Shute, In re

• Decision Date: 19 May 1976
• Docket Number: Cr. 8268
• Court: California Court of Appeals Court of Appeals
• Parties: In re John William SHUTE on Habeas Corpus.

Page 270

130 Cal.Rptr. 270

58 Cal.App.3d 543

In re John William SHUTE on Habeas Corpus.

Cr. 8268.

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

May 19, 1976.

Hearing Denied July 21, 1976.

Appellate Defenders, Inc. by Paul Bell, San Diego, under appointment by the Court of Appeal, for petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Harley D. Mayfield and Alan S. Meth, Deputy Attys. Gen., for respondent.

GERALD BROWN, Presiding Justice.

There are many facets to what starts out as a simple matter.

On July 18, 1975 John William Shute filed a petition for writ of habeas corpus in the Supreme Court of California, praying for a credit of 385 days pre-sentence commitment time. The petition states Shute was an inmate of the California Medical Facility at Vacaville, California.

On October 30, 1975 the Supreme Court ordered the Director of the Department of Corrections to show cause before this Court why the relief prayed for should not be granted, citing In re Bentley, 43 Cal.App.3d 988, 118 Cal.Rptr. 452. The Supreme Court ordered the written return to be served and filed on or before November 10, 1975.

The Attorney General of California filed a return on November 10, 1975, stating Shute had been granted 22 days credit and was entitled to no more credit. On November 17, 1975 Shute filed a traverse to the return. We appointed Appellate Defenders, Inc. as Shute's attorney on December 11, 1975.

The hearing before this Court on the order to show cause was originally scheduled for March 9, 1976 but was extended a month on Appellate Defenders' application, in order that it might file a supplemental argument in Shute's behalf, considering the possible effect of an opinion filed in the Court of Appeal, Third Appellate District relating to Shute. The application stated the delay would not prejudice Shute, because he is now released on parole.

The matter was again continued because of the filing of additional papers, Shute seeking to expand his prayer to dismissal of the superior court judgment underlying his petition, and the filing of a supplemental return of the Attorney General with the request we judicially notice the Third Appellate District's file, 3 Crim.No. 6796, with opinion (referred to in the paragraph above). We granted that request. The Attorney General claims that case is dispositive of the matter before us.

We shall present the background to the current situation.

On February 4, 1970 Shute was convicted on a guilty plea in the Orange County Superior Court, of selling marijuana (Health & Saf.Code § 11531). Free on bail, he was ordered to return to court on March 12, 1970 for sentencing. He did not return, and was fugitive from justice for almost a year. He was arrested on February 9, 1971, was indicted in Federal Court for possessing counterfeit money, pled guilty to the misdemeanor of removing property subject to seizure, was sentenced to one year in federal custody, the 'sentence to run concurrent with any charge he will he serving during that period of time for the State of California.'

Shute was released from federal custody on January 5, 1972, was taken to San Francisco County Superior Court where he was convicted on a plea of guilty for possessing marijuana; was taken to Orange County in February, where on February 24, 1972 he was sentenced for the crime on which he had failed to appear almost two years before, the sentence being for the term prescribed by law, five years to life. The Adult Authority fixed the time at 11 years total, which included 9 years basic for selling marijuana, listed as being an aggravated case, and 2 years for the Federal misdemeanor of removing property subject to seizure. Mention was made of a manslaughter conviction in 1953, for which the Adult Authority added no time. The Third District's file, 3 Crim. No. 6796, contains authoritative information Shute's 1953 conviction was in the federal court in the District of Columbia, for murder in the first degree.

In his original petition for writ of habeas corpus, filed in the Supreme Court July 18, 1975, Shute states no appeal was taken from the judgment pronounced February 24, 1972. He lists four other petitions for writs of habeas corpus, and identifies them. He does not list two additional petitions for writ of habeas corpus, one in the Third District, file 3 Crim.No. 6796, which we have mentioned, and the other in the Federal District Court, Central District, both of which his counsel has brought to our attention. We shall treat these two other petitions later.

The original petition bases its claim for pre-sentence commitment time credit on Penal Code section 2900.5, which provides:

'(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 custdy 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 date of this section.'

The statute says nothing about credit for time while in federal custody.

Shute also bases his request for time credit on In re Miller, 41 Cal.App.3d 125 which allowed state credit for time spent in federal custody where the California sentence had been ordered to run concurrently with the federal sentence. The Court of Appeal, however, granted a rehearing in that case, making the opinion nonexistent, and reached a different result in the final opinion, In re Miller, 41 Cal.App.3d 1046, 116 Cal.Rptr. 624. Miller was not entitled to credit for pre-sentence time in federal custody on federal charges not reasonably attributable to the state charge.

Shute's time in federal custody, regarding counterfeit money, had nothing to do with his marijuana conviction in Orange County. The federal proceeding was wholly unrelated to the state matter and custody under it was not attributable to the state case (In re Miller, supra, 41 Cal.App.3d 1046, 116 Cal.Rptr. 624). Credit in the state proceeding for the federal time is not allowed under Penal Code section 2900.5. In re Bentley, supra, 43 Cal.App.3d 988, 118 Cal.Rptr. 452, is not helpful to Shute's position. Bentley does state any credits for time are not applicable to a parole term (p. 995, 118 Cal.Rptr. 452). Shute is now on parole.

In an addendum (A) to his original petition, Shute states while he was in federal custody he sought, through attorney David I. Berman, removal to Orange County for sentencing, but the Orange County District Attorney refused to heed his request; the request occurred October 1, 1971; on November 4, 1971, Attorney Berman requested a withdrawal of the guilty plea and a speedy rearraignment; the district attorney declined to act. One may be forgiven for wondering about the incongruity of Shute's suddenly becoming anxious to be sentenced, when his own conduct of disappearing for a year had prevented it.

Penal Code section 1381.5 provides:

'Whenever a defendant has been convicted of a crime and has entered upon a term of imprisonment therefor in a federal correctional institution, and at the time of entry upon such term of imprisonment or at any time during such term of imprisonment there is pending in any court of this state any criminal indictment, information, complaint, or any criminal proceeding wherein the defendant remains to be sentenced the district attorney of the county in which such matters are pending, upon receiving from such defendant a request that he be brought to trial or for sentencing, shall promptly inquire of the warden or other head of the federal correctional institution in which such defendant is confined whether and when such defendant can be released for trial or for sentencing. If an assent from authorized federal authorities for release of the defendant for trial or sentencing is received by the district attorney he shall bring him to trial or sentencing within 90 days after receipt of such assent, unless the federal authorities specify a date of release after 90 days, in which event the district attorney shall bring the prisoner to trial or sentencing at such specified time, or unless the defendant requests, in open court, and receives, or, in open court, consents to, a continuance, in which event he may be brought to trial or sentencing within 90 days from such request or consent.

'If a defendant is not brought to trial or for sentencing as provided by this section, the court in which the action is pending shall, on motion or suggestion of the district attorney, or representative of the United States, or the defendant or his counsel, dismiss the action.'

The features in section 1381.5 relating to sentencing were added in 1971, and, as Shute points out, were not in effect when Shute made his requests. But even without the words, sentencing is covered in the statute in its pre-1971 language. Sentencing is a part of a speedy trial....