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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Leo Henry ADRIAN, Defendant and Appellant.

Cr. 11180.

Decided: May 09, 1983

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Marjorie C. Swartz, Deputy State Public Defender, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert D. Marshall and Eileen Ceranowski, Deputy Attys. Gen., for plaintiff and respondent.

While on misdemeanor probation, having been convicted in 1977 of driving under the influence of drugs (former Veh.Code, § 23105), defendant was charged with assault with a deadly weapon (Pen.Code, § 245, subd. (a)).  He posted bail and remained at large until May 23, 1979, at which time his probation was revoked and he was incarcerated for the misdemeanor conviction.   The probation violation charge was based solely upon the facts underlying the felony assault charge.   It appears that a sentence of five months county jail and a $500 fine was imposed on the misdemeanor conviction.   In any event, defendant remained in custody on that commitment until August 30, 1979, at which time he was released on the bail previously posted on the assault charge.

On December 4, 1979, defendant was convicted on the felony assault charge;  his bail was exonerated and he was remanded to custody.   He was sentenced to state prison on December 28, 1979, and filed his notice of appeal December 29, 1979 (3 Crim. 10654).   The judgment has been affirmed and is now final (People v. Adrian (1982) 135 Cal.App.3d 335, 185 Cal.Rptr. 506).

On January 8, 1980, the appellate department of the superior court reversed the municipal court's order revoking defendant's misdemeanor probation for denial of defendant's right to confrontation in the violation hearing.

On October 17 and November 28, 1980, the superior court denied defendant's motions to credit his state prison sentence with the time he served on the misdemeanor conviction—May 23 to August 30, 1979—following probation revocation.   On December 3, 1980, defendant filed notice of the instant appeal from the denial of these motions (3 Crim. 11180).

On this appeal defendant argues he is entitled to the credits denied him by the superior court under the authority either of Penal Code section 2900.1 or Penal Code section 2900.5.   We shall uphold the orders denying credit.

 Preliminarily we reject the People's contention that dismissal of the appeal is mandated by the rule stated in People v. Lynn (1978) 87 Cal.App.3d 591, 151 Cal.Rptr. 562.   There the defendant expressly sought pre-sentence custody credit at the sentencing hearing.   Credit was denied but defendant failed to contest the denial on appeal from the judgment.   Six months later, his motion for the identical credit was denied by the trial court.   His appeal therefrom was dismissed because his failure to raise the issue on the original appeal was deemed to constitute a waiver.  “To permit this [the later motion and appeal] would allow [defendant] to greatly extend the period for filing an appeal through bootstrapping.”  (P. 593, 151 Cal.Rptr. 562.)

The instant matter is distinguishable.   There was no order or ruling which could have been reviewed on the first appeal because award of the pre-sentence custody credits sought here was never requested of the trial court prior to filing the notice of appeal from the judgment.   The reason for the omission is unclear, but there is sufficient evidence in the record to suggest that if the request has merit, the failure timely to raise it would be remediable under constitutional principles if not by belated application under the statutes governing pre-sentence custody credit.

 Penal Code section 2900.1 does not apply in these circumstances.   It provides:  “Where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts.”

The bounds of Penal Code section 2900.1 were circumscribed in People v. Schuler (1977) 76 Cal.App.3d 324, 142 Cal.Rptr. 798, as follows:  “Section 2900.1 is only applicable where defendant has served a part of a sentence for an offense, and the judgment is declared invalid (or is modified), and the defendant is then convicted and/or sentenced again for the same offense (or an offense based on the same criminal act or acts).”  (At p. 333, 142 Cal.Rptr. 798.)   Here the only judgment imposed upon conviction for the assault offense remains valid and is now final.   The custody for which credit is sought was served under a judgment of conviction for an unrelated narcotics offense which antedated the assault offense by more than a year.  Penal Code section 2900.1 affords defendant no relief.

 As a preface to dealing with defendant's Penal Code section 2900.5 contention, we point out that reversal of the order revoking defendant's misdemeanor probation is irrelevant to the analysis of this particular claim.   Defendant is entitled to presentence custody credit under that section “only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted.”  (Pen.Code, § 2900.5, subd. (b).)  It is the fact of such custody not its validity which is determinative.

We are of course aware that the applicability to these facts of credit under section 2900.5 is the subject of conflicting Court of Appeal decisions, each of which undertakes to distill from In re Rojas (1979) 23 Cal.3d 152, 151 Cal.Rptr. 649, 588 P.2d 789, a definitively governing principle.  (See People v. Penner (1980) 111 Cal.App.3d 168, 168 Cal.Rptr. 431;  People v. Simpson (1981) 120 Cal.App.3d 772, 174 Cal.Rptr. 790;  In re Anderson (1982) 136 Cal.App.3d 472, 186 Cal.Rptr. 269;  In re Atiles (1982) 137 Cal.App.3d 49, 186 Cal.Rptr. 705, hg. granted, Jan. 5, 1983.)

In Rojas, the petitioner, serving a prison term for manslaughter, was charged with an unrelated murder.   Convicted of murder, he sought pre-sentence custody credit for the time pending trial and conviction on the murder charge which he was already required to serve under the manslaughter commitment.   The Supreme Court held:  “․ 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 23 Cal.3d at pp. 155–156, 151 Cal.Rptr. 649, 588 P.2d 789.)   The court explained:  “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.”  (Italics in original;  Rojas, supra, at p. 156, 151 Cal.Rptr. 649, 588 P.2d 789.)

Had the Supreme Court concluded with this explanation, some of the recent confusion might have been avoided, leaving to a concrete controversy resolution of the different question involved here, i.e., whether custody credited to a pre-existing judgment only partly “attributable to proceedings related to the same conduct for which defendant has been convicted,” is to be credited also against the later imposed term.   It is ironic that the court's further exegesis of the issue before it has transmuted Rojas into the definitive authority for the very opposite of the proposition which it in fact decided:  a defendant is not entitled to double credit for pre-sentence custody served under a pre-existing term of incarceration.  (Rojas, supra, pp. 155–156, 151 Cal.Rptr. 649, 588 P.2d 789.)

The confusion arises from the court's discussion of In re Bentley (1974) 43 Cal.App.3d 988, 118 Cal.Rptr. 452, a case for all intents and purposes factually indistinguishable from the case at bench and accordingly, inapposite to the Rojas problem.   The Bentley court credited petitioner's later imposed robbery term with pre-sentence custody also necessarily credited to a parole violation term for a pre-existing narcotics conviction because revocation of parole was based on the same facts which underlay the robbery charge.   Recognizing the inconvertible causal link between the parole violation term and the antecedent narcotics conviction, the Bentley court determined nonetheless that credit was also due against the robbery term because Penal Code section 2900.5 “does not say ‘attributable exclusively to charges arising,’ etc.”  (Italics in original;  Bentley, supra, 43 Cal.App.3d at p. 992, 118 Cal.Rptr. 452.) 1  Rojas criticized the Bentley rejection of exclusivity as a condition for credit eligibility as “an unnecessary semantic exercise” that “injected a nonexistent ambiguity into the statute.”  (Rojas, supra, 23 Cal.3d at p. 157, 151 Cal.Rptr. 649, 588 P.2d 789.)   Given that criticism, Rojas understandably has been read as standing for “the proposition that section 2900.5 credit applies only where the custody is exclusively attributable to proceedings related to the same conduct for which defendant has been convicted.”  (Italics in original;  People v. Simpson, supra, 120 Cal.App.3d at p. 780, 174 Cal.Rptr. 790, dis. opn., Cologne, J.)

Having disapproved “the questionable reasoning of Bentley” (Rojas, supra, 23 Cal.3d at p. 157, 151 Cal.Rptr. 649, 588 P.2d 789), Rojas reintroduced ambiguity into the statute with the cryptic dictum that “The Bentley result was correct under a literal reading of section 2900.5 ․”  (At p. 157, 151 Cal.Rptr. 649, 588 P.2d 789.)   That dictum has been cited as “Supreme Court precedent” for awarding double custody credit against both a parole revocation term and a commitment on a later conviction where the former is based on the facts underlying the latter.  (See, e.g., In re Anderson, supra, 136 Cal.App.3d at p. 474, 186 Cal.Rptr. 269.)

On its facts, Rojas clearly stands for the common sense rule that time served upon a precedent conviction and commitment cannot be causally ascribed to a later temporally overlapping charge of criminal conduct.   That conclusion is compelled by the laws of nature if not by the tenets of statutory construction.   Factually Rojas did not involve the situation where custody for which credit is sought is causally related both to a precedent conviction and a later charge of criminal conduct.   Accordingly, Rojas does not have the force of binding precedent in cases such as this where those are the facts;  however, as a decision of the Supreme Court which addressed that fact situation in dicta, it should be accorded persuasive effect.   Unfortunately, the persuasive force of Rojas on the question before us is diffused antipodally.   As a result the application or not of Penal Code section 2900.5(b) to the instant fact pattern has not been authoritatively determined.

In deciding this appeal, we must determine whether the Legislature intended that double credit be awarded in the circumstances with which we are confronted.   Does section 2900.5 authorize credit where the conduct for which defendant was convicted was a cause or only where it was the cause of the pre-sentence custody?   Viewing the statute as part of a comprehensive legislative scheme to punish criminal conduct through imprisonment, we conclude the latter formulation is the correct construction.

A sentence pursuant to Penal Code sections 1168 or 1170 shall include a period of parole, unless waived.  (Pen.Code, § 3000.)  “Confinement pursuant to a revocation of parole in the absence of a new conviction and commitment to prison under other provisions of law, shall not exceed 12 months.”   (Pen.Code, § 3057, subd. (a).)  The purpose of imprisonment for crime is punishment.  (Pen.Code, § 1170, subd. (a)(1).)   These provisions evince a legislative policy favoring close supervision of those recently released from prison including the exaction of additional punishment to encourage strict adherence to terms of parole and to discourage any relapse into recidivism.   Allowance of double credit for parole revocation terms in circumstances like those present here would frustrate that policy.   Award of double credit permits a parolee who commits a felony to collapse any period of punishment imposed for the parole violation into his new term.   While the parolee's new term of imprisonment may still be enhanced by virtue of service of the prior prison term even though he has not been discharged from parole (Pen.Code, § 667.5;  People v. Espinoza (1979) 99 Cal.App.3d 59, 159 Cal.Rptr. 894), the same may be said of any convicted felon whether or not on parole who has served a prior prison term within the meaning of Penal Code section 667.5.   However, the statute contemplates an additional sanction against a parolee who commits a felony as distinguished from one who, although a convicted felon, has successfully completed and been discharged from parole.   Award of double credit would reduce or eliminate any sanction for parole violation against every parolee whose violation consists of commission of another felony, anomalously preserving the sanction in the case of parolees guilty of less serious, non-criminal violations which nevertheless merit return to custody.   We do not believe the Legislature intended such a questionable policy or the bizarre result to which it would lead, in effect, singling out for the more harsh treatment the less culpable within a group whose members are in all other respects similarly circumstanced.

Award of double credit would lead to similar untoward consequences following probation revocation depending, as with parole revocation, upon whether the violation is for commission of a new crime or for conduct not itself criminal.   Moreover, award of double credit, constituting as it does a mandate of at least partial concurrency, would seriously impinge upon the trial court's discretion to impose fully consecutive sentences in cases such as the one at bench where the probation offense is a misdemeanor.  (See People v. Hartsfield (1981) 117 Cal.App.3d 504, 508–509, 172 Cal.Rptr. 794.)

Neither of the competing interpretations urged upon us does violence to the explicit text of subsection (b) of section 2900.5.   While exclusivity is not an express condition of double credit, neither is double credit expressly mandated in all cases other than where “the pending proceeding has no effect whatever upon a defendant's liberty.”  (Emphasis added;  Rojas, supra, 23 Cal.3d at p. 156, 151 Cal.Rptr. 649, 588 P.2d 789.)   Statutes should be interpreted so as to achieve a result which is reasonable and comports with the apparent purpose and intent of the Legislature.   A practical construction is preferred to one that is technical and is required when the latter would lead to mischief or absurdity.  (Stanley v. Justice Court (1976) 55 Cal.App.3d 244, 253, 127 Cal.Rptr. 532.)   To avoid what we believe to be the unintended and unfortunate consequences we have discussed, we adopt the construction that denies the award of double credit in the instant circumstances.

The orders denying credit are affirmed.

I dissent.

The majority opinion departs from the express language of Penal Code section 2900.5, subdivision (b).   It fails to see that the 1976 amendment to Penal Code section 2900.5, subdivision (b) (Stats.1976, ch. 1045, § 2) wholly excised the semantic context upon which its implied statutory interpretation is premised.   While it acknowledges the amendment it makes no analysis of its significance.   The amendment 1 is what this case is all about.

Prior to 1976 credit could be given only for custody “attributable to charges arising from the same criminal act” for which the defendant was convicted.   (Emphasis added.)   This language strongly suggested the grounds of custody to be credited were limited to the pending criminal action by causally linking them only to the charges for which the defendant was convicted.   Thus, it could be argued, custody grounded upon a probation violation could not be credited because it was not (causally) “attributable to” such “charges.”

The 1976 amendment eliminated this singular causal linkage.   It requires credit be given for custody which is “attributable to proceedings related to the same conduct” for which the defendant is convicted.   The amendment can have no other plausible significance than to expand the grounds of custody, for which credit must be given, beyond those exclusively attributable to the pending criminal action.   It excised the language linking the ground of custody to the pending criminal charges.   It added language linking custody to “proceedings related to the same conduct” at issue in the pending criminal action.   Custody “attributable to” a probation revocation “proceeding”, which is predicated upon (“related to”) the “same conduct” for which the defendant is convicted, fits the amendment to a T.

The majority make no analysis of these language changes nor do they even read the amended statute.2  Rather, they footnote (fn. 2) an unsupported assertion in In re Rojas (1979) 23 Cal.3d 152, 151 Cal.Rptr. 649, 588 P.2d 789 that the 1976 amendment “remained virtually identical to the original version” (Id., at p. 156, 151 Cal.Rptr. 649, 588 P.2d 789), an assertion wholly unnecessary to the resolution of the case.   In Rojas the defendant wanted credit for time served in prison for a prior offense.   The prior offense obviously had nothing to do with the conduct underlying the new offense;  it was not the “same conduct ”, an indispensible requirement for custodial credit under Penal Code section 2900.5.

The majority proceed from the Rojas dictum and seek to exploit the Rojas assertion “[s]ection 2900.5 does not authorize credit where the pending proceeding has no effect whatever upon a defendant's liberty.”  (Rojas, supra, at p. 156, 151 Cal.Rptr. 649, 588 P.2d 789.)   They say Rojas “stands for the common sense rule that time served upon a precedent conviction ․ cannot be causally ascribed to a later temporally overlaying charge of criminal conduct.”  (Emphasis added.)   Not so.

The majority opinion invents a causal theory not contained in either the 1976 amendment or Rojas in saying that section 2900.5 does not apply where the conduct upon which the probation revocation is predicated is causally linked (temporally overlayed) to both the pending charges and the pre-existing offense for which probation was imposed.   The express provisions of section 2900.5 tell us otherwise.   The dual causal linkage ruled out by the majority is expressly provided for by use of the phrase “proceedings related to the same conduct ”, language which plainly implies the conduct justifying the custody has dual significance:  it is causally linked to the pending prosecution because it is the same conduct for which prosecuted;  it is causally linked to a pre-existing status (probation) because such conduct is the subject of a probation revocation “proceeding.”

The majority justify their reasoning on policy grounds unrelated to the express provisions of the amended statute, saying that double credit on sentences for both prior and new offenses should not be allowed for one custody.   That is a policy which the Legislature could have embodied in suitable statutory language.   It did not.   A court cannot transmute the plain meaning of statutory language by writing in its notions of what the statute ought to say.

There is, in fact, another policy which underlies the 1976 amendment, one against double punishment for the same conduct.   This policy is no stranger to sentencing statutes.   It is embodied in the Determinate Sentencing Act, enacted at the same session as the amendment to section 2900.5.   (Stats.1976, ch. 1139, p. 5141.)   For example, as presently provided in the Penal Code, “[t]he court may not impose an upper term by using the [same] fact of any [specified] enhancement upon which sentence is imposed ․”  (Pen.Code, § 1170, subd. (b).)  The policy is more generally expressed in Penal Code section 654 which precludes double punishment for the same “act or omission” even though such act or omission is made punishable as different offenses by different provisions of the Penal Code.  Penal Code section 2900.5 applies the principle in the measure of credit for time served, section 654 in the measure of time to be served.

Here the defendant was incarcerated pursuant to a probation revocation proceeding for the same offense for which he was separately convicted and incarcerated.  Section 2900.5 expressly grants custody credit against the sentence for the pending offense on these facts.

For these reasons I would grant the custody credit.


1.   As originally enacted in 1971 (Stats.1971, ch. 1732, p. 3686, § 2), subdivision (b) of Penal Code section 2900.5 allowed credit 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.”   The two underlined phrases have since been deleted and the phrase “proceedings related to” substituted for “charges arising from” and the word “conduct” substituted for “criminal act or acts.”  (Stats.1976, ch. 1045, p. 4665, § 2.)   The present version of subdivision (b) remains “virtually identical to the original version.”  (Rojas, supra, 23 Cal.3d at p. 156, 151 Cal.Rptr. 649, 588 P.2d 789.).

1.   The grammatical significance of the amendment, shown by the language changes it made (by means of strike-out and addition type), is:  “[C]redit 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.”

2.   This is not unlike the case of Isis Unveiled, by Madam Blavatsky, the theosophist, in the preparation for which it is reported she translated ancient Tibetan manuscripts without knowledge of Tibetan or benefit of the documents.

PUGLIA, Presiding Justice.

REGAN, J., concurs.

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