PEOPLE v. GIBSON (1979)

The People appeal an order granting credit against the sentence imposed on defendant. The issues are: (1) whether the order is appealable; and (2) whether the credit was properly granted.

On September 21, 1965, Earl B. Gibson was convicted of first degree burglary (Pen.Code, § 459) and assault with intent to commit rape (Pen.Code, § 220). The assault sentence was suspended, and his sentence was set at five years to life for the burglary. He began to serve this indeterminate sentence on September 22, 1967, at San Quentin Prison. His term had not yet been fixed by the Adult Authority when, on July 21, 1971, he was “arrested” and confined in the adjustment center for killing a guard and assaulting a fellow inmate. He was convicted of these charges, and on June 22, 1973, he began to serve a life sentence consecutively to the burglary sentence. The language on the judgment form indicating credit for presentence custody has been x-ed out. The judgment was affirmed on appeal by this court. Gibson will be eligible for parole on June 22, 1980, unless that date is advanced by presentence credit.

On September 16, 1977, Gibson filed in the superior court a “motion to receive credit for time served while awaiting trial” on the murder charge. He alleged that September 21, 1970, was the date this his burglary sentence would have ended if the Determinate Sentencing Law had been applicable, and he sought credit from that date until June 22, 1973, when the sentence on his murder conviction commenced—a period of 2 years and 9 months. The court ordered the Community Release Board to credit Gibson with 1 year, 11 months and 1 day of presentence time for the period between July 21, 1971 (the date of the murder), and June 22, 1973 (the date that his murder sentence began), and to consider the credited time in determining when Gibson would be eligible for parole. The order dated November 4, 1977, was attacked unsuccessfully by the People's motion for reconsideration which was denied December 20, 1977. The People filed a notice of appeal “from the orders … granting a writ of habeas corpus to defendant Earl B. Gibson.”

I

“[A] judgment or order is not appealable unless it is expressly made so by statute.” (People v. Valenti (1957) 49 Cal.2d 199, 204, 316 P.2d 633, 635 overruled on other grounds in People v. Sidener (1962) 58 Cal.2d 645, 647, 25 Cal.Rptr. 697, 375 P.2d 641.) In criminal cases, the People's right of appeal is narrowly construed; if an appeal is not permitted by statute, it may not be taken, no matter how egregiously erroneous the decision below. (Ibid.; People v. Ehrhart (1961) 196 Cal.App.2d 468, 470, 16 Cal.Rptr. 606.) The People may appeal from a final order made upon the return of a writ of habeas corpus granting relief to a defendant. (Pen.Code, § 1506.) In the case before us, however, Gibson did not seek such a writ. He sought the grant of credit for presentence custody by motion and claims that the order thereon is not appealable.

Although prisoners often apply for presentence credit by a writ of habeas corpus (e. g., In re Kapperman (1974) 11 Cal.3d 542, 114 Cal.Rptr. 97, 522 P.2d 657; In re Smith (1978) 81 Cal.App.3d 325, 146 Cal.Rptr. 304), they have also proceeded by way of a motion. (People v. Hyde (1975) 49 Cal.App.3d 97, 122 Cal.Rptr. 297.) The label on the petition for relief is not controlling; whether the resulting order is appealable is determined by its effect. In People v. Valenti, supra, an order “‘dismissing said Information”’ was held not to be an appealable “order setting aside the … information,” because it was not based on the ground stated in Penal Code section 995. Rather, the order had the effect of dismissing the action, and such an order is not appealable. (49 Cal.2d at pp. 204-205, 316 P.2d 633; see also People v. Orrante (1962) 201 Cal.App.2d 553, 558, 20 Cal.Rptr. 480, People v. Burke (1956) 47 Cal.2d 45, 53, 301 P.2d 241 overruled on other grounds in People v. Sidener, supra, loc. cit.)

Gibson's request for relief could have been made by a writ of habeas corpus as well as by noticed motion. The People can appeal if Gibson obtained his credit by a writ of habeas corpus. They can also appeal if he obtains the same credit by way of a noticed motion. The effect is the same.

The order is also appealable under section 1238 of the Penal Code: “(a) An appeal may be taken by the people from … (5) An order made after judgment, affecting the substantial rights of the people.”

A defendant may clearly appeal a post-judgment order specifying the amount of credit for presentence custody under Penal Code section 1237, subdivision 2, as an order after judgment affecting the substantial rights of the party. (People v. Hyde, supra, 49 Cal.App.3d at p. 103, 122 Cal.Rptr. 297.) Such an order equally affects the substantial rights of the People, and is reviewable pursuant to section 1238, subdivision (a)(5). (People v. Superior Court (Leslie) (1953) 118 Cal.App.2d 700, 703, 258 P.2d 1087 [grant of probation that suspends execution of the sentence]; People v. Holly (1976) 62 Cal.App.3d 797, 800-802, 133 Cal.Rptr. 331 [order suspending and staying a sentence to avoid multiple punishment in violation of Pen.Code, § 654].)

II

Credit for presentence custody is governed by section 2900.5 of the Penal Code: “(a) In all … convictions, … when the defendant has been in custody, … all days of custody … shall be credited upon his sentence … (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.”¹

At the time of the murder and assault (July 21, 1971) Gibson was serving a sentence of 5 years to life imprisonment in San Quentin. He had been imprisoned for about 3 years and 10 months (since September 22, 1967). The trial court stated: “From the evidence presented at the trial it appeared that he was a ‘main line’ prisoner, with no significant disciplinary infractions prior to the arrest on the murder charge.” The Adult Authority had considered his term and parole release date in March 1969, in March 1970, and in February 1971, but had not fixed his term at less than the maximum and had not granted a parole date, although he had become eligible for parole in May 1969. (Pen.Code, § 3049.) In 1970 the Adult Authority had recommended that Gibson be transferred to the California Medical Facility for therapy, and their concern for his mental health was again expressed at the 1971 hearing. He was considered by the Adult Authority in February 1972 when the pending murder charges were noted and again in February 1973. After his conviction in June 1973, his annual parole considerations ceased.

The trial court reviewed the analysis set forth in In re Bentley (1974) 43 Cal.App.3d 988, 118 Cal.Rptr. 452, and determined that Gibson would be “entitled to credit for the entire time from July 21, 1971 if it can be fairly said that his confinement was in part attributable to the pending charge.” In determining whether the confinement was so attributable, the court considered the impact of the Determinate Sentencing Law. It concluded that Gibson's burglary sentence would have terminated on September 21, 1970, and therefore that the confinement after the murder charge was at least partly attributable to the new charges.

Since the trial court's order, the Supreme Court has held that “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.” (In re Rojas, supra, 23 Cal.3d 152, 156, 151 Cal.Rptr. 649, 652, 588 P.2d 789, 792.) The holdings in Bentley, supra, and In re Pollock (1978) 80 Cal.App.3d 779, 145 Cal.Rptr. 833, that credit must be given because “the subdivision [§ 2900.5, subd. (b)] does not say ‘attributable exclusively to charges arising,’ etc.” were expressly disapproved. (In re Bentley, supra, 43 Cal.App.3d at p. 992, 118 Cal.Rptr. 452.)

Gibson was serving time for burglary when the offense occurred; he continued to serve time on the burglary until he was sentenced for the murder, at which point the burglary sentence was merged into the murder sentence for the purpose of parole eligibility. (Pen.Code, § 669.)² The murder had no causal relationship to the custody for which he seeks credit, and the credit should have been denied unless the Determinate Sentencing Law (DSL) dictates a different result.

The trial court ruled that under the DSL, effective July 1, 1977, Gibson's sentence for burglary should be recomputed as three years. If that is done, his sentence “expired” on September 21, 1970. From that date to June 22, 1973, then, he was effectively in “presentence custody.” The court began the credit with July 21, 1971, instead of the September date, to avoid the anomalous result of crediting respondent with custody that occurred before the second crime was committed. The court justified the recomputation on the basis of Penal Code section 1170.2, subdivision (a) which provides for recalculation in “the case of any inmate who committed a felony prior to July 1, 1977, who would have been sentenced under Section 1170 if he had committed it after July 1, 1977, …”

The DSL does not provide for recalculation on any date other than July 1, 1977, at which time only Gibson's murder sentence was subject to recalculation. Furthermore, section 1170.2, subdivision (a) provides that any recalculation is to be done by the Community Release Board. The second division of this court has carefully correlated Penal Code sections 1168(b), 1170, 1170.1, and 1170.2, and has concluded that the Community Release Board shall calculate Indeterminate Sentencing Law sentences and that the trial court has no jurisdiction to do so. (People v. Martinez (1979) 88 Cal.App.3d 890, 152 Cal.Rptr. 204.)

The order is reversed and the trial court is directed to vacate its order to the Community Release Board.

FOOTNOTES

FOOTNOTE.  

1.  This is the current language of the statute, effective January 1, 1977. Before then, the custody had to be “attributable to charges arising from the same criminal act or acts for which the defendant has been convicted.” The new language “has remained virtually identical to the original version.” (In re Rojas (1979) 23 Cal.3d 152, 156, 151 Cal.Rptr. 649, 652, 588 P.2d 789, 792.)

2.  Since amended by Statutes 1978, chapter 579, section 28.

DEAL, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

RACANELLI, P. J., and ELKINGTON, J., concur.