THE PEOPLE v. JOSE ROLANDO OCHOA (2011)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O N

In Tulare County Superior Court case No. VCF213557 (case No. VCF213557), appellant, Jose Rolando Ochoa, pled no contest to receiving a stolen motor vehicle (Pen.Code, § 496d, subd. (a)),¹ receiving stolen property (§ 496, subd. (a)), reckless driving while evading a peace officer (Veh.Code, § 2800.2, subd. (a)) and unauthorized use of personal indentifying information of another person (§ 530.5, subd. (c)), and admitted an enhancement allegation that he had served a prison term for a prior felony conviction (§ 667.5, subd. (b)).

In Tulare County Superior Court case No. VCF214185 (case No. VCF214185), appellant pled no contest to failure by a sex registrant to notify authorities of change of address (§ 290.013, subd. (a)).

The court imposed a prison sentence of six years, consisting of four years four months on the substantive offenses in case No. VCF213557, eight months in case No. VCF214185, and one year on the prior prison term enhancement.   The court awarded appellant presentence custody credit of 482 days, consisting of 324 days of actual time credit and 158 days of conduct credit.

On appeal, appellant's sole contention is that the court did not award him all the presentence custody credit to which he was entitled.   We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Facts-Case No. VCF213557

The report of the probation officer (RPO) states that reports of the Visalia Police Department indicate the following:  At 10:22 p.m. on November 24, 2008, a City of Visalia police officer initiated a pursuit of a stolen Jeep Cherokee.   Appellant was the driver.   During the five-mile pursuit, he failed to stop at a stop sign, failed to stop at a red traffic light, and drove at speeds of up to 115 miles per hour, before losing control of the vehicle and “roll[ing][it] over onto its roof.”   During a subsequent search of appellant's home, police found, among other things, a computer that had been stolen and a “storage box filled with paperwork belonging to multiple victims of identity theft.”

Facts-Case No. VCF214185

The RPO states that reports of the Tulare County Sheriff's Department indicate the following:  Appellant is a registered sex offender.   On November 13, 2008, a deputy sheriff went to the last address reported by appellant, a motel in Tulare.   The owner of the motel told the deputy that appellant had moved from the motel two months earlier.   Subsequently, appellant's parole officer indicated that appellant “had been an absconder from parole supervision since September 23, 2008, and his whereabouts [were] unknown.”

Procedural Background

Appellant entered his pleas and admission in case No. VCF213557 on August 5, 2009.   He entered his plea in case No. VCF214185 on September 17, 2009.   That same day, the court ordered appellant released on his own recognizance, and set sentencing for November 2, 2009.   However, appellant was not actually released from custody until September 23, 2009, when he was released on his own recognizance.

Appellant did not appear in court on November 2, 2009.   The court found there was “no lawful excuse for his nonappearance” and issued a bench warrant.   The minute order for the November 2, 2009 hearing states, “Defendant is in custody in Delano on Parole Hold[.]” The minute order also indicates that the court ordered the prosecutor to “prepare transportation order,” and that a new sentencing hearing was set for November 19, 2009.

On November 10, 2009, the court ordered that the warden of North Kern State Prison (NKSP) in Delano, California, where appellant was “serving a sentence,” release appellant to the Tulare County Sheriff for transportation to the Tulare County Superior Court.

On November 19, 2009, appellant again did not appear.   Defense counsel stated he “believe[d]” that appellant was in NKSP and that appellant had not been transported to court.   The court set December 1, 2009, as the new hearing date, and four days later issued a new transportation order.

On December 1, 2009, appellant appeared in court, in custody.   The RPO prepared in advance of the hearing recommended an award of 453 days of presentence custody credit, which included 303 days of actual time, for the period of November 25, 2008, when appellant was taken into custody for the conduct underlying the charges in case No. VCF213557, through September 23, 2009, when he was released on his own recognizance.   Defense counsel argued that the RPO “[did not] take into account the fact that [appellant had] been in county custody on these matters at least since yesterday,” i.e., November 30, 2009.   Counsel stated further, “I saw [appellant] yesterday.   I'm not sure when he got back here from state prison, though.”   The following colloquy then occurred:

“MR. JONES [defense counsel]:  ․ So when did you get back from state prison?

“[Appellant]:  On the 19th.

“MR. JONES:  He should have some credit from the 19th up until today.

“THE COURT:  November 19th?

“[Appellant]:  Yeah. But I was also here before I went to prison for a week or two from, I think, October 21st to the 28th.

“THE COURT:  That's an additional eight days.

“MS. ZIEGENHORN [prosecutor]:  On those days I thought that he was released OR in our case and then anything he got picked up on after that had nothing to do with these cases, because he was released OR until sentencing.   That was why we had the Cruz waiver.

“THE COURT:  That's right.

“MS. ZIEGENHORN:  I wouldn't see that he would have any credits except for when he returned from Delano․

“[Appellant]:  That time I spent in custody in prison doesn't count?

“THE COURT:  No. Not for your presentence credits.   I'm going to give you credit for 20 days, plus the 303 that probation is calculating.”

Shortly thereafter, appellant stated he wanted to withdraw his plea in case No. VCF214185.   The court set January 8, 2010, as the hearing date.

The matter was continued, and on January 21, 2010, the court denied the motion and proceeded to sentence appellant.   Prior to imposition of sentence, the following colloquy took place:

“[Appellant]:  I've been in custody since November 24th of 2008.

“MS. ZIEGENHORN:  However, when he was picked up, he was released on a Cruz waiver.   He was picked up in another county for something unrelated to this case.   We've already discussed this on the first of December where he was not getting credit when he was not in this county, as it was unrelated.

“THE COURT:  That's right.   You were picked up on another case in another county.   So that time you don't get credit for.

“[Appellant]:  But that was all the way ․ from November, I think it was from November 19th until December.   I came back on November 19th, because I came back-

“THE COURT:  Plus we're giving you 21 days that you said you were entitled to, even though you weren't here in Tulare County.   You were being held over.   So I think the 324 is the right amount.”

Thereafter, the court awarded appellant 324 days of actual time credit plus 158 days of conduct credit, for a total of 482 days of presentence custody credit.

DISCUSSION

Presentence custody credit is generally authorized by section 2900.5, subdivision (a), which provides, in pertinent part:  “In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, ․ all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, ․ shall be credited upon his or her term of imprisonment․” ²  However, subdivision (b) of section 2900.5 specifies that “[actual time] 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․”  (Italics added.)

As indicated above, appellant argues that the court did not award him all the presentence custody credit to which he was entitled.   Specifically, he argues that he was entitled to actual time credit of 384 days, consisting of the 303-day period recommended in the RPO plus the 81-day period from November 2, 2009, the first day the record indicates appellant was in custody in NKSP following his own recognizance release in September 2009, through January 21, 2010, the date of sentencing.   He contends the record establishes that his custody during both these periods was “attributable to proceedings related to the same conduct for which [he stands] convicted” in the instant case, within the meaning of section 2900.5, subdivision (b).  We disagree.   We base our conclusion on People v. Bruner (1995) 9 Cal.4th 1178 (Bruner ).

In Bruner, our Supreme Court stated that as “a general rule ․ 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.”  (Bruner, supra, 9 Cal.4th at p. 1191.)   This rule of “ ‘strict causation’․ stems from the conclusion that section 2900.5 did not intend to allow credit for a period of presentence restraint unless the conduct leading to the sentence was the true and only unavoidable basis for the earlier custody.”  (Id. at p. 1192.)   Thus, the court held, “where a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a ‘but for’ cause of the earlier restraint.”  (Id. at pp. 1193-1194.)   The court stated the defendant in Bruner was not entitled to presentence credits “[b]ecause defendant has not shown that he could have been free during any period of his presentence custody but for the same conduct that led to the instant conviction and sentence․”  (Id. at p. 1190.)

Here too, appellant has not made the showing required to establish his entitlement to actual time credit for the period beginning November 2, 2009, when, the record indicates, he was in custody in state prison on a parole hold.   The conduct that led to the sentence imposed in the instant case was the following:  in case No. VCF213557, the high speed chase in the stolen jeep, and appellant's possession of the stolen computer and personal identifying information of others, and in case No. VCF214185, his failure as a sex registrant to notify authorities of his change of address.   The record does not establish that this same conduct led to the placing of a parole hold.   Indeed, insofar as the record contains any information on this point, it appears that appellant was in custody in NKSP on November 2, 2009, because he absconded from parole supervision.   Moreover, there is nothing in the record to suggest that appellant would not have remained in NKSP had the court not ordered him transported for sentencing in the instant case.   Thus, appellant has not shown that but for the conduct that led to the instant convictions and sentence, he would have been free.

Appellant relies on People v. Meals (1975) 48 Cal.App.3d 215 (Meals ).   The entire discussion of the presentence custody credit issue in that case consists of the following:  “Citing Penal Code section 2900.5 defendant contends that he was entitled to credit for the time already served despite the fact that there was a parole hold against him.   Since Penal Code section 2900.5 in no way excepts credit for presentence custody where a defendant is also on a parole hold prior to sentencing, the statute is operative as to defendant in the instant case and the trial court improperly denied him such credit.  [Citations.]”  (Id. at pp. 226-227, italics added.)

Meals, however, predates Bruner, and contains no discussion regarding the conduct that led to the parole hold.   After Bruner, the italicized portion of the passage from Meals quoted above is true only if the conduct that led to the parole hold is the same conduct that led to the convictions and sentence against which credit is sought.  Meals does not support appellant's position.

Appellant also argues that if he is found to be not entitled to credit for custody beginning November 2, when he was incarcerated in NKSP, he is entitled to credit for the period beginning November 19 when, by his account, he was back in custody in Tulare County.   Finally, he argues that if that contention is rejected, he is entitled to credit for the period beginning November 30, the day his counsel saw him in custody in Tulare County.   Our analysis of the period following appellant's own recognizance release in September 2009, set forth above, applies with equal force to these claims.   Both are without merit.

DISPOSITION

The judgment is affirmed.³

FOOTNOTES

FOOTNOTE.  

FN1. Except as otherwise indicated, all statutory references are to the Penal Code..  FN1. Except as otherwise indicated, all statutory references are to the Penal Code.

FN2. In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentencecommonly known as conduct creditfor willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)).  The issue before us concerns only the presentence custody credit authorized by section 2900.5 for actual days in custody.   This component of presentence custody credit is commonly called actual time credit..  FN2. In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentencecommonly known as conduct creditfor willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)).  The issue before us concerns only the presentence custody credit authorized by section 2900.5 for actual days in custody.   This component of presentence custody credit is commonly called actual time credit.

FN3. It appears that the court's award of presentence custody credit includes 21 days of actual time credit for days after appellant's own recognizance release in September 2009.   It is not clear how the court arrived at this figure.   However, the People have not appealed and do not challenge the court's award of presentence custody credit.   Therefore, we will simply affirm the court's presentence custody credit award..  FN3. It appears that the court's award of presentence custody credit includes 21 days of actual time credit for days after appellant's own recognizance release in September 2009.   It is not clear how the court arrived at this figure.   However, the People have not appealed and do not challenge the court's award of presentence custody credit.   Therefore, we will simply affirm the court's presentence custody credit award.