release in Colorado because of the bench warrant in this case.
The trial court sentenced defendant to five years in prison and gave defendant credit for 500 days served consisting of 250 actual days and 250 conduct credits. The trial court later amended the award of credits to 824 days, consisting of 412 days actual time and 412 days conduct credit. The additional credits were attributable to 16 days served in Colorado after he completed his Colorado sentence and was being held strictly on the El Dorado County warrant, and 146 days in another El Dorado County case.
Defendant argues he is entitled to presentence custody credits for the entirety of his custody time in Colorado, because he would have been allowed to serve his sentence there on work release were it not for the California bench warrant. The People disagree, and further argue defendant should not have been credited with the time served on another El Dorado County case because he was not entitled to dual custody credit. The People argue the credit award should be modified to 532 days of time credit. The People also argue the judgment should be modified to include additional fees and assessments.
We shall modify the judgment to impose mandatory fees and assessments, but shall otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On March 23, 2012, defendant was charged in El Dorado County with driving under the influence of alcohol and driving with a .08 percent or higher blood-alcohol level. (Veh. Code, § 23152, subds. (a) & (b).) Defendant appeared in court several times, both in custody and out on bail, over the next 17 months. On October 7, 2013, defendant failed to appear and the trial court issued a bench warrant. On October 11, 2013, defense counsel informed the court that defendant was in custody in Colorado.
On November 26, 2013, defendant pleaded guilty in two Colorado cases, and was sentenced there to 14 months in county jail, then released on a work release program. Defendant went to the Colorado jail on December 1, 2013, and was told he no longer qualified for work release. He was taken into custody. His Colorado sentence was completed on November 13, 2014, and he was kept in custody until November 30, 2014, when he was transported back to California.
On May 15, 2015, defendant pleaded nolo contendere to the charges and admitted the prior convictions. The court sentenced him to five years in prison. The court ordered defendant’s credit for time served to be determined by the probation department. Pursuant to the probation department recommendation, defendant was awarded 500 days credit, consisting of 250 actual days and 250 days conduct credit. The credit awarded did not include any days in custody in Colorado.
On June 10, 2015, Defendant filed a motion post plea, arguing he was in custody in Colorado on the bench warrant alone, and that he should have received credit for his time in custody there. The court ordered the probation department to determine whether to award pretrial credit as stated in defendant’s motion. The probation department determined that defendant was entitled to only 16 days credit for time spent in custody in Colorado, representing the period of time after defendant completed his time on the Colorado cases and before he was released on November 13, 2014.
The probation department also concluded defendant was entitled to an additional 146 days credit for time in custody in another El Dorado County case, case No. P12CRJ0003. Defendant apparently violated the terms of his postrelease community supervision (PRCS) in case No. P12CRJ0003 when he committed the offenses at issue here. The probation department originally determined defendant was entitled to no credits for the time spent in custody as a result of case No. P12CRJ0003, but later decided he was entitled to 146 days because “the PRCS violation was based solely on the present offense . . . .” The trial court followed the probation department recommendation and awarded defendant 824 days total credit.
DISCUSSION
I
Defendant is Not Entitled to Additional Credit for Colorado Time Served
Section 2900.5, subdivision (a) provides in pertinent part: “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, including days served as a condition of probation in compliance with a court order, . . . shall be credited upon his or her term of imprisonment . . . .” However, subdivision (b) specifies 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.”
The Supreme Court has concluded that section 2900.5, subdivision (b) sets forth a test of strict causation. “[W]here 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.” (People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194 (Bruner).) The defendant bears the burden of establishing that the conduct leading to the current conviction was the sole reason for his loss of liberty during the presentence period. (Id. at pp. 1191, 1193-1194, & fn. 10.)
A defendant’s sentence may not be credited with custody time that is attributable to a parole or probation revocation based only in part on the same criminal episode. (Bruner, supra, 9 Cal.4th at p. 1191.) In Bruner, for example, the defendant was being arrested for parole violation when agents found cocaine on his person. (Id. at p. 1181.) The defendant was cited and released for the cocaine possession, but placed in custody on a parole hold pending disposition of his parole status. (Ibid.) The defendant’s parole was revoked on the basis of both the violations that were the cause of his arrest and the possession of cocaine at the time of arrest. (Ibid.) He was sentenced to 12 months in prison, with full credit for his presentence custody. (Ibid.) While serving his parole revocation term, he was charged with cocaine possession, pleaded guilty, and was sentenced to a 16-month term concurrent with the probation revocation term. (Id. at pp. 1181-1182.)
The court concluded the defendant was not entitled to any presentence credit against the 16-month term, reasoning that section 2900.5, “is intended only to prevent inequalities in total confinement among defendants, each similarly sentenced in a single proceeding, which inequalities arise solely because one defendant suffered presentence confinement while another did not. Section 2900.5 is not intended to bestow the windfall of duplicative credits against all terms or sentences that are separately imposed in multiple proceedings. And this is so even where, while serving other sentences, the defendant was also incidentally subject to restraint based on ‘proceedings related to the same conduct’ for which he now seeks sentence credit.” (Bruner, supra, 9 Cal.4th at pp. 1191-1192, fn. omitted.) Section 2900.5 was not intended “to allow credit for a period of presentence restraint unless the conduct leading to the sentence was the true and only unavoidable basis for the earlier custody.” (Bruner, at p. 1192.)
Here, defendant claims he was incarcerated in Colorado because he was no longer qualified for work release in that state. There is no evidence in the record before us that defendant was incarcerated in Colorado solely because of his driving while under the influence of alcohol in California, which predated his arrest and conviction in Colorado. The most that can be said based on the record before us is that he was incarcerated because of the bench warrant in this case, which means he was serving time in Colorado because he failed to appear in his California case, not because of the underlying drunk driving. Put another way, there is no evidence defendant’s conduct of driving while under the influence of alcohol was not the “true and only unavoidable basis for the [Colorado] custody.” (Bruner, supra, 9 Cal.4th at p. 1192.)
Accordingly, we reject defendant’s claim that he is entitled to additional pretrial custody credit.
II
The People Have not Met Burden of Demonstrating Error
The People claim we should modify the trial court’s award of pretrial custody credit based on time served on case No. P12CRJ0003.
When defendant was sentenced in May 2015, the probation department recommended that defendant not be awarded credits for time served in case No. P12CRJ0003. The only relevant notation on the probation report said, “Defendant is not entitled to dual credits pursuant to [section] 2800.5 [subdivision] (b) . . . . The defendant was sentenced in case P12CRJ0003.” When defendant’s sentence was later modified on September 21, 2015, the modification with respect to the award of credit from case No. P12CRJ0003 was based on the probation department’s determination that defendant was entitled to 146 days credit because, “[e]ven though the defendant was sentenced to 180 days in case PP12CRJ0003 [sic], the PRCS violation was based solely on the present offense; therefore, the defendant IS entitled to these time credits.” There is no other information in the record regarding case No. P12CRJ0003.
The People argue defendant should not have been awarded credit from case No. P12CRJ0003 because “it is unlikely here that appellant would have been free of custody ‘but for’ the pending criminal charges.” The People argue that defendant has the burden to show error with respect to their claim that the trial court awarded too many pretrial custody credits, just has he had the burden on his claim that he was entitled to credit for the time served in Colorado. Not so.
The settled rule of appellate review is that the judgment is presumed to be correct, and the party challenging the judgment bears the burden of affirmatively demonstrating error on the face of the record. (People v. Selivanov (2016) 5 Cal.App.5th 726, 795.) There is no information in the record before us indicating the trial court erred in awarding presentence custody credits for case No. P12CRJ0003. The only document in the record that is relevant to the issue is the probation department’s recommendation that defendant be awarded these credits. The People have not met their burden of demonstrating error.
III
Mandatory Fines
Although the People’s argument is somewhat unclear, they appear to argue that the trial court should have imposed two section 1202.4, subdivision (b) fines, rather than a single fine, although their argument might also be read to apply only to the imposition of two mandatory court security fees and court operations assessments (see post). To the extent they argue the trial court should have imposed two section 1202.4, subdivision (b) fines, and that the statutory basis of the fine was not set forth, we disagree.
The trial court did not give an oral pronouncement detailing the statutory basis of the fine imposed, but all that this court has required is that “[a]ll fines and fees . . . be set forth in the abstract of judgment.” (People v. High (2004) 119 Cal.App.4th 1192, 1200.) The abstract of judgment shows that the fine imposed was a restitution fine of $2,384 pursuant to section 1202.4, subdivision (b). Section 1202.4, subdivision (b) gives the trial court discretion to set a restitution fine at an amount between $300 and $10,000. The fine is to be imposed “[i]n every case where a person is convicted of a crime . . . .” (Ibid., italics added.) The abstract of judgment indicates the fine is imposed for “Case A,” and no fine is imposed for any additional case. While section 1202.4, subdivision (b)(2) allows a trial court to calculate the amount of the fine based on the number of felony counts of which the defendant is convicted, it does not require that the trial court calculate the fine in that manner.
We thus conclude that the trial court was not required to impose a separate fine for each felony conviction, and that the statutory basis for the fine imposed was properly set forth in the abstract of judgment. Nothing further was required.
The People also argue the trial court was required to impose two court security fees pursuant to section 1465.8, and two court operations assessments pursuant to Government Code section 70373, subdivision (a)(1). We agree.
Section 1465.8 , subdivision (a)(1) requires the trial court to asses $40 “on every conviction for a criminal offense . . . .” Since defendant was convicted of two offenses, he must pay two fees. (People v. Sencion (2012) 211 Cal.App.4th 480, 484.) Likewise, Government Code section 70373, subdivision (a)(1) requires a $30 assessment “for each misdemeanor or felony . . . .” As defendant was convicted of two felony offenses, he must pay two assessments. (Sencion, at p. 484.) We shall modify the judgment to impose these mandatory fees.
DISPOSITION
The judgment is modified to impose a $40 court security fee (§ 1465.8, subd. (a)(1)) and a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)) as to each of the two counts of which defendant was convicted. The superior court clerk is directed to modify the abstract of judgment to reflect the court security fees pursuant to section 1465.8, subdivision (a)(1) and the court operations assessments pursuant to Government Code section 70373, subdivision (a)(1), and to deliver a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.



/s/
Blease, J.


We concur:



/s/
Raye, P. J.



/s/
Hoch, J.