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Court of Appeal, Third District, California.

IN RE: Rick A. ATILES, On Habeas Corpus.

Cr. 11221.

Decided: October 27, 1982

Quin Denvir, State Public Defender and Augustus E. Noland, Deputy State Public Defender, for petitioner. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Roger E. Venturi and Anthony L. Dicce, Deputy Attys. Gen., for respondent.

The sole issue before us is whether petitioner is entitled to presentence credit on his current conviction for time spent in county jail on a parole revocation sentence.   For reasons herein set forth we conclude he is not so entitled.

The facts disclose that on May 3, 1979, petitioner was arrested and jailed in Sacramento County on charges of robbery (Pen. Code, § 211) and sodomy (Pen. Code, § 286) in Sacramento County Superior Court case No. 56246.   On the same day a parole hold was placed against him for a previous unrelated robbery conviction out of Sacramento County (Sacramento Superior Court case No. 49969).   Parole revocation proceedings resulted in a revocation of parole and imposition of a six-month term which expired November 3, 1979.   The allegations in case No. 56246 were the basis for parole revocation.

On November 6, 1979, petitioner posted bail in case No. 56246 and was released from custody.   Following his plea of guilty to one count of robbery and admission of the prior, petitioner was sentenced on December 19, 1979, to four years in state prison.   The plea to robbery was entered pursuant to a plea bargain whereby the sodomy charge was dismissed.   Defendant now asserts the six months served for parole violation should be credited against his sentence of four years in case No. 56246.

Section 2900.5 of the Penal Code, subdivision (b), provides:  “For the purposes of this section, 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.   Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.”  (Emphasis added.)   Petitioner asserts entitlement to credit for the six-month period served for parole violation on the basis it was attributable to parole revocation proceedings relating to the same conduct for which he was convicted in case No. 56246.   We note that even a cursory review of the parole revocation records demonstrates a substantial reason for the parole revocation and sentence was the sodomy charge, dismissed as part of the plea bargain and for which no sentence has been imposed in the current incarceration.   Moreover, the parole revocation sentence was attributable to petitioner's prior robbery conviction in case No. 49969.   His subsequent criminal conduct may have triggered the parole revocation proceedings but it was the prior unrelated conviction and incarceration which resulted in parole and the subsequent revocation.

Petitioner's reliance on In re Rojas (1979) 23 Cal.3d 152, 151 Cal.Rptr. 649, 588 P.2d 789, is misplaced.  Rojas squarely holds “that a defendant is not to be given credit for time spent in custody if during the same period he is already serving a term of incarceration.”  (At pp. 155–156, 151 Cal.Rptr. 649, 588 P.2d 789.)

Penal Code section 2900.5 mandates credit for time spent in custody prior to the commencement of a sentence.   As noted in Rojas the legislative intent was to eliminate the inequality suffered by indigent defendants, who by reason of being unable to post bail, served a longer period of confinement than those who were able to post bail.

But “There is no reason in law or logic to extend the protection intended to be afforded one merely charged with a crime to one already incarcerated and serving his sentence for a first offense who is then charged with a second crime.   As to the latter individual the deprivation of liberty for which he seeks credit cannot be attributed to the second offense.  Section 2900.5 does not authorize credit where the pending proceeding has no effect whatever upon a defendant's liberty.”  (In re Rojas, at p. 156, 151 Cal.Rptr. 649, 588 P.2d 789.)

Petitioner's confinement for the six-month parole violation sentence was not connected to the new robbery and sodomy charges.   He bailed out almost immediately upon the expiration of that sentence.   To allow credit on the current term for the incarceration for parole violation on a former offense would not only afford petitioner double credit but would negate the imposition of any sentence for parole violation and render such provisions meaningless.

People v. Simpson (1981) 120 Cal.App.3d 772, 174 Cal.Rptr. 790, and People v. Penner (1980) 111 Cal.App.3d 168, 168 Cal.Rptr. 431, on similar facts, have allowed such double credit.   We find these cases unpersuasive and disagree with the conclusion of the majority lament in Simpson (120 Cal.App.3d at p. 775, 174 Cal.Rptr. 790) that “Although it makes little practical sense and unwarrantedly removes any substantial deterrent effect from the threat of being remanded for further incarceration upon revocation of parole, under the law as presently written we hold he is entitled to dual credits.”

Both Simpson and Penner rely on Rojas as requiring double credit if a defendant while awaiting trial or other disposition on new charges serves an imposed sentence for parole violation.   We do not so read Rojas and agree with the dissent in Simpson that the plain holding of Rojas has been ignored or overlooked in Penner and the majority in Simpson.   That holding is “a defendant is not to be given credit for time spent in custody if during the same period he is already serving a term of incarceration.”  (In re Rojas, 23 Cal.3d at pp. 155–156, 151 Cal.Rptr. 649, 588 P.2d 789.)   The Rojas Court, in discussing In re Bentley (1974) 43 Cal.App.3d 988, 118 Cal.Rptr. 452, appears to approve the double credit sought by petitioner in stating “the defendant was on parole pursuant to a prior narcotics conviction when he was arrested for robbery.   It was the new charge which caused his loss of physical freedom and thus the time in custody for which he sought credit was based on the same conduct for which he was convicted, the robbery charge.”   (23 Cal.3d at p. 157, 151 Cal.Rptr. 649, 588 P.2d 789.)   Factually, Bentley was much more complicated in that the defendant therein, upon having his parole on the narcotics offense revoked for the subsequent robbery received concurrent sentences for the robbery and the revoked narcotics parole.   Prior to his new parole discharge date the defendant was charged with a third offense of manslaughter and while in presentence custody on that charge had his parole revoked and his term refixed at life.   He contended his presentence custodial time should be credited against his parole discharge date, which, if done, would have terminated his parole prior to the last parole revocation hearing and divested the Adult Authority of jurisdiction to hold such hearing, to revoke his parole and refix his sentence.   This assertion was rejected by the appellate court which held the presentence time could be credited only to his prison term and not to his parole discharge date.

We do not perceive the isolated statement about the Bentley case to be the holding of Rojas.   Moreover, Rojas expressly overruled In re Pollock (1978) 80 Cal.App.3d 779, 145 Cal.Rptr. 833, wherein section 2900.5 was interpreted “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.”   (At p. 783, 145 Cal.Rptr. 833.)

We view the Rojas case as holding that section 2900.5 credit is applicable only when the custody is attributable solely to the proceedings related to the conduct for which defendant is convicted.   As this court stated in In re Hodges (1979) 89 Cal.App.3d 221, at page 227, 152 Cal.Rptr. 394, “․ in Rojas, the court adopt[ed] the ‘sensible inference’ that ‘a defendant is only to be given credit for time spent in custody where, but for the proceedings related to the conduct for which he was eventually convicted, he might otherwise be at liberty.’  (Original italics;  23 Cal.3d at pp. 155–156 [151 Cal.Rptr. 649, 588 P.2d 789].)”

The petition for habeas corpus is denied;  the order to show cause is discharged.

CARR, Associate Justice.

PUGLIA, P.J., and REGAN, J., concur.