Opinion
Review Granted June 2, 1994.
Review Dismissed and Cause Remanded to the Court of Appeal July 20, 1995.
Review Granted Previously published at: 28 Cal.App.4th 66, 22 Cal.App.4th 1679
Opinion on pages 747-764 omitted.
REVIEW GRANTED [Copyrighted Material Omitted] COUNSEL
[28 Cal.App.4th 68][28 Cal.Rptr.2d 489] Howard J. Specter, San Francisco (Under appointment by the Court of Appeal), for defendant and appellant.
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald S. Matthias and Richard Rochman, Deputy Attys. Gen., for plaintiff and respondent.
OPINION
[28 Cal.App.4th 69]ELIA, Associate Justice.
Defendant John Kerry Coyle was charged alternatively with gross vehicular manslaughter while intoxicated (Pen.Code, § 191.5, subd. (a)) under count one and with vehicular manslaughter while driving under the influence of alcohol or drugs (Pen.Code, § 192, subd. (c)(3)) under count two. He was also charged in count three with driving while under the influence of alcohol or drugs and causing injury (Veh.Code, § 23153, subd. (a)), in count four with driving with a blood alcohol level of 0.10 percent or greater and causing injury (Veh.Code, § 23153, subd. (b)), and in count five with a misdemeanor violation of being under the influence of a controlled substance (cocaine) (Health & Saf.Code, § 11550). In addition, counts three and four alleged prior convictions for driving under the influence (Veh.Code, § 23152, subd. (b)). Defendant pled not guilty to all counts and denied the allegations.
The jury returned a verdict of guilty on counts one, three, four, and five, and not guilty on count two. The trial court found the allegations of prior convictions to be true.
The court sentenced defendant to ten years on count one and to nine months on count five, to run concurrently, and stayed sentencing on counts three and four pursuant to Penal Code section 654.
Defendant appeals. He contends the trial court erred (1) by permitting the People's expert to testify regarding the combined effects of alcohol and cocaine, and (2) by denying credit for time served on defendant's probation revocation.
We affirm the judgment.
Factual Background
On the evening of August 10, 1989, defendant went alone to the Red Coach Inn in San Jose, where he incurred a bar bill of $91.25. John Johnson arrived at the Red Coach Inn in the early morning of August 11, 1989, and obtained a ride from defendant.
At approximately 1:55 a.m., defendant was driving east on Hillsdale Avenue in San Jose, with Johnson as his passenger. Defendant's vehicle veered to the left, skidded across the westbound lanes, and slammed into a street light pole.
Johnson suffered multiple traumatic injuries and died 14 hours after the accident. [28 Cal.App.4th 70] Defendant sustained a major head concussion and a vertebral fracture. He was hospitalized for more than three months, lapsing in and out of consciousness the first month. Initially, defendant had no memory of his evening at the Red Coach Inn or of the accident that followed. Slowly, his memory returned, until he claimed total recall ten months later.
The People's expert testified that defendant would have suffered a permanent memory loss as to events occurring five to ten minutes before the accident. A defense expert testified that defendant could gradually attain total recall.
The People's expert testified that, at the time of the accident, defendant had a blood alcohol level of 0.22 percent and was under the influence of cocaine.
The People's expert testified that the speed limit on Hillsdale Avenue was 40 miles per hour and that, at the time of the accident, defendant was driving somewhere between 67 and 83 miles per hour. Defendant testified that, at the time of the accident, he was going about 50 miles per hour.
Defendant testified that, prior to the accident, Johnson asked him about his car insurance, his knowledge of the law, and his fear of death. Defendant maintained that Johnson [28 Cal.Rptr.2d 490] then grabbed the steering wheel and pressed the accelerator in order to commit suicide. There was conflicting testimony regarding Johnson's emotional state in the hours and days prior to the accident.
The People's expert testified that defendant's steering wheel turned gradually, not abruptly, in the direction the car veered. After the accident, Johnson's feet were located on the passenger side of the car.
Expert Testimony
Defendant acknowledged that he had been drinking and ingesting cocaine before the accident. In fact, he testified that he " used and drank regularly, and so ... I was very used to driving in those conditions, very used to it. I've been doing it for ten years ... since I got my driver's license." Thus, in the early morning of August 11, 1989, he felt " very aware, very alert" and " felt fine driving a car." In his view, alcohol and cocaine " equalize each other out. So if you just do cocaine, you're wired, and if you just drink ... you feel intoxicated. When you do them together, I don't know, in me it equalizes them out."
On rebuttal, the People presented the expert testimony of Halle Weingarten, Chief Forensic Toxicologist at the Santa Clara County Crime Laboratory. [28 Cal.App.4th 71] Weingarten testified about her training and experience regarding the effects of alcohol and the effects of cocaine on the human body. And then she described those effects— that is, the separate effects of alcohol and of cocaine. But the People asked Weingarten to go one step further and address the combined effects of alcohol and cocaine on the human body.
Weingarten acknowledged that her training had not addressed the combined effects, that she was not aware of any studies on the subject, and that she had not engaged in any such study. In fact, she testified, " I don't think that that type of literature exists or it's very common."
But she believed that such training was " encompassed as a part of the other training. One has to know what the effects are of each of the drugs separately." Then, " [o]ne can infer [from] how they act separately certain information about how they would act together." Thus, Weingarten could only draw an inference about the combined effects of alcohol and cocaine on the human body from her knowledge of the separate effects.
Over defendant's objection, Weingarten explained " that various parts of the brain ... and the central nervous system are not one homogeneous unit, that there are parts of the brain which are responsible for different kinds of activities.... [A]lcohol affects certain activities and certain areas of the brain and ... cocaine affects certain activities and certain areas of the brain." Therefore, Weingarten " wouldn't expect cocaine to counteract any of the types of effects that I outlined" regarding alcohol. " Because it's a chemical action in the brain [that] is not of the type that would do that. It simply is affecting different areas of the brain in different ways."
Defendant argues that the court erred in overruling his objection because, although Weingarten may have been qualified to testify about the separate effects of alcohol and cocaine, she was not qualified to testify about their combined effects. We disagree.
" A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid.Code, § 720, subd. (a).) " It is for the trial court to determine, in the exercise of a sound discretion, the competency and qualification of an expert witness to give his opinion in evidence [citation], and its ruling will not be disturbed upon appeal unless a manifest abuse of that discretion is shown." (Huffman v. Lindquist (1951) 37 Cal.2d 465, 476, 234 P.2d 34.)
The trial court acted well within its discretion in this case by permitting Weingarten to testify about the combined effects of alcohol and [28 Cal.App.4th 72] cocaine. Given the paucity of studies on the subject, it was quite proper to allow Weingarten to draw an inference based upon her extensive knowledge of physiology, of pharmacology, of depressants and stimulants and, specifically, of alcohol and cocaine. Indeed, " work in a particular field is not an absolute prerequisite to qualification as an [28 Cal.Rptr.2d 491] expert in that field. [Citations.]" (Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 274, 7 Cal.Rptr.2d 101.)
In his reply brief, defendant makes much of the fact that Anne Imobersteg, Senior Forensic Chemist and Forensic Alcohol Supervisor at the Santa Clara County Crime Laboratory, " who was clearly qualified to testify on the separate effects of alcohol and cocaine, would not testify on their combined effects because she had not done any studies on the subject.... Imobersteg's position is important because it points out that the interactive effects of cocaine and alcohol cannot simply be inferred from their separate effects, as Weingarten mistakenly assumed."
In fact, although Imobersteg " ha[d] taken classes in regards to the general effects of cocaine and how it works on the body," the trial court declared Imobersteg to be qualified as an expert on the effects of alcohol only. The People made no effort to elicit testimony from Imobersteg regarding the combined effects of alcohol and cocaine. Only defendant sought such testimony, which Imobersteg properly refused to provide.
On the other hand, the trial court declared Weingarten qualified to testify on the effects of both alcohol and cocaine. The court then properly permitted Weingarten to testify about the combined effects. With the understanding that Weingarten had neither been trained in nor conducted studies on the combined effects and that her opinion was based upon inference, the jury could properly weigh her testimony that cocaine would not counteract the noxious effects of alcohol against defendant's rather incredible testimony that, in the words of the People, " his twice-the-legal-limit alcoholic haze was magically and precisely reversed by snorting cocaine."
Presentence Custody Credits
In November 1987, defendant was convicted of possession of a controlled substance (PCP) (Health & Saf.Code, § 11377, subd. (a)) and of being under the influence of a controlled substance (Health & Saf.Code, § 11550). He was placed on probation for two years.
On March 15, 1990, defendant was arrested in connection with Johnson's death and charged with one count of vehicular manslaughter while drivingunder [28 Cal.App.4th 73]the influence of alcohol or drugs (Pen.Code, § 192, subd. (c)(3)). Defendant was held to answer in a preliminary hearing on April 27, 1990.
A probation revocation hearing was held May 18, 1990. The petition for revocation or modification of probation alleged five circumstances:
" 1. The defendant had failed to report to the Probation Department for the following months, January, February, March, April, May, and June 1989. As of July 18, 1989, the defendant had failed to report to the Probation Department for the month of July.
" 2. On March 22, 1990, the defendant is scheduled for a Pre Trial Conference for violation of Section 23152(a) CVC (Driving Under the Influence of Alcohol/Drugs), a misdemeanor and violation of Section 23152(b) CVC (Driving Under the Influence with .10% Weight of Blood Alcohol), a misdemeanor. The defendant was arrested on May 28, 1989. The Crime Lab result is .17% blood alcohol. Sunnyvale Municipal Court Docket # E8955238.
" 3. On January 4, 1989, the defendant was convicted of violation of Section 14601.1(a) (Driving When Privilege Suspended or Revoked for Other Reasons), a misdemeanor. The defendant was sentenced to one (1) year Court Probation. The defendant was also convicted of violation of Section 16028(a) CVC (Evidence of Financial Responsibility), an infraction sentence suspended. The defendant was cited on July 24, 1988. San Jose Municipal Court Docket # C884136.
" 4. The defendant has failed to provide proof of completing a drug counseling program.
" 5. On April 3, 1990, the defendant is scheduled to enter a plea to violation of Section 192(c)(3) PC (Vehicular Manslaughter, While Driving Under the Influence of Alcohol/Drugs). The Offense occurred on August 11, 1989. The Crime Lab result is .12% [ sic ] blood alcohol. San Jose Municipal Court Docket # C8952319. (The defendant has not been arraigned on this matter)."
[28 Cal.Rptr.2d 492] Thus, only circumstance number five concerned the charge in connection with Johnson's death. The court found all five circumstances to be true, revoked defendant's probation, and committed him to the California Department of Corrections for two years, with credit for time served. In so doing, the court remarked as to circumstance number five: " For the record, let me state I have considered as one of the circumstances in violation the pending manslaughter and felony drunk driving. I have read and considered the preliminary [28 Cal.App.4th 74] transcript of April 27, 1990. If there is a problem in the future regarding credits, I'll make that record."
Neither the petition for revocation or modification of probation nor the transcript of the probation revocation hearing is part of the trial record in this case. For that reason, we denied defendant's motion to augment the appellate record with those documents, but without prejudice to a motion for judicial notice. Because defendant did not append copies of the documents to his subsequent motion for judicial notice, we were obliged to deny that motion as well.
On June 18, 1990, the charge in connection with Johnson's death was dismissed under Penal Code section 995. The case was refiled in its present form, and an order to produce was filed September 17, 1990.
Defendant's sentence following the revocation of probation on the 1987 convictions expired on March 5, 1991.
On October 15, 1991, the court sentenced defendant on the instant matter. Defendant maintained that he should receive credit for time served from the date of his arrest on March 15, 1990, or at least from the date of the order to produce on September 17, 1990. The court disagreed, awarding defendant credit for time served only from March 5, 1991, the date his sentence following the revocation of probation on the 1987 convictions expired.
Defendant contends the trial court erred pursuant to subdivision (a) of Penal Code section 2900.5, which provides generally for credit for time spent in custody prior to the commencement of sentence. The People contend the court acted properly pursuant to subdivision (b) of the same statute, which provides in relevant part: " 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." (Emphasis added.)
As defendant observes in his appellate brief, application of section 2900.5 is clear-cut in just two situations.
First, when defendant is arrested for an offense and held in custody solely for that offense, then he is unquestionably entitled to credit against his sentence for the time in custody from arrest until sentencing. (See In re Watson (1977) 19 Cal.3d 646, 651, 139 Cal.Rptr. 609, 566 P.2d 243.) The allowance of credit serves the legislative purpose behind [28 Cal.App.4th 75] section 2900.5 " to eliminate the unequal treatment suffered by indigent defendants who, because of their inability to post bail, served a longer overall confinement than their wealthier counterparts. [Citations.]" (In re Rojas (1979) 23 Cal.3d 152, 156, 151 Cal.Rptr. 649, 588 P.2d 789.)
Second, when defendant is serving time for one offense and is then charged with another, unrelated offense, he is indisputably not entitled to credit. As the Supreme Court concluded in Rojas, supra, 23 Cal.3d at page 156, 151 Cal.Rptr. 649, 588 P.2d 789, " There 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 defendant's liberty."
In short, application of section 2900.5 is clear-cut when the time and the crime are integrally related— and when they are plainly not. But in between those two ends of the [28 Cal.Rptr.2d 493] spectrum is a vast and vexing gray area involving defendants on parole, defendants on probation, and defendants charged with multiple crimes in multiple jurisdictions. As the court observed in People v. Huff (1990) 223 Cal.App.3d 1100, 1104, 273 Cal.Rptr. 44, " The issue of what custody is ‘ attributable to proceedings related to the same conduct’ as that for which a defendant is to be sentenced has provoked a considerable quantity of appellate literature, much of it conflicting. (See People v. Adrian (1987) 191 Cal.App.3d 868, 874, 236 Cal.Rptr. 685 ... [‘ [p]robably the only sure consensus among the appellate courts is a recognition that [Penal Code] section 2900.5, subdivision (b), is " difficult to interpret and apply." ’ ].)"
Much of the difficulty results from confusion over the interplay between two post- Rojas decisions by the Supreme Court: In re Atiles (1983) 33 Cal.3d 805, 191 Cal.Rptr. 452, 662 P.2d 910 and In re Joyner (1989) 48 Cal.3d 487, 256 Cal.Rptr. 785, 769 P.2d 967.
Defendant Atiles' parole was revoked as a result of new charges. The Supreme Court held that Atiles was entitled to credit for presentence custody against his sentence on the new charges although he was also serving his parole revocation term during that period. The court explained that, " [i]n determining whether custody for which credit is sought under section 2900.5 is ‘ attributable to proceedings leading to the conviction,’ the sentencing court is not required to eliminate all other possible bases for the defendant's presentence incarceration. The court need only determine that the defendant was not already serving a term for an unrelated offense when restraints [28 Cal.App.4th 76] related to the new charge were imposed on him, and the conduct related to the new charge is a basis for those restraints." (In re Atiles, supra, 33 Cal.3d at p. 810, 191 Cal.Rptr. 452, 662 P.2d 910, fn. omitted.)
But defendant Atiles prevailed in the Supreme Court by a slim margin. Three dissenting justices were dismayed by the majority's interpretation of section 2900.5 and expressed " doubt that the Legislature intended to bestow a special benefit on recidivists." (In re Atiles, supra, 33 Cal.3d at p. 814, 191 Cal.Rptr. 452, 662 P.2d 910.)
After defendant Joyner was arrested in Florida for crimes committed there, California placed a hold on him in connection with an outstanding arrest warrant. Joyner was sentenced in Florida and given presentence custody credit for the time since his arrest. He was then extradited to California, where he pled guilty and received a sentence to run concurrently with the Florida sentence. The trial court denied him presentence credit for the period from his arrest in Florida until his sentencing in California.
In a 5-2 decision, the Supreme Court denied Joyner's petition for writ of habeas corpus: " We hold that a period of time previously credited against a sentence for unrelated offenses cannot be deemed ‘ attributable to proceedings' resulting in a later-imposed sentence unless it is demonstrated that the claimant would have been at liberty during the period were it not for a restraint relating to the proceedings resulting in the later sentence. In other words, duplicative credits against separately imposed concurrent sentences for unrelated offenses will be granted only on a showing of strict causation. Under this test, petitioner has not demonstrated entitlement to the credits he seeks." (In re Joyner, supra, 48 Cal.3d at p. 489, 256 Cal.Rptr. 785, 769 P.2d 967, emphasis added.)
In so ruling, the court disapproved defendant Joyner's reliance upon Atiles, " a case in which the same criminal conduct resulted both in revocation of parole and the filing of new charges. Because it was a ‘ same conduct’ case, Atiles is not controlling in cases like this one in which concurrent sentences were imposed in separate proceedings for unrelated criminal conduct." (Id. at p. 493, 256 Cal.Rptr. 785, 769 P.2d 967.) The court went on to " disavow" dicta in Atiles " suggesting that section 2900.5 should be applied invariably to maximize the concurrency of terms imposed at different times...." (Id. at p. 494, 256 Cal.Rptr. 785, 769 P.2d 967.)
Since 1989, the appellate districts have struggled to determine the extent to which Joyner limited Atiles. At the heart of the problem appears to be uncertainty over what constitutes a " same conduct" case, as the Supreme Court labeled Atiles, and what constitutes [28 Cal.Rptr.2d 494] a " mixed conduct" case, requiring [28 Cal.App.4th 77] application of the Joyner " strict causation" test. The First District's decision in In re Nickles (1991) 231 Cal.App.3d 415, 282 Cal.Rptr. 411 amply demonstrates the difficulty the courts have encountered.
While on parole, defendant Nickles was arrested in Solano County on firearm and drug charges. His parole was revoked based on those charges and on two administrative violations unrelated to those charges. After serving a parole revocation term, Nickles was returned to Solano County, where he pled nolo contendere to the firearms count. In sentencing Nickles, the trial court gave him no presentence custody credit for his parole revocation term. Relying upon Atiles, Nickles contended the court erred.
The Nickles majority reviewed recent " mixed conduct" cases in which other courts applied the Joyner " strict causation" test. In People v. Huff, supra, 223 Cal.App.3d 1100, 273 Cal.Rptr. 44, the Second District determined that defendant had met his burden and was entitled to presentence custody credit. But in People v. Odom (1989) 211 Cal.App.3d 907, 259 Cal.Rptr. 827, the Third District decided that defendant had not carried his burden and, with the exception of eight days, was not entitled to credit. The Nickles majority viewed the case before it as a " mixed conduct" case, like Huff and Odom, subject to the Joyner test.
The majority concluded that defendant Nickles " erroneously relied on Atiles in contending that, if any of his conduct attributable to the offenses for which he was sentenced occurred while he was on parole and was a ground of parole revocation, the parole revocation term he received was a presentence credit to be applied against that sentence." ( In re Nickles , supra , 231 Cal.App.3d at p. 423, 282 Cal.Rptr. 411.) " ... Atiles is clearly no longer authority for the proposition that section 2900.5(b) automatically requires a trial court to grant presentence credit in a mixed conduct case simply because the charge as to which a defendant seeks credit was one basis of his restraint combined with unrelated other bases therefor." ( Id. at p. 424, 282 Cal.Rptr. 411.)
Instead, " [a]fter Joyner, the defendant has the burden in every mixed conduct case to prove entitlement to presentence custody credits by showing that such custody was ‘ strict[ly] caus[ed]’ by the same conduct for which he is convicted and to be sentenced." ( Ibid.) Thus, defendant Nickles was required but failed to show that " but for the three grounds of parole revocation attributable to his criminal offenses committed while on parole [as opposed to the two administrative violations], he would not have served a parole revocation term." ( Ibid. )
Quite to the contrary, the dissenting justice viewed Nickles as a " same conduct" case " materially indistinguishable from In re Atiles. " [28 Cal.App.4th 78] ( In re Nickles , supra, 231 Cal.App.3d at p. 425, 282 Cal.Rptr. 411.) Moreover, although " ... Joyner disapproved certain sweeping dicta in Atiles ...," the latter " remains applicable in [the ‘ same conduct’ ] context." (Ibid.) " [T]he pertinent available evidence demonstrates that the decision to revoke [Nickles'] parole was based on the new charges as well as the administrative violations. The People have presented no evidence to the contrary. Thus, I believe [Nickles] has met his burden of showing that the custody for which credit is sought ‘ is attributable to proceedings related to the same conduct for which the defendant has been convicted.’ (Pen.Code, § 2900.5, subd. (b).)" ( Id . at p. 426, 282 Cal.Rptr. 411.)
Following the First District's decision in Nickles , the Second District revisited the issue of presentence custody credits in In re Bustos (1992) 4 Cal.App.4th 851, 5 Cal.Rptr.2d 767. Defendant Bustos's parole was suspended for failure to report to his parole officer and an arrest warrant was issued. Five months later, Bustos was arrested in possession of a firearm and a parole hold was placed against him. Bustos pled guilty to being an ex-convict in possession of a firearm (Pen.Code, § 12021, subd. (a)) and was sentenced to three years. The trial court denied presentence credit because the parole hold was lodged independently of the charge of which Bustos was convicted. Thereafter, Bustos's parole was revoked.
The Second District denied Bustos's petition for writ of habeas corpus, through which [28 Cal.Rptr.2d 495] he sought credit for the period of the parole hold against his three-year sentence for possession of a firearm. Having " carefully reviewed the well stated analysis appearing in the dissenting opinion in Nickles , " the court concluded that it was " more persuaded by the majority opinion" and that the " Nickles [majority] correctly states the law...." (In re Bustos, supra, 4 Cal.App.4th at p. 855, 5 Cal.Rptr.2d 767.) " Applying Joyner and its progeny including Nickles to the present case, it is clear [Bustos] is not entitled to any presentence credits. The arrest warrant issued by the Board of Prison Terms was done by reason of [Bustos's] failure to report to his parole officer. Even though [Bustos's] parole revocation proceedings may have been premised in part upon the new weapons charge, when the ‘ strict causation’ test of Joyner is applied, [Bustos] has failed to sustain his burden of proving that he is entitled to duplicative credits ... for the time spent in custody while subject to the parole hold." (Ibid. )
Defendant contends the instant case is a " same conduct" case under section 2900.5, subdivision (b), because the revocation of his probation and the sentence in this case are both attributable to the charge in connection with Johnson's death. Therefore, defendant concludes, this case " falls squarely within the Atiles holding." He argues that Nickles and Bustos were wrongly decided because they " confused the ‘ mixed conduct’ holdingin [28 Cal.App.4th 79] Joyner with the ‘ same conduct’ holding in Atiles " and then erroneously applied the " strict causation" test in the " same conduct" context.
In his appellate briefs, defendant states repeatedly that Nickles and Bustos were decided by the same court. Nickles was decided by the First District, Division Two; Bustos was decided by the Second District, Division Five.
Relying upon People v. Blunt (1986) 186 Cal.App.3d 1594, 231 Cal.Rptr. 588, the People argue, in effect, for a per se rule that custody pursuant to the revocation of probation can never be attributable to the " same conduct" as a conviction for a new offense. We address the People's argument before we enter the Atiles / Joyner fray.
Defendant Blunt sought presentence custody credit against his sentence following revocation of probation for time already served on a later offense. Rejecting defendant's attempt to analogize probation and parole for purposes of section 2900.5, the Fourth District denied credit due to the particular nature of probation.
" Where a new offense results both in parole revocation and a new conviction, the parole revocation and the new criminal prosecution are ‘ proceedings related to the same conduct’ under section 2900.5 and therefore custody pursuant to a restraint from either proceeding will justify credits against both terms. (See In re Atiles, supra, 33 Cal.3d at pp. 809-810, 191 Cal.Rptr. 452, 662 P.2d 910.) This is due to the particular nature of the parole revocation term which for some purposes is not considered part of the sentence term for the original offense. [Citation.] For purposes of the prohibition against ex post facto laws, for example, the parole revocation term is considered to be imposed for the parole violation rather than for the original offense. [Citation.] Similarly, it is not unreasonable to view the term as being imposed for the new offense for purposes of determining credits.
" A term imposed following revocation of probation, on the other hand, is imposed only for the original conviction offense and not the separate offense which caused probation to be revoked. Indeed, the seriousness of the new offense has no bearing at all on the length of the term. [Citation.] Thus the term following probation revocation and the sentence term for the new offense are not attributable to the same conduct under section 2900.5 and therefore a restraint from one proceeding will justify credits only in that proceeding and not against a term imposed in the other proceeding." (People v. Blunt, supra, 186 Cal.App.3d at pp. 1600-1601, 231 Cal.Rptr. 588.)
The Blunt analysis does derive some support from views expressed in other pre- Joyner cases. (See, e.g., [28 Cal.App.4th 80] People v. Adrian, supra, 191 Cal.App.3d 868, 236 Cal.Rptr. 685; People v. Brown (1980) 107 Cal.App.3d 858, 166 Cal.Rptr. 144; People v. Macias (1979) 93 Cal.App.3d 788, 156 Cal.Rptr. 104.) But [28 Cal.Rptr.2d 496] Blunt has received little attention. In both Huff and Odom, for example, defendants sought credit for custody on a new crime against a sentence imposed after the revocation of probation. Neither court cited Blunt nor considered the possibility of a per se rule with regards to probation. Both courts applied the Joyner " strict causation" test.
In the only post- Joyner opinion to cite Blunt, the First District commented as follows on the Blunt passage quoted above: " Defendant asserts that Nickles is flawed by its reliance on cases concerning probation revocation, as distinct from parole revocation. He contends that People v. Blunt (1986) 186 Cal.App.3d 1594, 231 Cal.Rptr. 588 ... establishes a crucial distinction between confinement resulting from probation revocation and confinement resulting from parole revocation. The cited passage establishes at most that time in confinement on a probation revocation, if properly analyzed, is less likely to operate as a credit against a pending criminal charge than is time spent upon revocation of parole. (Id. at pp. 1600-1601, 231 Cal.Rptr. 588.) The reason for this is that confinement on probation revocation is attributed to the underlying offense, whereas parole revocation is more commonly treated as a transgression in its own right. (Ibid.) This premise, sound or not [emphasis added], is irrelevant to any issue before us. It played no role in the probation cases cited in Nickles , i.e., [ Odom ]; [ Huff ]. Accordingly, it did not render those cases inapposite or otherwise weaken them as authority on the points for which we cited them." (People v. Purvis (1992) 11 Cal.App.4th 1193, 1197, 14 Cal.Rptr.2d 651.)
Whether probation and parole should be treated differently for purposes of section 2900.5 and whether a term following probation revocation and a term for a new offense are per se outside the " same conduct" ambit of subdivision (b) are interesting questions. But they are not questions we must answer in this case because, as explained in the next portion of our discussion, defendant has not otherwise satisfied the statutory " same conduct" requirement.
At the outset, we must agree with defendant and with the dissent in Nickles that Joyner did not entirely overrule Atiles. In fact, we do not read the Nickles majority or any other post- Joyner case to say that. Thus, we believe that Atiles is still viable— but only in a very narrow sphere.
The critical factor about Atiles is not that it is a " same conduct" case, as the Supreme Court labeled it in Joyner. Indeed, we think the Supreme Court's use of the identical term that appears in section 2900.5, subdivision (b), in an effort to distinguish Atiles is unfortunate. Rather, the [28 Cal.App.4th 81] critical and distinguishing factor about Atiles is that it is a single conduct case.
While on parole, defendant Atiles was charged with robbery and sodomy, both counts arising from one incident. And those counts— that one incident— were the sole cause of Atiles' parole revocation. Thus, there was no question that the " same conduct" led to both parole revocation and to a subsequent conviction for robbery. And, therefore, Atiles did not have to prove, pursuant to section 2900.5, subdivision (b), that the " custody to be credited is attributable to proceedings related to the same conduct for which defendant has been convicted" because there was simply no other conduct to which it could be attributable. Because Atiles was a single conduct case, it was, a fortiori, a " same conduct" case for purposes of section 2900.5.
But a " mixed conduct" case may or may not be a " same conduct" case under the statute. For example, defendant Nickles' parole was revoked based not only upon the firearm and drug charges but also upon two administrative violations unrelated to those charges. And defendant Bustos's parole was subject to revocation both for failing to report to his parole officer and for possession of a firearm. Neither was a single conduct case like Atiles, in which parole was revoked for no other reason than the charges that eventually led to conviction. Rather, under Joyner, defendants Nickles and Bustos had to establish that, from the range of possibilities, the " same conduct" resulted in both conviction and parole revocation. Neither defendant carried that burden.
Like Nickles and Bustos, this is a " mixed conduct" case. The petition for modification [28 Cal.Rptr.2d 497] of defendant's probation listed five circumstances, only one of which concerned the charge in connection with Johnson's death. Thus, in order to receive credit for time served upon his probation revocation against his ten-year sentence for manslaughter, defendant had the burden under Joyner to show that the " same conduct" — that is, the charge in connection with Johnson's death— resulted in both revocation and conviction.
The mere statement of the judge in defendant's probation revocation hearing that he " considered as one of the circumstances in violation the pending manslaughter and felony drunk driving" is not enough. Nor is the statement of counsel in the sentencing hearing that " it is a possibility" that defendant might not have been committed to state prison had it not been for the new charge enough to satisfy the " same conduct" requirement. (See People v. Odom, supra, 211 Cal.App.3d at p. 911, 259 Cal.Rptr. 827.) Indeed, defense counsel admitted later that, " [w]ithout a new felony case pending, I don't know [28 Cal.App.4th 82] whether the judge would in fact have committed him to state prison or whether he would have imposed an additional county jail sentence on the violation of probation."
As the majority declared in Nickles , " [a]fter Joyner, the defendant has the burden in every mixed conduct case to prove entitlement to presentence custody credits by showing that such custody was ‘ strict[ly] caus[ed]’ by the same conduct for which he is convicted and to be sentenced." ( In re Nickles , supra, 231 Cal.App.3d at p. 424, 282 Cal.Rptr. 411.) Thus, defendant had to show in this case that but for the one ground for probation revocation attributable to the charge in connection with Johnson's death, his probation would not have been revoked. Defendant did not carry that burden.3
As the dissent notes in Nickles , defendant's burden in a " mixed conduct" case is " onerous" and may " imput[e] to Joyner an evidentiary requirement that can rarely be met." ( In re Nickles , supra , 231 Cal.App.3d at p. 426, 282 Cal.Rptr. 411.) But we believe the strict evidentiary requirement is in keeping with the important public policy of deterring criminal recidivism.
As noted in Rojas, the Legislature apparently intended, through promulgation of section 2900.5, to equalize the treatment of indigent defendants unable to post bail and wealthier defendants able to do so. (In re Rojas, supra, 23 Cal.3d at p. 156, 151 Cal.Rptr. 649, 588 P.2d 789.) Like the three dissenting justices in Atiles, we " doubt that the Legislature intended [through promulgation of section 2900.5] to bestow a special benefit on recidivists." (In re Atiles, supra, 33 Cal.3d at p. 814, 191 Cal.Rptr. 452, 662 P.2d 910.) The cause of such defendants' incarceration is not poverty, but habitual criminal conduct. (See, e.g., In re Hodges (1979) 89 Cal.App.3d 221, 225-226, 152 Cal.Rptr. 394.) And, as the majority observed in Nickles , " The credit of a parole revocation term against a later sentence for a criminal offense, without showing the former was strictly caused by that offense, would reward rather than deter criminal recidivism." (In re Nickles , supra , 231 Cal.App.3d at p. 424, fn. 4, 282 Cal.Rptr. 411.) The same is true with respect to credit for a probation revocation term against a later sentence. [28 Cal.App.4th 83] Disposition
Please refer to standing miscellaneous order 93-1.
PREMO, Acting P.J., and WUNDERLICH, J., concur.
The transcript of the probation revocation hearing was quoted in the sentencing hearing in this case, however, and defendant quotes from the petition and the hearing transcript in his appellate briefs. The People have not lodged an objection or challenged the accuracy of the quotations. Therefore, we rely upon defendant's quotations and exercise our discretion to take judicial notice of the excerpts quoted in this opinion.