Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. CR137965
Margulies, J.
Defendant Steven Ross Smith appeals from a judgment based on his plea of guilty to one count of transporting methamphetamine. The court sentenced him to two years in prison and denied presentence custody credits because he was also subject to a parole hold for unrelated conduct.
Defendant’s sole contention on appeal is that the court erred by failing to award him presentence custody credits. We find no error and affirm the judgment.
We summarize only the facts relevant to the presentence custody issue defendant raises on appeal.
On November 18, 2007, defendant was arrested for possession and transportation of methamphetamine. A warrant check revealed the Department of Corrections had an active warrant for parole violations. A parole hold was placed on defendant for failing to register as a narcotics offender and absconding from parole supervision.
Defendant was charged with transporting a controlled substance (Health & Saf. Code, § 11379, subd. (a)), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and multiple enhancements, including that he had a prior strike conviction ( Pen. Code, § 1170.12), and had served two prior prison terms (Pen. Code, § 667.5). Pursuant to a negotiated plea, he pleaded guilty to the transportation charge in exchange for a maximum prison sentence of three years and dismissal of the remaining counts and enhancement allegations.
By the time of the sentencing hearing on June 20, 2008, defendant had been in custody 216 days. The court denied probation and imposed the low term of two years. It declined to award presentence custody credit because during the period of presentence custody defendant was also subject to a parole hold for failing to register and absconding. Defendant objected, and the court agreed to reserve jurisdiction and allow briefing on the credit issue.
At the hearing on credits, defendant argued the court should give him credit even though he was also subject to a parole hold during the same period, because it was possible the parole proceeding would be dismissed or his parole would not be revoked. In that event, defendant argued he would not receive any credit. The prosecutor represented that the probation unit had indicated defendant was “going to get up to a year on his [parole] revocation,” but neither party submitted any evidence regarding the actual status of the parole revocation proceedings. The court declined to modify its prior order.
II. ANALYSIS
Penal Code section 2900.5, 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.”
“[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.) This rule of strict causation “stems from the conclusion that [Penal Code] 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.)
In this case, the court concluded defendant was not entitled to presentence custody credits because, when defendant was arrested for possession and transportation of methamphetamine, the Department of Corrections already had an active warrant for parole violations, and a parole hold was placed on defendant for failing to register as a narcotics offender and absconding from parole supervision. The conduct upon which the parole arrest warrant was based preexisted, and therefore was unrelated to the possession and transportation of methamphetamine charges. Even if defendant had not been arrested on the possession and transportation charges, he would have been arrested and subject to the parole hold for the unrelated parole violations.
Defendant therefore cannot, and does not even attempt to, argue that the transportation offense for which he was sentenced in this case was a “but for” cause of his presentence custody. Instead, defendant argues the “but for” or strict causation rule should not apply because he did not seek an award of duplicate credits. He reasons that where, as here, parole has not yet been revoked at the time of sentencing, an award of presentence credits against his new prison sentence would not result in a credits windfall, and therefore he should not have been required to demonstrate that the presentence custody was solely attributable to the new criminal charges.
In People v. Shabazz (2007) 107 Cal.App.4th 1255 (Shabazz), the court rejected the same contention. In Shabazz, the defendant was arrested for a parole violation, released and then arrested on forgery charges. For a period of time he was in local custody on the parole violation and for the pending forgery charge. At the time of sentencing on the forgery conviction he had not yet had a hearing on the parole revocation. The trial court awarded presentence credits against his current sentence, and the Court of Appeal, sua sponte, asked the parties to address the question whether the defendant was entitled to presentence credits. (Id. at p. 1257.) Shabazz argued he did not have to demonstrate that the sole reason for presentence custody was the forgery charge as long as the award did not result in duplicate credits. He argued that no problem of duplicate credits existed because at the time of sentencing his parole had not yet been revoked. (Id. at pp. 1258-1259.) He further noted the record on appeal was silent as to whether his parole had been, or would be, revoked. He argued that if parole were not revoked, “denying [the defendant] the credit as awarded by the trial court would deny him all credit for his presentence custody period, rather than denying him duplicate credits.” (Id. at p. 1259.)
The Court of Appeal held the defendant was not entitled to any presentence credits. The court explained it “was defendant’s burden to show that the conduct that led to his conviction was the sole reason for his presentence confinement,” and that he failed to do so. (Shabazz, supra, 107 Cal.App.4th at p. 1259.) As for the possibility that applying the rule of strict causation could result in denial of any credit, the court observed that if the parole violations were dismissed, or the defendant’s parole were revoked and the Board of Prison Terms denied credits, the defendant could seek a modification of the presentence credit order in superior court. (Ibid.) At the hearing in this case on defendant’s claim to presentence custody credits, the court determined the facts were indistinguishable from Shabazz, and followed it.
Defendant argues that Shabazz, supra, 107 Cal.App.4th 1255, is incorrectly decided, and we need not follow it. His reliance upon In re Marquez (2003) 30 Cal.4th 14 (Marquez) for the proposition that the “but for” or strict causation rule applies only when the defendant is seeking duplicate credits is misplaced. In Marquez, the defendant sought presentence custody credits against a sentence for a Monterey County conviction for the period following sentencing in a Santa Cruz case through the date of sentencing in the Monterey case after the Santa Cruz conviction was reversed on appeal. (Id. at pp. 17-19.) “Such credit previously was unavailable because his custody during that period followed his sentencing in the Santa Cruz County case and was thus deemed attributable solely to that case.” (Id. at p. 19.)
The Supreme Court held the defendant was entitled to credit because once the Santa Cruz charges were dismissed, the time in question was solely attributable to the Monterey case. In reaching this conclusion, the court did note “[t]he requirement of ‘strict causation,’.... is applicable in cases involving the possibility of duplicate credit that might create a windfall for the defendant.” (Marquez, supra, 30 Cal.4th at p. 23.) The court explained, however, that in the case before it there was no possibility of a duplicate award because the Santa Cruz case had been dismissed. Instead, the issue was whether the defendant would receive any credit at all for the period in question. (Ibid.)
Here, however, at the time of sentencing the court correctly applied the strict causation test because it had no evidence the parole violations had been dismissed and there was a possibility of duplicate credits. Unlike Marquez, supra, 30 Cal.4th 14, the risk that defendant might lose credit altogether was based only upon the hypothetical that the parole violation proceedings could be dismissed, or his parole might not be revoked. Defendant failed at the hearing on the issue of credits to show that the parole violation proceedings had in fact been dismissed, or that he had been, or would be, denied credit in the parole revocation proceedings. Moreover, while this appeal was pending the parole violation proceedings undoubtedly have been adjudicated or dismissed, yet defendant has not asked this court to judicially notice the record. Under these circumstances, as the court in Shabazz explained, there was a possibility that defendant would receive duplicate credit, and the court properly applied the strict causation rule. As for the hypothetical defendant posits, the appropriate remedy,“[i]n the event defendant’s parole was never revoked or he was denied any credits by the Board of Prison Terms,...[is to] seek a modification of the presentence credit order in superior court.” (Shabazz, supra, 107 Cal.App.4th at p. 1259.)
III. CONCLUSION
The judgment is affirmed.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.