Atiles, In re

• Citation: 191 Cal.Rptr. 452,33 Cal.3d 805,662 P.2d 910
• Decision Date: 16 May 1983
• Docket Number: Cr. 22925
• Court: United States State Supreme Court (California)
• Parties: , 662 P.2d 910 In re Rick A. ATILES on Habeas Corpus.

Page 452

191 Cal.Rptr. 452

33 Cal.3d 805, 662 P.2d 910

In re Rick A. ATILES on Habeas Corpus.

Cr. 22925.

Supreme Court of California,

In Bank.

May 16, 1983.

Augustus E. Noland, Deputy Public Defender, Sacramento, for appellant.

Anthony Dicce, Deputy Atty. Gen., Sacramento, for respondent.

GRODIN, Justice.

Petitioner, who is serving a prison sentence for robbery, seeks credit under Penal Code section 2900.5 ¹ for time spent in county jail awaiting trial on the charges which led to his imprisonment. During this period he was unable to obtain his freedom by posting bail because the Parole and Community Services Division of the Department of Corrections had placed a "hold" on him. The Court of Appeal ruled that petitioner was not entitled to credit because his presentence confinement was attributable, in part, to custody on revocation of parole. This court granted a hearing to resolve an apparent conflict between this conclusion and the contrary results reached in other cases.

The procedural history of the case can be summarized briefly. In 1977, petitioner was convicted of robbery and sentenced to prison. The following year he was released on parole. On May 3, 1979, while free on parole, he was arrested and charged with robbery and sodomy, both counts arising from a single incident, and a parole hold was placed on him. Petitioner waived his right to contest the parole violation charges and on May 25, 1979, the Board of Prison Terms revoked his parole and ordered that he be returned to custody for a six-month period. That period, measured from the date of the hold, expired on November 3, 1979. Petitioner was released from custody on bail on November 6, 1979, to await disposition of the criminal charges. He pleaded guilty to robbery and was sentenced to a three-year term for that offense, as well as a one-year consecutive term for his prior conviction. (§ 667.5, subd. (b).) The trial court granted credit only for the three days of presentence confinement between November 3 and November 6, 1979. Petitioner sought relief through petition for writ of habeas corpus filed in the Court of Appeal, where his petition was denied.

Section 2900.5, pursuant to which petitioner seeks credit, provides in pertinent part: "(a) In 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 term of imprisonment, .... [p] (b) For 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." (Emphasis added.)

This court had occasion to construe the limiting language of subdivision (b) in In re Rojas (1979) 23 Cal.3d 152, 151 Cal.Rptr. 649, 588 P.2d 789. The petitioner in that case, while in prison for manslaughter, was charged with an unrelated murder, and transferred to Los Angeles County jail to await trial. Upon being convicted and sentenced for the second offense, he contended that he was entitled to credit under section 2900.5 for the 207 days he spent in county jail. The issue, as we stated it, was whether defendant was entitled to credit for such time "when he would necessarily have served that 207-day period in state prison for the original manslaughter conviction and when he was already receiving credit for that period against his original conviction." (Id., at p. 155, 151 Cal.Rptr. 649, 588 P.2d 789, emphasis added.) Reasoning from both the language of the statute and its apparent purpose, we concluded that section 2900.5 did not authorize credit because the second offense had no effect on the defendant's liberty. (Id., at p. 156, 151 Cal.Rptr. 649, 588 P.2d 789.)

In the course of our opinion in Rojas we considered and rejected the petitioner's reliance upon the Court of Appeal decision in In re Bentley (1974) 43 Cal.App.3d 988, 118 Cal.Rptr. 452, upon grounds highly relevant to the issue presented here. In Bentley, as here, the petitioner had been on parole pursuant to a prior conviction when he was arrested for a new offense, and confined pursuant to a parole hold while awaiting trial. The court in Bentley decided that subdivision (b) did not preclude credit in such a situation. It did so, however, on the basis of reasoning which, as we said in Rojas, involved an "unnecessary semantic exercise ... [which] injected a nonexistent ambiguity into the statute" (23 Cal.3d at p. 157, 151 Cal.Rptr. 649, 588 P.2d 789)--i.e., the court opined that credit was due because the language of the subsection "does not say 'attributable exclusively to charges arising,' etc." (43 Cal.App.3d at p. 992, 118 Cal.Rptr. 452, italics in original.) This "questionable reasoning," we observed, had been applied in some subsequent cases "to less favorable factual situations, thereby reaching results which do not appear to have been intended by the drafters of section 2900.5" and we disapproved that reasoning, as well as the holding in In re Pollock (1978) 80 Cal.App.3d 779, 145 Cal.Rptr. 833, which had applied the Bentley reasoning to a quite disparate context. ²

We did not, however, disapprove of the holding in Bentley. On the contrary, we stated: "The cases upon which defendant relies are, as closer analysis reveals, consistent with the foregoing interpretation of section 2900.5. In In re Bentley [citation] the defendant was on parole pursuant to a prior narcotics conviction when he was arrested for robbery. It was the new charge which caused his loss of physical freedom and thus the time in custody for which he sought credit was based on the same conduct for which he was convicted, the robbery charge. A literal interpretation of section 2900.5 would have allowed Bentley his credit under those facts." (23 Cal.3d at p. 157, 151 Cal.Rptr. 649, 588 P.2d 789, emphasis added.)

Courts of Appeal in several recent cases have recognized that our opinion in Rojas approved the holding in Bentley as applied to the parole context. In People v. Penner (1980) 111 Cal.App.3d 168, 168 Cal.Rptr. 431, the court, distinguishing Rojas, upheld an award of credit for six months jail time during which the defendant was simultaneously serving a parole revocation period of custody and awaiting trial on charges based on the conduct underlying the parole revocation. The court noted it was clear that the same conduct was the basis for both proceedings, and held that the six months of custody was, therefore, "attributable" to the new criminal proceedings, as well as to the parole revocation proceedings. (111 Cal.App.3d at p. 170, 168 Cal.Rptr. 431.) Similarly, in People v. Simpson (1981) 120 Cal.App.3d 772, 174 Cal.Rptr. 790, and most recently in In re Anderson (1982) 136 Cal.App.3d 472, 186 Cal.Rptr. 269, the Court of Appeal ordered that credit be awarded for time in local custody awaiting trial during which period the defendant's parole had been revoked. As the Anderson court observed, "the crucial test is not whether a defendant is serving a sentence during the time he seeks credit for a second offense. Instead, Rojas requires that an inquiry be made into whether the second offense was the cause of the sentence being served." (In re Anderson, supra, 136 Cal.App.3d at p. 475, 186 Cal.Rptr. 269.)

Here, as in each of these cases, petitioner was not serving his term when arrested. He was on parole. The conduct which led to his arrest and conviction on the new criminal charge also formed a basis for the parole hold and subsequent revocation proceedings. Thus his custody in the county jail was, literally, "attributable to proceedings related to the same conduct for which the defendant had been convicted" (§ 2900.5, subd. (b)) on November 19, 1979, and he is entitled to credit on the 1979 term for the six-month period in question.

Respondent concedes that had petitioner been charged only with robbery in the new criminal proceeding, and only with the commission of that offense as a basis for revocation of parole, he would be entitled to the credit he seeks. He argues, however, that because the time petitioner served in presentence custody in the county jail was attributable to the act of sodomy which was charged both as a criminal offense and a parole violation, and to a third parole violation charge, ³ the time was not "attributable" to the robbery conviction within the meaning of section 2900.5. He relies in part on our observation in Rojas that the Bentley court's statement that section 2900.5 did not require that the time in custody be "exclusively" attributable to the conduct leading to the conviction on which credit was sought was unnecessary to the result. That observation, however, does not establish the contrary proposition for which respondent argues. It was not a holding that the custody must be attributable exclusively to the conduct underlying the term ultimately imposed. ⁴

In 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 related to the new charge were imposed on him, and the conduct related to the new charge is a basis for those restraints. ⁵ Nothing in the language of section 2900.5 suggests that the Legislature intended to permit a sentencing court or this court to speculate, as suggested by respondent, that a defendant whose parole has been revoked while he awaits trial on new charges would have been ordered confined by the board on the basis of charges other than those leading to...