Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. S03CRF0344, S06CRF0157, S07CRF0003, S07CRF0320
HULL, J.
While on probation in case No. S03CRF0344 (No. 0344), defendant John Ellis Dupre IV was remanded into custody where he remained from January 3, 2007, through December 20, 2007 (i.e., 352 days), for probation violations in case No. 0344 and new criminal offenses in case No. S07CRF0003 (No. 0003). A subsequent probation violation resulted in termination of probation and execution of a previously stayed two-year prison sentence. The trial court denied defendant’s request for an award of dual custody credits in case Nos. 0344, 0003 and S07CRF0320 (No. 0320) for the 352-day period, concluding defendant was not entitled to dual credit because he was in custody on separate matters during the time period in question. Defendant sought relief by informal letter to the trial court, to no avail.
On appeal, defendant contends he is entitled to dual credit for time served because he was unable to post bail during the relevant time period. The People disagree with defendant’s claim, but concede that the trial court miscalculated credits to be applied to defendant’s sentences in case Nos. 0003 and 0320. As we will explain, defendant’s claim of dual custody credit lacks merit. However, we will remand this matter to the trial court for recalculation of defendant’s presentence custody credits.
Defendant also contends, and the People agree, that the trial court miscalculated his conduct credits pursuant to Penal Code section 4019 (further undesignated references are to the Penal Code), awarding him 11 days less than that to which he was entitled in case No. 0344. Although the trial court has since amended the abstract of judgment to correct the miscalculation, we will remand this matter to the trial court for recalculation, given our disposition of defendant’s actual custody credits in that case. In all other respects, we affirm the judgment.
Factual and Procedural Background
A detailed recitation of the facts underlying defendant’s convictions and probation violations is not necessary for the disposition of this appeal. As such, the facts are briefly summarized as follows:
On March 4, 2004, defendant pleaded no contest in case No. 0344 to receiving stolen property (§ 496, subd. (a)). The court placed defendant on three years’ formal probation and ordered that he serve one day in jail with credit for time served.
On August 25, 2005, defendant was placed in custody and, on August 29, 2005, a petition was filed in case No. 0344, alleging defendant violated probation due to public intoxication (§ 647, subd. (f)).
On September 1, 2005, defendant admitted violating probation. The court reinstated probation.
On May 30, 2006, a petition was filed in case No. 0344, alleging defendant violated probation by virtue of new criminal charges for vandalism (§ 594, subd. (b)(1)) and spousal battery (§ 243, subd. (d)) in case No. S06CRF0157 (No. 0157).
On June 8, 2006, an amended petition was filed in case No. 0344, alleging defendant violated probation by virtue of new criminal charges in case No. 0157 for assault by force likely to produce bodily harm (§ 245, subd. (a)(1)), cohabitant abuse (§ 243, subd. (e)(1)), and vandalism (§ 594, subd. (b)(1)), and for failure to report to his probation officer in case No. 0344. The court summarily revoked probation on that date but reinstated formal probation on June 19, 2006.
On November 7, 2006, a petition was filed in case No. 0344, alleging defendant violated conditions of his probation by failing to participate in substance abuse counseling and by failing to pay fees and fines. Defendant was released on his own recognizance that same day.
On November 20, 2006, defendant admitted the alleged violations and the court reinstated him on formal probation, extending the term of probation an additional two years.
On January 3, 2007, defendant was taken into custody and, on January 4, 2007, defendant appeared in court on new criminal charges in case No. 0003. The court summarily revoked probation.
On January 11, 2007, a petition was filed, alleging defendant violated probation by virtue of new criminal charges in case No. 0003 which included corporal injury on a cohabitant (§ 273.5, subd. (a)) and resisting a peace officer (§ 148, subd. (a)). The petition also alleged defendant was intoxicated at the time of his arrest. Defendant was not charged in case No. 0003 with intoxication; that conduct was alleged only as a violation of probation in case No. 0344. The court summarily revoked probation. Defendant’s revocation proceedings trailed the pending criminal cases, plus new charges in case No. 0320 arising from offenses committed by defendant while in custody.
On November 21, 2007, the People modified the first allegation in the January 11, 2007 petition to assault with force likely to cause great bodily injury (§ 245, subd. (a)(1)). The court sustained the allegations in the petition and remanded defendant into custody, setting bail at $10,000. Bail was later reduced to $1,000.
On December 20, 2007, the court reinstated defendant on probation, extending the term of probation by an additional 25 months. As a condition of probation, the court ordered defendant to complete the Salvation Army Rehabilitation Program. The court imposed a sentence of two years (the middle term), but stayed execution of that sentence pending defendant’s successful completion of probation. The court awarded defendant 10 days of actual custody credit and four days of conduct credit for a total of 14 days of presentence custody credit. The court denied defendant’s request for dual credits in case No. 0344 for the period between January 3, 2007, and December 20, 2007, instead applying a portion of those credits (i.e., 65 actual custody credits plus 33 conduct credits for a total of 98 custody credits) to the one-year sentence in case No. 0003. The court granted defendant a three-year concurrent term of formal probation in case No. 0320, and awarded defendant 287 actual custody credits plus 143 conduct credits for a total of 430 custody credits. The court reinstated defendant on probation in case No. 0157. Defendant was released from custody.
On March 5, 2008, a petition was filed in case No. 0344, alleging defendant violated probation by failing to successfully complete the Salvation Army Rehabilitation Program. Defendant remained out of custody, having been released by the court on his own recognizance.
On May 6, 2008, a first amended petition was filed in case No. 0344, alleging defendant violated probation by failing to successfully complete the Salvation Army Rehabilitation Program and by leaving the Hillcrest Sober Living Facility without permission. Following contested revocation proceedings, the court sustained both allegations in the petition and terminated probation. Defendant was remanded into custody.
On July 3, 2008, the court executed the previously imposed two-year prison sentence and denied defendant’s motion for dual custody credits for the period January 3, 2007, through December 20, 2007, instead awarding defendant 92 days’ presentence custody credit. The court awarded defendant 154 days’ actual custody credit in case No. 0003 and 261 days’ actual custody credit in case No. 0320, terminating probation in both cases.
Defendant filed a timely notice of appeal.
Discussion
I
During the period between January 3, 2007, through December 20, 2007, defendant was in custody on a probation hold in case No. 0344, and on new criminal charges in case No. 0003. He claims he should be credited in case Nos. 0344, 0003 and 0320 for time served during that 352-day period because, according to People v. Callahan (2006) 144 Cal.App.4th 678, 684-685 (Callahan), People v. Mendez (2007) 151 Cal.App.4th 861, 864-865 (Mendez), and People v. Bruner (1995) 9 Cal.4th 1178, 1181-1182 (Bruner), he was “bailable.”
The People argue defendant failed to appeal the court’s December 20, 2007, order denying him dual custody for the time period in question, rendering the instant appeal untimely (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421) and, even absent forfeiture, defendant’s claim lacks merit.
Defendant is challenging, as unauthorized, the court’s award of custody credits at the July 3, 2008 sentencing hearing. As such, the claim is timely. (People v. Smith (2001) 24 Cal.4th 849, 853 [claims of unauthorized sentences are reviewable in the absence of objection raised in the trial court].) In any event, there is no merit to defendant’s claim.
Section 2900.5, subdivision (a), provides that a defendant shall receive credit against his sentence for all days spent in custody, including presentence custody. However, subdivision (b) provides 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.” (§ 2900.5, subd. (b).)
It is not disputed that defendant was in custody on a probation hold from January 3, 2007, through January 10, 2007. It is also not disputed that, from January 11, 2007, through December 20, 2007, defendant was in custody as a result of both an alleged violation of probation in case No. 0344 and new offenses committed in case No. 0003.
“[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.” (Bruner, supra, 9 Cal.4th at pp. 1193-1194.) Such is the case here.
On July 3, 2008, defendant’s probation was terminated and a previously imposed but stayed two-year sentence was executed in case No. 0344 after the trial court sustained the first amended petition alleging defendant violated probation. Defendant was awarded custody credit, albeit the wrong number of days, in case No. 0003 for the custodial period January 3, 2007, through December 20, 2007. The court denied defendant’s request for dual custody credit in case No. 0344 for that same period. The court’s ruling was proper as to the period January 11, 2007, through December 20, 2007, as that period of presentence custody stemmed from multiple, unrelated incidents of misconduct (i.e., violation of probation in case No. 0344 and new criminal conduct in case No. 0003). The court’s ruling was improper, however, as to the period January 3, 2007, through January 10, 2007, as that period of presentence custody (i.e., the period prior to the filing of the formal petition) was attributable to a single cause--violation of probation arising from the new criminal offenses in case No. 0003.
Defendant does not dispute that his custody during the relevant period stemmed from multiple, unrelated incidents of misconduct. Instead, he urges that, under cases such as Bruner, Mendez and Callahan, he is entitled to dual custody credit simply if he can show he was “bailable” during the custodial period in question. Defendant misstates the holdings of those cases.
In Bruner, our Supreme Court rejected the defendant’s request for credits against his drug sentence for time already served and credited on the parole revocation term, ruling that “when presentence custody may be concurrently attributable to two or more unrelated acts, and where the defendant has already received credit for such custody in another proceeding,” defendant must demonstrate that “but for” the charge on which he was convicted and for which he seeks credits, he would have been free during the presentence period. (Bruner, supra, 9 Cal.4th at p. 1180.) The high court reasoned that section 2900.5 was “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.” (Bruner, at p. 1191.) Accordingly, the court ruled that “section 2900.5 did not intend 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.” (Id. at p. 1192.) It concluded: “[W]hen presentence custody may be concurrently attributable to two or more unrelated acts, and where the defendant has already received credit for such custody in another proceeding, the strict causation rules... should apply. Here, defendant received credit for all presentence custody in his parole revocation proceeding, and he has failed to demonstrate that but for the cocaine possession leading to his current sentence, he would have been free, or at least bailable, during that presentence period.” (Id. at p. 1180.)
The court in Callahan agreed (Callahan, supra, 144 Cal.App.4th at pp. 685-686), as did the court in Mendez, quoting both Bruner, supra, 9 Cal.4th at p. 1191, and Callahan, supra, 144 Cal.App.4th at p. 685, that “[a] defendant is entitled to credit for presentence custody only if he shows the conduct that led to his conviction “‘was the sole reason for his loss of liberty during the presentence period.’” (Mendez, supra, 151 Cal.App.4th at p. 864.)
Where, as here, defendant’s presentence confinement on the current charges was not “‘the sole reason for his loss of liberty during the presentence period,’” (Mendez, supra, 151 Cal.App.4th at p. 864) he is not entitled to custody credit for that period. (Id. at pp. 864-865.) In that circumstance, it is irrelevant that defendant was “bailable” on the new criminal charge, as he would have remained in custody on the probation hold in any event.
We affirm the trial court’s ruling denying defendant dual custody credit for the period January 11, 2007, through December 20, 2007, in case No. 0344. However, the People concede, and we agree, that defendant is entitled to custody credit for the period January 3, 2007, through January 10, 2007, as he was in custody on the basis of the new criminal allegations alone during that time period.
II
Defendant claims that, in case No. 0344, the trial court miscalculated the conduct credits to which he is entitled under section 4019, subdivision (f). Defendant concedes in his reply brief, that the trial court has since amended the abstract of judgment to correct the miscalculation as requested. However, given our disposition of the issue of dual custody credits in part I of this opinion such that defendant is entitled to eight additional days’ actual custody credit in case No. 0344, the trial court shall recalculate conduct credits accordingly.
III
Respondent identified a perceived error, not raised by defendant on appeal, in the trial court’s calculation of custody credits for case Nos. 0003 and 0320. In each of those cases, respondent concludes defendant should have been awarded 352 days’ actual custody from January 3, 2007, through December 20, 2007, plus 59 days’ actual custody from May 6, 2008, through July 3, 2008, for a total of 411 actual custody credits, plus 204 days’ conduct credit pursuant to section 4019, for a total of 615 days’ custody credit. Defendant agrees with respondent and requests that he be awarded “credits as calculated by respondent in its Conclusion with respect to cases [0003, 0320 and 0344].”
We leave that calculation to the trial court and remand this matter for that purpose.
Disposition
The order awarding defendant 92 days’ presentence custody credit in case No. 0344 is reversed. The trial court is directed to recalculate the presentence custody credits in case No. 0344 to include eight additional days’ actual custody credit for the period January 3, 2007, through January 10, 2007, plus the appropriate number of conduct credits pursuant to section 4019.
The order awarding defendant 154 days’ actual custody credit in case No. 0003 and 261 days’ actual custody credit in case No. 0320 is reversed. The trial court is directed to recalculate the number of presentence custody credits (i.e., actual days and conduct credits) in each case. The trial court is further directed to prepare an amended order and an amended abstract of judgment, and to forward the amended abstract to the Department of Corrections and Rehabilitation.
The judgment is affirmed in all other respects.
We concur: SCOTLAND, P. J., CANTIL-SAKAUYE, J.