People v. Esparza

• Decision Date: 10 September 1986
• Citation: 229 Cal.Rptr. 739,185 Cal.App.3d 458
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Abel Rudolfo ESPARZA, Defendant and Appellant. H000970.

Page 739

229 Cal.Rptr. 739

185 Cal.App.3d 458

The PEOPLE, Plaintiff and Respondent, v. Abel Rudolfo ESPARZA, Defendant and Appellant.

H000970.

Court of Appeal, Sixth District, California.

Sept. 10, 1986.

Review Denied Dec. 23, 1986.

Philip H. Pennypacker, Conflicts Administrator in association with James McNair Thompson, San Jose, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

PHILLIPS, Associate Justice. ^*

Defendant was convicted in a court trial of vehicular manslaughter in violation of former Penal Code section 192, subdivision (3)(a) (count 2) two counts of driving under the influence and causing death or injury in violation of Vehicle Code section 23153, subdivision (a), (counts 3 & 4) and one count of driving with a suspended license in violation of Vehicle Code section 14601, subdivision (a). (count 5) The court also found true seven misdemeanor priors of driving under the influence.

Defendant was acquitted of murder (Pen.Code § 187) and a charge of driving a vehicle without consent of the owner (Veh.Code § 10851) was dismissed.

Defendant was sentenced to the upper term of four years in state prison on count 3, driving under the influence and causing injury, and a subordinate consecutive eight month prison term on count 2, vehicular manslaughter. The sentence on count 4 (driving under the influence) was stayed. Following a protracted hearing, defendant was granted 325 days presentence actual credit. The court also ordered the sentence be served consecutive to two unrelated misdemeanor terms.

On appeal, defendant asserts error in sentencing only. He claims he was denied appropriate presentence credits. He also maintains he was improperly sentenced consecutively on the vehicular manslaughter count. We find these contentions without merit, and affirm the judgment.

FACTS

John Anthony Patricca, Kevin Crook and Connie Crook were bicycling in Hellyer Park on the afternoon of June 6, 1984. They were riding single file on Hellyer Avenue with Kevin in the lead, Connie second, and John third, when John heard the sound of a car approaching. Defendant was driving the car. Just as Kevin cleared the bridge, defendant passed John, his car straddling the lane divider. Defendant hit Connie from behind, throwing her off the bike and face down on the roadside.

After defendant hit Connie, John testified defendant "punched the accelerator"; he heard the whine of an intake manifold as the car "barreled down." Defendant then hit Kevin who was about 20 feet ahead of Connie and had cleared the bridge. As he hit Kevin from behind, the front of the bike flew up and Kevin hit the top of the car just above the windshield with the back of his head.

With Kevin's body against the windshield, defendant continued forward in a straight line until he hit a large boulder. At this point Kevin flew off the hood, hitting a rock with his head, face first. Kevin died at the scene. The car began to roll and then hit a tree. Defendant never attempted to apply his brakes. Neither had he attempted to swerve around Connie or Kevin.

Around 1:30 p.m. Carmen Sanchez was driving west bound on Hellyer Avenue when she saw defendant approach the bridge from the opposite direction. With three cyclists on the bridge she realized there was not enough room for both cars. Ms. Sanchez then pulled off the side of the road. She saw defendant hit Connie and noticed as he passed her (just before he hit Kevin) that he did not apply the brakes. She also noticed defendant made no effort to swerve and miss either Connie or Kevin.

When California Highway Patrolman Ted Melden arrived at the scene he noticed defendant had a blank stare, stiff limbs, repetitive and slurred speech, vertical and horizontal nystgamus, and bloodshot eyes. Defendant was also verbally aggressive. From these symptoms the officer determined appellant was under the influence of PCP. Subsequent analysis of samples taken over two hours after the accident indicated defendant had 0.03% blood alcohol level and 0.05 parts per million PCP.

Defendant's alcohol and PCP usage was confirmed through the testimony of his earlier companion, Steve Talamantez.

Defendant was arrested on the instant offense on June 6, 1983. Ten days later on June 15, 1983, defendant was sentenced to one year in county jail for an unrelated offense of being under the influence of PCP, in violation of Health and Safety Code section 11550. Apparently, defendant had been convicted of this offense prior to, but was awaiting sentence at, the time of the instant offense.

On March 14, 1984, defendant was sentenced to two consecutive two year terms for separate unrelated offenses: (driving under the influence and driving with suspended license); he completed those terms on August 6, 1984. Defendant remained in custody until he was sentenced on the instant offenses on June 27, 1985.

The court granted defendant presentence custody credit for 325 actual days. This included the period from defendant's arrest for the instant offense until commencement of the first unrelated sentence, and the period from completion of the unrelated terms until defendant was sentenced on the instant offense. The trial court denied credit for the period defendant was actually serving sentences on the unrelated convictions. Defendant asserts he is entitled to presentence credit for the entire period of his custody from the date of his arrest on the instant offenses until he was sentenced on those offenses. We disagree. Defendant is entitled to credits under 2900.5 only for custody that is attributable to the present offenses.

Penal Code section 2900.5 reads in pertinent part: "Credit for time in custody prior to commencement of sentence. ... (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."

"Within the various potential contexts, this language has proved difficult to interpret and apply." (People v. Mercurio (1985) 169 Cal.App.3d 1108, 1110, 216 Cal.Rptr. 1.) We, therefore, take the time to analyze a substantial portion of the relevant authority.

The Supreme Court interpreted section 2900.5 in In re Rojas (1979) 23 Cal.3d 152, 151 Cal.Rptr. 649, 588 P.2d 789. The defendant in that case was charged with murder while in prison on an unrelated offense, and was transferred to county jail awaiting trial. Upon being convicted and sentenced to a concurrent term, he claimed he was entitled to credit against the sentence for the homicide for the time he spent in jail. The issue was whether the defendant was entitled to such credit under Penal Code section 2900.5 when he was already serving a prison term and was receiving credit against the sentence for the other offense. (Id., at p. 155, 151 Cal.Rptr. 649, 588 P.2d 789.)

Rojas found the "crucial element of the statute is not where or under what conditions the defendant has been deprived of his liberty but rather whether the custody to which he has been subjected 'is attributable to charges arising from the same criminal act or acts for which the defendant has been convicted' ". (Id., at p. 156, 151 Cal.Rptr. 649, 588 P.2d 789.) The court concluded that since section 2900.5 applies to individuals charged with a crime and awaiting trial, the statute did not extend to those already serving a prison sentence on a prior offense. The "deprivation of liberty for which [the defendant] seeks credit cannot be attributed to the second offense;" thus "Section 2900.5 does not authorize credit where the pending proceeding has no effect whatever upon a defendant's liberty." (Id., at p. 156, 151 Cal.Rptr. 649, 588 P.2d 789.)

The Rojas court concluded that the legislative purpose of section 2900.5 was to provide equal treatment for indigent defendants who could not post bail and were forced to serve a longer period of confinement than their wealthier counterparts. (Id., at p. 156, 151 Cal.Rptr. 649, 588 P.2d 789.) Thus, there is no reason to apply the statute in those situations where a defendant is already serving a term on an unrelated matter: "[t]he sensible inference is that a defendant is not to be given credit for time spent in custody if during the same period he is already serving a term of incarceration." (Id., at pp. 155-156, 151 Cal.Rptr. 649, 588 P.2d 789.)

In In re Atiles (1983) 33 Cal.3d 805, 191 Cal.Rptr. 452, 662 P.2d 910, the Supreme Court again had the occasion to interpret section 2900.5. There, the defendant was on parole when he committed a new offense. The defendant's parole was revoked because of the subsequent offense, and he was returned to custody for six months. He was later sentenced on the new offense but was denied credit for the parole violation term. On appeal the Court modified the judgment granting him credit for the time served on the parole violation, finding that "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". (Emphasis added.) (Id., at p. 809, 191 Cal.Rptr. 452, 662 P.2d 910.) The same criminal conduct was the cause of the restraint on both proceedings. The court observed in In re Anderson (1982) 136 Cal.App.3d 472, 475, 186 Cal.Rptr. 269 "the crucial test is not whether a defendant is serving a sentence during the time he seeks credit for the second offense. Instead Rojas requires that an inquiry be made into whether the second offense was the cause of the sentence being served."

The Atiles court set forth several hypothetical situations in which the legislative intent of equal treatment for indigents would be frustrated if credit was denied on multiple concurrent terms. One...