PEOPLE v. JOHNSON (1995)

Defendant Vince Johnson pleaded guilty to possession of a firearm with a prior conviction for a violent offense (Pen.Code, § 12021.1, subd. (a)) (count one) and possession of a short-barreled shotgun (Pen.Code, § 12020, subd. (a)) (count two).   The trial court sentenced him to the lower term of 16 months for count one and to a concurrent lower term of 16 months for count two.   It also allowed defendant 89 days actual custody credit over defendant's argument that he was entitled to 179.   On appeal, defendant contends that (1) the imposition of the concurrent terms involved improper multiple punishment (Pen.Code, § 654), and (2) he was entitled to 90 more days of actual custody credit.   The People concede the multiple punishment issue.   We agree that defendant's sentence punishes him for two acts arising from the same course of conduct.   However, we disagree with defendant on the custody credit issue.   We therefore modify the judgment and affirm.¹

MULTIPLE PUNISHMENT

 A defendant who commits multiple crimes during the same course of conduct cannot be punished more than once.  (§ 654.)   Here, the two crimes were charged after a police officer found a shotgun and four shells underneath a car that defendant was standing beside.

 Where improper multiple punishment is imposed “the appellate court must stay the effect of the lesser offense(s) in order to comply with section 654 while permitting execution of the greater offense consistent with the intent of the sentencing court.”  (People v. Bradley (1981) 115 Cal.App.3d 744, 753, 171 Cal.Rptr. 487.)   Here, the two concurrent terms are the same.   We therefore stay execution of defendant's sentence for count two.

CUSTODY CREDITS

Defendant spent 179 days in custody between his arrest and sentencing.   He was, however, on parole when he committed the instant offenses.   Twelve days after his arrest defendant admitted being in violation of parole for absconding, failure to register as a sex offender, using alcohol, and committing the instant offenses.   Defendant was ordered to serve a 10–month term for these parole violations.   At sentencing in this case defendant argued that he was entitled to 179 days credit because the 179 days in custody was “attributable to proceedings related to the same conduct for which the defendant has been convicted.”  (§ 2900.5, subd. (b) ² .)  The probation department asserted that defendant was entitled to no credit because he was in custody for reasons other than just the instant offenses.  (In re Nickles (1991) 231 Cal.App.3d 415, 282 Cal.Rptr. 411.)   The record suggests that the parties arrived at an agreement off the record whereby the trial court would award defendant 89 days actual custody credit:

“[The prosecutor]:  That's the own [sic ] that both sides have agreed to, the credits of eighty-nine plus forty-four [conduct credits], for a total of one thirty-three.

“THE COURT:  You concur in that, [defense counsel]?

“[Defense counsel]:  Yes.”

 The People assert that defendant waived his objection to the award of actual custody credits by his agreement.   Defendant counters by pointing out that he (1) filed a formal motion to obtain the full custody credits, and (2) asserted his right to appeal any aspect of the case.   As to these points the following colloquy is relevant:

“THE COURT:  I have previously read the motion.   That motion is denied.  [¶] Mr. Johnson, counsel, your own attorney and ․ the deputy district attorney on this case, have conferred together and with me with respect to the credit that could be allowed to you, and have come up with a calculation of eighty-nine days in actual custody and forty-four days under section 4019 of the Penal Code [work and good behavior credits], for a total credit of a hundred and thirty-three days.   If you are not satisfied with that I would like to know.”

“[Defense Counsel]:  Your Honor, could I make a brief point relative to the motion that Mr. Johnson filed today?

“THE COURT:  Yes.

“[Defense Counsel]:  The main concern of his is to be out for the birth of his child.   His wife is pregnant at this time, and I think a strong point in his favor deals with the fairness issue of not been being advised by the parole department of the potential consequences of accepting a parole violation prior to the disposition of the underlying offense, and I addressed that and he's addressed that in his moving papers, but I just wanted to reiterate that and clarify that at this time.   And Mr. Johnson then is aware he needs to make a decision about whether to go forward or not but, I wanted to make that clear on the record.

“THE COURT:  Very well.   It is noted.   What is your client's pleasure on this case?

“[Defense counsel]:  Your Honor, Mr. Johnson has a question regarding his appellate rights.   My understanding is he's waived none of those rights;  therefore, he can appeal any aspect of the case.   He wants me to ask on the record as to the opinion of the court.

“THE COURT:  That would be correct.”

This dialogue indicates that defendant did not stipulate to the custody credits awarded by the trial court.   It indicates that defendant merely acquiesced to the trial court's decision to deny his motion and award him something less than he sought.   Under these circumstances we hold that defendant did not waive his right to challenge the award of custody credits on appeal.

 We now turn to the merits of defendant's claim.   Our reading of the leading Supreme Court cases on custody credits—In re Atiles (1983) 33 Cal.3d 805, 191 Cal.Rptr. 452, 662 P.2d 910 and In re Joyner (1989) 48 Cal.3d 487, 256 Cal.Rptr. 785, 769 P.2d 967—and a more recent, factually similar First District case—In re Nickles, supra, 231 Cal.App.3d 415, 282 Cal.Rptr. 411—convinces us that defendant is not entitled to additional custody credit.

In Atiles, the defendant, while on parole, was arrested for robbery and sodomy, arising from a single incident, and a parole hold was placed on him.   At the subsequent parole revocation hearing, he was found “guilty” of robbery and sodomy, and parole was revoked for the maximum six-month term.³  (In re Atiles, supra, 33 Cal.3d at p. 807, 191 Cal.Rptr. 452, 662 P.2d 910.)   Thereafter, he was separately charged with robbery and sodomy arising from the incident.   He pleaded guilty to robbery, and, apparently under the plea bargain, the sodomy charge was dismissed.  (See In re Joyner, supra, 48 Cal.3d at p. 497, 256 Cal.Rptr. 785, 769 P.2d 967 [dis. opn. of Broussard, J.].)

On these facts, a majority of the court concluded that the defendant was entitled to credit for the six-month parole revocation term against his robbery sentence because “[t]he conduct which led to his arrest and conviction on the new criminal charge also formed a basis for the parole hold and subsequent revocation proceedings.”  (In re Atiles, supra, 33 Cal.3d at p. 809, 191 Cal.Rptr. 452, 662 P.2d 910.)   Thus, the defendant's “custody in the county jail was, literally, attributable to proceedings related to the same conduct for which the defendant [was] convicted[,]” i.e., the robbery/sodomy incident.  (Id. at pp. 809–810, 191 Cal.Rptr. 452, 662 P.2d 910, emphasis added, internal quotation marks omitted.)

In Joyner, the defendant was arrested in Florida for crimes committed there.   Upon learning this, California authorities placed their own hold on him in connection with an outstanding arrest warrant on an unrelated charge.   Defendant was ultimately convicted in Florida and given custody credit for his jail time.   Thereafter, he was extradited to California, where he pleaded guilty.   At sentencing, the court imposed a term concurrent with the Florida sentence but denied credit for the Florida jail time.

The dissent in Joyner asserted that under the Atiles analysis, the defendant was entitled to credit because when imposed, the California hold on him became a basis for his custody in Florida, thus making his custody attributable to proceedings related to the California conduct for which he was convicted.  (In re Joyner, supra, 48 Cal.3d at p. 498, 256 Cal.Rptr. 785, 769 P.2d 967 [dis. opn. of Broussard, J.].)   However, a majority of the court rejected this approach.   Instead, it applied the reasoning of In re Rojas (1979) 23 Cal.3d 152, 151 Cal.Rptr. 649, 588 P.2d 789 to the facts and denied credit.

In Rojas, authorities brought the defendant, who was serving a prison sentence, to county jail, where he remained in custody while being tried for a different offense.   He was convicted and sentenced.   Although the pretrial jail time was credited against the sentence he was already serving, the defendant petitioned the Supreme Court for duplicative credit against his new sentence.   He claimed that “because subdivision (b) of section 2900.5 does not read ‘exclusively attributable to proceedings' he should be granted the credit he seeks.”  (In re Rojas, supra, 23 Cal.3d at p. 155, 151 Cal.Rptr. 649, 588 P.2d 789.)   The court unanimously disagreed.  “Although the word ‘exclusively’ does not appear, it is clearly provided that credit is to be given ‘only where’ custody is related to the ‘same conduct for which the defendant has been convicted.’   The sensible inference is 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.”  (Id. at pp. 155–156, 151 Cal.Rptr. 649, 588 P.2d 789.)   Simply put, “Section 2900.5 does not authorize credit where the pending proceeding has no effect whatsoever upon a defendant's liberty. ”   (Id. at p. 156, 151 Cal.Rptr. 649, 588 P.2d 789, emphasis added.)

With this in mind, the Joyner majority held that “a period of time previously credited against a sentence for unrelated offenses cannot be deemed ‘attributable to proceedings' resulting in a later-imposed sentence unless it is demonstrated that the claimant would have been at liberty during the period were it not for a restraint relating to the proceedings resulting in the later sentence.”  (In re Joyner, supra, 48 Cal.3d at p. 489, 256 Cal.Rptr. 785, 769 P.2d 967, emphasis added.)

The majority noted that the defendant's pretrial custody was later credited against his Florida sentence, retroactively making it a period during which the defendant, like the defendant in Rojas, was, in effect, serving a sentence on another conviction.  (In re Joyner, supra, 48 Cal.3d at p. 492, 256 Cal.Rptr. 785, 769 P.2d 967.)   Despite this characterization of the defendant's pretrial custody, the majority implicitly recognized that at the time, the defendant's custody was not necessarily unavoidable, as it was in Rojas, and that his custody could have had mixed, unrelated bases:  the Florida charges and California hold.  (Id. at p. 489, 256 Cal.Rptr. 785, 769 P.2d 967.)   The majority observed, however, that “the record contains no evidence that petitioner ever posted bail on the Florida charges or that he could have obtained release had the California hold not been placed against him.   It has not been shown, in short, that the California hold ․ had any effect upon [the defendant's] liberty at any time.”  (Id. at p. 492, 256 Cal.Rptr. 785, 769 P.2d 967, emphasis added.)   In other words, the defendant “failed to demonstrate that his presentence custody was, within the meaning of section 2900.5, ‘attributable to’ anything other than the Florida proceedings.”  (Ibid.)

The majority rejected the defendant's reliance on Atiles.   It found Atiles distinguishable because there the “same criminal conduct,” i.e., the incident involving robbery and sodomy, “resulted both in revocation of parole and the filing of new charges.”  (In re Joyner, supra, 48 Cal.3d at p. 493, 256 Cal.Rptr. 785, 769 P.2d 967, emphasis added.)   In Joyner, however, custody could have had a basis unrelated to the new charges, and the defendant failed to prove otherwise.  (Id. at p. 494, 256 Cal.Rptr. 785, 769 P.2d 967.)

The majority also rejected broad dicta in Atiles “suggesting that section 2900.5 should be applied invariably to maximize the concurrency of terms imposed at different times․”  (In re Joyner, supra, 48 Cal.3d at p. 494, 256 Cal.Rptr. 785, 769 P.2d 967.)   It then stated, “Recognizing there is no simple or universal formula to solve all presentence credit issues, our aim is to provide for section 2900.5 a construction which is faithful to its language, which produces fair and reasonable results in a majority of cases, and which can be readily understood and applied by trial courts.   The construction adopted by this court in In re Rojas, supra, 23 Cal.3d 152, 151 Cal.Rptr. 649, 588 P.2d 789, meets these requirements and has the additional reassuring virtue of being consistent with the decisions of a great number of other jurisdictions construing similar provisions.   We reaffirm that construction as applied to the factual pattern of this case and disapprove statements in In re Atiles, supra, 33 Cal.3d 805, 191 Cal.Rptr. 452, 662 P.2d 910, and its progeny to the extent they are inconsistent with the Rojas construction as here applied.  (In re Joyner, supra, 48 Cal.3d at p. 495, 256 Cal.Rptr. 785, 769 P.2d 967.)”

In In re Nickles, supra, 231 Cal.App.3d 415, 282 Cal.Rptr. 411, Division Two of the First District faced facts essentially identical to those here:  parole is revoked and the defendant returned to custody due to a mixture of both administrative violations and new crimes that he is later tried for and convicted of.   Citing Atiles, Nickles argued that because the crimes were a basis for the parole term, he was entitled to duplicative credit against his subsequent sentence for them.   A majority in Nickles disagreed.   Given Joyner, it opined that where the period of custody is based on mixed, unrelated conduct, as it was in Joyner, a defendant is not automatically entitled to credit “simply because the charge as to which a defendant seeks credit was one basis of his restraint combined with unrelated other bases therefor.”  (Id. at p. 424, 282 Cal.Rptr. 411, emphasis added.)   Rather, in “mixed conduct” cases, Joyner requires that the defendant prove he would have been at liberty but for a restraint relating to the proceedings resulting in the later sentence.   In other words, Nickles had to show that but for the criminal offenses, he would not have served a parole violation term.   (Ibid.)

Nickles has been followed by Division Five of the Second District in In re Bustos (1992) 4 Cal.App.4th 851, 855, 5 Cal.Rptr.2d 767 and was more recently reaffirmed by a slightly different panel of Division Two of the First District in People v. Purvis (1992) 11 Cal.App.4th 1193, 14 Cal.Rptr.2d 651 [opn. by Benson, J., Smith J. and Phelan, J., concurring].)   Our reading of Atiles and Joyner leads us to agree with the analysis and conclusion of the Nickles majority.

We are not persuaded otherwise by the dissenting opinion in Nickles.   The dissent found Atiles to be controlling precedent because the facts were “materially indistinguishable” from those in Atiles.  (In re Nickles, supra, 231 Cal.App.3d at p. 425, 282 Cal.Rptr. 411 [dis. opn. Kline, P.J.].)   It charged the majority with erroneously concluding that Joyner had overruled Atiles.

True, Joyner did not expressly overrule Atiles.   However, the Nickles majority did not, in our view, suggest that it did.   Rather, it viewed Joyner as having disapproved of the Atiles interpretation of section 2900.5 as applied to mixed conduct cases in favor of that expressed in Rojas.

Furthermore, it does not appear to have been necessary for the Joyner majority to overrule Atiles.   First, Atiles is not a mixed conduct case.   The majority in Atiles refused to assume that the defendant's six-month parole term was based on his administrative violation.⁴  (In re Atiles, supra, 33 Cal.3d at p. 810, fn. 3, 191 Cal.Rptr. 452, 662 P.2d 910.)   Rather, as noted above, it treated the case as if custody was compelled by the single incident of criminal conduct.  (See fn. 3, ante, p. 785.)   Thus, custody was based on the exact same conduct that underlay the subsequent criminal proceedings.   For this reason, we do not consider Nickles, which is a mixed conduct case, to be “materially indistinguishable” from Atiles.⁵

Second, the Joyner majority could have considered “same conduct” cases, like Atiles, to be consistent with both the logic of Rojas and its own strict causation test.   Since the custody in Atiles resulted from the defendant's criminal conduct, rather than his administrative violation, the record reasonably demonstrated that the defendant would have been at liberty were it not for a restraint related to the proceedings resulting in the later sentence.  (See In re Joyner, supra, 48 Cal.3d at p. 489, 256 Cal.Rptr. 785, 769 P.2d 967.)

Because this case is factually indistinguishable from Nickles, and because we agree with the analysis of the Nickles majority, we reach the same conclusion.   On the record before us, defendant has not shown that but for the offenses underlying the proceedings which resulted in his sentence, he would not have served the parole revocation term for which he seeks additional credit.   Thus, defendant is not entitled to such credit.

DISPOSITION

The judgment is modified to stay execution of the 16–month sentence on the conviction for count two pending finality of this judgment and service of sentence on the conviction for count one, such stay to become permanent when service of sentence on count one is completed.   The trial court is hereby directed to prepare an amended abstract of judgment reflecting the above modifications.   In all other respects, the judgment is affirmed.

The majority opinion relies on Joyner and Nickles and distinguishes Atiles.   However, I believe that Atiles is dispositive, Joyner distinguishable and Nickles wrong.   In my opinion, the custody credit sought by defendant must be awarded because Atiles and Penal Code section 2900.5 so require and Joyner does not require otherwise.   Labelling this case a “mixed conduct” case or a “same conduct” case does little to illuminate the appropriate factors by which courts should be guided in their application of Penal Code section 2900.5.  Penal Code section 2900.5, subdivision (b) provides that “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.”  (Emphasis added.)   Hence, the issue in every custody credit case is whether the relevant period of custody “is attributable” to conduct “related” to the conduct involved in the criminal proceeding in which the credit is being sought or to “unrelated” conduct.

The California Supreme Court ruled in Atiles that the period of custody in question was attributable to related conduct, but it concluded in Joyner that the period of custody in question was attributable to unrelated conduct.   In order to determine whether it is Atiles or Joyner which dictates the result in this case, we must consider whether the period of custody for which defendant seeks credit is attributable to the possession offenses or to unrelated conduct.   Whether a period of custody “is attributable” to certain conduct is necessarily an after-the-fact determination.   The use of the word “is” in Penal Code section 2900.5 implies as much.   Thus, while the record establishes that defendant's presentence incarceration was initiated as a result of the possession offenses, we must look at how that custody was ultimately accounted for in order to determine whether it is, after-the-fact, attributable to possession offenses.   In this case, the period of custody in question was a term imposed for parole violations.   If these parole violations were based on conduct unrelated to the possession counts, defendant would not be entitled to credit for this period of custody.   That is not the case here.   Commission of the possession offenses was one of four parole violations which led to a term of imprisonment after revocation of defendant's parole.   Thus, defendant's presentence incarceration was attributable in part to the same conduct which led to his possession convictions.

Nevertheless, the majority opinion concludes that defendant is not entitled to custody credit for his presentence incarceration because “defendant has not shown that but for the offenses underlying the proceedings which resulted in his sentence, he would not have served the parole revocation term for which he seeks additional credit.”  (Maj. Opn. p. 788.)   The majority adopts the “strict causation” test which was applied by the California Supreme Court in Joyner.   However, they overlook the fact that Joyner conceived of this test with an entirely different factual situation in mind.   Because the facts in Joyner are entirely distinguishable, this test is inapplicable here.   Joyner was incarcerated for a period of time in Florida for his Florida offenses.   After his incarceration in Florida, California authorities placed a “hold” on him.   There was no showing that any portion of Joyner's Florida custody was attributable to the California “hold.”   Joyner subsequently received a prison sentence in California for his California offenses.   The Florida offenses were entirely unrelated to the California offenses.   Notwithstanding the obvious inapplicability of Penal Code section 2900.5, Joyner sought custody credit on his California prison sentence for the period of time he was in custody in Florida for the Florida offenses.   The California Supreme Court held that “duplicative credits against separately imposed concurrent sentences for unrelated offenses will be granted only on a showing of strict causation.”  (Joyner, 48 Cal.3d at p. 489, 256 Cal.Rptr. 785, 769 P 2d 967, emphasis added.)  Joyner did not hold that this strict causation test should be applied to cases where the period of custody involved was attributable to related conduct.   Instead, Joyner limited its holding to those cases where the period of custody in question was attributable to unrelated conduct.   Because Joyner's holding was limited in this manner, Joyner does not control the result in the instant matter.

The next question is whether Atiles controls the result here.   Atiles had his parole revoked in part as a result of the same offenses which led to his criminal sentence.   My colleagues acknowledge in a footnote that the revocation of Atiles's parole followed a finding that Atiles had committed two “related” parole violations—the offenses underlying the criminal proceedings—and one “unrelated” parole violation.   However, they do not address this in the text of the majority opinion but merely dismiss it as immaterial on the premise that Atiles “treated the case as if the period of custody ․ was based only on the [related conduct].”  (Maj. Opn., p. 785, fn. 3.)   This approach overlooks contrary language in Atiles which binds this court.   In Atiles, the Attorney General asked the California Supreme Court to deny Atiles custody credit for the period of custody served for the parole revocation on the ground that this period of custody was attributable to conduct unrelated to the criminal proceedings which led to Atiles's conviction and sentence.  (Atiles, 33 Cal.3d at p. 810, 191 Cal.Rptr. 452, 662 P.2d 910.)   The California Supreme Court expressly rejected this argument.  “In determining whether custody for which credit is sought under section 2900.5 is ‘attributable to proceedings leading to the conviction,’ the sentencing court is not required to eliminate all other possible bases for the defendant's presentence incarceration.   The court need only determine that the defendant was not already serving a term for an unrelated offense when restraints related to the new charge were imposed on him, and the conduct related to the new charge is a basis for those restraints.   Nothing in the language of section 2900.5 suggests that the Legislature intended to permit a sentencing court or this court to speculate ․ that a defendant whose parole has been revoked while he awaits trial on new charges would have been ordered confined by the board on the basis of charges other than those leading to conviction.”   (Atiles at pp. 810–811, 191 Cal.Rptr. 452, 662 P.2d 910, emphasis added.)

Defendant herein was not “already serving a term for an unrelated offense” during his presentence incarceration, and the possession offenses were “a basis” for the period of custody for which defendant now seeks credit.   Under Atiles, courts are not permitted to speculate about whether unrelated charges would have resulted in a particular period of custody which was in fact attributable in part to related conduct.   If this related conduct was a basis for the presentence confinement, custody credit must be granted.  Joyner did not overrule, disapprove or cast doubt on this portion of Atiles, and the holding in Joyner is not inconsistent with this portion of the holding in Atiles.   There is also nothing in Rojas, which preceded Atiles, which casts doubt on this part of Atiles.   Consequently, this court is bound to follow Atiles.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)  Atiles rejected the suggestion that a defendant must prove that his parole would not have been revoked but for the conduct which led to the subsequent convictions.   In the absence of such an onerous burden, it is evident that the possession offenses were a basis for the revocation of this defendant's parole and the period of custody served therefor.   Accordingly, defendant is entitled to credit for this period of custody under Penal Code section 2900.5.

FOOTNOTES

1.   Unless otherwise specified, all further statutory references are to the Penal Code.

2.   Section 2900.5 provides, in relevant part, “(a) In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including ․ any time spent in jail, ․ all days of custody of the defendant, ․ shall be credited upon his term of imprisonment․  [¶] (b) 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.”

3.   At the revocation hearing, the defendant admitted an administrative violation of parole, apparently a failure to abstain from alcohol, unrelated to the robbery/sodomy incident.  (In re Atiles, supra, 33 Cal.3d at p. 810, fn. 3, 191 Cal.Rptr. 452, 662 P.2d 910.)   The majority in Atiles, rejected the dissent's assertion that this violation was the “decisive” reason parole was revoked, noting that summaries of the revocation hearing indicated that the six-month term was based on defendant's increasingly serious behavior on parole, which posed a danger to others.   Indeed, the majority expressly declined to assume that the administrative violation was a basis for the defendant's parole incarceration.   In other words, the court treated the case as if the period of custody, for which the defendant sought credit, was based only on the criminal incident involving the robbery and sodomy.

4.   Indeed, neither the majority nor dissent in Joyner mentioned the defendant's administrative violation in discussing Atiles.

5.   We acknowledge that in Atiles, the defendant pleaded guilty to one of the two charges that arose from the single criminal incident and the other was apparently dismissed.   The People claimed that the defendant was not entitled to credit because custody was not solely attributable to the crime for which he was convicted.   The Atiles majority rejected this claim.  Joyner does not suggest that this claim would now have merit.   Rather, the Joyner strict causation test focuses on whether custody had a basis that is independent of and unrelated to the criminal proceedings resulting in the sentence against which credit is sought.

WUNDERLICH, Associate Justice.

COTTLE, P.J., concurs.