P. v. Plowright
Filed 9/12/13 P. v. Plowright CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
THOMAS
PLOWRIGHT, III,
Defendant and Appellant.
A136372
(Mendocino
County
Super. Ct.
No. SC-UK-CR-CR-10-0012131-002)
Defendant
pleaded guilty to charges in
County. Prior to the plea, his
probation in Santa Clara County
had been revoked on several grounds, including the conduct underlying the
various offenses charged in Mendocino
County. After he was sentenced to prison on the
probation revocation, defendant was transferred to the custody of Mendocino
County, served the remainder of his
Santa Clara sentence, and was
released. Only then did he plead guilty
to certain of the Mendocino County
charges. At sentencing, defendant sought
and was denied custody credits for the
time served in Mendocino County
following his probation revocation. We
affirm the denial of credits.
On
May 10, 2010, defendant was
charged with nine counts of drug and arms offenses in a complaint filed in Mendocino
County. An amended complaint, filed in July, expanded
this to 17 counts, adding several charges of receiving and possessing stolen
property.
Defendant
was held in Mendocino County
until May 15, when he was released on bail.
Three days later, he was arrested at his home in San
Jose for violating terms of his Santa Clara County
probation. The petition for modification
of defendant’s terms of probation listed six “circumstances of violation.†They included the new crimes alleged
County complaint, two misdemeanor
Fish and Game Code violations that, although allegedly committed at the same
time and place as the conduct underlying the Mendocino
County charges, were not charged in
the original or amended complaints, two positive tests for amphetamine, and the
failure to pay fines and fees. Defendant
admitted the violations; his probation was terminated; and he was sentenced to
a two-year prison term.
On
July 27, 2010, the
Mendocino County Superior Court issued an order directing the sheriff to
transport defendant from “his current place of incarceration—San Quentin State
Prison—to the Mendocino County Jail†to stand trial in connection with the Mendocino
County charges. Defendant was in the custody of Mendocino
County no later than August 19, 2010. There he served the prison sentence imposed
in Santa Clara County
and was released on bail upon its expiration in May 2011. On January
26, 2012, he pleaded guilty to 3 counts of the 17 counts charged in
the Mendocino County
case and admitted certain enhancement allegations. The agreed upon sentence was 44 months.
Prior
to sentencing, defendant filed a “Request for Custody Credits and Extended Stay
on Remand,†arguing he should be granted custody credit against the sentence
imposed on the Mendocino County charges for the time spent serving his Santa
Clara County prison sentence. As
authority, the request cited Penal Code
The
trial court adopted the stipulated sentence of 44 months, but it declined to
grant the requested custody credits under either statute. As to the request for custody credits under
section 2900.5, the court explained, “[T]he fact that there were other reasons
. . . he was revoked in Santa Clara
than the charge here is sort of the end of that analysis for me.â€
II. DISCUSSION
Defendant
contends the trial court erred in declining to award custody credits under
either section 1381 or section 2900.5.
A. Section 1381
Section
1381 permits a person to serve a demand for a prompt trial when he or she is
charged in a criminal proceeding while imprisoned on a different charge. If the person is not brought to trial in that
proceeding within the time period specified by the statute, the new charges can
be dismissed. A purpose of section 1381
“is to allow a defendant who is serving a sentence of imprisonment to obtain
the benefit of concurrent sentencing by accelerating the resolution of pending
charges.†(People v. Eldridge (1997) 52 Cal.App.4th 91, 95.)
The
text of section 1381 addresses only an incarcerated defendant’s entitlement to
a prompt trial, without mentioning the possibility of custody credit. Defendant cites no authority for his
contention the trial court had the discretion to grant custody credits under
section 1381, and we have found none. On
the contrary, the sole decision addressing the issue, People v. Gisbert (2012) 205 Cal.App.4th 277 (Gisbert), rejects such a possibility.
While
imprisoned, the defendant in Gisbert
was charged with a new felony and served a section 1381 demand. On the day he appeared for arraignment on the
new charges, he pleaded guilty and was given a sentence to be served
concurrently with his existing sentence.
With respect to the new sentence, the defendant was initially granted
custody credit for the period between the service of his section 1381 demand
and his sentencing, but the trial court later vacated the credits. (Gisbert,
supra, 205 Cal.App.4th at pp. 279–280.) In affirming the trial court’s decision to
vacate the credits, the Court of Appeal held that section 1381 did not provide
a basis for the award of custody credits independent of the standard applied
under section 2900.5: “A defendant is
not entitled to presentence custody credits when he or she is charged with a
crime while already incarcerated and serving a sentence on a separate, earlier
crime. [Citations.] The test is whether the defendant would have
been free ‘but for’ his or her incarceration on the second crime. ‘[W]hen presentence custody may be
concurrently attributable to two or more unrelated acts, and where the
defendant has already received credit for such custody in another proceeding,
the strict causation rules of [In re
Joyner (1989) 48 Cal.3d 487] should apply. . . .’ [Citation.] [¶] We conclude the trial
court did not have discretion to award presentence custody credits for the
period after defendant filed his section 1381 notice and demand for trial,
because he would not have been free from custody but for being held for trial
on the second burglary charge.†(
us to reject defendant’s contention he should have been granted custody credits
under section 1381.
B. Section 2900.5
We also find no
error in the trial court’s refusal to grant custody credits under section
2900.5 for the time served by defendant on the probation revocation sentence.
Under
section 2900.5, a defendant is entitled to custody credit against a sentence
when the “custody to be credited is attributable to proceedings related to the
same conduct for which the defendant has been convicted.†(Id., subd. (b).) This has been interpreted to require a
defendant claiming custody credit to demonstrate “the conduct which led to his
conviction was the sole reason for his loss of liberty
during the presentence period.†(
1191 (Bruner).)
defendant’s parole violation on three grounds, including absconding from parole
supervision, theft, and a positive cocaine test. When he was searched, the police found
cocaine, and he later charged with possession.
(Bruner, supra, 9 Cal.4th at
p. 1181.) The defendant was sentenced to
prison as a result of the parole violation, which was based on the three
grounds cited above, as well as his possession of cocaine. (Ibid.) When the defendant later pleaded guilty to
possession of cocaine, the trial court refused to grant custody credit for the
time he served for the parole violation.
(Id. at pp. 1181–1182.) The Supreme Court affirmed the denial,
holding “where a period of presentence custody stems from multiple, unrelated
incidents of misconduct, such 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. Accordingly, 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.â€
(Bruner, supra, 9 Cal.4th at
pp. 1193–1194.) Instead, as noted
above, the defendant must show the misconduct was the “sole
reason†for the revocation. (
1264, 1272–1273.)
The
petition for modification of defendant’s terms of probation alleged he had
violated his probation not only by committing the various offenses charged in
the Mendocino County
complaint but also by committing two Fish and Game Code violations, testing
positive for amphetamine, and failing to pay fines and fees. Defendant admitted the violations. Because those additional grounds were not
part of the conduct charged in the Mendocino
County case, defendant was not
entitled to custody credits unless he could show the additional grounds had
been dismissed as a basis for revoking his probation, leaving only the conduct
underlying his conviction. (See
385, 392.) He has made no such
showing.
Defendant
argues that because the failed drug tests occurred several months before he was
detained for violation of his probation, they should, in effect, be disregarded
as a basis for the revocation. While the
timing of events certainly suggests defendant’s crimes in Mendocino
County were the immediate spur to
the revocation of his probation, there is no basis in the law for disregarding
an otherwise legitimate ground for revocation merely because it was not the
“law straw†that caused the probation office to seek revocation. Each of the grounds specified above
constituted an independent basis for revoking defendant’s probation. Because certain of those grounds were not the
conduct charged in the Mendocino County
case, under the rationale of Bruner he
was not entitled to custody credits.
DISPOSITION
The
judgment of the trial court is affirmed.
_________________________
Margulies,
Acting P.J.
We concur:
_________________________
Banke, J.
_________________________
Sepulveda, J.
name="_ftnref3" title="">*
name="_ftn1" title="">[1] We
do not specify the exact nature of the criminal charges because it is
unnecessary to resolve the issue raised by defendant on appeal.
name="_ftn2" title="">[2]
All statutory references are to the Penal Code.
