Opinion
H033491
7-15-2009
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LOUIS BOOKER, Defendant and Appellant.
Not to be Published in Official Reports
Following imposition of a prison sentence upon a revocation of probation, defendant Michael Louis Booker filed a motion to correct the trial courts calculation of preimposition custody credits to include 21 days (plus 10 days good-time/work-time credits) spent in custody for a parole violation stemming from conduct that caused the probation violation. The trial court denied the motion. On appeal, defendant contends that the trial court erred. We disagree and affirm the order.
Penal Code section 4019 authorizes two days of good-time/work-time credit for each completed four-day block of actual custody time.
background
While on parole, defendant pleaded no contest to inflicting corporal injury on a spouse and bribery of a witness. The trial court sentenced defendant to four years and eight months in prison, suspended imposition of the sentence, and placed defendant on probation for three years with conditions. Defendants probation officer tried to contact defendant for purposes of making an appointment but could not. He then contacted defendants parole agent who informed him that defendant had given two positive tests for cocaine, had admitted using cocaine on a third occasion, and had therefore been arrested for a parole violation on February 21, 2007. Defendant later admitted the parole violation and was released from custody on March 13, 2007, serving 21 days. On April 4, 2007, defendants probation officer left a detailed voicemail message on defendants telephone directing defendant to appear in court to answer for a probation violation. Defendant telephoned the officer and informed him that he had no transportation. The probation officer replied that he would not file a petition if defendant reported to him in person. Defendant failed to report as directed. On April 5, 2007, the probation officer filed a petition to revoke probation alleging that defendant had violated probation by failing to report and, based on the three instances given by the parole agent, by failing to abstain from drugs. At a hearing, defendant admitted the parole violations. The trial court then revoked defendants probation and imposed the previously suspended prison sentence. Approximately one year later, defendant filed the instant motion seeking to obtain 21 plus 10 days credit against his sentence representing the 21 days he spent in custody on his parole violation. In denying the motion, the trial court reasoned that defendant was not entitled to the duplicate credit because the revocation of probation was not for the same conduct as the revocation of parole given that the revocation of probation was also for defendants failure to report to his probation officer.
discussion
Defendant argues that the trial court erred because the drug-use conduct used to revoke probation was also the "but for" cause of his earlier parole-violation restraint. He concludes that he is entitled to dual credits under People v. Bruner (1995) 9 Cal.4th 1178 (Bruner). Defendants analysis is erroneous.
Penal Code section 2900.5 governs the circumstances in which custody credits will be awarded. Subdivision (a) of that section provides that "[i]n all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including . . . any time spent in a jail, . . . all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment." Subdivision (b) of section 2900.5 further states: "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."
In Bruner, the court discussed the application of section 2900.5, subdivision (b). There, the defendant sought presentence credit on his prison term for cocaine possession where he had served presentence custodial time for a parole revocation based on the same cocaine possession as well as based on absconding from parole supervision, a dirty drug test, and theft of a credit card. The court held, consistent with two prior cases—In re Rojas (1979) 23 Cal.3d 152 and In re Joyner (1989) 48 Cal.3d 487—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." (Bruner, supra, 9 Cal.4th at pp. 1193-1194.) Under this "`strict causation" standard, no credit is allowed "unless the conduct leading to the sentence was the true and only unavoidable basis for the earlier custody." (Id. at p. 1192.)
We agree with defendant that some of the conduct leading to his revocation of probation (failing to abstain from drugs) was also a "but for" cause of his earlier parole-violation custody. But our agreement does not avail defendant.
Under Penal Code section 2900.5, subdivision (b), a defendant is not entitled to presentencing custody credit unless "the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted." (Italics added.) In other words, a defendant does not receive credit for time served before sentencing unless the time served was attributable to the conduct underlying the conviction for which his or her sentence was imposed.
Here, defendant did not serve time before sentencing that was attributable to the conduct underlying the conviction for which his or her sentence was imposed. "A term imposed following revocation of probation . . . is imposed only for the original conviction offense and not the separate offense which caused probation to be revoked." (People v. Blunt (1986) 186 Cal.App.3d 1594, 1600.) Defendants argument, which seeks credit if the presentence custody related to the grounds for the probation revocation rather than the original conviction on which the probation was based, is contrary to the plain statutory language.
People v. Pruitt (2008) 161 Cal.App.4th 637 (Pruitt), is on point. There, the defendant pleaded no contest to burglary and was placed on probation. He was later arrested and jailed for approximately six months on an unrelated charge of receiving stolen property. That case was dismissed but he was arrested and jailed the next day for receiving stolen property. After two weeks, the defendants burglary probation was summarily revoked. The trial court thereafter found the receiving charge to be a probation violation, imposed the defendants original sentence, and dismissed the receiving charge. In calculating the defendants sentence, it refused to grant credit for the time spent in custody on the receiving charge before the summary revocation of probation (206 days actual; 102 conduct). The Court of Appeal agreed with the calculation of custody credit, holding that the defendant was not entitled to custody credit for the receiving charge detention because it was not based on the conduct that led to his original conviction. (Id. at p. 649.)
Moreover, subdivision (b) of Penal Code section 2900.5 expressly prohibits the double-crediting of custody credits against separate consecutive sentences imposed for multiple offenses. (See also Bruner, supra, 9 Cal.4th at p. 1193 ["credit windfalls are not within the [statutes] contemplation"].) As the court has also explained, "[t]here is no reason in law or logic to extend the protection intended to be afforded one merely charged with a crime to one already incarcerated and serving his sentence for a first offense who is then charged with a second crime. As to the latter individual the deprivation of liberty for which he seeks credit cannot be attributed to the second offense. Section 2900.5 does not authorize credit where the pending proceeding has no effect whatever upon a defendants liberty." (In re Rojas, supra, 23 Cal.3d at p. 156.)
Here, supposing that defendant was in custody for a parole violation and a probation violation based on the same conduct, "[prehearing] custody on the [probation violation] is, in essence, another formalistic layer of custody which, if stripped away by the ability to make bail, would not have resulted in defendants liberty. [Defendant] would have remained confined on the [parole violation]." (People v. Callahan (2006) 144 Cal.App.4th 678, 685.)
As an alternative argument, defendant contends that a failure to award him the custody credits denies him equal protection of the law under the federal and state Constitutions.
Defendant, however, did not make an equal protection argument in the trial court. Thus, he has not preserved this constitutional claim for appellate review. (People v. Carpenter (1997) 15 Cal.4th 312, 362 [an equal protection claim must be raised in the trial court or is forfeited], superseded by statute on another ground as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.)
In any event, defendants argument fails on the merits.
The constitutional guarantee of equal protection does not require that all persons receive identical treatment, but only that persons similarly situated with respect to the legitimate purpose of the law receive like treatment. (People v. Gonzales (2001) 87 Cal.App.4th 1, 12.) "The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." (In re Eric J. (1979) 25 Cal.3d 522, 530.)
Defendant argues that he "is similarly situated to the probationer whose probation is timely revoked and who is able to earn presentence custody credits." He urges that "The state has no compelling interest which justifies denying [him] presentence credits while awarding the other probationer credits just because the prosecutor dragged its heels in filing the petition to revoke probation." He seizes upon the following dictum from Pruitt: "To be sure, had Pruitts probation been summarily revoked immediately after his arrest on June 10, 2006, as often occurs when a probationer is arrested on felony charges, he could have earned approximately 300 days of additional presentence custody credit." (Pruitt, supra, 161 Cal.App.4th at p. 649.)
Defendants premise is erroneous. He was not treated differently than a probationer whose probation is summarily revoked immediately upon a parole-violation incarceration because of conduct that caused the parole violation. As we have explained, a person in custody for a parole violation who has his or her probation summarily revoked immediately upon a parole-violation incarceration would not receive custody credits against a sentence imposed following revocation of probation for the time spent in custody attributable to the parole violation—the simultaneous prehearing custody for the probation violation is, in essence, another formalistic layer of custody which, if stripped away, would not have resulted in liberty given that custody would have remained on the parole violation. Pruitt is not to the contrary.
In Pruitt, the defendant began probation for burglary on February 21, 2006; he was arrested and placed in custody for receiving stolen property on June 10, 2006; the case was dismissed on December 14, 2006, and the defendant was released; the defendant was arrested and placed in custody for receiving stolen property on December 15, 2006; his probation was summarily revoked for receiving stolen property on January 2, 2007; and the trial court revoked probation and dismissed the receiving charge on March 15, 2007. On appeal, the defendant challenged the refusal to award presentence custody credit for the period June 10, 2006, to January 1, 2007. The court held that the defendant was not entitled to the credit against the burglary sentence because his custody was solely based on the receiving charge.
The Pruitt opinion reads that the defendant was arrested and placed in custody for receiving stolen property on December 15, 2005. The date is unquestionably a typographical error given what the court recounted elsewhere: the prior burglary conviction occurred in 2006; the court described the June 2006 case before describing the December case; the December case has a higher case number than the June 2006 case; and the preliminary hearing for the December case occurred on January 2, 2007. (Pruitt, supra, 161 Cal.App.4th at p. 640.)
Thus, Pruitts dictum addressed the point that, had the defendants burglary probation been summarily revoked on June 10, 2006, the defendant would have been entitled to credit against his burglary sentence because, given the ultimate dismissal of the receiving charge, his custody would necessarily be attributed to the burglary probation violation. By no means does the opinion suggest that, had the defendants probation been summarily revoked on June 10, 2006, the defendant would have been entitled to credit against his burglary sentence for a period when his custody was based on conduct unrelated to the burglary conviction.
Since there is no unequal treatment of parole-incarcerated probationers who have and who have not had probation summarily revoked upon parole incarceration for conduct that caused the parole violation, defendants equal protection theory fails.
disposition
The judgment is affirmed.
WE CONCUR:
Rushing, P.J.
Elia, J.