P. v. Miller
Filed 8/1/13 P. v. Miller CA2/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
JUSTIN THOMAS MILLER,
Defendant and Appellant.
B242973
(Los Angeles
County
Super. Ct.
No. MA014304)
APPEAL from
an order of the Superior Court
of Los
Angeles County. Charles
A. Chung, Judge. Appeal treated as a petition for writ of habeas corpus
and denied.
California
Appellate Project, under appointment by the Court of Appeal, Jonathan B.
Steiner, Executive Director, and Richard B. Lennon, Staff Attorney, for
Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Marc A. Kohm and Alene M.
Games, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Defendant
Justin Thomas Miller appeals from an order of the trial court denying his
motion to award additional presentence credit.
Defendant contends that although his probation was revoked on a different
case and he was sentenced on that case while he was awaiting his trial in the
present case, he should have been given credit in the present case for his
entire period of custody, from arrest until sentencing on the present case. We conclude the order was not appealable, but
treat the appeal as a
petition for writ of habeas corpus and deny the petition for failure to make a
prima facie showing of entitlement to additional credit.
In 1997 a
jury convicted Justin Thomas Miller of assault
with a firearm, discharging a firearm from a motor vehicle, and possession of a
firearm by a convicted felon. The
jury further found that he used a firearm in the commission of the first two
offenses and committed all three offenses in association with a criminal street
gang. The trial court sentenced him to
18 years in prison and awarded no presentence credit. We affirmed his conviction on appeal, but
agreed that the firearm-use enhancement had been improperly imposed on his
conviction for discharging a firearm from a motor vehicle and remanded for
resentencing. (People v. Miller (B118884) [nonpub. opn.].) Upon remand, the trial court sentenced
defendant to 17 years in prison and directed the Department of Corrections to
calculate defendant’s credits. Defendant
again appealed, and we affirmed. (
opn.].)
The
California Appellate Project apparently filed an
presentence credits, and on November
20, 2000, the trial court awarded defendant a total of 104 days of
presentence credit, consisting of 91 days of actual custody time and 13 days of
conduct credit.
On May 14, 2012, defendant filed a
motion for presentence credit, asking the trial court to award him 159 days for
actual custody, citing and attaching pages from his probation report prepared
for both the present case and case No. MA012399. The recommendation of the reporting deputy
probation officer was “that the defendant be sentenced to
credit of 159 days . . . .â€
On June 26, 2012, the trial court denied
defendant’s motion, stating, “The motion is denied for failure to state a prima
facie case for relief. The defendant was
arrested on 6/28/97 and
sentenced in cased [sic] number
MA012399 on 9/26/97, which
entitled him to 91 days actual credit, plus good time/work time credits.â€
Defendant
appealed on July 27, 2012.
Defendant
contends the trial court erred by denying his motion, arguing he was entitled
to 159 days of presentence credit because his sentences on the present case and
the prior case were to run concurrently.
A threshold
issue raised by the Attorney General is appealability. As noted, the trial court, pursuant to
defendant’s motion, awarded presentence credits against the sentence in the
current case on November 20, 2000. Defendant had a right to appeal the ruling on
that order (People v. Gainer (1982)
133 Cal.App.3d 636, 642), but failed to do so.
He instead appeals from a second motion filed in the trial court a year
and one-half later. “He cannot now
allege claims of error, which should have been raised at an earlier time
[citation]. To permit this would allow
[defendant] to greatly extend the period for filing an appeal through
bootstrapping.†(People v. Lynn (1978) 87 Cal.App.3d 591, 593.) Accordingly, we conclude the court’s order is not an appealable
order but is reviewable by means of a petition for writ of habeas corpus. Although no petition for writ of habeas
corpus has been filed in this court, in the interests
of judicial economy, we will treat this appeal as a petition for writ of
habeas corpus. (People v. Garrett
(1998) 67 Cal.App.4th 1419, 1423.)
Penal
Code section 2900.5
governs the circumstances in which custody credits will be awarded. Subdivision (a) of that section provides, in
pertinent part, that “[i]n all felony and misdemeanor convictions, either by
plea or by verdict, when the defendant has been in custody, including
. . . any time spent in a jail, . . . all days of custody
of the defendant . . . shall be credited upon his or her term of imprisonment
. . . .†Subdivision (b)
of Penal Code section 2900.5 further states, “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.â€
A defendant is not entitled
to credit for presentence confinement unless he shows that the conduct that led
to the sentence against which he seeks credit “was the true and only unavoidable basis for†his loss of liberty during the
presentence period. (People v. Bruner
(1995) 9 Cal.4th 1178, 1192 (Bruner).)
“[W]here a period
of presentence custody
stems from multiple,
unrelated incidents
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
a ‘but for’
upon a criminal
sentence for presentence
time already served
and credited on
a parole or
he cannot prevail
simply by demonstrating
that the misconduct
which led to
sentence was ‘a’
basis for the
revocation matter as
well.†(
that “led to the sentence was a dispositive, or ‘but for,’ cause of the
presentence custody.†(Id. at p.
1180.)
As stated by the trial court,
defendant has not shown a prima facie case for relief. He based his claim of error in the award of
credits upon a statement in the probation report, but failed to show that “but
for†the conduct giving rise to his conviction and sentence in the present
case, he would not have been in custody for his probation revocation in case
No. MA012399. Although he argues on
appeal that his probation was revoked in case No. MA012399 “as a result of this
arrest,†nothing in the record establishes the nature of the violations that
caused the trial court to revoke his probation.
There may have been one or more grounds in addition to the conduct
giving rise to the charges in the present case.
Notably, the probation report pages upon which defendant relied revealed
that he was convicted by a jury in the present case on November 5, 1997,
whereas, according to the trial court, he had been sentenced in case No.
MA012399, following probation revocation, on September 26, 1997.
The mere asserted concurrence of the terms imposed (a matter the
appellate record does not demonstrate) does not lead to a different
result. The parole revocation and new
sentence terms in Bruner,
Bruner had not made the requisite showing.
Accordingly, defendant failed
to make a prima facie showing that he is entitled to additional credit.
We
treat the appeal as a petition for writ of habeas corpus and deny the petition.
NOT TO BE PUBLISHED.
MALLANO,
P. J.
We concur:
CHANEY, J.
JOHNSON, J.
