People v. Santa Ana

• Decision Date: 31 May 2016
• Docket Number: H042604
• Citation: 247 Cal.App.4th 1123,203 Cal.Rptr.3d 60
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jamie Feliciano SANTA ANA, Defendant and Appellant.

247 Cal.App.4th 1123

203 Cal.Rptr.3d 60

The PEOPLE, Plaintiff and Respondent

v.Jamie Feliciano SANTA ANA, Defendant and Appellant.

H042604

Court of Appeal, Sixth District, California.

Filed May 31, 2016

Dean D. Flippo, District Attorney, Glenn Pesenhofer, Deputy District Attorney, for Plaintiff and Respondent.

Nerissa Kunakemakorn, Sixth District Appellate Program, for Defendant and Appellant.

ELIA

, ACTING P.J.

In this case, appellant Jamie Feliciano Santa Ana was convicted of misdemeanor petty theft (Pen.Code, §§ 484, subd. (a)

, 486 )¹ by plea and placed on probation with imposition of sentence suspended. At the time she committed the theft, appellant was on probation in an unrelated case, Monterey County Superior Court Case No. SS111352A (the earlier case).² At the same sentencing hearing, probation was revoked and reinstated in the earlier case and probation was granted in this case. In each case, the trial court imposed a jail term as a condition of probation. In the earlier case, the trial court awarded credits for appellant's presentence custody (from the date of arrest for theft through the date of sentencing) against the probationary jail term. In this case, the trial court denied credit against the probationary jail term, which was ordered to be served consecutively to the probationary jail term imposed in the earlier case.

On appeal in this case, appellant challenges the trial court's denial of all custody credits against the jail term imposed as a condition of probation.³ A majority of the appellate division of the Monterey County Superior Court (appellate division) affirmed the judgment and upheld the denial of custody credits on the ground that section 2900.5, subdivision (b) (hereafter 2900.5(b)) “permits the award of only one set of credits ‘for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed[.]’ ” One judge dissented. The appellate division certified this case for transfer to our court because of the split decision, and we ordered it transferred to us for hearing and decision. (Cal. Rules of Court, rules 8.1002

, 8.1008.)

Appellant maintains that the trial court erred by denying custody credits for her presentence custody against the consecutive probationary jail term imposed in this case. Appellant asserts that she is entitled to dual credits for that period of presentence custody because it was entirely attributable to the single theft crime, which occurred when she took some items from a Walmart store without paying for them. Thus, this case presents the novel issue whether the credit limitation established by the second sentence of section 2900.5(b) applies where there is a single period of custody to be credited arising from the commission of one new offense, there are dual custodial restraints, and, at the time of sentencing in the two cases, the trial court imposes a probationary jail term in one case and imposes a consecutive probationary jail term in the other case. We conclude that it does. Accordingly, we affirm the judgment (the order granting probation).

Procedural History

On August 24, 2011, in the earlier case, appellant pleaded no contest to three crimes committed on or about July 16, 2011: a felony violation of Vehicle Code section 2800.2, subdivision (a)

(count 1); a misdemeanor violation of former Health and Safety Code section 11377, subdivision (a) (count 2 as amended); and a misdemeanor violation of Vehicle Code section 20002, subdivision (a) (count 3). The court placed her on formal probation on the conditions, among others, that she obey all laws, not use narcotics or other controlled substances without prescription, and submit to narcotics testing.

In 2011, probation was revoked and reinstated in the earlier case.⁴

In this case, a complaint, filed on December 24, 2013, charged appellant with committing a misdemeanor violation of section 484, subdivision (a)

, on or about December 21, 2013. On December 24, 2013, appellant waived formal arraignment and entered a plea of not guilty. Bail was set at $3,500. Appellant remained in custody.

Also on December 24, 2013, a notice of violation of probation was filed in the earlier case. It alleged that appellant had violated section 484

on or about December 19, 2013. On December 24, 2013, appellant was arraigned on the notice of violation of probation, and probation was summarily revoked. No bail was allowed, and appellant was remanded to the custody of the Monterey County Sheriff.

On January 8, 2014, appellant appeared in the earlier case. A formal hearing on the alleged violation of probation was set for January 17, 2014. No bail was allowed, and appellant remained in custody.

Both cases were heard on January 17, 2014.

On January 17, 2014, in this case, appellant filed a written waiver of rights and plea form. Following advisements and waivers on the record, appellant entered a plea of no contest to theft as charged. The matter was referred to the probation department for a presentence report, and a sentencing hearing was set for February 14, 2014 at 8:45 a.m. in Salinas courtroom 3. Bail remained set at $3,500, and appellant remained in custody.

On January 17, 2014, in the earlier case, the court found appellant violated probation based on her plea in this case. The matter was referred to the probation department for a supplemental probation report. The matter was continued to February 14, 2014 at 8:45 a.m. in Salinas courtroom 3. No bail was allowed, and appellant remained in custody.

A probation report, which was filed on February 14, 2014 for the hearing in both cases, indicated that, on December 21, 2013, appellant violated section 484

and she was arrested and booked into Monterey County Jail the same day. The probation officer's credit calculation inconsistently indicated that appellant was held in custody in the Monterey County Jail from December 19, 2013 through February 14, 2014.⁵ The record before us indicates that appellant was booked into jail and that a probation hold was immediately placed on her.⁶

At the sentencing hearing on February 14, 2014, the trial court revoked and reinstated probation on the original terms and conditions and ordered appellant to serve 165 days in county jail in the earlier case. The court awarded total custody credit of 165 days for time served, which included 111 actual days and 54 days of conduct credit. In this case, the trial court placed appellant on probation subject to certain terms and conditions, including serving a term of 10 days in county jail consecutive to the probationary jail term imposed in the earlier case. The court awarded no credit against the probationary jail term imposed in this case.

On February 25, 2014, appellant filed a notice of appeal in this case.

A majority of a three-judge panel of the appellate division affirmed the judgment. One judge wrote a dissenting opinion. In reaching contrary results, both the majority and the dissenting opinions quoted at length from People v. Bruner (1995) 9 Cal.4th 1178, 40 Cal.Rptr.2d 534, 892 P.2d 1277

(Bruner ). Bruner established that “when presentence custody may be concurrently attributable to two or more unrelated acts, and where the defendant has already received credit for such custody in another proceeding,” the defendant must demonstrate that “but for” the conduct leading to his current sentence, the defendant “would have been free, or at least bailable, during that presentence period.” (Id. at p. 1180, 40 Cal.Rptr.2d 534, 892 P.2d 1277, see id. at pp. 1193–1194, 40 Cal.Rptr.2d 534, 892 P.2d 1277.)

The majority opinion of the appellate division decided that “even assuming, arguendo, that appellant would not have been in custody pending sentencing ‘but for’ the conduct in the case on appeal, section 2900.5, subdivision (b) nevertheless mandates that credit be given only once ‘for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.’ ” The majority's conclusion appears to have been based on People v. Blunt (1986) 186 Cal.App.3d 1594, 231 Cal.Rptr. 588

(Blunt ).

The dissenting judge disagreed that the single period of custody at issue in this case was attributable to multiple offenses, and she believed appellant was entitled to dual credits. She stated: “There is no question that the appellant would not have been in custody, during the period [at issue], ... ‘but for’ the new felony matter.” The judge recognized that where a defendant commits a new crime and the court imposes punishment in two separate cases (for the new crime and for an earlier crime following probation revocation), “the court is sentencing the defendant for multiple offenses.” But she distinguished the situation where the court revokes probation in a case based on the new offense but then reinstates probation and imposition of sentence remains suspended. In the dissenting judge's view, in the latter situation, “the defendant is not yet being sentenced on the underlying offense,” and, consequently, “the defendant is not being sentenced on multiple offenses and the ‘but for’ test applies.” As to any legitimate concern regarding dual credits, the dissenting judge suggested that courts seek a Johnson

or Burks waiver.⁷

Discussion

A. Background

At the time of the theft offense and through the time of sentencing, section 2900.5, subdivision (a), provided in pertinent part: “In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, 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, credited to the period of confinement pursuant to Section 4019 ... shall be credited upon his or her term of imprisonment....” (Stats. 2013, ch. 59, § 7, pp. 1430–1431; Stats. 2011, ch. 15, § 466, p. 480.) For purposes of section 2900.5, the phrase “ ‘term of imprisonment’ ” “includes any period of...