Miller, In re, Cr. 12851

• Decision Date: 26 September 1974
• Docket Number: Cr. 12851
• Citation: 41 Cal.App.3d 1046,116 Cal.Rptr. 624
• Court: California Court of Appeals Court of Appeals
• Parties: In re Charles MILLER on Habeas Corpus.

Page 624

116 Cal.Rptr. 624

41 Cal.App.3d 1046

In re Charles MILLER on Habeas Corpus.

Cr. 12851.

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

Sept. 26, 1974.

Rehearing Denied Oct. 21, 1974.

Benjamin R. Winslow, San Francisco, attorney for petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Gloria Dehart, Ina L. Gyemant, Deputy Attys. Gen., San Francisco, for respondent.

ELKINGTON, Associate Justice.

Charles T. Miller, a California state prison inmate, by way of habeas corpus seeks credit for 327 days upon his prison term, under the authority of In re Kapperman, 11 Cal.2d 542, 114 Cal.Rptr. 97, 522 P.2d 657, In re Young, 32 Cal.App.3d 68, 107 Cal.Rptr. 915, and Penal Code section 2900.5.

Miller was arrested and incarcerated in the Los Angeles County Jail, March 31, 1970, on a charge of robbery.

Three days later, April 2, 1970 a federal detainer was lodged against him from El Paso, Texas, where he was wanted for trial on a charge of assaulting a federal officer.

He remained in the Los Angeles County Jail by virtue of the pending robbery charge and the federal detainer until September 15, 1970, when he was delivered into federal custody for trial on the El Paso offense.

Miller remained in custody of the federal authorities in an El Paso jail until October 8, 1970, on which date, following his plea of guilty and sentence on the El Paso assault charge, he was returned to California for trial on that state's robbery charge against him.

In California Miller pleaded guilty to robbery, second degree, and was sentenced to state prison for the period prescribed by law, i.e., for 'not less than one year.' (See Pen.Code, § 213, subd. 2.) That term, however, was ordered to run Concurrently with his federal sentence.

Following the California guilty plea and sentence a decision was made that Miller first serve the earlier imposed federal prison term. On February 19, 1971, 325 days (not 327 as claimed by Miller) after his Los Angeles robbery arrest, he was delivered to appropriate authorities for that purpose. The federal sentence has now been served and Miller is, as indicated, completing his concurrent California prison term.

Penal Code section 2900.5 (enacted 1971) reads as follows:

'(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, including days served as a condition of probation in compliance with a court order, shall be credited upon his sentence, or credited to any fine which may be imposed, at the rate of not less than twenty dollars ($20) per day, or more, in the discretion of the court imposing the sentence. If the total number of days in custody exceeds the number of days of the sentence to be imposed, the entire sentence shall be deemed to have been served. In any case where the court has imposed both a prison sentence and a fine, any days to be credited to the defendant shall first be applied to the sentence imposed, and thereafter such remaining days, if any, shall be applied to the fine.

'(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.

'(c) This section shall be applicable only to those persons who are delivered into the custody of the Director of Corrections on or after the effective...