IN RE: Arturo Lopez ROJAS on habeas corpus. (1978)

Petitioner, by way of this petition for writ of habeas corpus, seeks credit, pursuant to Penal Code section 2900.5,^[FN1] for jail time spent awaiting disposition of criminal proceedings which resulted in his conviction and sentence to state prison for second degree murder, when during that period petitioner was serving a state prison sentence based on a prior conviction of manslaughter, an unrelated offense.

Petitioner was convicted of manslaughter and sentenced to state prison on January 4, 1972. While serving that sentence, a complaint charging petitioner with murder was filed on January 23, 1973. The murder complaint was based on an unrelated homicide. It alleged that petitioner shot victim Galaz on July 12, 1971, and that Galaz died from wounds so inflicted on September 30, 1972. On February 16, 1973, petitioner was transferred from state prison to Los Angeles County Jail to await trial for the Galaz murder. He remained in custody in county jail until his conviction of second degree and sentence to state prison on September 11, 1973. Petitioner sought credit under section 2900.5 for the period from February 16 to September 11, 1973, a total of 207 days. The trial court denied petitioner credit.

In support of his contention, petitioner cites In re Bentley (1974) 43 Cal.App.3d 988, 118 Cal.Rptr. 452 as dispositive of the instant case. We do not agree. The petitioner in Bentley sought credit for county jail time for the period he spent awaiting trial and retrial (due to reversal of conviction resulting from first trial) on a robbery charge. At the time Bentley committed the robbery he was on parole for a prior narcotics conviction. After Bentley was arrested on the robbery charge, a parole hold was imposed, and later his parole was revoked. The court in Bentley in holding that Bentley was entitled to credit on his robbery sentence stated: “Such an allowance, where a parolee is held in local custody on suspicion of violation of parole, is proper. (Citations.) P That fact, and his detention as a result of the parole suspension, do not necessarily exclude him from consideration under Penal Code section 2900.5, subdivision (b) of which provides: ‘For the purposes of this section, credit shall be given only where the custody to be credited is attributable to charges arising from the same criminal act or acts for which the defendant has been convicted.’ However, it should be noted that the subdivision does not say ‘attributable exclusively to charges arising,’ etc.” (Italics in original) (43 Cal.App.3d at p. 992, 118 Cal.Rptr. at p. 455).

Bentley and the instant case are factually distinguishable. In Bentley, the petitioner was on parole and presumably would have continued on parole had he not allegedly committed the robbery. His parole was revoked because of the robbery charge. Therefore Bentley's return to custody, via the parole revocation route, was based on the same “conduct for which the defendant has been convicted,” the robbery charge. However, in the instant case, petitioner's presentence jail time on the murder charge had nothing to do with and was not “attributable to proceedings related to the same conduct” for which he was already serving a state prison sentence, his manslaughter conviction. Petitioner continued in custody during the period in question because of the prior sentence on the manslaughter conviction.

While we believe Bentley and the instant case are reconcilable, we take exception to its exposition that section 2900.5, subdivision (b) “does not say ‘attributable exclusively to charges arising,’ etc.” The legislative intent was made clear by the words it used. Credit is to be given “only where” custody is related to the “same conduct for which the defendant has been convicted.” The postulated double adverb is unnecessary to a reasonable legislative construction.

We are aware that the Fifth District has recently filed an opinion in which, although the facts are more nearly analogous to ours, it extended Bentley and held that the petitioner was entitled to back time credit. (In re Pollock, 80 Cal.App.3d 779, 145 Cal.Rptr. 833.)^[FN2] It is undisputed that the time which petitioner spent in custody prior to sentencing on the murder charge was solely attributable to the previous manslaughter conviction. Therefore, it is our opinion that he was not entitled to credit for it.

If we accept the argument of petitioner, as he seeks to extend Bentley and as Pollock seemingly has done, a convicted criminal will be provided with a potential free ride for further criminal conduct. If a defendant, in custody on a long term sentence, commits a misdemeanor (or even some felonies), he would be insulated from effective punishment because his “credit” would consume the total penalty period to which he could be sentenced. The statute need not, and should not, be so misconstrued.

The petition for writ of habeas corpus is denied.

FOOTNOTES

1.  Penal Code section 2900.5, subdivision (b) 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.”

2.  5th Crim.No. 3493, May 10, 1978.We also take note of In re Emmett E. Smith, 81 Cal.App.3d 325, 146 Cal.Rptr. 304, by a divided court of this district filed May 25, 1978. (2d Crim.No. 32392.)

HASTINGS, Associate Justice:

STEPHENS, Acting P. J., and ASHBY, J., concur.