People v. Comai

• Decision Date: 11 December 1986
• Citation: 210 Cal.App.3d 1020,232 Cal.Rptr. 366
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 210 Cal.App.3d 1020 210 Cal.App.3d 1020 PEOPLE of the State of California, Plaintiff and Respondent, v. David Mark COMAI, Defendant and Appellant. E002837.

Page 366

232 Cal.Rptr. 366

Previously published at 210 Cal.App.3d 1020

210 Cal.App.3d 1020

PEOPLE of the State of California, Plaintiff and Respondent, v. David Mark COMAI, Defendant and Appellant.

E002837.

Court of Appeal, Fourth District, Division 2, California.

Dec. 11, 1986.

Review Granted Feb. 26, 1987.

Robert F. Howell, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., and Steven H. Zeigen, Supervising Deputy Atty. Gen., for plaintiff and respondent.

RICKLES, Associate Justice.

This appeal presents a single issue regarding presentence custody credits.

During arraignment on a one-count complaint charging him with the crime of burglary (Pen.Code, § 459), defendant David Mark Comai pleaded guilty as charged. The case was certified to the superior court (see Pen.Code, § 859a) and defendant was sentenced to state prison for a two-year term with 57 days of presentence custody credit. On his appeal from the judgment, defendant claims entitlement to an additional 324 days of presentence credit.

FACTS

Defendant committed three burglaries--one in Los Angeles County, one in San Bernardino County, and one in Riverside County. On April 10, 1985, defendant was arrested in Los Angeles County for the offense in that jurisdiction. On May 8, 1985, while defendant remained incarcerated in Los Angeles County, a hold was placed on him by authorities in Riverside County. On June 13, 1985, probation with On August 1, 1985, defendant completed his local custody in Los Angeles County. On August 5, 1985, defendant was booked into the jail in San Bernardino County on the charge of burglary in that jurisdiction. On November 20, 1985, defendant was given probation with local custody for the San Bernardino burglary.

local custody time was granted to defendant in the Los Angeles proceeding.

On December 16, 1985, defendant completed the local time for the San Bernardino burglary and was booked into the Riverside County Jail. Defendant entered a negotiated plea of guilty to the Riverside burglary in proceedings before the magistrate. He also waived referral to the probation department for presentence report. The plea was conditioned on defendant's receiving the lower term which was to be served concurrent with any other term.

The sentencing hearing in the present case was held on January 17, 1986. After confirming defendant's waiver of the presentence report, the court indicated it would follow the negotiated plea. The burglary was fixed in the first degree, probation was denied, and defendant was sentenced to state prison for the lower term of two years to run concurrent "with any violations of probation." The court also imposed a restitution fine in the amount of $1,000.

The probation officer had calculated defendant's presentence credits at 185 days of actual custody and 92 days of conduct credits for a total of 277 days. In reaching this figure, the probation officer had taken the period from the placing of the hold on May 8, 1985, to the date of sentencing in Riverside County on January 17, 1986, excluding therefrom the periods of postsentence custody as a condition of probation in Los Angeles County (June 13 to August 1) and in San Bernardino County (November 20 to December 16). This calculation was not disputed by either defense counsel or the prosecutor and the court granted credit for 277 days. The hearing concluded with a referral for a postsentence report.

According to the postsentence report, the previous calculation of presentence credit had been incorrect and defendant was entitled to either a lesser or a greater amount depending on whether the court followed In re Ewing (1978) 78 Cal.App.3d 455, 144 Cal.Rptr. 229, or People v. Cornett (1985) 165 Cal.App.3d 752, 212 Cal.Rptr. 24.

At the subsequent hearing the court elected to follow Ewing, rejecting Cornett, and ordered the judgment corrected to show a total credit of only 57 days. Defendant was given credit for the period from August 1 and August 5 of 1985 and from December 16, 1985, to January 17, 1986, a total of 38 days actual custody, to which 19 days of conduct credits were added.

DISCUSSION

A. PENAL CODE SECTION 2900.5.

The issue before us depends on the interpretation of the following provisions of Penal Code section 2900.5: "(a) In all felony and misdemeanor convictions ... when the defendant has been in custody, including ... any time spent in a jail ... all days of custody of the defendant, including days served as a condition of probation in compliance with a court order ... shall be credited upon his term of imprisonment.... [p] (b) For the 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."

This language has been construed many times, in a wide variety of contexts, resulting in a virtually impenetrable thicket of conflicting views. The most appropriate place to seek guidance, we believe, is the most recent pronouncement of our Supreme Court.

B. ATILES--THE "RESTRAINT" AND "UNEQUAL TREATMENT" ANALYSIS.

In the Supreme Court case of In re Atiles (1983) 33 Cal.3d 805, 191 Cal.Rptr 452, 662 P.2d 910, the defendant was on parole following a robbery conviction when he was arrested and charged with another robbery. While the defendant was awaiting trial on the new charge his parole was revoked and he was returned to custody for a six-month period. Defendant was convicted of the new robbery charge and was sentenced to state prison. On these facts, our Supreme Court held that the defendant was entitled to credit against the new sentence for the six-month parole revocation term.

Explaining its conclusion, the court stated: "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.... [p] We are satisfied that the Legislature intended that 'custody ... attributable to proceedings related to the same conduct for which the defendant has been convicted' include time in presentence custody during which a restraint or restraints related to that conduct made it impossible for the defendant to obtain his freedom, regardless of whether the defendant was also subject to other restraints on his liberty." (In re Atiles, supra, 33 Cal.3d at pp. 810-811, 191 Cal.Rptr. 452, 662 P.2d 910, fn. omitted.)

The court identified two legislative purposes underlying setion 2900.5, the first being to eliminate the unequal treatment of indigent defendants unable to post bail who therefore served longer overall confinements than nonindigents convicted of similar crimes, and the second purpose being to equalize the actual time served in custody for given offenses. (In re Atiles, supra, 33 Cal.3d at p. 812, 191 Cal.Rptr. 452, 662 P.2d 910.)

Expanding on the second purpose, the court stated: "Unequal treatment follows not only from denial of credit altogether for presentence jail time, however, but also from denial of credit on multiple concurrent terms. This may occur if a defendant seeks separate trials on severable charges to ensure his right to a fair trial, if a prosecutor does not join multiple counts in a single accusatory pleading, or if a defendant faces charges in more than one jurisdiction. It may also occur in cases such as this in which parole revocation proceedings and new charges are pending simultaneously if the defendant does not promptly plead guilty and seek immediate sentencing. In each of these situations, the possibility of unequal treatment exists if concurrent terms are imposed, but because sentence has been imposed or parole revoked in the first proceeding before the others are tried, credit for time in jail while awaiting disposition of the remaining charges is denied. The terms then are not truly concurrent since the effect of denying credit on the later terms is that they commence only on the date sentence is pronounced. The time between sentencing in the first proceeding and that in the second is, as to the second term, 'dead time.' The Legislature has not either expressly or by implication indicated an intent to deny credit in any of these situations." (In re Atiles, supra, 33 Cal.3d at pp. 812-813, 191 Cal.Rptr. 452, 662 P.2d 910, fn. omitted. Emphasis added.)

The analysis of Atiles may be summarized as follows: For a period of presentence custody to be credited against a sentence there must exist a "restraint" originating either directly from the proceeding resulting in that sentence or, possibly, from some other proceeding related to the same conduct for which sentence is imposed. In deciding whether a restraint exists in a doubtful case, the court should consider whether allowing the credit would further the purpose of eliminating unequal treatment for multiple concurrent terms.

C. TENTATIVE CONCLUSION.

If the analysis of Atiles is applied to the present case, defendant appears to be entitled to all the credit he seeks. A hold originating from the Riverside County proceeding was placed on defendant while he was in custody in Los Angeles County and remained in effect while he was in custody there and in San Bernardino County. The hold was a "restraint" which made it impossible for defendant to obtain his freedom, even though he was also subject to other restraints during the same period. Moreover, had defendant committed his three unrelated burglaries in a single...