CERDA v. PEOPLE (1974)

Petitioner seeks a writ of mandate ordering respondent superior court to file his notice of appeal from its order denying him credit for the time he was detained in the county jail pursuant to a parole hold while awaiting trial on pending criminal charges. Since the relief sought is properly the subject of relief by way of habeas corpus we have treated the petition as one for habeas corpus and have issued an order to show cause why the relief prayed for should not be granted.

On November 17, 1970, petitioner was arrested upon criminal charges while on parole. A parole hold was placed on him and he remained confined in the county jail until February 19, 1971, when he was sentenced to the state prison for conviction of second degree burglary and possession of drugs. Petitioner asserts he is entitled to credit of 103 days for his confinement prior to said sentence.

Penal Code section 2900.5,¹ enacted in 1971 and effective as of March 4, 1972, provides that upon a felony conviction all time served in jail ‘attributable to charges arising from the same criminal act or acts for which the defendant has been convicted’ shall be credited upon the sentence imposed.

In In re Kapperman (1974) 11 Cal.3d 542, 549, 114 Cal.Rptr. 97, 101, 522 P.2d 657, 661, it was held that ‘section 2900.5 must be applied to all felony convictions, and not only to those in which presentence detention occurred as a result of indigency and inability to post bail.’ Section 2900.5 is fully retroactive notwithstanding the contrary provision of its subdivision (c).² (In re Kapperman, supra, at p. 550, 114 Cal.Rptr. 97, 522 P.2d 657.) Accordingly, the statute is operative as to petitioner and Kapperman is dispositive of the instant case.

The presentence custody in the instant case is clearly ‘attributable to charges arising from the same criminal act or acts' for which petitioner has been convicted. It is undisputed that the parole hold was placed on petitioner because of the criminal charges for the acts of which he was sentenced on February 19, 1971. That hold was placed on him the same day that he was arrested. Moreover, Kapperman makes it clear that in every situation in which a person is incarcerated due to pending criminal charges he is entitled to have that time credited to any sentence ultimately imposed for that offense. (11 Cal.3d at pp. 547, 549, 114 Cal.Rptr. 97, 522 P.2d 657.)

We note, further, that a parolee while in custody imposed by a ‘parole hold’ has no constitutional or statutory right to bail. (In re Law, 10 Cal.3d 21, 26, 109 Cal.Rptr. 573.) His situation may well be equated with that of a person whose presentence detention is the result of his indigency and inability to post bail. The holding in Kapperman is not restricted to presentence detention occurring as a result of the inability to post bail. As stated in Kapperman, ‘. . . under our holding, it will be unnecessary to determine whether the person seeking credit was in fact indigent or whether he was otherwise entitled to bail.’ (11 Cal.3d at p. 549, 114 Cal.Rptr. at p. 101, 522 P.2d at p. 661.)

The Adult Authority is directed to allow petitioner 103 days' credit on the prison term he is serving which resulted from his sentence for second degree burglary and possession of drugs on February 19, 1971, in action No. 49977, Superior Court of the State of California, for the County of Santa Clara.

FOOTNOTES

1.  Unless otherwise indicated all statutory references are to the Penal Code.

2.  Subdivision (c) of section 2900.5 provides: ‘This section shall be applicable only to those persons who are delivered into the custody of the Director of Corrections on or after the effective date of this section.’

MOLINARI, Presiding Justice.

SIMS and ELKINGTON, JJ., concur.