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

The PEOPLE, Plaintiff and Respondent, v. Joshua Thomas RODGERS, Defendant and Appellant.

No. A069395.

Decided: December 18, 1995

Louis S. Haffner, Public Defender, H. Bruce Kinnison, Chief Deputy Public Defender, Santa Rosa, for Appellant. Daniel E. Lungren, Attorney General of the State of California, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Ronald E. Niver, Supervising Deputy Attorney General, David H. Rose, Deputy Attorney General, San Francisco, for Respondent.

Joshua Thomas Rodgers appeals from an order denying his post-judgment motion for presentence credits.   The only reasonable inference from the evidence presented in connection with the motion was that appellant would have been at liberty “but for” the conduct which led to his arrest on the offense for which the credits were sought.  (See People v. Bruner (1995) 9 Cal.4th 1178, 1180, 1193–1195, 40 Cal.Rptr.2d 534, 892 P.2d 1277.)   We therefore conclude that the credits should have been granted (ibid ), and amend the judgment accordingly.


On September 17, 1993, appellant was convicted of evading an officer with willful disregard for safety of persons and property (Veh.Code, § 2800.2).   After serving ten months of a two year sentence, appellant was paroled on July 14, 1994.   While still on parole, appellant was arrested for possession of a firearm by a felon (Pen.Code, § 12021) 1 on September 27, 1994.

A parole hold was placed on appellant after his arrest.   According to the probation report herein, appellant was subject to mandatory drug testing as a condition of parole, and he had tested positive for methamphetamine shortly before his arrest on the firearm charge.   The report stated that appellant's parole officer, Ms. Anderson, “made it clear that the parole violation was not based solely upon the instant offense but was founded also upon the defendant's prior use of illicit substances, testing positive for methamphetamine on 9–2–94 and 9–13–94.”

In November, 1994, appellant's parole was revoked and he was returned to the Department of Corrections for six months.   Appellant was granted credit toward his parole revocation sentence for time served from the date of his arrest on September 27.

In December, 1994, appellant pled no contest to the charge of possession of a firearm, and on January 11, 1995, he was sentenced to sixteen months in prison.   At the sentencing hearing, appellant requested credit against his sentence on the firearm offense for his time in custody after the September 27th arrest.   The court denied the request without prejudice to a later motion for credit which would be based on further information from the parole officer.

On January 24, 1995, appellant filed a motion for 159 days of presentence credit on the firearm offense, consisting of 107 days of custody credit, plus 52 days of conduct credit, from the date of his arrest.   The motion was based on defense counsel's declaration that he had spoken by telephone with the parole officer, who “told me that she learned that [appellant] had submitted a positive urine test on September 2, 1994.  [Appellant] admitted that he had used drugs during an interview with Ms. Anderson on September 13, 1994.   Though she could have arrested him at that time, Ms. Anderson placed [appellant] on an accelerated drug testing program.   She did not place a hold on [appellant] until his arrest on this case on September 27, 1994.”   In light of this advice, appellant argued that he was entitled to credit because “Parole Officer Anderson did not take [him] into custody based on his dirty urine test;  she placed a parole hold only when he was arrested on these charges.   Hence [he] would have been at liberty absent his custody that is attributable to this case.”

The People filed no opposition to appellant's motion apart from a January 30, 1995, memorandum from the parole officer to the District Attorney's office which read as follows:  “Subject was arrested on 9/27/95 for felon in possession of a firearm.  [¶] In the violation report, Subject was charged with illicit use of methamphetamine, access to a firearm, and driving without a CDL.   The drug allegation was based on the facts that, on 9/12/94, Subject's ANT of 9/2/94 returned positive for amphetamine/methamphetamine.   On 9/16/94, Subject signed a Statement of Admission of use of methamphetamine 9/13/94.  [¶] Thus, the parole violation is based on more than the new charge for which Subject was convicted in local court.”

The motion for credits was denied, and this appeal ensued.


 We have been advised by appellant's counsel that appellant was scheduled for release from prison on December 2, 1995.   However, even if appellant has been released, the issue of credits is not moot because any credits that were improperly denied will reduce his period of parole on the firearm offense.  (See In re Welch (1987) 190 Cal.App.3d 407, 409, 235 Cal.Rptr. 470;  In re Kemper (1980) 112 Cal.App.3d 434, 438–439, 169 Cal.Rptr. 513.)

 Section 2900.5, subdivision (a) provides that for all felony and misdemeanor convictions, the defendant shall receive credit against his sentence for all days spent in custody, including presentence custody.   However, “credit shall be given only where the custody to be credited is attributable to the proceedings related to the same conduct for which the defendant has been convicted.”  (§ 2900.5, subd. (b) [italics added].)   In a case of “multiple restraint,” where credit is sought for custody which had multiple unrelated causes, the defendant has the burden of proving that the conduct which led to the conviction was a “dispositive” or “but for” cause of the presentence custody.  (People v. Bruner, supra, 9 Cal.4th at p. 1180, 40 Cal.Rptr.2d 534, 892 P.2d 1277, internal quotation marks omitted.)   Under this “strict causation” standard first developed in In re Rojas (1979) 23 Cal.3d 152, 151 Cal.Rptr. 649, 588 P.2d 789 and In re Joyner (1989) 48 Cal.3d 487, 256 Cal.Rptr. 785, 769 P.2d 967, no credit is allowed “unless the conduct leading to the sentence was the true and only unavoidable basis for the earlier custody.”  (People v. Bruner, supra, at p. 1192, 40 Cal.Rptr.2d 534, 892 P.2d 1277.)

The issue on appeal is solely one of substantial evidence:  Did the trial court have substantial evidence from which to conclude that appellant's arrest on the firearm charge was not the “dispositive” or “but for” cause of his custody?

 The court's decision was based on the parole officer's statement that the parole hold was based on appellant's use of drugs as well as the new arrest.   Two inferences can be drawn from this statement:  (1) appellant's drug use contributed in some measure to the parole hold, but would not alone have been a sufficient basis for the hold;  or (2) the drug use alone would have been a sufficient basis for the hold.   The first inference would not support denial of credit in appellant's case because if drug use was only a contributing cause, and not an independent cause, of his custody, then he would not have been in custody “but for” the arrest.   Unless it appears that the second inference is true, and that the drug use alone would have resulted in appellant's loss of liberty, the arrest was the “dispositive” cause of his custody.

Since every reasonable inference from the evidence must be drawn in favor of the judgment (9 Witkin, Cal.Procedure (3d ed. 1985) § 288, pp. 300–301 and authorities cited), the question becomes:  Is it reasonable to infer, in the circumstances of this case, that appellant would have been arrested for a parole violation based solely on his drug use?   The answer to that question is “no.”

If the parole officer had done nothing in response to the positive drug test and admission of drug use, then it might have been possible to infer that appellant would eventually have been taken into custody for drug use in violation of the conditions of his parole, whether or not he had committed the new offense.   In People v. Purvis (1992) 11 Cal.App.4th 1193, 1198, 14 Cal.Rptr.2d 651, for example, the court rejected the defendant's suggestion “that he would not have been charged with parole violations at all if not for the present offenses.   Such a hypothesis is unsupported by evidence or reason, particularly in view of the fact that the other five grounds for parole revocation included such serious matters as substance abuse․  In the absence of an affirmative indication to the contrary we must conclude that defendant would have been confined for these other parole violations regardless of the present offenses.”

In appellant's case, however, the parole officer responded to the evidence of drug use by instituting accelerated testing, and that response was plainly in lieu of an arrest.   If the parole officer had intended to arrest appellant on the basis of his positive test and admission of drug use, then she would have had no reason to order accelerated testing.

In light of the undisputed evidence 2 that the parole officer's response to appellant's use of drugs was to provide for more testing, it is not reasonable to infer that she would have had appellant arrested because of his drug use.   The accelerated testing program was “an affirmative indication” to the contrary.  (People v. Purvis, supra, 11 Cal.App.4th at p. 1198, 14 Cal.Rptr.2d 651.)   In these circumstances, drug use could not be deemed an independent cause of appellant's loss of liberty, and his arrest on the firearm charge must be viewed as the “dispositive” or “but for” cause of his custody.   He was therefore entitled to credit toward his sentence on the firearm charge for the time he spent in custody after his arrest on that charge.

The People contend that cases such as People v. Purvis, supra;  In re Bustos (1992) 4 Cal.App.4th 851, 5 Cal.Rptr.2d 767;  and In re Nickles (1991) 231 Cal.App.3d 415, 282 Cal.Rptr. 411, “stand for the proposition that a parole hold based on any facts other than those underlying the new conviction is an independent source of custody, and rules out any presentence custody credits as against the sentence for the new conviction.”   This argument finds some support in the following paragraph in Bruner:  “These post-Joyner decisions apply a general rule that a prisoner is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period.   Thus, these cases reason, his criminal sentence may not be credited with jail or prison time attributable to a parole or probation revocation that was based only in part upon the same criminal episode.   [Citing People v. Wiley (1994) 25 Cal.App.4th 159, 165–166, 30 Cal.Rptr.2d 701;  in addition to Purvis, Bustos, and Nickles.]   For reasons that will appear, we conclude that these authorities construe the statute correctly.”  (People v. Bruner, supra, 9 Cal.4th at p. 1191, 40 Cal.Rptr.2d 534, 892 P.2d 1277 [italics added and deleted].)

 The language we have highlighted in the foregoing passage, to the effect that the new offense must be the “sole reason” for the custody in question, implies that credits must be denied if multiple causes have contributed in any measure to the loss of liberty.   However, this implication is contrary to the balance of the Bruner decision, which speaks of applying a “but for” test, rather than a “sole reason” test, to the conduct at issue.   (People v. Bruner, supra, 9 Cal.4th at pp. 1180, 1193, 1194, 1195, 40 Cal.Rptr.2d 534, 892 P.2d 1277.)   None of the Court of Appeal cases cited in the foregoing passage purport to apply a “sole reason” test.  (See People v. Wiley, supra, 25 Cal.App.4th at p. 165, 30 Cal.Rptr.2d 701 [noting only that credit must be denied “ ‘where the pending proceeding has no effect whatever upon a defendant's liberty’ ”];  People v. Purvis, supra, 11 Cal.App.4th at p. 1197, 14 Cal.Rptr.2d 651 [applying a “but for” test];  In re Bustos, supra, 4 Cal.App.4th at p. 855, 5 Cal.Rptr.2d 767 [applying a “were it not for” test];  at p. 851, 5 Cal.Rptr.2d 767;  and In re Nickles (1991) 231 Cal.App.3d at p. 421–422, 282 Cal.Rptr. 411 [applying a “but for” test].   We therefore conclude that the defendant need only prove that he would have been at liberty but for the conduct underlying the case for which credit is sought;  he need not show that such conduct was the sole cause of his custody, to the exclusion of any other cause that might have contributed in any way to the decision to have him incarcerated.

The People's assertion that any ground cited for revocation of parole is necessarily an “independent source of custody” is likewise belied by the language in Bruner referring to sources of custody which are “true” and “dispositive.”   Use of those words confirms the reality that some parole violations may be regarded as more serious than others, and that every potential ground for revocation of parole will not necessarily be viewed as a sufficient cause to take the defendant into custody.   In a case where several grounds for revocation have been cited, it may be impossible for the defendant to sustain his burden of proving which of them was “dispositive.”  (People v. Bruner, supra, 9 Cal.4th at p. 1193 and fn. 10, 40 Cal.Rptr.2d 534, 892 P.2d 1277 [noting that the defendant's burden of proof is an “onerous” one because “the record will rarely disclose which misdeeds were the dispositive causes of revocation”].)   Appellant's case, however, presents what may be the rare situation where that burden has been met.   Here, the undisputed evidence establishes that he is entitled to the credit he seeks.


The judgment is amended to grant appellant 159 days of presentence credits, consisting of 107 days of credit for time spent in custody, plus 52 days of conduct credit.   As so amended, the judgment is affirmed.   The superior court is directed to prepare an amended abstract of judgment in accordance with the foregoing, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections.


1.   All further statutory references are to the Penal Code.

2.   We note in this regard that although the substance of defense counsel's declaration was hearsay, it has not been argued below or on appeal that counsel was lying or mistaken about what the parole officer had told him.   As counsel pointed out below, the parole officer had an opportunity to contradict his declaration but did not do so.

HANLON, Associate Justice.

ANDERSON, P.J., and POCHÉ, J., concur.

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