IN RE: David Dwayne DAVIS (1992)

In conjunction with his direct appeal,¹ defendant filed this petition for writ of habeas corpus seeking presentence credit pursuant to Penal Code section 2900.5.²  It appearing that upon the authority of In re Atiles (1983) 33 Cal.3d 805, 191 Cal.Rptr. 452, 662 P.2d 910 defendant is entitled to 128 days presentence credit, we issued an order to show cause returnable before this court.   The matter has now been fully briefed;  we hold that defendant is entitled to the credit which he seeks.

PROCEDURAL AND FACTUAL BACKGROUND

Defendant was released from prison on parole on January 27, 1991.   He failed to report to the Santa Rosa Parole Unit as instructed.   On March 4, 1991, defendant was declared a parolee-at-large by the Board of Prison Terms, with an effective date of suspension of January 27, 1991.

On March 27, 1991, defendant was arrested for petty theft which was the subject of his accompanying appeal.   The same day, a parole hold was placed on defendant with two specified charges:  (1) “absconding;”  and (2) “petty theft with prior.”

On April 5, 1991, the Board of Prison Terms conducted a revocation proceeding.   Parole was revoked on both grounds and the parole hold was ordered in effect, apparently until June 15, 1991.

Defendant remained in custody from the date of his arrest to the date of sentence, March 27 to August 2, 1991.   However, the trial court granted him only one day of credit for time served.

CONTENTIONS

Defendant contends that he is entitled to 128 days credit for his incarceration from March 27, 1991, to August 2, 1991.   The People argue that defendant is not entitled to credit for the period during which the parole hold was in effect (March 27 to June 15, 1991, or 81 days).   They concede, however, that defendant is entitled to credit for the period from the time the parole hold expired to the date of sentence (June 15 to August 2, 1991, or 49 days).³

LEADING CASES

This petition presents what is commonly known as an Atiles problem.  (In re Atiles, supra, 33 Cal.3d 805, 191 Cal.Rptr. 452, 662 P.2d 910.)   It arises under section 2900.5 which provides in general that a defendant sentenced to imprisonment shall receive credit for time spent in custody from the date of arrest.  (§ 2900.5, subd. (a).)  In particular, the Atiles problem arises under section 2900.5, subdivision (b), which provides:  “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.”  (Emphasis added.)

“ ‘The issue of what custody is “attributable to proceedings related to the same conduct” as that for which a defendant is to be sentenced has provoked a considerable quantity of appellate literature, much of it conflicting’ (People v. Huff (1990) 223 Cal.App.3d 1100, 1104, 273 Cal.Rptr. 44);  and section 2900.5, subdivision (b) ․ is widely recognized to be ‘ “difficult to interpret and apply” ’ (People v. Adrian (1987) 191 Cal.App.3d 868, 874–875 [236 Cal.Rptr. 685] ).”  (In re Nickles (1991) 231 Cal.App.3d 415, 419, 282 Cal.Rptr. 411.)

 The applicability or not of section 2900.5 is clear in only two situations.   One, where a defendant is arrested for an offense and is held in custody between arrest and judgment solely because of that offense and for no other reason, defendant is entitled to credit against his or her sentence for all the time spent in jail.   This situation would normally arise because defendant is indigent and unable to make bail;  it demonstrates the legislative purpose underlying section 2900.5, which was to eliminate unequal treatment of such indigent arrestees.  (In re Rojas (1979) 23 Cal.3d 152, 156, 151 Cal.Rptr. 649, 588 P.2d 789.)

 Two, where a defendant is in custody serving time in prison for a prior offense, and while in prison he or she is charged with another totally unrelated offense, the defendant is not entitled to section 2900.5 pretrial credit against a second sentence for time spent in county jail awaiting trial and disposition of the second offense.  “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 [or her] 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 [or she] 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.”  (In re Rojas, supra, 23 Cal.3d at p. 156, 151 Cal.Rptr. 649, 588 P.2d 789, original italics.)

Both of the above two situations are relatively simple because there was only one crime to which custody is attributable:  In the first case custody was attributable to the current offense and the defendant receives credit;  in the second, custody was attributable only to a prior offense, and the defendant does not receive section 2900.5 credit.   Other, more complex, fact situations have arisen in which there is uncertainty about which custody is “attributable” to which charges.

In re Atiles, supra, 33 Cal.3d 805, 191 Cal.Rptr. 452, 662 P.2d 910, is considered the seminal case in that it deals with the question what is “attributable” to current charges;  it has generated much confusion.   In Atiles, as in the case at bench, defendant was on parole when arrested.   The conduct which led to his arrest and conviction on the new criminal charge also formed one of several bases for the parole hold and parole revocation proceedings.  “Thus, his custody in the county jail was, literally, ‘attributable to proceedings related to the same conduct for which the defendant has been convicted’․”  (Id., at pp. 809–810, 191 Cal.Rptr. 452, 662 P.2d 910, including fn. 3.)

Under Atiles, in order to find custody “attributable to proceedings leading to the conviction,” the sentencing court need not eliminate all other possible bases for 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 [or her], and the conduct related to the new charge is a basis for those restraints.”  (In re Atiles, supra, 33 Cal.3d at p. 810, 191 Cal.Rptr. 452, 662 P.2d 910, fn. omitted.)

In particular, neither the sentencing nor appellate court is permitted to “speculate” that the Board of Prison Terms would have ordered the defendant confined pending trial and sentence on the basis of parole violation charges other than those leading to conviction.  (In re Atiles, supra, 33 Cal.3d at p. 811, 191 Cal.Rptr. 452, 662 P.2d 910.)

The above three paragraphs recount the holdings of Atiles.   After stating its holdings, the court went on with troublesome dictum.   In it the court characterized the legislative intent behind section 2900.5 as not only attempting to eliminate unequal treatment of indigent prisoners, but also attempting to equalize the actual time served in custody for given offenses.   The court stated that unequal treatment follows not only from denial of credit altogether, but also from denial of credit on multiple concurrent terms.  (See, In re Atiles, supra, 33 Cal.3d at pp. 812–813, 191 Cal.Rptr. 452, 662 P.2d 910.)   We need not repeat the court's discussion of this issue which followed;  it is no more applicable to our case than it was to Atiles;  it has been withdrawn.

The Supreme Court backed away from the Atiles dictum in In re Joyner (1989) 48 Cal.3d 487, 256 Cal.Rptr. 785, 769 P.2d 967.   There California issued arrest warrants for defendant in January 1983.   He was arrested in March 1983 in Florida for crimes committed in that state and for probation violation.   Florida placed a hold on him at California's request.   There was no evidence that defendant attempted to obtain his release and that the hold prevented him from doing so.  (In re Joyner, supra, 48 Cal.3d at pp. 489–490, 256 Cal.Rptr. 785, 769 P.2d 967.)

Florida instituted probation revocation proceedings.   Eventually defendant was sentenced to concurrent terms on the new Florida offenses and those for which he had received probation.   He received full credit for presentence custody.   Then he was extradited to California, where he negotiated a four-year term for the California offense, eventually determined to be served concurrently with the Florida sentence.  (In re Joyner, supra, 48 Cal.3d at p. 490, 256 Cal.Rptr. 785, 769 P.2d 967.)   The California trial court denied defendant's request for presentence credit.   The Supreme Court subsequently entertained an original petition.  (In re Joyner, supra, 48 Cal.3d at pp. 490–491, 256 Cal.Rptr. 785, 769 P.2d 967.)

The court stated defendant Joyner was in custody on unrelated Florida charges for the entire time under consideration and after he began serving the Florida sentence his situation was “indistinguishable from that of the petitioner in Rojas ․—the custody was as a practical matter unavoidable and therefore could not be attributable to the California proceedings from which the hold originated.”  (In re Joyner, supra, 48 Cal.3d at p. 492, 256 Cal.Rptr. 785, 769 P.2d 967.)

Regarding the period between the arrest and sentence in Florida, the court held this time was not shown to be “attributable” to the California sentence.   Joyner's custody during that time may not have been “unavoidable,” because there was no evidence that he posted Florida bail or that he could have obtained release but for the California hold.   That is, it was not shown that the California hold “had any effect upon petitioner's liberty at any time.”   (In re Joyner, supra, 48 Cal.3d at p. 492, 256 Cal.Rptr. 785, 769 P.2d 967.)  “Thus,” the court said, “petitioner has failed to demonstrate that his presentence custody was, within the meaning of section 2900.5, ‘attributable to’ anything other than the Florida proceedings.”  (Ibid.)  Therefore, the logic of Rojas dictated rejection of Joyner's entire claim for presentence credit.  (In re Joyner, supra, at p. 492, 256 Cal.Rptr. 785, 769 P.2d 967.)

The court then addressed Joyner's reliance on Atiles.   The court distinguished the case before it from the facts in Atiles, which “was a case in which the same criminal conduct resulted both in revocation of parole and the filing of new charges.   Because it was a ‘same conduct’ case, Atiles is not controlling in cases like this one in which concurrent sentences were imposed in separate proceedings for unrelated criminal conduct.”  (In re Joyner, supra, 48 Cal.3d at p. 493, 256 Cal.Rptr. 785, 769 P.2d 967.)   While reaffirming the holding in Atiles, the court went on to lay the Atiles dictum to rest.  “Although the Atiles opinion, to which three justices dissented, does contain dicta supportive of petitioner's contention, those dicta are logically inconsistent with Rojas, supra, ․ and are unsupported by the language or legislative history of section 2900.5.”  (Id., at pp. 493–494, 256 Cal.Rptr. 785, 769 P.2d 967.)   There followed two pages criticizing and disavowing the Atiles dictum.

The court recognized the difficulty of the section 2900.5 cases and that there is no simple answer to all presentence credit issues.   The court reaffirmed Rojas as providing a reasonable construction of the section and producing fair results in most cases.   The court disapproved statements in Atiles and its progeny inconsistent with the Rojas construction as applied in Joyner.  (In re Joyner, supra, 48 Cal.3d at p. 495, 256 Cal.Rptr. 785, 769 P.2d 967.)

The opinion concluded with a denial of the writ because “petitioner has failed to demonstrate an entitlement to pre-sentence credit according to the construction of section 2900.5 established by this court in Rojas, supra, 23 Cal.3d 152 [151 Cal.Rptr. 649, 588 P.2d 789]․”  (In re Joyner, supra, 48 Cal.3d at pp. 495–496, 256 Cal.Rptr. 785, 769 P.2d 967.)

DISCUSSION

 The facts of the case before us fall squarely within the Atiles holding, not the rule of Rojas and Joyner.   Both Atiles and defendant were on parole when they were arrested for new offenses.   Both were subjected to parole violation custody because of the new charges and other parole violations.  Atiles held that such defendants are entitled to presentence credit.   Custody need not be attributable “exclusively” to the new offense.   Nor is the sentencing court required to eliminate all other bases for 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․”  (In re Atiles, supra, 33 Cal.3d at p. 810, 191 Cal.Rptr. 452, 662 P.2d 910.)   These holdings have never been overruled or disapproved by the Supreme Court.

In their return to our order to show cause, the People rely heavily on In re Nickles, supra, 231 Cal.App.3d 415, 282 Cal.Rptr. 411, a recent decision in which two justices of Division Two of this district expressed the view that Joyner disapproved Atiles.   We do not agree.   Nickles was on parole when he was arrested for drug and firearm charges.   His parole was revoked based on the new criminal allegations and two administrative violations.   He served a parole revocation term and then returned to superior court where the new charges were disposed of by plea.   The trial court gave Nickles no presentence credit for his parole revocation term.   The majority of the appellate court held that because presentence custody was only partially attributable to conduct for which Nickles was convicted, he had the burden of proving entitlement to credit.   Nickles did not meet that burden;  he relied, instead, on Atiles.  (In re Nickles, supra, 231 Cal.App.3d at pp. 416–417, 419, 282 Cal.Rptr. 411.)

The Nickles court stated that Joyner “disapprov[ed] the Atiles interpretation of section 2900.5(b).”  (In re Nickles, supra, 231 Cal.App.3d at p. 420, 282 Cal.Rptr. 411.)   This reading of Joyner is overbroad;  it would have been accurate to say Joyner disapproved “the dictum portion” of the Atiles interpretation of section 2900.5.   As we have shown above, our reading of Joyner, 48 Cal.3d at pp. 494–495, 256 Cal.Rptr. 785, 769 P.2d 967, reveals that it disapproved the Atiles dictum (33 Cal.3d at pp. 812–813, 191 Cal.Rptr. 452, 662 P.2d 910), not the Atiles holding.   This point is clearly made in the dissent.  (In re Nickles, supra, 231 Cal.App.3d at pp. 424–425, 282 Cal.Rptr. 411 [dis. opn.].)

Furthermore, as the Nickles dissent points out, Joyner cannot be read as overruling Atiles because they are factually distinguishable.  Joyner involved custody for two unrelated offenses, one in Florida and the other in California;  Atiles and Nickles, like the case at bench, were “same conduct” cases.   We agree with Presiding Justice Kline that Atiles should have been applied to Nickles and we apply it to the case at bench.

The Nickles majority went astray in part because it characterized its case as “mixed conduct” rather than a “same conduct” case.   Here, as in Atiles and Nickles, the “same conduct,” the defendant's new crime, caused custody for both parole revocation and for the new offense.   The term “mixed conduct” should be reserved for cases such as Joyner where two separate and distinct crimes gave rise to what is properly viewed as separate and distinct custody.

The Nickles majority relied on two cases which it read as applying Joyner 's “strict causation” rule to what it called “mixed conduct” cases.   Presiding Justice Kline's dissent correctly explained the two cases.   In People v. Odom (1989) 211 Cal.App.3d 907, 259 Cal.Rptr. 827, the court correctly applied the strict causation test of Joyner because defendant's probation in Sacramento County on a separate and distinct offense was revoked before he was arrested for a subsequent offense in Placer County.   When he was returned to and was sentenced in Sacramento, he was properly denied credit for time spent in Placer custody which was unrelated to the probation revocation.

In People v. Huff (1990) 223 Cal.App.3d 1100, 273 Cal.Rptr. 44, the court applied Joyner and held that where custody relating to two distinct offenses overlaps, the burden is on defendant to show that the custody for which credit is sought is “attributable” in the manner asserted.   In Huff defendant simply failed to meet that burden.   Thus, as stated by the Nickles dissent, neither Odom nor Huff “suggests that Atiles is no longer authoritative and should not be followed in cases presenting factually similar contexts.”   (In re Nickles, supra, 231 Cal.App.3d at p. 425, 282 Cal.Rptr. 411.)

CONCLUSION

Atiles 's holding has never been overruled or disapproved, and we must follow it.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)   Defendant's conduct which led to his arrest and conviction on the new charge was one of the bases for his parole hold and parole revocation proceedings.   His custody was literally “attributable” to the later proceedings.   To find defendant entitled to presentence credit, we need not eliminate all other possible bases for defendant's presentence incarceration.   Defendant was not already serving a term for an unrelated offense when these restraints were imposed;  the new charge was one of the bases for the restraints.   That is enough.  (In re Atiles, supra, 33 Cal.3d at pp. 809–810, 191 Cal.Rptr. 452, 662 P.2d 910.)   We should not speculate that the Board of Prison Terms would have ordered defendant confined pending trial and sentence on the basis of the parole violation charge other than that leading to conviction.  (Id., at p. 811, 191 Cal.Rptr. 452, 662 P.2d 910.)

Thus, defendant is entitled to full section 2900.5 credit for the entire period of 129 days incarceration.   Defendant is entitled to an additional 64 days credit pursuant to section 4019, subdivision (f) (6 days credit for each 4–day period served).  (People v. Gutierrez (1991) 232 Cal.App.3d 1571, 1572–1573, 284 Cal.Rptr. 211.)

DISPOSITION

The petition for writ of habeas corpus is granted to the extent that the Mendocino County Superior Court is directed to forthwith amend the abstract of judgment in People v. Davis, superior court number 10783–C, to show 129 days Penal Code section 2900.5 credit for the period of incarceration from March 27 to August 2, 1991, plus 64 days additional credit under Penal Code section 4019, subdivision (f) (People v. Gutierrez (1991) 232 Cal.App.3d 1571, 1572–1573, 284 Cal.Rptr. 211), and to forward a certified copy of the amended abstract of judgment to the Department of Corrections.   In all other respects the petition for writ of habeas corpus is denied.

It appearing that the purpose of the order to show cause has been satisfied by the above amendment of judgment and that defendant is otherwise properly in custody, the order to show cause is discharged.

FOOTNOTES

1.   We filed an unpublished opinion on May 7, 1992, in People v. Davis, A054615, affirming a judgment of conviction.

2.   All further statutory references are to the Penal Code unless otherwise indicated.

3.   Both parties miscalculate.   The period for which defendant seeks credit is not 128 days, but 129.   The People calculate the period of their concession to be 47 days;  it should be 49 days.  (People v. Smith (1989) 211 Cal.App.3d 523, 526, 259 Cal.Rptr. 515;  cf., Gov.Code, § 6800.)

WHITE, Presiding Justice.

MERRILL and WERDEGAR, JJ., concur.