PEOPLE v. COMAI (1986)

This appeal presents a single issue regarding presentence custody credits.

During arraignment on a one-count complaint charging him with the crime of burglary (Pen.Code, § 459), defendant David Mark Comai pleaded guilty as charged.   The case was certified to the superior court (see Pen.Code, § 859a) and defendant was sentenced to state prison for a two-year term with 57 days of presentence custody credit.   On his appeal from the judgment, defendant claims entitlement to an additional 324 days of presentence credit.

FACTS

Defendant committed three burglaries—one in Los Angeles County, one in San Bernardino County, and one in Riverside County.   On April 10, 1985, defendant was arrested in Los Angeles County for the offense in that jurisdiction.   On May 8, 1985, while defendant remained incarcerated in Los Angeles County, a hold was placed on him by authorities in Riverside County.   On June 13, 1985, probation with local custody time was granted to defendant in the Los Angeles proceeding.

On August 1, 1985, defendant completed his local custody in Los Angeles County.   On August 5, 1985, defendant was booked into the jail in San Bernardino County on the charge of burglary in that jurisdiction.   On November 20, 1985, defendant was given probation with local custody for the San Bernardino burglary.

On December 16, 1985, defendant completed the local time for the San Bernardino burglary and was booked into the Riverside County Jail.   Defendant entered a negotiated plea of guilty to the Riverside burglary in proceedings before the magistrate.   He also waived referral to the probation department for presentence report.   The plea was conditioned on defendant's receiving the lower term which was to be served concurrent with any other term.

The sentencing hearing in the present case was held on January 17, 1986.   After confirming defendant's waiver of the presentence report, the court indicated it would follow the negotiated plea.   The burglary was fixed in the first degree, probation was denied, and defendant was sentenced to state prison for the lower term of two years to run concurrent “with any violations of probation.”   The court also imposed a restitution fine in the amount of $1,000.

The probation officer had calculated defendant's presentence credits at 185 days of actual custody and 92 days of conduct credits for a total of 277 days.   In reaching this figure, the probation officer had taken the period from the placing of the hold on May 8, 1985, to the date of sentencing in Riverside County on January 17, 1986, excluding therefrom the periods of postsentence custody as a condition of probation in Los Angeles County (June 13 to August 1) and in San Bernardino County (November 20 to December 16).   This calculation was not disputed by either defense counsel or the prosecutor and the court granted credit for 277 days.   The hearing concluded with a referral for a postsentence report.

According to the postsentence report, the previous calculation of presentence credit had been incorrect and defendant was entitled to either a lesser or a greater amount depending on whether the court followed In re Ewing (1978) 78 Cal.App.3d 455, 144 Cal.Rptr. 229, or People v. Cornett (1985) 165 Cal.App.3d 752, 212 Cal.Rptr. 24.

At the subsequent hearing the court elected to follow Ewing, rejecting Cornett, and ordered the judgment corrected to show a total credit of only 57 days.   Defendant was given credit for the period from August 1 and August 5 of 1985 and from December 16, 1985, to January 17, 1986, a total of 38 days actual custody, to which 19 days of conduct credits were added.

DISCUSSION

A. PENAL CODE SECTION 2900.5.

The issue before us depends on the interpretation of the following provisions of Penal Code section 2900.5:  “(a) In all felony and misdemeanor convictions ․ when the defendant has been in custody, including ․ any time spent in a jail ․ all days of custody of the defendant, including days served as a condition of probation in compliance with a court order ․ shall be credited upon his term of imprisonment․  [¶] (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.   Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.”

This language has been construed many times, in a wide variety of contexts, resulting in a virtually impenetrable thicket of conflicting views.   The most appropriate place to seek guidance, we believe, is the most recent pronouncement of our Supreme Court.

B. ATILES—THE “RESTRAINT” AND “UNEQUAL TREATMENT” ANALYSIS.

In the Supreme Court case of In re Atiles (1983) 33 Cal.3d 805, 191 Cal.Rptr. 452, 662 P.2d 910, the defendant was on parole following a robbery conviction when he was arrested and charged with another robbery.   While the defendant was awaiting trial on the new charge his parole was revoked and he was returned to custody for a six-month period.   Defendant was convicted of the new robbery charge and was sentenced to state prison.   On these facts, our Supreme Court held that the defendant was entitled to credit against the new sentence for the six-month parole revocation term.

Explaining its conclusion, the court stated:  “In determining whether custody for which credit is sought under section 2900.5 is ‘attributable to proceedings leading to the conviction,’ the sentencing court is not required to eliminate all other possible bases for the defendant's 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, and the conduct related to the new charge is a basis for those restraints․  [¶] We are satisfied that the Legislature intended that ‘custody ․ attributable to proceedings related to the same conduct for which the defendant has been convicted’ include time in presentence custody during which a restraint or restraints related to that conduct made it impossible for the defendant to obtain his freedom, regardless of whether the defendant was also subject to other restraints on his liberty.”  (In re Atiles, supra, 33 Cal.3d at pp. 810–811, 191 Cal.Rptr. 452, 662 P.2d 910, fn. omitted.)

The court identified two legislative purposes underlying setion 2900.5, the first being to eliminate the unequal treatment of indigent defendants unable to post bail who therefore served longer overall confinements than nonindigents convicted of similar crimes, and the second purpose being to equalize the actual time served in custody for given offenses.  (In re Atiles, supra, 33 Cal.3d at p. 812, 191 Cal.Rptr. 452, 662 P.2d 910.)

Expanding on the second purpose, the court stated:  “Unequal treatment follows not only from denial of credit altogether for presentence jail time, however, but also from denial of credit on multiple concurrent terms.   This may occur if a defendant seeks separate trials on severable charges to ensure his right to a fair trial, if a prosecutor does not join multiple counts in a single accusatory pleading, or if a defendant faces charges in more than one jurisdiction.   It may also occur in cases such as this in which parole revocation proceedings and new charges are pending simultaneously if the defendant does not promptly plead guilty and seek immediate sentencing.   In each of these situations, the possibility of unequal treatment exists if concurrent terms are imposed, but because sentence has been imposed or parole revoked in the first proceeding before the others are tried, credit for time in jail while awaiting disposition of the remaining charges is denied.   The terms then are not truly concurrent since the effect of denying credit on the later terms is that they commence only on the date sentence is pronounced.   The time between sentencing in the first proceeding and that in the second is, as to the second term, ‘dead time.’   The Legislature has not either expressly or by implication indicated an intent to deny credit in any of these situations.”   (In re Atiles, supra, 33 Cal.3d at pp. 812–813, 191 Cal.Rptr. 452, 662 P.2d 910, fn. omitted.   Emphasis added.)

The analysis of Atiles may be summarized as follows:  For a period of presentence custody to be credited against a sentence there must exist a “restraint” originating either directly from the proceeding resulting in that sentence or, possibly, from some other proceeding related to the same conduct for which sentence is imposed.   In deciding whether a restraint exists in a doubtful case, the court should consider whether allowing the credit would further the purpose of eliminating unequal treatment for multiple concurrent terms.

C. TENTATIVE CONCLUSION.

If the analysis of Atiles is applied to the present case, defendant appears to be entitled to all the credit he seeks.   A hold originating from the Riverside County proceeding was placed on defendant while he was in custody in Los Angeles County and remained in effect while he was in custody there and in San Bernardino County.   The hold was a “restraint” which made it impossible for defendant to obtain his freedom, even though he was also subject to other restraints during the same period.   Moreover, had defendant committed his three unrelated burglaries in a single jurisdiction, they could have been charged in a single proceeding and, if concurrent terms had been imposed, all presentence confinement would have been credited against each of the terms.   Therefore, to deny credit for part of defendant's presentence confinement merely because there were separate proceedings in different jurisdictions would appear to produce the very unequal treatment which, according to Atiles, section 2900.5 was intended to reduce or eliminate.

Before giving finality to this conclusion, a number of possible objections must be considered.

D. “SAME CONDUCT” LIMITATION.

In Atiles, the defendant's parole was revoked because he committed the robbery which also resulted in the new conviction.   Commenting on this aspect of the case, the Supreme Court stated:  “The conduct which led to his arrest and conviction on the new criminal charge also formed a basis for the parole hold and subsequent 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’ (§ 2900.5, subd. (b)) ․ and he is entitled to credit ․ for the six-month period in question.”  (In re Atiles, supra, 33 Cal.3d at pp. 809–810, 191 Cal.Rptr. 452, 662 P.2d 910.)

It has been suggested that the entire discussion in Atiles regarding dual credits presumes separate proceedings involving the same or closely related conduct and that Atiles therefore provides no authority for an award of dual credits for unrelated offenses or, otherwise stated, that dual credits require not only dual restraints but also “same conduct.”  (See, e.g., People v. Esparza (1986) 185 Cal.App.3d 458, 464, 229 Cal.Rptr. 739.)

Although the Supreme Court commented on the “same conduct” feature of the facts in Atiles, under the court's analysis it does not appear to have been necessary to the result.   In this regard, we agree that “credit in Atiles was not given because the same conduct caused the imposition of two periods of imprisonment ․ [but] because Atiles suffered a dual restraint on his liberty during the period for which credit was claimed.”  (People v. Ross (1985) 165 Cal.App.3d 368, 372, 211 Cal.Rptr. 595, fn. omitted.)

As we read Atiles, the primary significance of “same conduct” is that it allows custody pursuant to a single restraint to be credited against multiple terms if the terms are imposed for the same or related conduct.   For example, the court said that to award credits 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 ․” (In re Atiles, supra, 33 Cal.3d at p. 810, 191 Cal.Rptr. 452, 662 P.2d 910, emphasis added) thereby implying that credit could be allowed if the defendant was already serving a term for a related offense.   In any event, for our purposes it is sufficient to conclude that “same conduct” is not required in addition to dual restraints.

Our conclusion is supported, first, by the language of Atiles.   Had the court been referring only to “same conduct” cases, surely it would have stated that qualification explicitly rather than leaving it to surmise, yet the paragraph in which the court discussed how denial of credit on multiple concurrent terms could result in a form of unequal treatment which the Legislature intended to eliminate contains not a single reference to a “same conduct” limitation.   Second, in footnote 6 of Atiles, (33 Cal.3d at p. 811, 191 Cal.Rptr. 452, 662 P.2d 910) the court discussed the earlier case of People v. Minjarez (1980) 102 Cal.App.3d 309, 162 Cal.Rptr. 292, stating that credit was properly denied in Minjarez because the terms were consecutive.   The court noted that the crimes were unrelated but did not rely on the factor, thus suggesting it would have been an insufficient basis to deny credit had the terms been concurrent.   Finally, the majority of the post-Atiles cases have read it as authorizing dual credits where concurrent terms are imposed for unrelated offenses.  (See In re McCarthy (1986) 184 Cal.App.3d 827, 229 Cal.Rptr. 286;  People v. Cornett, supra, 165 Cal.App.3d 752, 212 Cal.Rptr. 24;  People v. Schaaf (1983) 150 Cal.App.3d 45, 197 Cal.Rptr. 458.)

E. ATILES AS DICTA.

The next objection is a “fall-back” position from the last and it may be stated as follows:  If the analysis in Atiles permitting dual credits does not presume a “same conduct” limitation, then the statements are dicta because Atiles was a “same conduct” case and thus it is only authority in other “same conduct” cases.   The Attorney General's brief on the present appeal alludes to this position with a reference to “misleading dicta in Atiles, which suggested that section 2900.5 authorizes dual credit whenever concurrent terms are involved.”

Whether or not it is technically accurate to characterize as dicta the entire discussion in Atiles regarding elimination of unequal treatment of credits against multiple concurrent terms for unrelated offenses, this analysis was a well considered and elaborate statement representing the most recent exposition of section 2900.5 by our high court and therefore ought to be followed by lower courts unless and until it is disapproved, qualified, or superseded.   (See Aptos Seascape Corp. v. County of Santa Cruz (1982) 138 Cal.App.3d 484, 493, 188 Cal.Rptr. 191;  People v. Pellegrino (1978) 86 Cal.App.3d 776, 780, 150 Cal.Rptr. 486;  Jaramillo v. State of California (1978) 81 Cal.App.3d 968, 971, 146 Cal.Rptr. 823.)   Moreover, it has been followed, under circumstances similar to the present case, in the three cases cited earlier (i.e., In re McCarthy, supra, 184 Cal.App.3d 827, 229 Cal.Rptr. 286;  People v. Cornett, supra, 165 Cal.App.3d 752, 212 Cal.Rptr. 24, and People v. Schaaf, supra, 150 Cal.App.3d 45, 197 Cal.Rptr. 458).¹

F. ROJAS AND THE “CONCURRENT CAUSATION” ANALYSIS.

The next objection concedes defendant's entitlement to credit for the presentence phases of the Los Angeles and San Bernardino proceedings but maintains he cannot receive credit for time served in those jurisdictions as a condition of probation because the Riverside hold had no effect on defendant's liberty during those periods of time.   The Attorney General alludes to this objection by his statement that allowing credit would be “inconsistent with Rojas.”

In the Supreme Court case of In re Rojas (1979) 23 Cal.3d 152, 151 Cal.Rptr. 649, 588 P.2d 789, the defendant was serving a prison term for manslaughter when he was charged with and ultimately convicted of an unrelated murder.   He was given a concurrent term but was denied all presentence credit.   The Supreme Court upheld the denial of credit, noting that the pending murder prosecution had had no effect on the defendant's liberty because he was required to serve the manslaughter sentence during the same period.

The Rojas holding was reaffirmed in Atiles but the holding applies only in situations in which the defendant was serving a sentence, or a custody probation condition, when the restraint for the unrelated offense was first imposed.   As stated in Atiles:  “In determining whether custody for which credit is sought under section 2900.5 is ‘attributable to proceedings leading to the conviction,’ the sentencing court is not required to eliminate all other possible bases for the defendant's 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, 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.)

Under the Atiles statement of the Rojas restriction, it simply does not apply to cases like the present one in which the defendant was still in the presentence phase of the other proceeding when the hold was first placed.   As Rojas does not apply, the defendant is entitled to credit not only for the presentence stage of the other proceeding, but for the postsentence stage as well.  (See In re McCarthy, supra, 184 Cal.App.3d at p. 830, 229 Cal.Rptr. 286.)

While the foregoing conclusion is the most plausible reading of Atiles, certain problems deserve further comment.

Rojas used what may be described as a “concurrent causation” analysis of the dual credit problem.   Under this analysis, dual presentence credits for unrelated offenses prosecuted in separate proceedings could be claimed only if the defendant was simultaneously under restraints imposed in each proceeding and only if each restraint was a concurrent cause of the defendant's confinement.   A defendant in presentence custody in one jurisdiction and subject to a hold from another could claim that the hold was a concurrent cause of his confinement only if, absent the hold, he might have obtained release by posting bail.

On a theoretical level, the “concurrent causation” analysis of Rojas appears to be difficult to reconcile with the “unequal treatment” analysis of Atiles.   They are competing rather than complementary methods of defining what constitutes a restraint in borderline cases.   For our purposes, it is sufficient to note that Atiles is the more recent and therefore the more authoritative statement, and that Atiles confines Rojas to the narrow situation where the defendant is already serving a term for an unrelated offense when the restraint is first imposed.   If, when it is first imposed, the restraint is either the sole or a concurrent cause of the defendant's loss of liberty, the custody is attributable to the restraint proceeding and continues to be so attributable even though the defendant later commences serving a term on a sentence or as a condition of probation for an unrelated offense.

Another problem, in the nature of a loose thread, is the Supreme Court's treatment of the earlier cases of In re Bentley (1974) 43 Cal.App.3d 988, 118 Cal.Rptr. 452, and In re Pollock (1978) 80 Cal.App.3d 779, 145 Cal.Rptr. 833.  Bentley was a “same conduct” parole revocation case.   The facts of Pollock are similar to the present case.   In both Bentley and Pollock dual credits were allowed.

Rojas disapproved the reasoning of Bentley but noted that the result was correct.  Rojas disapproved of certain language in Pollock, which it referred to as its “holding,” but did not discuss the facts.  (In re Rojas, supra, 23 Cal.3d at p. 157, 151 Cal.Rptr. 649, 588 P.2d 789.)

Atiles stated that Rojas had disapproved the “reasoning” of both Bentley and Pollock, and had disapproved the “holding” of Pollock, but had not disapproved the “holding” of Bentley.  (In re Atiles, supra, 33 Cal.3d at pp. 808–809, 191 Cal.Rptr. 452, 662 P.2d 910.)

Under our understanding of Atiles, both Pollock and Bentley reached correct results while using faulty reasoning or stating overbroad conclusions.   What, then, is one to make of the statements in Atiles that the holding in Bentley was correct while the holding in Pollock was incorrect?

Despite our great reluctance to attribute inconsistent use of language to our high court, it appears that in this instance the word “holding” has been given two different meanings.   When Rojas disapproved the holding of Pollock it was referring to the reasoning, which it quoted.   When Atiles referred to the holding in Bentley, on the other hand, it clearly meant the result and not the reasoning.  Atiles did not comment on the facts or the result in Pollock and when it said the holding in Pollock had been disapproved, it was simply following Rojas.

To end this confusing discussion, it appears to us that while the Supreme Court has disapproved the reasoning in both Bentley and Pollock, and while it has approved the result reached in Bentley, it has never expressly decided whether a correct result was reached in Pollock.

G. EWING.

The court below relied on In re Ewing, supra, 78 Cal.App.3d 455, 144 Cal.Rptr. 229.   The Attorney General also urges us to follow Ewing, observing that it is factually similar to the present case and a decision from this District (Division One).

The defendant in Ewing was arrested in Alameda County for forgery.   A hold was placed from San Diego County for a weapons charge but the defendant remained in Alameda until he was convicted of forgery and sentenced to one year in jail.   Thereafter, and while still serving the Alameda term, the defendant was transferred to San Diego and ultimately convicted of the weapons charge.   On his appeal from the San Diego judgment, the court denied him credit for all the time spent in Alameda County, even though a San Diego hold had been placed, but granted credit for all the presentence time in San Diego County, even though he was then serving his Alameda term.   Thus the determining fact, apparently, was the defendant's physical location.

An extended discussion of Ewing is unnecessary.   It preceded both Rojas and Atiles, and also the 1978 amendment of section 2900.5, which added the second sentence to subdivision (b).   The analysis of Ewing is hopelessly at odds with Rojas and Atiles and it has not been cited in any post-Atiles case.²  We do not regard it as binding or persuasive authority.

H. JOYNER.

The Attorney General also relies on People v. Joyner (1984) 161 Cal.App.3d 364, 207 Cal.Rptr. 636.   Once again, extended analysis is unnecessary.

Joyner cited Atiles but did not quote from it or discuss its reasoning.   Instead, it relied on a dictum in People v. Schaaf, supra, 150 Cal.App.3d 45, 197 Cal.Rptr. 458, an opinion from the Fifth District.   The Schaaf dictum was later repudiated by the Fifth District in People v. Cornett, supra, 165 Cal.App.3d at pp. 759–761, 212 Cal.Rptr. 24, leaving Joyner wholly unsupported by either logical analysis or authority.   Accordingly, we do not find Joyner to be persuasive.

I. CONCURRENT TERM PROBLEMS.

The amendment of section 2900.5 in 1978 added the second sentence to subdivision (b) stating that credit should be “given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.”   This necessarily implies at least the possibility of the converse, that credit for a single period of confinement may be given more than once if a consecutive sentence is not imposed.   It also recognizes the power of the sentencing court, by choosing concurrent or consecutive terms, to control whether presentence credits shall be allowed against more than one term.   The same power is also recognized in the “unequal treatment” analysis of Atiles, which aims at equalizing the treatment of defendants sentenced to concurrent terms.   However, the exercise of this power may present problems in certain situations.

For example, suppose the defendant is arrested in jurisdiction A for a misdemeanor and a hold is placed from jurisdiction B for a felony.   The defendant remains in jurisdiction A until he is convicted and sentenced for the misdemeanor.   By the time of sentencing in jurisdiction B for the felony, the defendant has completed his misdemeanor term.   Does the jurisdiction B court have authority to decide whether the felony sentence should be concurrent or consecutive to the already completed misdemeanor term?   If the court lacks the authority, how is the credits issue to be resolved?

 A term cannot be made consecutive to a term already completed.   (People v. Cornett, supra, 165 Cal.App.3d at p. 762, 212 Cal.Rptr. 24.   See also, People v. Mathews (1980) 102 Cal.App.3d 704, 713, 162 Cal.Rptr. 615.)   Accordingly, as the defendant was under a restraint from the felony proceeding, and as a consecutive term may not be imposed, the defendant is entitled to credit against the felony sentence for all time in custody after the placing of the hold.

A second example.   The defendant is again arrested in jurisdiction A, this time for a felony, and a hold is placed from jurisdiction B for an unrelated felony.   The defendant is convicted in jurisdiction A and sentenced to prison but execution of sentence is suspended and probation is granted.   If the defendant is now convicted in jurisdiction B, does the B court have the power to decide whether to impose a concurrent or consecutive term?   If so, what exactly is it concurrent with or consecutive to, and is the decision binding on jurisdiction A if probation is revoked and execution of sentence is ordered?

 Under Penal Code section 669, the decision to impose consecutive or concurrent sentences belongs to the last court to order execution of sentence.  (People v. Gray (1986) 176 Cal.App.3d 520, 523–524, 222 Cal.Rptr. 29.)   As the jurisdiction B court does not have the power to impose a consecutive sentence, it must award full credit against the B term for all custody time under a B restraint.   Should the A court subsequently order its term to be served consecutive to the B term, however, the A court would deny credit for any presentence time which had already been credited against the B term.

 Trial courts should take note that whenever a term is made consecutive to a term imposed in another proceeding, an adequate record must be made and reasons given.  (See People v. Callahan (1983) 149 Cal.App.3d 1183, 198 Cal.Rptr. 12.)

J. FINAL CONCLUSION.

 The present case is controlled by Atiles as construed by McCarthy and Cornett.   Here the negotiated plea included a condition of a concurrent term and the court approved the terms of the negotiated plea.   Moreover, there was no term to which the term could have been made consecutive.   Accordingly, the court was required to grant credit from the date of the placing of the Riverside hold to the date of sentencing.

The judgment is modified to provide that defendant shall receive credit for time served and conduct credit from May 8, 1985, to January 17, 1986.   The trial court is directed to prepare an amended abstract of judgment reflecting this modification and to forward a certified copy of the abstract to the Department of Corrections.   As so modified, the judgment is affirmed.

I respectfully dissent.

I do not believe that In re Atiles (1983) 33 Cal.3d 805, 191 Cal.Rptr. 452, 662 P.2d 910 compels the conclusion reached by the majority.   In Atiles the defendant's parole was revoked and he was returned to prison at least partially for the commission of the offense for which he was ultimately sentenced.   The Supreme Court held that he should be given credit for the time served as a result of the revocation of his parole pursuant to Penal Code section 2900.5, subdivision (b) because it was a restraint related to that conduct.   “That conduct” related to the commission of the offense for which he was ultimately sentenced and which caused the revocation of parole.

In the instant case, the time that the defendant served in Los Angeles County as a condition of probation for the offense committed in Los Angeles County, and the time spent in jail in San Bernardino County as a condition of probation for the offense committed in San Bernardino County could not, by any stretch of the imagination, be construed as time spent in custody for conduct related to the offense for which he was sentenced in Riverside County.   Furthermore, any holds placed on him by Riverside County were totally irrelevant to the time he spent in jail as a condition of probation.   It is therefore clear that the time served in Los Angeles and San Bernardino Counties as terms of probation was not “․ attributable to proceedings related to the same conduct for which the defendant has been convicted.”  (Pen.Code, § 2900.5, subdivision (b).)

I believe the analysis contained in People v. Esparza (1986) 185 Cal.App.3d 458, 464, 229 Cal.Rptr. 739 et seq. is correct.  “Since defendant's custody was not attributable to the instant offense, but was based solely on the unrelated sentences, he is not entitled to the credit he seeks.   To grant dual credits in this situation would create the ‘credit bank’ that was of concern in Ross, [People v. Ross (1985) ] 165 Cal.App.3d 368 [211 Cal.Rptr. 595]․”  (Id., at p. 468, 229 Cal.Rptr. 739.)

Any discussion of consecutive or concurrent terms is irrelevant in the instant proceeding.   None of the three courts was in a position to impose either consecutive or concurrent sentences.

It should also be noted that it is clear that the sentence in the instant matter resulted from a sentence bargain which contemplated defendant being given credit for his presentence time in custody in Los Angeles and San Bernardino, exclusive of the time he was in custody as a term of probation for the unrelated offenses.   He received a mitigated term on that basis.   The majority opinion deprives the prosecution of its bargain.

Although I do not believe that the facts of the instant case bring it within the principle enunciated by Atiles, I believe that Atiles was wrongly decided and the better view was expressed in the dissent of Justice Mosk.

I would affirm.

FOOTNOTES

1.   People v. Esparza, supra, 185 Cal.App.3d 458, 229 Cal.Rptr. 739, involved a consecutive term and is therefore distinguishable.

2.   Division One scrutinized Ewing in People v. Martinez (1982) 132 Cal.App.3d 119, 183 Cal.Rptr. 256, a case decided between Rojas and Atiles.   The court's efforts to distinguish Ewing reveal its discomfort with Ewing 's antiquated analysis.  (132 Cal.App.3d at p. 136, fn. 14, 183 Cal.Rptr. 256.)

RICKLES, Associate Justice.

McDANIEL, J., concurs.