P. v. McCaney
Filed 1/14/08 P. v. McCaney CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, Plaintiff and Respondent, v. DAVID WAYNE McCANEY, Defendant and Appellant. | G038041 (Super. Ct. No. 02NF3364) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.
Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Rhonda Cartwright-Ladendorf, Deputy Attorneys General, for Plaintiff and Respondent.
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Introduction
Defendant David Wayne McCaney appeals for the second time from his sentence on a burglary conviction. Previously, we remanded the case for the trial court to recalculate defendants presentence custody credits. (People v. McCaney (July 19, 2006, G035932, mod. Aug. 2, 2006) [nonpub. opn.].)
Defendant has failed to show the burglary conviction was the sole reason for his loss of liberty during the additional period he contends he is entitled to presentence custody credits. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1485.) To the contrary, there is substantial evidence in the appellate record supporting the trial courts finding that there were additional reasons for defendants confinement. The trial court did not err in refusing to grant defendant additional presentence custody credits. We therefore affirm.
Statement of Facts and Procedural History
The following statement of facts and summary of the procedural history is drawn from our earlier opinion:
On April 27, 2002, defendant broke into a minivan and stole a cell phone and charger. A jury convicted defendant of second degree burglary. (Pen. Code, 459, 460, subd. (b).) Defendant admitted he had suffered five prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
On July 23, 2003, the trial court sentenced defendant to a six-year prison term: the upper term of three years for the burglary conviction, plus three one-year enhancements for three of the prior prison terms. The court struck the punishments for the two remaining priors. The court then suspended defendants sentence and committed him to the California Rehabilitation Center (CRC), pursuant to Welfare and Institutions Code section 3051. Defendant was credited with 434 days of presentence custody credits: 290 days for actual time served, plus 144 days of conduct credits.
Defendant was released to a halfway house as an outpatient on May 19, 2004. On September 10, 2004, defendant was arrested for a violation of the Vehicle Code. The CRC thereafter terminated defendant from its rehabilitation program. (Welf. & Inst. Code, 3109, subd. (b), 3053, subd. (b).) At a resentencing hearing on June 17, 2005, the trial court imposed the six-year sentence on the burglary conviction; imposed a $20 security fee (Pen. Code, 1465.8); and credited defendant with 745 days custody credits (601 days actual credit plus 144 days conduct credits). Defendant timely appealed. (People v. McCaney, supra, G035932.)
This court remanded the matter to the trial court to determine whether Penal Code section 2900.5, 4019, and/or 2933 were applicable to the calculation of defendants presentence custody credits, and to recalculate defendants credits. (People v. McCaney, supra, G035932.)
On remand, the trial court conducted a subsequent credits hearing, and awarded defendant 85 additional days custody credits (57 days actual credits plus 28 days conduct credits). Defendant again appealed.
Discussion
On remand, the trial court awarded defendant credit for the period from April 22, 2005 (when defendant appeared before the Orange County court for resentencing) to June 17, 2005 (when the Orange County court reimposed the original six‑year sentence). Defendant contends he is entitled to credit from the date of his arrest in Los Angeles County on September 10, 2004 until sentence was reimposed on June 17, 2005. On appeal, the parties differ only as to whether defendant should have been credited for the period from September 10, 2004 to April 22, 2005.
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. Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.
As a recent decision explains, [a] defendant is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period. A criminal sentence may not be credited with jail or prison time attributable to a parole or probation revocation that was based only in part upon the same criminal episode. [Citation.] A defendant must prove that the conduct which led to the conviction was a dispositive or but for cause of the presentence custody. [Citation.] (People v. Johnson, supra, 150 Cal.App.4th at p. 1485, italics added.)
Defendant argues that because the CRC placed a hold on him the day he was arrested in Los Angeles, and there was no reason for a hold other than his arrest, he has shown that his custody from September 10, 2004 to April 22, 2005 was attributable solely to the burglary conviction.
Defendant has not proven error based on the appellate record before us. The trial court offered defendant the opportunity to a hearing to determine why the CRC found him unfit, but defendant did not accept that offer. The record is sufficient to support a finding by the trial court that defendants loss of liberty during the period from September 10, 2004 to April 22, 2005 was due to his arrest in Los Angeles County, or due to his failure to participate in the appropriate program while under CRC supervision. The CRCs request to vacate defendants civil commitment reflects the following notation in his chronological history: 7/13/04 Suspend releasee @ large eff. 6-8-04. This notation could easily be read by the trial court as evidence that the CRC suspended defendant from its program on June 8, 2004, before he committed the crime resulting in the September 10, 2004 arrest. Indeed, the Attorney General argues that defendant absconded from the CRC program; the notation @ large is consistent with this argument.
The burden was on defendant to prove error, and he has failed to do so.
Disposition
The judgment is affirmed.
FYBEL, J.
WE CONCUR:
SILLS, P. J.
ARONSON, J.
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