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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Peter William ROSS, III, Defendant and Appellant.

Cr. 44235.

Decided: September 24, 1984

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Jonathan B. Steiner, Chief Asst. Atty. Gen., Richard Lennon Deputy State Public Defender, for defendant and appellant. John Van de Kamp, Atty. Gen., Gary R. Hahn and Sharlene A. Honnaka, Deputy Attys. Gen., for plaintiff and respondent.

Appeal from a judgment entered following revocation of probation.

On June 8, 1982, appellant entered a plea of nolo contendere to battery resulting in the infliction of great bodily injury.  (Pen.Code, §§ 242, 243, subd. (d).) 1  Imposition of sentence was suspended and appellant was placed on probation for 36 months upon the conditions, inter alia, that he not violate any laws and that he spend the first 270 days of the probationary period in county jail with presentence custody credit.

After he served this jail sentence and was released, appellant was arrested and returned to jail on two misdemeanor offenses for which he received jail sentences.   After these sentences were imposed, a notice of revocation of probation was filed, alleging the misdemeanor offenses constituted a violation of appellant's probation.

A formal notice of revocation was filed December 22, 1982, in which it was alleged that appellant's commission of the two misdemeanor offenses constituted a violation of probation.   Appellant's probation was summarily revoked on December 29, 1982, and he was sentenced to prison for the middle term of three years.

Appellant claims he is entitled to custody credit on his felony sentence for the entire time spent in jail for the misdemeanor offenses before his probation was revoked.   We disagree and affirm the trial court's ruling against appellant.

Presentence credit of 373 days, consisting of 249 days for presentence confinement and 124 days of related conduct credit presumably under section 4019, was awarded to appellant.   This included both actual and conduct credit for the time appellant was in custody from the time probation was revoked until sentence was pronounced in the instant case and for custody served as a condition of probation.   During this time period he was also being detained on the misdemeanor offenses.   The court denied his claim of dual credit from the time he was originally detained on the misdemeanors until probation was revoked.

 Appellant relies on the ruling in In re Atiles (1983) 33 Cal.3d 805, 191 Cal.Rptr. 452, 662 P.2d 910 as compelling dual credit for the period in custody prior to the revocation of the probation.   This reliance is misplaced.   Appellant is not entitled to credit under Atiles merely because he was earlier confined on unrelated misdemeanor offenses which ultimately formed the basis for his probation revocation.   Unlike the defendant in Atiles, there was no restraint on appellant's liberty as a result of his probation revocation in effect during the period for which he seeks credit.   Further, appellant was on probation and not parole.   These factual and legal distinctions require the denial of dual credit here for pre-revocation custody.

The decision in Atiles was based on the literal language of section 2900.5, subdivision (b) which provides in pertinent part:  “․ [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․”  In Atiles the defendant sought dual credit for a period of dual custody.   The credit he sought and obtained was for time spent in the county jail during all but three days of which he was ineligible to secure his release on bail pending disposition of the new criminal charges because he was either subject to a parole hold or to commitment upon parole revocation.   The parole revocation was ordered for the same conduct which formed the basis for the new charges upon which he was convicted and committed to state prison.

 Where the custody for which credit is claimed is attributable to parole revocation proceedings related to the same conduct which also results in a new conviction and commitment, section 2900.5 subdivision (b) requires that credit be given.   In this situation dual credit is required because the custody period upon parole hold and revocation is “custody attributable to the same conduct for which the defendant is convicted” and sentenced on the new offense.

The same result is also required under section 3057.   This section establishes a maximum 12 month penalty for parole violations in the absence of a new conviction and commitment to prison.   No term is provided for parole violations when they are accompanied by a new conviction and commitment for the same conduct.   Consequently, the sentence upon the new commitment is in lieu of any separate period of custody upon parole revocation.   This result was achieved in Atiles by crediting the total time in custody on the parole hold and commitment upon revocation to the sentence upon the new commitment.  (See also § 667.5, subd. (g) and In re Kelly (1983) 33 Cal.3d 267, 188 Cal.Rptr. 447, 655 P.2d 1282, defining prior separate prison terms.)

 Under the foregoing statutes no separate term may be imposed for a parole violation based on conduct which also results in a new conviction and commitment.   As noted by the Supreme Court in Atiles, 33 Cal.3d at page 813, 191 Cal.Rptr. 452, 662 P.2d 910, a violation of parole by conduct constituting a new offense may, however, result in an increased penalty.   The prior felony conviction upon which parole was violated may result in a longer sentence on the new offense and commitment.   This can occur where the sentence is enhanced by imposition of a consecutive term based upon the fact of the prior prison term under section 667.5 (also see now 667) or by imposition of an aggravated term on the new offense based upon its occurrence during the period of parole under California Rules of Court rule 421, subdivision (b)(4)).   Imposition of a longer term under either of these provisions result in a penalty of equal or greater length to the penalty imposed by section 3057 for parole violations not involving new convictions and commitments.

Section 2900.5 and other statutes relating to probation require a different result where the same criminal conduct results both in new detentions, convictions and sentences and in the revocation of probation.   The conduct which caused the revocation of probation and the commitment on the new offense is not, in the language of section 2900.5, the “conduct for which the defendant [was] convicted.”

 The conduct for which the defendant was convicted and upon which sentence was imposed in a probation case, as here, was the earlier felony offense upon which probation had been ordered and not the later misdemeanor offenses.   The determination of the length of the sentence upon violation of probation must be based on circumstances existing at the time probation was granted.   It may not be based on the subsequent misdemeanor offense conduct.   (Cal. Rules of Court, rule 435, subd. (b)(1);  also see § 1203.2.)   The conduct which led to the revocation of probation played no part in the fixing of the term on the instant offense.

To compel the credit which appellant seeks would violate the legislative purpose of section 2900.5.   It would also be inconsistent with the purposes of section 669 and render section 1203.2a a nullity.

Section 2900.5 has been described as having a dual legislative purpose of “․ ‘eliminat[ing] the unequal treatment suffered by indigent defendants who, because of their inability to post bail, served a longer overall confinement than their wealthier counterparts' [citation] and equalizing the actual time served in custody for given offenses.  [Citation.]”  (In re Atiles, supra, 33 Cal.3d 805, 812, 191 Cal.Rptr. 452, 662 P.2d 910.)

 Unequal treatment due to indigency is avoided here by giving appellant credit on his misdemeanor sentences for the presentence time spent in jail due to his inability to post bail.   Therefore, he was not required to serve a longer overall confinement than his wealthier counterparts who were convicted of similar misdemeanors.

To grant appellant the credit he seeks would not equalize the actual time served in custody for given offenses.   A defendant who is not on probation who committed the same misdemeanors as those committed by appellant would actually serve time in custody upon sentence therefor.   Appellant would serve no additional time as a result of having committed two misdemeanor violations and being ordered to serve time therefor.   Granting appellant the total credit he seeks would result in a windfall for him;  it would guarantee he would spend no actual time in custody for the commission of two misdemeanor offenses.   Credit here would result in mandatory concurrent sentences retroactive to the date of presentence commitment on subsequent offenses and negate the discretionary provisions of sections 669 and 1203.2a.

Section 669 provides in pertinent part:  “When any person is convicted of two or more crimes, ․ in different ․ courts, ․ by judgment rendered by ․ different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he is sentenced shall run concurrently or consecutively ․”  It further provides:  “Upon the failure of the court so to determine ․ the term of imprisonment on the second ․ judgment shall run concurrently.”

The judgment herein is the “second judgment upon which sentence is ordered to be executed” as appellant had apparently already been sentenced to consecutive terms for the misdemeanors.   Because the sentence was not ordered to be consecutive to the misdemeanor sentences it is concurrent therewith as a matter of law.   It is concurrent to the extent any time remained to be served on the misdemeanor sentences at the time appellant was committed to custody on the instant offense;  i.e., the sentences are concurrent during the time that the sentencing periods overlap.  (People v. Roberts (1953) 40 Cal.2d 745, 749, 255 P.2d 782;  also see In re Atiles, supra, 33 Cal.3d at p. 813, 191 Cal.Rptr. 452, 662 P.2d 910.)   If we were to construe section 2900.5 as mandating credit in this situation, it would remove the discretion vested in the sentencing court on the second judgment from determining whether the sentences should be run concurrently or consecutively.   It would also nullify the provisions of section 1203.2a and 1381.

In In re White (1969) 1 Cal.3d 207, 81 Cal.Rptr. 780, 460 P.2d 980, the Supreme Court construed an earlier but substantially similar version of section 1203.2a.   The court stated in that case:  “The purpose of section 1203.2a is to prevent a defendant from inadvertently being denied the benefit of Penal Code section 669 that sentences be concurrent unless the court exercises its discretion to order that a subsequent sentence be consecutive to a prior sentence.  [Fn. omitted.]  Before section 1203.2a was enacted, if the court that granted probation was unaware of a defendant's subsequent incarceration for another offense and had therefore failed to revoke probation, the defendant might serve the entire term for the other offense but still be subject, on revocation of probation, to serving the term for the offense for which he had been given probation.   Serving of any sentence after such revocation of probation could obviously not run concurrent with the sentence for the offense that had already been served.   By authorizing a defendant on probation who had been committed for another offense to request revocation of probation and imposition of sentence and by requiring his probation officer to notify the court of the subsequent commitment, section 1203.2a affords a procedure for requiring the court to consider imposing a concurrent sentence.   It also precludes inadvertent imposition of consecutive sentences ․”  (Id., at p. 211, 81 Cal.Rptr. 780, 460 P.2d 980.)

The court held that sentencing under the procedure set forth in section 1203.2a did not restrict the power of a court to impose consecutive sentences authorized by section 669 regardless of the order of sentencing on prior and subsequent offense.  (Ibid., at p. 212, 81 Cal.Rptr. 780, 460 P.2d 980.)   Nothing in the record before us indicates the appellant at any time requested revocation of probation and imposition of sentence as allowed under section 1203.2a.

Section 1381 also has procedures and provisions whereby a defendant who has been convicted, sentenced and imprisoned on one offense may demand trial or sentencing on “any criminal proceeding wherein the defendant remains to be sentenced.”   There is nothing in the record which indicates the appellant attempted to avail himself of the provisions of this section either.

The Legislature has provided specific procedures for a person in appellant's position to seek concurrent sentences in the exercise of discretion of sentencing courts.   None of them were utilized by appellant in this case.   It would be inconsistent with the statutes to hold that section 2900.5 mandates fully concurrent sentences in this situation by requiring full credit for time in custody on one offense toward the sentence on another.   Section 1203.2a and 1381 allow a defendant sentenced on one case to avoid having the length of his imprisonment depend upon the fortuitous charging decision of a prosecutor by enabling him to seek imposition of sentence and the court's exercise of discretion to order concurrent terms.

 In effect section 2900.5, construed together with other pertinent sections, distinguishes for purposes of presentence credit between parolees who commit a new offense and are sentenced therefor as well as having their parole revoked and probationers who commit a new offense and are sentenced therefor and have their probation revoked.   Parolees, who under the determinate sentencing law have already served the full term of imprisonment provided for the parole offense, may not be ordered to serve a separate term for a parole violation which is based upon a new offense and commitment.  (See In re Atiles, supra, 33 Cal.3d 805, 191 Cal.Rptr. 452, 662 P.2d 910;  also see People v. Penner (1980) 111 Cal.App.3d 168, 172, 168 Cal.Rptr. 431;  and People v. Mathews (1980) 102 Cal.App.3d 704, 713, 162 Cal.Rptr. 615.)   These parolees, however, are subject to a greatly enhanced sentence by way of either aggravation or imposition of a consecutive term for the prior conviction.

 Probationers, like appellant, have served little or no time in custody on their earlier conviction.   They are subject to separate sentences on both new offenses resulting in probation violations and on the case wherein they were placed on probation.   In this case discretion to determine the length of the ultimate imprisonment is given to the court imposing the last executed sentence.   The sentence on the offense for which they have been placed on probation, however, may not be enhanced, aggravated, or affected by any conduct which occurred subsequent to the conviction and grant of probation.   The trial court did not err in denying appellant credit.  (Contra, People v. Veley (1984) 157 Cal.App.3d 1046, 204 Cal.Rptr. 83.)

Appellant contends he is entitled to double time “work” credit under section 2933 for pre-imprisonment custody rather than the 50 percent “conduct” credit under section 4019 for his precommitment custody occurring after January 1, 1983.   We find he is not entitled by statute to credit under section 2933 and the unavailability of such credit does not violate appellant's right to equal protection of the laws.

 Appellant's claim that he is statutorily or constitutionally entitled to double time work credit under section 2933 for his preimprisonment custody on the instant offense, rather than the credit which was given under section 4019, is without merit.   Section 2933, effective January 1, 1983, on its face applies only to “time served in the custody of the Director of Corrections.”   Consequently the work time credits for which it provides apply only to work time which is done in the custody of the director of corrections.   Since appellant claims the credit for nonqualifying time served in custody elsewhere it must be denied.

 Appellant claims that the statute so construed deprives him of equal protection of the laws.   This claim is based on the fact section 2933 provides in some instances for double time credit, that is the addition of credit equivalent to actual custody time, while section 4019 effectively provides for only one day of credit for each two days of actual custody.  (People v. Collins (1981) 123 Cal.App.3d 535, 176 Cal.Rptr. 696.)   Because appellant is not similarly situated to the persons who qualify for the double time credit under section 2933 his equal protection argument must fail.  (In re Eric J. (1979) 25 Cal.3d 522, 530, 159 Cal.Rptr. 317, 601 P.2d 549.)

The double time credit provisions of section 2933 apply only to post-sentenced felons.   Further, they apply only to some post-sentenced felons, that is persons who qualify for, volunteer for, and are assigned full time to the qualifying work.   Post-sentenced felons who do not so qualify or are not so assigned receive credit pursuant to section 2931.

Section 2931 credits are identical to effect to those credits provided under section 4019.   Both section 4019 credits and section 2931 credits result in an addition of one-half of the time spent in actual custody for the persons who qualify under the credit provisions therein.   These sections result in an overall one-third reduction in the actual term of imprisonment.   Section 2933 full time work credit results in an overall one-half reduction in the actual term of imprisonment.

The work incentive program provided for in section 2933 is a privilege and is not automatically applied to every post-convicted felon (subd. (b)).  The distinction drawn by section 2933 is between those post-convicted felons who work full time in a qualifying job in state prison and all other persons in custody whether pre or post-trial misdemeanants or felons.   Persons who work full time in the qualified prison industry system are not similarly situated with any other persons not likewise employed.  (Accord, People v. Davis (1984) 154 Cal.App.3d 253, 201 Cal.Rptr. 422.)

Even assuming arguendo that pretrial detainee felons are similarly situated to prison inmates who work full time in a qualifying industry, we believe the distinction drawn by the credit system under section 2933 withstands constitutional scrutiny as to appellant.   Because the statute affects a fundamental liberty interest, the state must establish a compelling interest in maintaining the distinction.  (People v. Olivas (1976) 17 Cal.3d 236, 243, 131 Cal.Rptr. 55, 551 P.2d 375;  see also People v. Sage (1980) 26 Cal.3d 498, 508, 165 Cal.Rptr. 280, 611 P.2d 874.)

The section 2933 work time credit program promotes the intent of the Legislature expressed in statutes 1982 (c. I, § 1, p. 1):  “It is the intent of the Legislature that all able-bodied prisoners in the state prisons be directed to work, inasmuch as the performance of productive work on a regular basis is the most appropriate method of successfully instilling in prisoners the values of a law-abiding and cooperative society and will improve the possibility of their reintegration to that society.”   Section 2933 work time credit provisions clearly have a rehabilitative purpose to avoid recidivism and promote reintegration to law-abiding society.   This legislation adds a rehabilitative purpose to the otherwise punitive provisions of the determinate sentencing law.  (See, e.g., § 1170, subd. (a)(1).)   The Supreme Court has recognized rehabilitation as a legitimate and compelling state interest.   (People v. Austin (1981) 30 Cal.3d 155, 162, 178 Cal.Rptr. 312, 636 P.2d 1.)

No error having been shown, the judgment is affirmed.


1.   All further statutory references are to the Penal Code unless otherwise stated.

ABBE, Associate Justice.

STONE, P.J., and GILBERT, J., concur.

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