P. v. Beech

Filed 12/17/08 P. v. Beech CA6

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant appeals from the judgment insofar as it reflects the denial of his motion, made before sentencing, for 122 days of parole revocation sentence credit. We conclude that defendant has shown that those 122 days were solely attributable to the same conduct that led to his conviction and sentence in this case. Under the complex legal rules that apply in such cases, we conclude that the court erred in denying the motion and that defendant is entitled to the credit. We will direct the court to modify the abstract of judgment accordingly, and with that modification, we will affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

Frank Howard Beech, the defendant herein, had three prior felony convictions and was on parole when he killed John Holliman. The Board of Parole Hearings revoked his parole and committed him to a one-year parole revocation term because it considered him (see Pen. Code,  3057, subd. (d)(2)(C))^[1]to have committed murder ( 187) in killing Hollimanindeed, the felony complaint and the information originally charged him with murderand to have absconded from parole supervision. He pleaded guilty to involuntary manslaughter and the trial court sentenced him to six years in prison based on the current offense ( 192, subd. (b)) and the three prior convictions, for each of which he had served a prison term ( 667.5, subd. (b)). The court awarded 464 days credit, consisting of 310 days for time in custody ( 2900.5, subd. (a)) and 154 days for good conduct ( 4019) before sentencing, but no credit for time served during the parole revocation term.

DISCUSSION

The question before us is a technical one: was the murder charge against defendant, the sole and identifiable but for cause of a portion of the one-year parole revocation term? If so, defendant is entitled to the 122 days credit he seeks. Or, rather, is the entire one-year term to be treated as indivisible under the so-called mixed conduct rule? In that case, defendant is not entitled to the credit. We conclude that the first rule applies.

Section 2900.5 provides that a convicted person shall receive credit against his sentence for all days spent in custody, including presentence custody (subd. (a)), but only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted (subd. (b), italics added). (People v. Bruner (1995) 9 Cal.4th 1178, 1180 (Bruner).) Bruner explains that when a period of presentence custody stems from multiple, unrelated incidents of misconducta situation commonly referred to as one involving mixed conductsuch custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a but for cause of the earlier restraint. (Id. at pp. 1193, 1194.) In other words, when one seeks credit upon a criminal sentence for presentence time already served and credited on a parole or probation revocation term, he cannot prevail simply by demonstrating that the misconduct which led to his conviction and sentence was a basis for the revocation matter as well. (Id. at p. 1194; see also People v. Shaba (2003) 107 Cal.App.4th 1255, 1258 [sentence may not be credited with presentence custody time attributable to a parole or probation revocation based in part upon different criminal conduct] (italics omitted).)

Conversely, if the basis for time served on a parole revocation term was the same conduct that led to the later criminal sentence, a defendant is entitled to presentence credit for the revocation period. (See Bruner, supra, 9 Cal.4th at pp. 1193-1194, fn. 10, citing People v. Williams (1992) 10 Cal.App.4th 827.) In Williams, the defendants probation was revoked on the bases of the defendants failure to obey all laws and new charges. (Williams, supra, at p. 830.) The only evidence that the defendant violated the obey all laws condition of his probation was the same conduct that led to the charges in the case. (Id. at p. 833.) In short, appellants presentence custody was attributable to proceedings relating to the same conduct for which he was convicted . . . . (Id. at p. 834.) Williams concluded accordingly that the defendant was entitled to credit against his criminal sentence for the time spent in custody as a result of the probation revocation.^[2] (Id. at pp. 834-835.)

Defendant concedes that the conduct for which he was convicted and sentenced in this case was only  a basis (Bruner, supra, 9 Cal.4th at p. 1194) of the parole revocation; the parole revocation was the result of mixed conduct, both absconding and the conduct that led to his conviction. Defendant therefore is not entitled to presentence credit for the time served on the parole revocation term unless the term may be apportioned according to the time served for mixed conduct and that served on the murder charge. Defendant argues that the law permits such a division, and that the killing of Holliman (i.e., the criminal conduct that led to his involuntary manslaughter conviction) was the but for cause of an identifiable portion122 daysof his presentence confinement.

The parties agree that there is no controlling authority on the question before us. We resolve it from first principles. A defendant who serves a parole revocation term in county jail, the place in which the record suggests defendant served that term, generally is entitled to receive one-third good conduct and work credit under section 2931 and the California Code of Regulations.^[3] Under the formula set forth in section 2931, a defendant would serve 244 days of a 366-day term, a difference of 122 days. (Id., subd. (b).) The Board of Parole Hearings Summary of Revocation Hearing and Decision ruled that defendant was ineligible for any such credit during his parole revocation term under section 3057, subdivision (d), because of the finding that he committed what the board considered to be murder under section 187. (Cf.  3057, subd. (d)(2)(C) [precluding such credits if the board believes the parolee committed first degree murder under section 189].) Absent evidence of some other basis for the denial of section 2931 credit (see People v. Shaba, supra, 107 Cal.App.4th at p. 1258 [burden is on the accused to show entitlement to presentence custody credit]), we must conclude that defendants final 122 days in custody on the parole revocation term are solely attributable to the killing of Holliman. There is no such evidence here; defendant has shown that 122 days of presentence custody are solely attributable to the same conduct that led to his conviction.

We recognize that this case differs somewhat from the example cited in Bruner, supra, 9 Cal.4th at pages 1193-1194, footnote 10, in which the defendant established entitlement to presentence credit for custody served based on a probation revocation. Instead of the entire period being solely attributable to the conduct underlying the defendants criminal sentence, only a portion of defendants revocation term is so attributable. However, in view of the rationale underlying entitlement to presentence credit, we find this difference to be immaterial.

According to the California Supreme Court, there are two purposes for awarding presentence credits: (1) eliminating the unequal treatment suffered by indigent defendants who, because of their inability to post bail, serve a longer overall confinement for a given offense than their wealthier counterparts [citation], and (2) equalizing the actual time served in custody by defendants convicted of the same offense [citation]. (In re Joyner (1989) 48 Cal.3d 487, 494.) The second purpose stated in Joyner applies here. Defendant served 122 days of presentence custody based only the Board of Parole Hearingss belief that he had committed murder. Other defendants in the same circumstancesi.e., where no mixed conduct applieswould not be subject to that time in confinement. The possibility of different treatment in such a situation is alleviated by awarding credit for all periods of presentence custody attributable to the proceeding, including time served as a condition of probation, and not merely for pretrial confinement resulting from inability to post bail. (Ibid.)

As our Supreme Court has acknowledged,   [c]redit determination is not a simple matter   and section 2900.5, subdivision (b)  is difficult to interpret and apply.   (In re Marquez (2003) 30 Cal.4th 14, 19.) We seek a fair result according to established principles. (See In re Joyner, supra, 48 Cal.3d at p. 495.) Because defendant has shown that he could have been free during the last 122 days of his parole revocation term but for the same conduct that led to the instant conviction and sentence (Bruner, supra, 9 Cal.4th at p. 1195), he is entitled to credit on his sentence for that many days of presentence confinement. Defendant also is entitled to 61 days of conduct credit under section 4019. These amounts are in addition to the custody and conduct credits previously awarded.

DISPOSITION

The judgment is modified to add 122 days of actual custody credit under Penal Code section 2900.5 and 61 days of good-conduct credit under Penal Code section 4019. The trial court is directed to prepare an amended abstract of judgment to reflect this modification and to forward the same to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.

_______________________________

Duffy, J.

WE CONCUR:

______________________________

Bamattre-Manoukian, Acting P. J.

______________________________

Mihara, J.

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^[1]All further statutory references are to the Penal Code unless otherwise indicated.

^[2]We note that Williams involved a probation revocation, not a parolerevocation. We limit our analysis and holding to the context of a parole revocation.

^[3]The applicable regulation is contained in chapter 6 of division 2 of title 15 of the California Code of Regulationsa chapter dealing with parole revocation rules. The regulation provides: Detention in a county jail facility or community correctional facility shall result in the application of time credits equal to those provided in Penal Code Section 2931. (Cal. Code Regs., tit. 15, 2743, subd. (c).) Subdivision (b) of section 2931 provides in turn: Total possible good behavior and participation credit shall result in a four-month reduction for each eight months served in prison or in a reduction based on this ratio for any lesser period of time.