P. v. Turner





















Filed 3/7/13 P. v. Turner CA1/4

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
FOUR




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THE PEOPLE, Plaintiff and Respondent, v. THOMAS C. TURNER, Defendant and Appellant.

A134641 (Napa County Super. Ct. Nos. CR147884, CR148687)

Defendant
Thomas C. Turner was charged with making criminal
threats against two staff members while he was committed at Napa
State Hospital
as a mentally disordered offender
(MDO). He was held in Napa
and Solano county jails while these charges were pending, and he eventually
pleaded no contest to them. In this
appeal, he contends that the trial court was required to conduct an evidentiary
hearing on the possibility that he is entitled to presentence custody credits
because his status as an MDO may have changed during different periods while he
was held in the county jails. We
disagree and affirm the judgment of the trial court.

I. BACKGROUND

Turner
threatened two staff members at Napa State
Hospital while committed there as
an MDO by the Solano Superior Court under Penal Code section 2962.href="#_ftn1" name="_ftnref1" title="">[1]
The threats occurred during two separate incidents in 2009, one in July and the
other in August.

The
Napa County District Attorney charged Turner with making a criminal threat
(§ 422) in two separate cases. The
district attorney further alleged Turner had suffered three prior strike
convictions (§ 667, subds. (b)-(i)).

The
cases were resolved in October 2011 when Turner pleaded no contest in both of
them to making a criminal threat. He
admitted one prior strike.

The probation officer’s sentencing report showed that
Turner had been held in Solano and Napa
county jails while the charges were pending.
In a sentencing memorandum, defense counsel pointed out that while
Turner was in these facilities he was the subject of two MDO
commitment-extension proceedings in Solano
County. Copies of Solano County Superior Court orders, attached to
the sentencing memorandum, appear to confirm that Turner’s MDO commitment was
twice extended. They show that Turner
was in the middle of a one-year commitment set to expire on February 16, 2010, when he threatened the hospital staff. His commitment was extended to February 16,
2011, after a trial held in September 2010.
It was again extended, this time to February 16,
2012,
after another trial held in October 2011.

Defense
counsel argued below that Turner was entitled to custody credits during the
periods between the expirations and subsequent extensions of his MDO commitment
because Turner’s custody during those periods resulted solely from the threat
charges. The trial court disagreed. The court noted that href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Solano
County records showed Turner had waived time “during the time period when
one could argue that there was an expiration.”
The court then sentenced Turner to six years in state prison in both
cases, with the terms to run concurrently.

II.
DISCUSSION

Turner
renews his bid for presentence credits on appeal. He contends the trial court failed to
consider the consequences of the delayed extensions of his MDO commitment. He acknowledges that persons held under a
mental health civil commitment are
generally not entitled to pretrial custody credits against a sentence imposed
in a separate criminal matter. (>People v. Mendez (2007)
151 Cal.App.4th 861, 865 (Mendez);
People v. Callahan (2006) 144
Cal.App.4th 678, 685-686.) He relies,
however, on the California
Supreme Court’s holding in People v. Cobb
(2010) 48 Cal.4th 243 that MDOs who cannot be tried until after their prior
commitment expires may be entitled to release from custody. (Id.
at p. 252.)

Defendants
are generally entitled to credit against their sentences for time spent in
pretrial custody. (§ 2900.5, subd.
(a).) But 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.” (Id., subd. (b).)

It
is of course not uncommon for persons to be in custody for more than one
reason. “[W]here 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.”
(People v. Bruner (1995) 9
Cal.4th 1178, 1193-1194.)

In
Mendez and Callahan, Division One of this court applied this causation test
against defendants who committed crimes while confined at Napa State Hospital
on insanity commitments (§ 1026).
In both cases, the court held that the defendants were not entitled to
pretrial custody credits because they would have remained confined under their
insanity commitments regardless of the new criminal charges. (Mendez,
supra, 151 Cal.App.4th a p. 865; People v. Callahan, supra, 144 Cal.App.4th at pp. 685-686.) “Pretrial custody on the new criminal charge
of battery on the hospital guard is, in essence, another formalistic layer of
custody which, if stripped away by the ability to make bail, would not have
resulted in defendant’s liberty. He
would have remained confined on the 1026 commitment and thus is not entitled to
the actual custody credit awarded by the trial court.” (Callahan
at p. 685.)

Turner
does not claim any of the MDO commitment extension orders were reversed or were
otherwise invalid. It appears,
therefore, that he was subject to an MDO commitment at all times he was in
custody before the threat charges were resolved. He nevertheless argues he may have been
entitled to pretrial release in the extension proceedings pursuant to >Cobb, although he concedes that “it is
impossible to determine whether the delay in the commencement of those
[extension] trials was a delay that would have allowed [him] to be released
under Cobb.” Turner believes this court should remand the
matter to the trial court for an evidentiary hearing to determine the cause of
each day of confinement.

We
disagree. Turner was entitled to pretrial
release in the MDO extension proceedings only if there was no time waiver or
good cause for a continuance. (>People v. Cobb, supra, 48 Cal.4th at p.
252.) Solano County Superior Court
docket sheets attached to defense counsel’s sentencing memorandum appear to
show that time was waived in the extension proceedings.

Regardless,
Turner had the burden to prove he was entitled to presentence custody credits,
and he failed to meet it. A defendant
must show that the conduct leading to his convictions was the sole reason for
his loss of liberty during the presentence period. (People
v. Bruner, supra, 9 Cal.4th at p. 1191; Mendez,
supra, 151 Cal.App.4th at p. 864.) “[T]he defendant has the burden in every
mixed conduct case to prove entitlement to presentence custody credits by
showing that such custody was ‘strict[ly] caus[ed]’ by the same conduct for
which he is convicted and to be sentenced.”
(In re Nickles (1991) 231
Cal.App.3d 415, 424; People v. Purvis
(1992) 11 Cal.App.4th 1193, 1196-1197 [accord].) While Turner speculates that there may have
been periods during which he was held in local custody for reasons other than
his MDO commitment, he neither alleged nor pointed to Solano County court
records showing that his MDO commitment hearings were extended without a waiver
or good cause. Under these
circumstances, the trial court properly denied his request for an href="http://www.mcmillanlaw.com/">evidentiary hearing.href="#_ftn2" name="_ftnref2" title="">[2]





III.
DISPOSITION

The
judgment is affirmed.











_________________________

Humes,
J.





We concur:





_________________________

Reardon, Acting P.J.





_________________________

Rivera, J.