Bentley, In re

• Citation: 118 Cal.Rptr. 452,43 Cal.App.3d 988
• Decision Date: 18 December 1974
• Docket Number: Cr. 6669
• Court: California Court of Appeals
• Parties: In re William E. BENTLEY on Habeas Corpus.

Page 452

118 Cal.Rptr. 452

43 Cal.App.3d 988

In re William E. BENTLEY on Habeas Corpus.

Cr. 6669.

Court of Appeal, Fourth District, Division 1, California.

Dec. 18, 1974.

Hearing Denied Feb. 13, 1975.

Goldberg & Link and Charles L. Goldberg, San Diego, for petitioner and respondent.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Alan S. Meth and Joseph M. Cavanagh, Deputy Attys. Gen., for appellant.

WHELAN, Acting Presiding Justice.

The People have appealed from a final order of the Superior Court of San Diego County made upon the return of a writ of habeas corpus discharging William Earl Bentley from the custody of the California Adult Authority (the Authority) and the Sheriff of San Diego County, by whom he was being held for the Authority.

Bentley was granted parole by the Authority on August 17, 1970, from a sentence for robbery in San Diego County, in which the term had been fixed at 9 1/2 years on August 6, 1970. Prior to September 21, 1973, the Department of Corrections had computed the discharge date fixed by the Authority as April 20, 1974.

Also prior to September 21, 1973, Bentley had been charged in San Diego County with manslaughter committed in the operation of a vehicle, in violation of Penal Code section 192(3)(a). On September 21, 1973, while Bentley was in custody in the San Diego County jail, a prerevocation hearing was calendared by the Authority. He waived the prerevocation hearing and on October 1, 1973 his parole was revoked and his term refixed at the maximum--life.

While still in the custody of the San Diego County Sheriff, Bentley filed a petition for writ of habeas corpus, in which it is alleged that:

'The Adult Authority no longer has jurisdiction over the petitioner because petitioner has already served the maximum sentence set by the Adult Authority.'

Bentley's contention is that certain presentence credits, to which he claims he is now entitled by virtue of Penal Code sections 2900.1 and 2900.5, must be applied against the parole period, the termination date of which was fixed as April 20, 1974, thus advancing the discharge date by two years and 25 days. Thus the Authority would have had no jurisdiction over Bentley when it purported to suspend his parole in 1973.

The credit under section 2900.1 is claimed because the sentence for robbery from which he was paroled in 1970 was imposed in 1966 following a second trial after a first conviction for the same offense had been reversed on appeal. Service of the sentence under the first conviction commenced July 6, 1964, and continued until December 7, 1965, a period of one year, five months and one day.

In fact, the Authority, in computing a discharge date for Bentley prior to his release on parole from the robbery sentence, gave him credit on the term for the time served on the reversed conviction of one year, five months and one day.

Since that computation was made prior to his release on parole on August 17, 1970, it is understandable that no credit was given for time spent in local custody prior to his delivery to the Director of Corrections. Section 2900.5 had not yet been enacted. ¹

Bentley was arrested on the robbery charge on February 24, 1964, and remained in custody until the first trial on that charge resulted in the conviction that was later reversed. He commenced serving the sentence on that conviction on July 6, 1964. The period of presentence confinement was four months and 11 days.

When arrested on February 24, 1964, Bentley was on parole from a sentence for a narcotics conviction. After his arrest, a parole violation hold was placed on him and his parole suspended. Later that parole was revoked and his sentence for the narcotics violation expired on February 10, 1970.

The original and the second sentence for the robbery were each made concurrent with the narcotics sentence.

On December 7, 1965, after the reversal of the robbery conviction in the first trial, Bentley was released by the Director of Corrections to the San Diego County authorities, in whose custody he remained until March 21, 1966, when service of the second sentence commenced.

The trial court found Bentley was entitled to credit for the period of four months and 11 days spent in jail prior to the first trial on the robbery charge, and of three months and 13 days spent in jail between his delivery by the Director of Corrections to the local authorities on December 7, 1965 and his redelivery to the Director on March 31, 1966 following sentencing for the second conviction on the robbery charge. Having done so, the trial court held the total of those two periods should advance the date of Bentley's successful completion of his parole from April 20, 1974 to August 24, 1973.

As a consequence, Bentley was held to have been no longer under the jurisdiction of the Authority on September 21, 1973 when parole was ordered suspended by the Authority.

Two issues are presented:

1. Whether Bentley was entitled to credit on his sentence for the two periods spent in local custody; and

2. Whether, if he was so entitled, the credit should be applied to shorten a period of parole fixed by the Authority, the successful completion of which would give Bentley a right to a discharge.

The argument in opposition to the claim credit should be allowed is, as to the earlier period, that Bentley's confinement in jail was attributable to the hold placed upon him for possible parole violation, and that otherwise he might have been released on bail; and, as to the later period, that his jail confinement occurred during the actual service of his sentence under his narcotics conviction and as a part of it.

The time spent in jail in 1964, and again in 1965--1966, demonstrably was time applied to the narcotics offense sentence. The term of that sentence had been refixed at 10 years, the maximum. The term commenced February 10, 1960, and expired on February 10, 1970. In effect, therefore, Bentley received credit on that sentence for all the time spent in the San Diego County jail in the two periods mentioned. Such an allowance, where a parolee is held in local custody on suspicion of violation of parole, is proper. (In re Fluery, 67 Cal.2d 600, 603, 63 Cal.Rptr. 298, 432 P.2d 986; In re Yutze, 69 Cal.2d 389, 71 Cal.Rptr. 673, 445 P.2d 289.)

That fact, and his detention as a result of the parole suspension, do not necessarily exclude him from consideration under Penal Code section 2900.5, subsection (b) of which provides:

'For the purposes of this section, credit shall be given only where the custody to be credited is attributable to charges arising from the same criminal act or acts for which the defendant has been convicted.'

However, it should be noted that the subsection does not say 'attributable Exclusively to charges arising,' etc.

A comparison may be made between Bentley's detention in local custody between December 7, 1965 and March 21, 1966, in relation to the subsequently imposed sentence for robbery, and the period spent by him in prison on the sentence first imposed for robbery in relation to the second sentence imposed for the same offense.

Under section 2900.1, he must be given credit for the prison time under the reversed judgment, although while in prison he was concurrently serving the sentence on the narcotics charge.

So, too, under section 2900.5 he may receive credit for the time spent in jail awaiting the second trial although receiving credit at the same time on the narcotics conviction sentence.

The trial court's determination as to the amount of credit to which defendant was entitled under section 2900.5 is upheld.

The court was in error in its attempt to allocate that credit, not to the sentence imposed by law of not less than five years, but to the term of parole prescribed by the Authority as a condition for defendant's discharge. In re Grey, 11 Cal.3d 554, 114 Cal.Rptr. 104, 522 P.2d 664, declares the applicable principles, where it is said, at pages 556--557, 114 Cal.Rptr. pages 105--106, 522 P.2d page 665--666:

'Under petitioner's theory his parole must be deemed to have terminated defore the March 1973 forgery charge was made and thus the subsequent parole hold and refixing of sentence were improper.

'Petitioner's theory must be rejected as inconsistent with the policy behind our Indeterminate Sentencing Law and the parole system. As indicated in In re Kapperman, (ante), this policy reflects an emphasis on reformation of the offender, a policy which the Legislature has sought to effectuate by giving broad discretionary powers to the Adult Authority. The terms of incarceration and parole are to be fixed in accordance with the adjustment and social rehabilitation of the prisoner after consideration of the merits of each...