Jordan, In re, Cr. 14067

• Decision Date: 28 July 1975
• Docket Number: Cr. 14067
• Citation: 123 Cal.Rptr. 268,50 Cal.App.3d 155
• Court: California Court of Appeals Court of Appeals
• Parties: In re Carroll Wayne JORDAN on habeas corpus.

Page 268

123 Cal.Rptr. 268

50 Cal.App.3d 155

In re Carroll Wayne JORDAN on habeas corpus.

Cr. 14067.

Court of Appeal, First District, Division 4, California.

July 28, 1975.

As Modified Aug. 27, 1975.

Hearing Denied Oct. 23, 1975.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, Morris Lenk, Deputy Attys. Gen., San Francisco, for respondent.

Carroll Wayne Jordan, for petitioner.

CALDECOTT, Presiding Justice.

Petitioner Carroll Wayne Jordan is presently incarcerated at Susanville pursuant to a judgment of the Amador County Superior Court convicting him of possession of stolen property (Pen.Code, § 496).

Petitioner was arrested in July 1972 by United States Treasury Department agents from the Bureau of Alcohol, Tobacco and Firearms, while he was in the process of stealing a quantity of explosives in Amador County, California. He was charged with the violation of Title 18 of the United States Code, section 842, subdivision (h) ('receive, conceal, transport . . . (etc.) any explosive materials knowing (they) were stolen') and Title 18 of the United States Code, section 924, subdivision (c)(2) (carrying a firearm in the commission of a felony). Thereafter he was committed to the Medical Center for Federal Prisoners in Springfield, Missouri, pursuant to Title 18 of the United States Code, section 4244, upon his motion for a medical examination to determine whether he was competent to stand trial. He remained in federal custody until charges against him were dismissed on August 27, 1974. He was then taken into the custody of California. On November 8, 1974, he pleaded guilty to a charge of receiving stolen property and was sentenced to state prison. He states that at the time he was sentenced, his attorney requested credit for the two years' time he served in federal custody; this request was denied.

Petitioner contends that since he served his federal time for the same acts for which he now stands convicted in state court, he is entitled to two years' credit on his state sentence. Penal Code section 2900.5 provides: '(a) In all felony convictions, either by plea or by verdict, when the defendant has been in custody in any City, county, or City and county jail, all days of custody of the defendant from the date of arrest to the date on which the serving of the sentence imposed commences . . . shall be credited upon his sentence . . .. (b) 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.' (Emphasis added.)

In the case of In re Miller, 41 Cal.App.3d 1046, 116 Cal.Rptr. 624, Miller was arrested on a robbery charge by state officers. A federal detainer was then filed, and Miller was ordered to be transferred to El Paso, Texas, to answer pending federal charges for assaulting a federal officer, spending a total of 23 days in federal custody.

The court noted that the federal proceedings were 'wholly unrelated' to the Los Angeles robbery charge, and therefore, concluded the time spent in federal custody was not attributable to the state charge.

In petitioner's case, however, his time spent in federal custody was directly related to the state charge, since it was one act which constituted both a state and federal offense.

The language of section 2900.5(a) certainly does not, on its face, require that this court allow Jordan his two-year credit, since that section states that credit shall be given when the defendant has been in custody in any ...