Pollock, In re, Cr. 3493
| Decision Date | 10 May 1978 |
| Docket Number | Cr. 3493 |
| Citation | 145 Cal.Rptr. 833,80 Cal.App.3d 779 |
| Parties | In re Michael L. POLLOCK, on habeas corpus. |
| Court | California Court of Appeals Court of Appeals |
Michael L. Pollock, in pro per. and Daniel T. Dauenhauer, Sacramento, under appointment by the Court of Appeal, for petitioner.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Eddie T. Keller and Gary A. Binkerd, Deputy Attys. Gen., Sacramento, for respondent.
All persons convicted of felony offenses are entitled to credit for time spent in custody prior to the commencement of their prison sentence. (Pen.Code, § 2900.5, subd. (a).) 1 The question raised by this petition for habeas corpus relief is whether a defendant is entitled to receive credit upon a prison sentence for the period of jail time spent awaiting disposition of the criminal proceedings which resulted in that sentence if during that same period of custody the defendant is serving a prison sentence on a conviction for an unrelated offense.
The dispute centers upon a portion of the time petitioner spent in a jail in Santa Clara County. On April 11, 1976, petitioner was arrested for an armed robbery he committed in Santa Clara County and was placed in the Santa Clara jail. On September 3, 1976, petitioner was sentenced to state prison on the Santa Clara armed robbery, following a court trial at which he was found guilty of the charge. If there were no other facts, petitioner would be entitled to credit upon his Santa Clara armed robbery conviction for all the days he spent in jail awaiting trial and sentencing thereon, which was from the day of his arrest on April 11, 1976, to the time he was sentenced on that conviction on September 3, 1976; 2 this would be a total of 146 days. 3
The complication arises because while petitioner was in the Santa Clara jail he was arrested on May 18, 1976, for a burglary he committed in San Mateo County some six months earlier on November 3, 1975; following his guilty plea to the San Mateo burglary charge, petitioner was sentenced to state prison on that conviction on June 4, 1976. However, petitioner was not transferred directly to a state prison facility to serve his sentence on the burglary conviction; he remained in the Santa Clara jail pending the disposition of the armed robbery charge. Nevertheless, pursuant to the first paragraph of section 2900, which permits the Director of Corrections to place a person committed to state prison in a local jail, petitioner's term of imprisonment on the San Mateo burglary conviction immediately commenced to run. 4
On the Santa Clara armed robbery conviction petitioner has been awarded only 54 days of presentence credit for time served in local custody from April 11, 1976 (the date petitioner was arrested on the Santa Clara charge), to and including June 3, 1976 (the day before the state prison sentence was imposed on the San Mateo conviction). Neither the Superior Court of Santa Clara County nor the Department of Corrections has given petitioner credit for presentence custody on his Santa Clara conviction for the time he spent in the Santa Clara jail from June 4, 1976 (the date petitioner was sentenced on the San Mateo conviction), to and including September 3, 1976 (the date petitioner was sentenced on the Santa Clara conviction), a total of 92 days. In the instant proceeding petitioner seeks credit on his Santa Clara conviction for these 92 days spent in custody prior to the imposition of sentence on that conviction. 5
The Attorney General concedes ". . . that petitioner is entitled to credit for whatever presentence custody is attributable to his Santa Clara conviction." But the Attorney General contends that petitioner is not entitled to be given credit on his Santa Clara conviction for the 92 days served in the Santa Clara jail from June 4, 1976 (the day petitioner was sentenced on the San Mateo conviction), until September 3, 1976 (the day petitioner was sentenced on the Santa Clara conviction), because that incarceration was attributable to petitioner's prison sentence on the San Mateo conviction.
In support of this position, the Attorney General points to subdivision (b) of section 2900.5 which presently states that ". . . 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." 6 The Attorney General claims that since the San Mateo offense was unrelated to the Santa Clara offense, and petitioner was serving a term of imprisonment on the San Mateo offense during the 92 days in question, petitioner cannot be given presentence credit on the Santa Clara offense for the same 92 days.
To some degree, it appears that the Attorney General is arguing that subdivision (b) of section 2900.5 should be read as though it contained an additional word, that is, ". . . credit shall be given only where the custody to be credited is attributable exclusively to proceedings related to the same conduct for which the defendant has been convicted." The Attorney General avers that such a construction is necessary because otherwise petitioner would be getting what is tantamount to a double credit. But the facts before us preclude the Attorney General from pressing that argument too far; petitioner here was granted double credit for a total of 17 days from May 18, 1976, to and including June 3, 1976. The Attorney General recognizes this, but asserts that subdivision (b) of section 2900.5 ". . . should not be construed as allowing any additional double credit for (petitioner)."
Another difficulty with the Attorney General's position arises from the indisputable fact that, even had there been no San Mateo conviction, petitioner nevertheless would have been in the Santa Clara jail awaiting trial and sentencing on the Santa Clara offense. It cannot fairly be said that the time so served is not attributable to the Santa Clara armed robbery conviction; at most, it could be said that the time served was not exclusively attributable to that crime. The legislature, of course, could have inserted the word "exclusively" in the statute, but it did not. Accordingly, we interpret section 2900.5 to provide that a defendant is entitled to receive credit upon a prison sentence for time spent in jail awaiting disposition of the criminal proceedings resulting in that sentence even though during that same period of jail time the defendant is serving a prison sentence on another conviction.
Our conclusion is supported by In re Bentley (1974) 43 Cal.App.3d 988, 118 Cal.Rptr. 452. There the petitioner was convicted of robbery in San Diego and sentenced to state prison; thereafter the conviction was reversed and the petitioner was returned to San Diego County for retrial where once again he was convicted of the robbery. At the time the petitioner committed the robbery he was on parole on a narcotics conviction; after he was arrested for the robbery a parole hold was placed on him; later the parole was revoked. The petitioner still was serving his prison sentence on the narcotics conviction when he was convicted of the robbery on retrial after the reversal. Thus, all of the time subsequent to the reversal when the petitioner was in the local jail awaiting retrial and sentencing he also was serving a prison sentence on an earlier unrelated offense.
In concluding that the petitioner was entitled to receive credit on his robbery sentence for the period of time spent in local custody subsequent to the reversal, the appellate court in Bentley pointed out that subdivision (b) of section 2900.5 does not say that credit shall be given only where the custody to be credited is attributable exclusively to charges arising from the same criminal act or acts for which the defendant has been convicted. (Supra, 43 Cal.App.3d at p. 992, 118 Cal.Rptr. 452.) Therefore, the court in Bentley held that the petitioner could ". . . receive credit for the time spent in jail awaiting the second trial although receiving credit at the same time on the narcotics conviction sentence." (Supra, 43 Cal.App.3d at p. 993, 118 Cal.Rptr. at p. 455.)
The Attorney General in 1972, after a somewhat different analysis than h...
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