PEOPLE v. SALAS

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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Robert Paul SALAS, Defendant and Appellant.

Cr. 42408.

Decided: September 21, 1983

Klein & Nelson, and Rowan K. Klein, Los Angeles, for defendant and appellant. John K. Van De Kamp and George Deukmejian, Attys. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., and Pamela P. Cvitan, Deputy Attys. Gen., for plaintiff and respondent.

Defendant and Patricia Dominguez were jointly charged with narcotic offenses:  A motion to suppress evidence was made and granted and the cases were dismissed.   On an appeal by the People, the order was reversed (2 Crim. No. 35180).   When remittitur went down, the codefendants and the People entered into a negotiation under which Patricia pled guilty and was granted probation; 1  defendant pled guilty to one count of possession for sale.   Patricia was promptly sentenced but sentencing of defendant was delayed for several months, partly for the convenience of counsel and partly because defendant did not appear and a bench warrant was necessary to bring him before the court.   When, finally, he did appear he was represented by Mr. Beckler, his court-appointed counsel, and Mr. Klein, privately employed.   Conferences in chambers and discussion in open court took place, wherein Mr. Beckler sought to be relieved, which request was granted.2  Mr. Klein then sought a continuance, on the ground that he had been retained only to argue defendant's request for extensive prejudgment credit, but was unprepared to try and argue a motion under section 1018 of the Penal Code, or to comment on the probation report.   The requested continuance was denied and, after a short recess, Mr. Klein did try and argue the credit matter, but refused on the ground of inadequate time to prepare, to comment on the probation report.   Defendant was sentenced in accordance with the negotiated plea.   He appealed.   By an opinion filed on February 11, 1983, we affirmed the judgment.   The Supreme Court granted hearing and by its order of June 23, 1983, retransferred the case to us “for reconsideration in the light of In re Atiles (1983) 33 Cal.3d 805 [191 Cal.Rptr. 452, 662 P.2d 910].”  We requested, and have received, supplemental briefs on the issue thus posed by the Supreme Court.   Since the remand was directed only to one issue, we reaffirm our opinion on the other issues and again reject them.

I–III **

IV

Originally, the parties agreed that, apart from the holding in In re Rojas (1979) 23 Cal.3d 152, 151 Cal.Rptr. 649, 588 P.2d 789, defendant might have been entitled to the credit he now seeks, and that, under that decision, if applicable, he is not so entitled.

On the first appeal, defendant's contention was based on the theory that, since his offenses were committed in 1977, to apply Rojas would constitute an unconstitutional application.   We rejected that contention in the following language:

“Rojas involved the construction of Penal Code section 2900.5 and was the first case in which the Supreme Court considered that statute in that context.   That there had been some dicta by the Courts of Appeal construing the statute differently is unimportant.   Defendant can hardly say that he had relied on a more favorable construction when he committed his offense and certainly not that he had relied on the Court of Appeal cases when, in the fall of 1981, almost three years after Rojas was decided, he entered into his negotiated plea.”

We then discussed other contentions and affirmed the judgment.   Defendant was granted hearing in the Supreme Court and, on June 23, 1983, that Court retransferred the case to us “for reconsideration in light of In re Atiles (1983) 33 Cal.3d 805 [191 Cal.Rptr. 452, 662 P.2d 910].”

As directed, we have examined the issue of credit in the light of the opinion in Atiles.   The issues there, as here, relate to the application of section 2900.5 of the Penal Code on a defendant serving prison or jail time on a previous offense while awaiting sentence on a second offense.   We cannot find, in the Atiles opinion, read in light of the facts of that case, any reason to change our original holding.

In Atiles, defendant was on parole after a previous conviction.   While on parole, he was charged with, and arrested for a new offense.   His incarceration pending proceedings to revoke his parole was based on the new charge.   Atiles, on its facts, goes no further than to hold that defendant Atiles, thus, was held, pending both the revocation hearing and the trial on the new charge, on the same facts—i.e., in the words of section 2900.5 of the Penal Code, for conduct “attributable” to the new charge.   Here, so far as the record before us shows, there was no factual relationship between the charge in case No. 328,376 and the charge in the present case.   Although both cases involved narcotics, the offenses were at different times and involved quite different conduct.   Thus, defendant was not held, for the period of time herein involved, for any conduct “attributable” to the transaction involved in the present case.  Atiles is not in point, and the holding in that case does not affect the applicability of Rojas to this case.

The judgment is affirmed.

FOOTNOTES

1.   Patricia's case is not before us.

2.   The propriety of that action is not here questioned.

FOOTNOTE.   Not certified for publication.

KINGSLEY, Associate Justice.

WOODS, P.J., and McCLOSKY, J., concur.