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

The PEOPLE, Plaintiff and Respondent, v. Carl Anthony RIOLO, Defendant and Appellant.

Cr. 41100.

Decided: August 02, 1982

Quin Denvir, State Public Defender, under appointment by the court of appeal, William Blum, Deputy State Public Defender, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Roy C. Preminger and Pamela M. Nelson, Deputy Attys. Gen., for plaintiff and respondent.

In Santa Barbara Superior Court case No. 136395, Carl Anthony Riolo was convicted by plea of second degree burglary (Pen.Code, §§ 459, 460) and sentenced to state prison for the upper three year term.   Earlier grants of probation in case Nos. 127947 and 131708 were revoked and while concurrent to each other, the eight month terms imposed on these two cases were designated as consecutive subordinate terms to the principal term of three years in case No. 136395.   The sentencing court expressly denied credit for presentence confinement in the latter two cases.   He appeals contending:  “The trial court erred in denying appellant credit for time served in presentence custody in cases 127947 and 131708 prior to his arrest in case 136395.”

Appellant's contention is without merit.  Penal Code section 2900.5, subdivision (a), provides, in pertinent part, that “․ 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, and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his term of imprisonment ․”  Here the court selected the middle two year term for the offenses in case Nos. 127947 and 131708.   By reason of the provisions of Penal Code section 1170.1, subdivision (a), California Rules of Court, rule 447,1 and illustrated by our previous opinion in People v. Bond (1981) 115 Cal.App.3d 918, 921, 172 Cal.Rptr. 4, the consecutive subordinate terms were limited to but one-third of the middle two year term on each case, i.e., eight months.   However, the eight month periods are not “terms of imprisonment” within the meaning of Penal Code section 2900.5.   The “terms of imprisonment” selected were two years and as against these terms, credit should theoretically be extended.   In 131708 and 127947, appellant claims that he is entitled to credit of 276 and 198 days, respectively.2  This accumulated credit is here pragmatically inapposite.   Only if appellant were entitled to more than two-thirds of the middle term, i.e., sixteen months, would the excess operate to reduce the eight month period.   A contrary determination would mean, inter alia, that a defendant who had accumulated credit equal to or more than one-third of the middle term and who thereafter failed to perform during the period of probation, would have little to fear from violation caused by the commission of another offense.   Supposition that the former case would serve to aggravate a subsequent one might be true.   Nevertheless, were appellant's contention credited, no further penalty could be imposed for the initial offense per se.   We cannot believe that the Legislature intended that recidivists who have accumulated credit equal to or more than one-third of the middle term are to be immune from the consecutive sentence provisions of the Determine Sentence Law.   As appellant points out, In re Ricky H (1981) 30 Cal.3d 176, 185, fn. 7, 178 Cal.Rptr. 324, 636 P.2d 13, does indicate that in the context of an aggregated juvenile term, a minor would be entitled to credit for actual confinement served against the aggregated term after it has been reduced by two-thirds.   However, no aggregation issue was even present in that case and the Supreme Court's observation is quite obviously a dictum.  “While the stare decisis doctrine requires us to adhere to the decisions of the Supreme Court, the doctrine does not apply to dictum.  [Citations.]”  (People v. Gregg (1970) 5 Cal.App.3d 502, 506, 85 Cal.Rptr. 273.)   In the words of the Supreme Court, “[i]ncidental statements or conclusions not necessary to the decision are not to be regarded as authority.”  (Simmons v. Superior Court (1959) 52 Cal.2d 373, 378, 341 P.2d 13.) 3

The judgment is affirmed.

I dissent from what I respectfully consider to be outright judicial legislation by my colleagues.   A court must follow a constitutional statute regardless of its approval or disapproval thereof.   The statute under consideration herein, Penal Code section 2900.5, is of unquestioned constitutional validity.   Further, as I shall explain, applying it in the manner chosen by the majority constitutes an infringement upon defendant's constitutional right to the equal protection of the laws.

Appellant's contention that he is entitled to credit for time served in presentence custody is well taken.

The Supreme Court in footnote 7 in In re Ricky H. (1981) 30 Cal.3d 176, 185, 178 Cal.Rptr. 324, 636 P.2d 13, noted that if a consecutive term for burglary counts had been imposed in that case, the minor “would be entitled to credit against that term for the actual number of days in confinement ․”

The Supreme Court's view of the “term of imprisonment” in section 2900.5 is consistent with the definition of “term of imprisonment” in subdivision (c) in section 2900.5.   Subdivision (c) of section 2900.5 defines “term of imprisonment” as “any period of imprisonment imposed as a condition of probation or otherwise ordered by a court in imposing or suspending the imposition of any sentence ․”

The “term of imprisonment” for the purposes of section 2900.5 has nothing more to do with the fact that theoretical terms of two years were imposed and the excess over eight months stayed by operation of law (see Pen.Code, § 1170.1, subd. (a);  Cal.Rules of Court, rule 447) than it does with any sentence imposed after the trial court suspends imposition of that sentence and places a defendant on probation.   In both situations, the provisions of section 2900.5 allow an award of credit for presentence confinement.

The majority's cavalier disregard for the opinion on the subject under discussion expressed by the unanimous decision of the Supreme Court in In re Ricky H., supra, 30 Cal.3d 176, 178 Cal.Rptr. 324, 636 P.2d 13, is surprising, in view of the fact that one of the signers of the majority decision herein also was a member of the court which decided Ricky.   What is even more surprising is that the Ricky footnote was not “pure” dictum, but rather was a considered statement relevant to the reasoning of the Ricky decision.

“The disdain for dicta is a myth:  The most respected judges indulge in it, for one purpose or another;  and the line between necessary background statements of principle and unnecessary dicta is not easy to draw.  (See Comment, 4 Stan.L.Rev. 509.)”  (Witkin, Manual on App.Ct.Opinions (1977) § 86, p. 156.)

See Nolan v. Transocean Air Lines (1961) 365 U.S. 293, 295–296, 81 S.Ct. 555, 557, 5 L.Ed.2d 571, where the high court observed that certain holdings of the California Court of Appeal were in conflict with a “considered, relevant dictum of general scope by the California Supreme Court” (id., at p. 296, 81 S.Ct., at p. 557) and then commanded the Court of Appeals to reconsider its holding in light of the California Supreme Court dictum.

At least one Court of Appeal case has held that dictum of the Supreme Court is binding upon the Court of Appeal:  “The case is squarely controlled by a dictum in Cornelison v. Kornbluth [15 Cal.3d 590, 125 Cal.Rptr. 557, 542 P.2d 981], and in obedience to that dictum we must reverse the judgment of dismissal.”   (Hickman v. Mulder (1976) 58 Cal.App.3d 900, 902, 130 Cal.Rptr. 304.)

The majority's reasoning permits Penal Code section 2900.5 to provide disparate treatment of similarly situated persons in violation of both the California and United States Constitutions which guarantee equal protection of the laws.  (U.S.Const., 14th Amend.;  Cal.Const., art. I, § 7, subd. (a).)  One example demonstrates the point, although others might be stated.   A and B are convicted of burglary and in each case imposition of sentence is suspended and probation granted on condition that six months be served in jail.   A serves the jail time because he is not able to post bail on appeal.   B, not indigent, posts his appeal bond and remains free.   Subsequently, both A and B are convicted of armed robbery and their probation revoked.   Consecutive sentences are imposed with the prior burglaries being the subordinate terms.   Under the holding of the majority herein, indigent A would serve six months longer on the subordinate term than would affluent B.   As Justice Richardson said in People v. Rojas (1979) 23 Cal.3d 152, 156, 151 Cal.Rptr. 649, 588 P.2d 789.  “The legislative purpose [in enacting Penal Code section 2900.5] appears to have been to eliminate the unequal treatment suffered by indigent defendants who, because of their inability to post bail, served a longer overall confinement than their wealthier counterparts.  [Citations.]”

Appellant is entitled to credit for presentence custody time against the eight-month term imposed in cases 127947 and 131708.  (Pen.Code, § 2900.5, subd. (b).)  As the two eight-month consecutive terms are concurrent sentences, appellant, however, is entitled only to credit for 198 days against the eight-month terms.  (See In re Ricky H., supra, 30 Cal.3d 176, 185, 178 Cal.Rptr. 324, 636 P.2d 13.)

If, as urged by the Attorney General, there are policy considerations which require a different result, a change in the provisions of section 2900.5 is a matter which should be undertaken by the Legislature.


1.   Rule 447 provides:  “No allegation or finding of a fact giving rise to an enhancement shall be stricken or dismissed because imposition of the additional term therefor is prohibited by section 1170.1(a) or 1170.1(d), or because the aggregate for enhancements would exceed the limit established by section 1170.1(a), or because the overall aggregate term of imprisonment would exceed the limit established by section 1170.1(f).   The sentencing judge shall impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and shall thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit.   The stay shall become permanent upon the defendant's service of the portion of the sentence not stayed.”

2.   The requested credit is attributable to pre-conviction confinement, time served thereafter as a condition of probation, and conduct credit by reason thereof.

3.   Contrary to the dissent's claim, we have not engaged in “outright judicial legislation” which we abhor.   All we are doing is interpreting the words “terms of imprisonment” in Penal Code Section 2900.5 in a common sense logical manner to harmonize with the entire sentencing scheme.Moreover, “[t]he general rule is that one will not be heard to attack the constitutionality [or application] of a statute on grounds not applicable to his own case.  [Citations.]”  (People v. Brown (1973) 35 Cal.App.3d 317, 327–328, 110 Cal.Rptr. 854.)

L. THAXTON HANSON, Associate Justice.

LILLIE, Acting P. J., concurs.

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