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IN RE: John Ronald STEUTEVILLE, on Habeas Corpus.
This petition challenges the trial court's failure to grant presentence credit for time served simultaneously on holds from two counties. In addition to the substantive question of whether the presentence credit under Penal Code section 2900.5 1 is appropriate in such circumstances, the petition raises issues concerning the effect of a Supreme Court order to show cause returnable before the trial court.
Petitioner was arrested in Santa Clara County on February 14, 1975, and charged with rape, kidnapping, and robbery in that county. The same day a hold was placed based on similar charges in Alameda County. On February 18, 1975, an Alameda County arrest warrant issued and bail was set at $100,000. The same bail was set on the Santa Clara charges.
Petitioner remained in the Santa Clara County jail until he was sentenced to state prison on May 23, 1975. He remained there for 8 months before being transferred to Alameda County for trial.2 On February 27, 1976, petitioner was sentenced to state prison on the Alameda County charges to run concurrently with any other terms of imprisonment. He was given 8 months presentence credit. The abstract of judgment does not state what period of time the credit covered, but petitioner alleges that he was credited for the period from May 24, 1975 through February 27, 1976 (actually 9 months).
In October of 1978, petitioner sought habeas corpus from this court to obtain credit for 1 year and 19 days in jail and state prison from February 14, 1975, the time of the Alameda County hold, to February 27, 1976, the time of sentence on the Alameda charges. He claimed that Alameda should have picked him up when Santa Clara was through with him and that he should have received credit from both counties for the time he spent in Santa Clara County jail under a hold from Alameda. This court denied the petition without opposition.
In seeking credit for 1 year 19 days, petitioner did not inform this court that he had been given credit on his Alameda County sentence for 8 months of presentence confinement.
After this court's denial, petitioner filed a similar petition in the California Supreme Court, again omitting to explain that he had been credited for 8 months and again seeking credit for 1 year 19 days. On January 3, 1979, that court issued the following order: “The Director of Corrections is ordered to show cause before the Superior Court of Alameda County, when the matter is ordered on calendar, why petitioner should not receive credit against the terms imposed by the Alameda County Superior Court in People v. John Ronald Steuteville, No. 61142, for precommitment custody in the Santa Clara County jail between February 14, 1975 and May 23, 1975. The written return shall be served and filed on or before January 15, 1979.”
In his return to the high court's order to show cause, the Attorney General contended that when petitioner received 8 months' credit, he received more credit than he was entitled to. Petitioner filed a traverse, arguing that the Attorney General had not addressed the question of entitlement to credit for the specific period of custody in the Santa Clara County jail from February 14, 1975 to May 23, 1975, the period identified by the Supreme Court's order to show cause. The trial court, reciting that it had read and considered the various pleadings, denied relief, apparently holding no formal hearing on the order to show cause. No reasons for the ruling were stated. Petitioner's habeas petition to this court followed.
Petitioner asserts that the issue of entitlement to credit from two counties where there are simultaneous holds has not been decided by an appellate court and argues that the principles enunciated in In re Rojas (1979) 23 Cal.3d 152, 151 Cal.Rptr. 649, 588 P.2d 789, require such credit. He contends that the fact that he was given 8 months' credit for a different period of custody cannot justify denial of credit for the time in Santa Clara County jail. In support of this argument, he asserts that the 8 months' credit was given as part of a plea bargain which was followed by his withdrawal of his motion to dismiss for violation of section 1381's speedy trial requirement. He contends, in any case, that he was entitled to the 8 months' credit at the time it was awarded and that the fact that the Rojas court has denied credit under such circumstances cannot be used retroactively to rescind his entitlement to the 8 months.
The Attorney General throughout the proceedings in this court has argued primarily the position he took in the trial court—that if petitioner is entitled to credit for the dates given in the Supreme Court order, he has already received the credit by virtue of the credit of 8 months by the Alameda County Superior Court. He also adopts his argument below that the case is controlled by In re Ewing (1978) 78 Cal.App.3d 455, 144 Cal.Rptr. 229 on the question of any entitlement at all.
The Effect of the Supreme Court's Order to Show Cause
In analyzing the present petition, one question is what effect the Supreme Court's order to show cause has upon the case.
In In re Hochberg (1970) 2 Cal.3d 870, 87 Cal.Rptr. 681, 471 P.2d 1, the defendant initially petitioned the Supreme Court for habeas corpus relief, claiming ineffective trial counsel. The court, pursuant to section 1508, subdivision (a), issued the writ, returnable before the Superior Court of Los Angeles County in order to permit resolution of factual questions. The superior court held an evidentiary hearing at which petitioner presented uncontradicted testimony which supported her claim and the People presented no evidence. At the conclusion of the hearing, the court expressly declined to decide the issue of effectiveness of trial counsel, stating that the issue should have been raised on appeal and was not a proper ground for habeas corpus.
Thereafter, defendant filed another petition for habeas corpus in the Supreme Court and an order to show cause returnable there was issued. At the Supreme Court level, the People presented factual matter in opposition to the claim of ineffective counsel. The Hochberg court ruled that the People were not entitled to a second evidentiary hearing after waiving their right below. But it did “appraise” the People's evidence in connection with its independent review of the records and concluded that even accepting the evidence ineffective counsel was shown. (Id., at pp. 878–879, 87 Cal.Rptr. 681, 471 P.2d 1.)
Significant for our purposes is the court's footnote explanation of habeas corpus procedures. In footnote 2 (Id., at pp. 873–874, 87 Cal.Rptr., at pp. 683–684, 471 P.2d, at pp. 3–4), the court explained use of the “order to show cause” procedure:
2 The California statutes governing the procedure on habeas corpus do not expressly provide for the issuance of an order to show cause. Penal Code, section 1476 provides that if it appears from the petition that the writ should issue the court must “grant the same,” and section 1477 provides that the writ must command the person having custody of the petitioner “to have the body of such person before the Court or Judge before whom the writ is returnable, at a time and place therein specified.” Sections 1483 and 1484 contemplate that the court before which the writ is returned and the party produced shall then hear evidence as to the legality of his detention.
In California the appellate courts as well as the superior courts exercise original habeas corpus jurisdiction. As stated above, however, appellate courts are not equipped to have prisoners brought before them and to conduct testimonial hearings on disputed issues of fact. Moreover, many issues cognizable on habeas corpus can be resolved on the basis of documentary evidence (e. g., In re McVickers (1946) 29 Cal.2d 264, 280 [176 P.2d 40]) or stipulated facts (e. g., In re Bailleaux (1956) 47 Cal.2d 258, 259 [302 P.2d 801]) without bringing “the body” of the petitioner before the court. Therefore, when it initially appears from the allegations of a habeas corpus petition filed in an appellate court and from “any matter of record pertaining to the case” (Cal.Rules of Court, rule 60) that the petitioner is entitled to relief, this court and the Courts of Appeal developed the practice of ordering the custodian to show cause why the relief sought should not be granted. (See 1 Cal.Criminal Law Practice (Cont.Ed.Bar 1964) p. 395, § 9.63; Witkin, Cal.Criminal Procedure (1963) § 821.) Many superior courts, especially in counties where there are large state prisons and therefore many habeas corpus filings, have developed a similar practice.
The order to show cause directs the respondent custodian to serve and file a written return. If the order to show cause is made returnable before the appellate court and issues of fact requiring an evidentiary hearing are framed, the court may appoint a referee to conduct the hearing and report his findings and conclusions. The court then makes its independent examination of the evidence taken before the referee and, giving respect to but not being bound by his findings and conclusions, makes its own determinations of fact. (In re Branch (1969) 70 Cal.2d 200, 203, fn. 1 [74 Cal.Rptr. 238, 449 P.2d 174].)
If the order to show cause is made returnable before the superior court and that court denies the writ of habeas corpus, the petitioner may again apply to the reviewing court for the writ, and the reviewing court will make its independent examination and appraisal of the evidence that was taken in the superior court. (See In re Smiley (1967) 66 Cal.2d 606, 611 et passim [58 Cal.Rptr. 579, 427 P.2d 179].)
Focusing upon orders to show cause returnable before the trial court, footnote 4 (Id., at pp. 875–876, 87 Cal.Rptr., at pp. 684–685, 471 P.2d, at p. 5) elaborated:
4 It may be that the superior court did not decide the questions of fact presented at the habeas corpus proceeding because it misunderstood the effect of this court's issuance of an order to show cause returnable before the superior court. This court's power to issue a writ of habeas corpus returnable before an intermediate appellate court or a superior court has always been recognized by state Constitution or statute. (Pen.Code, § 1508, subd. (a); former Gov.Code, § 68808; former art. VI, § 4, of Cal.Const. of 1879, repealed in 1966; accord, former Cal.Const. of 1849, art. VI, § 4.) When this court makes the writ or order to show cause returnable before a lower court, that court must decide the issues before it and “dispose of ․ ․ ․ [the petitioner] as the justice of the case may require.” (Pen.Code, § 1484.) Under the judicially established law of this state, when the petitioner proves that his constitutional right to trial counsel has been violated “the justice of the case may require” remand to the trial court for lawful proceedings under the still existing charge (In re James (1952) 38 Cal.2d 302, 314 [240 P.2d 596]) or, if he has virtually completed service of time equivalent to the sentence that could have been imposed lawfully, he may be discharged. (See In re McCoy (1948) 32 Cal.2d 73, 77 [194 P.2d 531].) Our issuance of an order to show cause returnable before a lower court is an implicit preliminary determination that the petitioner has made a sufficient prima facie statement of specific facts which, if established, entitle him to habeas corpus relief under existing law. (Pen.Code, § 1474 [“2. If the imprisonment is alleged to be illegal, the petition must ․ ․ ․ state in what the alleged illegality consists”]; Cal.Rules of Court, rule 56.5 [form of petition for release from or modification of custody requiring “10. State concisely the grounds on which you base your allegation that the imprisonment or detention is illegal. ․ ․ ․ 11. State concisely ․ ․ ․ the facts which support each of the grounds set out in (10)”]; In re Hawley (1967) 67 Cal.2d 824, 829, fn. 3 [63 Cal.Rptr. 831, 433 P.2d 919]; In re Waltreus (1965) 62 Cal.2d 218, 221 [42 Cal.Rptr. 9, 397 P.2d 1001]; In re Razutis (1950) 35 Cal.2d 532, 536 [219 P.2d 15]; In re Swain (1949) 34 Cal.2d 300, 304 [209 P.2d 793].) When we order the respondent to show cause before the superior court why the relief prayed for in a petition for habeas corpus should not be granted, we do more than simply transfer the petition to that court and more than simply afford the petitioner an opportunity to present evidence in support of the allegations of the petition; we institute a proceeding in which issues of fact are to be framed and decided.
In further explanation of the course that a habeas corpus proceeding follows when an appellate court issues an order to show cause or writ returnable before a lower court, we add that the appellate court's preliminary determination that the petitioner has stated grounds which if proved would entitle him to habeas corpus relief is not equivalent to a final appellate court decision of questions of law in favor of petitioner under the doctrine of law of the case. (See People v. Modesto (1967) 66 Cal.2d 695, 705 [59 Cal.Rptr. 124, 427 P.2d 788]; Pigeon Point Ranch, Inc. v. Perot (1963) 59 Cal.2d 227, 231–232 [28 Cal.Rptr. 865, 379 P.2d 321]; People v. Randazzo (1957) 48 Cal.2d 484, 487 [310 P.2d 413].) If the superior court grants relief on habeas corpus the People have a right of appeal. (Pen.Code, § 1506.) On such an appeal the appellate court's preliminary order is not a determination of the law of the case.
(Emphasis added.)
Applying the Hochberg footnotes to the facts of this case, when the Supreme Court issued an order to show cause returnable before the Alameda County Superior Court, it instituted a “proceeding in which issues of fact are to be framed and decided.” Its issuance of the order to show cause was an “implicit preliminary determination that the petitioner [had] made a sufficient prima facie statement of specific facts which, if established, [would] entitle him to habeas corpus relief under existing law.” Though the legal determination was not the equivalent of a binding appellate court decision constituting law of the case, it left to the trial court only issues of fact. Because the order to show cause related only to “precommitment custody in the Santa Clara County jail between February 14, 1975 and May 23, 1975,” the order to show cause instituted a proceeding to determine if factually petitioner was entitled to credit for that period of confinement.
In order to evaluate the trial court's and the Attorney General's response to the Supreme Court's order to show cause, it is necessary to understand the principles governing pleadings in habeas corpus matters. In In re Lawler (1979) 23 Cal.3d 190, 194, 151 Cal.Rptr. 833, 835, 588 P.2d 1257, 1259, the Supreme Court explained:
In a habeas corpus proceeding the petition itself serves a limited function. It must allege unlawful restraint, name the person by whom the petitioner is so restrained, and specify the facts on which he bases his claim that the restraint is unlawful. (§ 1474.) If, taking the facts alleged as true, the petitioner has established a prima facie case for relief on habeas corpus, then an order to show cause should issue. (In re Hochberg (1970) 2 Cal.3d 870, 875, fn. 4 [87 Cal.Rptr. 681, 471 P.2d 1].) We have previously observed that the order to show cause, although not expressly provided for in the statutes governing the writ, has developed as an appropriate means by which to initiate a hearing and disposition of a petition on behalf of a person in custody without the necessity of bringing the petitioner before the court. (Id., at p. 873, fn. 2 [87 Cal.Rptr. 681, 471 P.2d 1]). The return to the order to show cause then becomes the principal pleading, analogous to a complaint in a civil proceeding. The factual allegations of the return will be deemed true unless the petitioner in his traverse denies the truth of the respondent's allegations and either realleges the facts set out in his petition, or by stipulation the petition is deemed a traverse. (In re Saunders (1970) 2 Cal.3d 1033, 1047–1048 [88 Cal.Rptr. 633, 472 P.2d 921].) The issues are thus joined, and if there are no disputed material factual allegations, the court may dispose of the petition without the necessity of an evidentiary hearing.
As can be seen, the Attorney General had the obligation of filing a document, the return, which would operate as the principal pleading in the matter, analogous to a complaint in a civil proceeding. The return filed in the trial court alleged essentially the same facts asserted in the petition. However, it added the fact that petitioner was given credit for 8 months presentence custody. It did not identify the period of custody covered by the 8 months' credit, except to assert that in calculating petitioner's term of imprisonment, the Community Release Board included an additional three days to account for the time between sentence and transportation to Vacaville.
Petitioner's traverse to the return in the trial court acknowledged the 8 months' credit, but asserted that it covered custody only after he was sentenced on the Santa Clara charges. He claimed that he received no credit on his Alameda term for the time he spent in Santa Clara County jail prior to sentence.
It is evident that on the issue framed by the Supreme Court's order to show cause, the only evidence was petitioner's assertion that he received no credit for the time in custody between February 14, 1975 and May 23, 1975. The Attorney General presented only a legal argument that credit received for a different period of time should be offset against the custody time in issue. At the trial court level, after an order to show cause from the Supreme Court, such a legal argument was inappropriate. (See In re Hochberg, supra, 2 Cal.3d 870, 87 Cal.Rptr. 681, 471 P.2d 1.) The trial court was obliged to rule in petitioner's favor because the undisputed facts revealed that he was not given credit for custody during the relevant period.
The Attorney General mentions the fact that appellant did not inform the Supreme Court of his 8 months' credit, as if to argue that habeas corpus rules are different where the petition is incomplete or inaccurate in its statement. We can only speculate whether, had the petitioner mentioned the receipt of that credit, the Supreme Court would have declined to issue the order to show cause (perhaps concluding that he was not entitled to the 8 months under Rojas and that, therefore, there was a “wash” between the overcredit and undercredit). The fact is, however, that the Supreme Court did issue the order to show cause and specifically identified February 14, 1976 to May 23, 1975 as the period in question. It instituted a proceeding to determine the facts and the only facts related to that period were those presented by petitioner. Any defects in the petition itself were irrelevant to the proceedings instituted by the order to show cause.
Accepting that the trial court erred in failing to grant petitioner credit in light of the Attorney General's failure to contradict the only facts presented concerning the period from February 14, 1975 to May 23, 1975, the next question is what effect that error has upon petitioner's rights. Denial of a habeas corpus petition is not appealable. Review can be obtained only by seeking habeas corpus relief from a higher court. (See In re Hochberg, supra, 2 Cal.3d at p. 876, 87 Cal.Rptr. 681, 471 P.2d 1; Loustalot v. Superior Court (1947) 30 Cal.2d 905, 913, 186 P.2d 673.) Petitioner has sought habeas corpus relief from this court and the order to show cause has instituted a proceeding similar to the one that the Supreme Court previously instituted in the trial court.
Hochberg tells us that the Attorney General by his actions in superior court has waived the right to further evidentiary review. In any case, however, his pleadings in this court are no stronger than they were below. His return merely asserts that petitioner is not entitled to any additional presentence credit and incorporates by reference his pleadings in the trial court and his opposition to the petition filed in this court. Nowhere in any of these documents does he assert any factual basis for denying credit for the period between February 14, 1975 and May 23, 1975.
Another question arises, however: Is this court bound by law of the case to accept the Supreme Court's implicit legal determination that petitioner's petition stated a prima facie case for the award of credit for the period between February 14, 1975 and May 23, 1975? The preceding discussion makes clear that the trial court was bound by the legal ruling implicit in the order to show cause, but Hochberg does not explain what effect the Supreme Court's action has upon this court's ability to make a legal determination of the validity of petitioner's argument.
The language of Hochberg suggests the answer to the question raised. In the final paragraph of footnote 4 (2 Cal.3d at p. 876, 87 Cal.Rptr. at p. 685, 471 P.2d at p. 5), the court stated: “In further explanation of the course that a habeas corpus proceeding follows when an appellate court issues an order to show cause or writ returnable before a lower court, we add that the appellate court's preliminary determination that the petitioner has stated grounds which if proved would entitle him to habeas corpus relief is not equivalent to a final appellate court decision of questions of law in favor of petitioner under the doctrine of law of the case. [Citations.] If the superior court grants relief on habeas corpus the People have a right of appeal. (Pen.Code, § 1506.) On such an appeal the appellate court's preliminary order is not a determination of the law of the case.” The Hochberg court stopped just short of answering the question raised here. But logically it follows that if the superior court denies relief on habeas corpus, defendant may seek habeas corpus relief in the next higher court and on such a petition the appellate court's preliminary order is not a determination of the law of the case.
In light of the foregoing, the case seems to have returned to square one. In order to succeed on this petition, petitioner must convince this court that his petition factually makes a case for relief as a matter of law. If it does so, the Attorney General's failure to dispute the operative facts will result in the issuance of the writ. Two legal issues are presented: (1) Was petitioner entitled to credit on both convictions for a period of custody during which he was under holds from two different counties? and (2) If so, does the fact that he received 8 months' credit for a different period of time to satisfy his right to the credit?
(1) Credit for the period from February 14, 1975 to May 23, 1975
Petitioner relies upon cases where defendants have been allowed presentence credits both for their parole or probation term and for terms connected with new offenses where they were held simultaneously on the new charges and the parole or probation holds. (See, e. g., Cerda v. Superior Court (1974) 42 Cal.App.3d 491, 495, 116 Cal.Rptr. 896; People v. Washington (1978) 80 Cal.App.3d 568, 572, 145 Cal.Rptr. 654.) However, those cases are distinguishable, since the custody there related primarily to one course of conduct as to which there were two separate proceedings. Here, the holds from two different counties relate to different courses of conduct.
Petitioner also contends that the reasoning in In re Rojas, supra, 23 Cal.3d 152, 151 Cal.Rptr. 649, 588 P.2d 789, compels that he receive credit. In Rojas the defendant was serving a state prison term when an information was filed on an unrelated murder and he was transferred to county jail to await trial. After conviction, he did not receive presentence credit on the new sentence which was to run concurrently with his prior. The Rojas court disapproved two Court of Appeal decisions which stated or held that credit was due under such circumstances because section 2900.5 does not say “ ‘ “attributable exclusively to charges arising,” etc.’ ” (At p. 157, 151 Cal.Rptr. at p. 652, 588 P.2d at p. 792.) The Rojas court explained its position on page 156, 151 Cal.Rptr. on pages 651–652, 588 P.2d on pages 791–792 as follows:
The history of section 2900.5 points to the Legislature's intent. When this section was first enacted the original wording provided that all the days a defendant spent in jail from the date of arrest to the day on which sentence was imposed should be credited upon the defendant's sentence. The legislative purpose appears to have been to eliminate the unequal treatment suffered by indigent defendants who, because of their inability to post bail, served a longer overall confinement than their wealthier counterparts. (In re Kapperman (1974) 11 Cal.3d 542, 549 [114 Cal.Rptr. 97, 522 P.2d 657]; In re Young (1973) 32 Cal.App.3d 68, 75 [107 Cal.Rptr. 915]; In re Jordan (1975) 50 Cal.App.3d 155, 157–158 [123 Cal.Rptr. 268].)
¶ ․ ․ ․ As we noted in In re Watson, supra, 19 Cal.3d 646, 651 [139 Cal.Rptr. 609, 566 P.2d 243] “[section 2900.5] pertains to the pretrial incarceration of a person charged with crime but not yet tried much less convicted, and therefore clothed with the presumption of innocence. ․ ․ ․ [¶] The crucial element of the statute is not where or under what conditions the defendant has been deprived of his liberty but rather whether the custody to which he has been subjected ‘is attributable to charges arising from the same criminal act or acts for which the defendant has been convicted.’ (§ 2900.5, subd. (b).)” (Italics in original, p. 651 [139 Cal.Rptr. p. 612, 566 P.2d p. 246].)
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 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 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.
Rojas, of course, does not deal with the issue that directly confronts us. Its reasoning does not foreclose the relief sought by petitioner, but, on the contrary, indicates that petitioner, as a charged individual rather than a convicted one, is at least in the class of individuals whom section 2900.5, subdivision (b) was intended to benefit.
The People rely on In re Ewing, supra, 78 Cal.App.3d 455, 144 Cal.Rptr. 229. In Ewing the defendant was initially arrested in San Diego on a firearm possession charge and later failed to appear for court proceedings. Some seven months later, he was arrested in Alameda County for forgery and holds were placed by San Diego and by state parole authorities. After his return to San Diego and conviction there, he was credited with presentence time but it did not include the time in Alameda County when he was under a hold from San Diego. The Ewing court held that the confinement in Alameda was not attributable to proceedings related to the firearm charges in San Diego but was “attributable solely to the Alameda County proceedings related to the Alameda County forgery conduct.” (Id., at pp. 458–459, 144 Cal.Rptr. at p. 231.) The court stated: “On the record before us the hold in question played no part either in Ewing's initial custody or his ongoing custody in Alameda County.3” (Id.) Then came the interesting footnote, however, stating:
FN3 The record shows there were three holds, including the hold in question. Even assuming the truth of Ewing's assertion he could have posted the bail fixed for the Alameda County forgery charge, there were still left two holds other than the hold under consideration. Thus, there is no showing the hold here in question had any relationship to Ewing's ongoing custody.
FN Nothing we say is meant to imply an arrest pursuant to a bench warrant would not result in custody attributable to proceedings related to the same conduct for which a defendant is convicted. In Ewing's case, however, the record shows he was arrested and taken into custody solely because of the Alameda County conduct, entirely different from and unrelated to the San Diego conduct giving rise to the issuance of the warrant and resulting hold. (At p. 459, 144 Cal.Rptr. pp. 231–232.)
If the rationale of Ewing is, as suggested by the footnote, that when a person is held on a charge by County A in jail in County A and a hold is placed on him by County B on a charge arising in County B, his incarceration in County A is not “attributable to proceedings” in County B because he could not raise bail in County A, then the decision, while logical flies in the face of the original purpose and still a purpose of section 2900.5, subdivision (b), as stated in Rojas, in that “indigent defendants who, because of their inability to post bail, ․ ․ ․ [will serve] a longer overall confinement than their wealthier counterparts.” (In re Rojas, supra, 23 Cal.3d at p. 156, 151 Cal.Rptr. at p. 651, 588 P.2d at p. 791.)
We have found no reported case other than Ewing squarely on point, nor did the high court in Rojas advert to Ewing.3
In In re Bentley (1974) 43 Cal.App.3d 988, 118 Cal.Rptr., 452, the court reasoned that because section 2900.5, subdivision (b) does not say that credit shall be given only when the custody to be credited is attributable exclusively to proceedings related to the same conduct for which the defendant is convicted, credit is to be given for pre-conviction custody upon a sentence where the defendant is in custody for several reasons, one of which is his pre-conviction custody for the course of conduct which led to his conviction and sentence. Bentley, however, involved a defendant in custody on a robbery charge and a parole hold arising out of the robbery charge.
Rojas, though it approved the decision in Bentley, did so on the ground that it “was correct under a literal reading of section 2900.5.” (In re Rojas, supra, 23 Cal.3d at p. 157, 151 Cal.Rptr. at p. 652, 588 P.2d at p. 792.) Specifically, however, Rojas rejected the Bentley reasoning, characterizing Bentley's reliance on the absence of the word “exclusively” in section 2900.5, subdivision (b) as “an unnecessary semantic exercise (id.) and as injecting into section 2900.5, subdivision (b) “a nonexistent ambiguity” (id.).
Taking Rojas as our text, we proceed to read the pellucid language of section 2900.5, subdivision (b) literally in the context of the facts of our case. From February 14, 1975 until May 23, 1975, the day he was sentenced in Santa Clara County, petitioner was in Santa Clara County jail, held on separate charges, one set of charges arising out of alleged criminal conduct in Santa Clara County and the other separate charges arising out of alleged offenses committed in Alameda. Bail had been set in each jurisdiction. Thus, unlike the petitioner in Rojas, petitioner here was in pretrial incarceration on both the Santa Clara and Alameda County charges. The fact that he was in a Santa Clara County jail does not foreclose credit in the Alameda County sentence because where the petitioner was deprived of his liberty is not a “crucial element” of section 2900.5, subdivision (b). (In re Rojas, supra, 23 Cal.3d at p. 156, 151 Cal.Rptr. 649, 588 P.2d 789.)
Petitioner held in Santa Clara County jail on Alameda County charges subsequently pleaded guilty to those charges. Thus, his custody in Santa Clara County jail, prior to his sentence on the Santa Clara County charges, “is attributable to proceedings [the Alameda County charges] related to the same conduct for which the [petitioner] has been convicted.” (§ 2900.5, subd. (b).) Obviously, petitioner was entitled to and did receive similar credit on his Santa Clara County conviction. He is equally entitled to the credit on his subsequent Alameda County sentence for which he received a concurrent term.
We are fortified in our view by the 1978 amendment to section 2900.5, subdivision (b). (Stats.1978, ch. 304.) That amendment added the last sentence in section 2900.5, subdivision (b) as follows: “Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.” (Emphasis added.) It follows now that when there is a single period of custody attributable to multiple offenses for which a concurrent sentence is imposed, credit can be given more than once. Because the 1978 amendment specifically limited credit to only once in the case of consecutive sentences, it would appear that before the 1978 amendment, credit in one custody-multiple offense situations was to be more than once, certainly where the sentences were concurrent as here, and perhaps, though we need not decide it, if the sentences were consecutive.4
Should the 8 Months' Credit Petitioner Received Be Offset Against the Credit He Seeks Here?
The Attorney General argues that petitioner received 8 months' credit on his Alameda conviction to which he was not entitled. Therefore, the argument goes, even if petitioner is entitled to credit for the period from February 14, 1975 to May 23, 1975, that should be offset by the 8 months' credit with which he should not have been credited.
The 8 months' credit is that period of time from the date petitioner was sentenced to prison on the Santa Clara charges to the date he pleaded guilty to the Alameda County charges, a period of time that is subsequent to the period of time credit for which petitioner brought this writ.
Under Rojas, of course, petitioner would not have been entitled to the 8 months' credit on his Alameda County sentence because he was then serving his prison term on the Santa Clara County sentence. However, the Alameda County sentence was in 1976. Rojas came down in 1979. In 1976, under the case law, petitioner, arguably, was entitled to the 8 months' credit. We have noted this time sequence only for the purpose of showing that the trial court had a legal basis for crediting petitioner with the 8 months as a part of a plea bargain which, petitioner contends, the 8 months' credit was.
From the record it appears that a plea bargain was entered into according to which petitioner pleaded guilty to a charge and dismissed his section 1381 motion and in return received concurrent time and 8 months' credit for time served. Thus, to accede to the Attorney General's argument that there should be a “wash” would be, in effect, to take away from petitioner a part of that which he bargained for and received. We cannot so hold.
The petition for writ of habeas corpus is granted. Petitioner is to receive credit upon his Alameda County sentence for time in custody between February 14, 1975 and May 23, 1975.
The Superior Court of Alameda County is hereby directed to prepare an amended abstract of judgment reflecting the above adjustment and to deliver a copy of the amended abstract of judgment to the Department of Corrections.
The Department of Corrections is hereby directed to amend petitioner's commitment record to conform with this opinion and to reflect the new commitment.
FOOTNOTES
1. All section references hereafter are to the Penal Code unless otherwise noted.
2. Petitioner asserts that on June 3, 1975, he made a section 1381 demand for trial on the Alameda County charges. That assertion is relevant only in explaining petitioner's later contention that he was entitled to the 8 months presentence credit given by the trial court because he received the credit as part of a bargain under which he dropped his motion to dismiss under section 1381.
3. It should be pointed out that Ewing was decided before the 1978 amendment to section 2900.5, subdivision (b), which amendment we discuss infra.
4. We limit our holding to the facts here—one incarceration on multiple bailable offenses where the defendant is convicted and sentenced concurrently on the multiple offenses.
FEINBERG, Associate Justice.
WHITE, P. J, and SCOTT, J., concur.
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Docket No: Cr. 20251.
Decided: April 24, 1980
Court: Court of Appeal, First District, Division 3, California.
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