Clearing The Air Surrounding Custody
Credits By Rick Layon
Admittedly, with everything that is going on, both on the state and local level, an article about sentencing credits seems, well, a bit dull at best and at worst, monotonous and uninteresting. Nevertheless, recent developments with the consolidation of the Municipal and Superior Courts and the systemic misinterpretation of Penal Code section 2900.5, and the decisional law which has emanated from the same, have breathed life into this otherwise colorless topic and given it significant import.
First, as to the rapidly approaching consolidation, a recent meeting of the court consolidation committee for North County–attended by a host of judges and members of the local bar–revealed a myriad of changes in court policy and procedure which have gone well past the “idea stage” and into the “implementation phase.” The touchstone for the modifications is the promotion of increased “efficiency.” One of many changes which will have an immediate and discernable affect on criminal defense practitioners is the mandate of the consolidated court to bundle all probation cases which your client has in the county with the unadjudicated case(s) and declaring the preliminary hearing to also constitute an evidentiary hearing for purposes of determining if a probation violation has actually transpired. Following the preliminary/evidentiary hearing, the coup de grace is that you, or your client, then has the choice of being immediately sentenced on the probation violation(s) and remanded into custody or, if you would like a probation report, sentencing following revocation will occur in the felony readiness department, [presumably Department F] 2at the first readiness conference. Sentencing after revocation will occur–the guidelines posit– at the initial felony readiness conference regardless of whether you set a new readiness conference, confirm for trial or settle the matter.
As one might well envision, summary adjudication and sentencing, as described above, are pregnant with a whole host of dilemmas and difficulties and may well amount to the camel’s nose under the tent. Moreover, the majority of the maladies created by the implementation appear to cut against the individual who find’s him/herself charged with a criminal offense. Notwithstanding the measurable discontent which will be exuded by the client–which will ultimately focus on defense counsel–who bonds out of custody and then finds him/her self being fished back in following the preliminary hearing, defense counsel will be placed in the position of making the Hobson’s choice of either unveiling his/her entire defense, and disclosing the witnesses related to the same, at the preliminary/evidentiary hearing 3 or not putting on any affirmative evidence and risk a near certain bind over/finding of probation violation. Defense counsel would thus suffer the ire of the client who is trying to figure out why he is going back into custody after bonding out–at considerable expense–only days before. Additionally, in those instances where defense counsel elects to present affirmative evidence, in the attempt to keep the defendant out of custody, the duration of the preliminary hearing will certainly increase several fold resulting in the reduction of preliminary hearings heard by a magistrate from 5-8 in any given day to 1-3 per day.
Another issue, which interestingly enough is the topic of this article, surrounds custody credits earned by the defendant once probation is revoked and s/he is remanded into custody. Do the custody credits accrued while jailed on the probation violation enure to the defendant’s benefit on the underlying, yet to be adjudicated case? As discussed below, the answer is a qualified YES!
Section 2900.5 of the Penal Code4 provides, in pertinent part, as follows:
“(a) In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, similar residential institution, or home detention program, all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment…”
“(b) 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.”
A considerable amount of decisional law has been generated attempting to interpret Section 2900.5 which boils down to the following: separate conduct, mixed conduct, same conduct. Only in the latter situation does the defendant get the custody credits.
The California Supreme Court first addressed the meaning of section 2900.5 in the context of multiple proceedings in In re Rojas, (1979) 23 Cal.3d 152 in that case [which is an example of separate conduct] the petitioner was serving a state prison sentence for manslaughter when he was charged with an unrelated murder and transferred to a county jail pending trial on the new charge. Following conviction on the murder charge, and the imposition of a state prison sentence concurrent with the sentence for manslaughter, the petitioner claimed presentence credit under section 2900.5. In a decision holding that the petitioner was not entitled to any presentence credit, Justice Richardson, writing for a unanimous court, stated that the petitioner “would necessarily have served that . . . period in state prison for the original manslaughter conviction” and that he “was already receiving credit for that period against his original conviction.” The Rojas’ court concluded: “Section 2900.5 does not authorize credit where the pending proceeding has no effect whatever upon a defendant’s liberty.” Rojas, supra, at p.155-156; in accord, In re Joyner, (1989) 48 Cal.3d 487.
An example of mixed conduct is the recent case of People v. Bruner, (1995) 9 Cal.App.4th 1178. In Bruner defendant was released on parole in March of 1991 after serving a prison term for armed robbery. A warrant subsequently issued for defendant’s arrest on three alleged parole violations: absconding from parole supervision, theft of a credit card, and cocaine use based on a positive urine test. On May 25, 1991, parole agents went to a residence to arrest defendant for these violations. During the search incident to defendant’s arrest, a substantial quantity of rock cocaine was found on his person. At the time of his arrest, defendant was cited for the cocaine possession, then released on his own recognizance on that charge. However, he remained in custody under a parole hold pending disposition of his parole status.
On July 25, 1991, the Board of Prison Terms revoked defendant’s parole on the basis of the three earlier violations, plus his possession of cocaine at the time of his arrest. A prison term of 12 months was imposed. Defendant received full credit against this term for the time spent in jail custody between May 25 and July 25. While defendant was serving his parole revocation term, a criminal information was filed charging defendant with the May 25 cocaine possession. [H&S, §11350(a).]
On February 2, 1992, the court struck the enhancement and imposed the lower term of 16 months for the drug offense. The court specifically found that defendant was not entitled to presentence credit. Defendant appealed. He urged that under section 2900.5, he was entitled to credit against his new sentence for time spent in custody on the revocation matter between May 25, 1991, and February 2, 1992. Ibid at pp. 1180-1182.
In concluding that the custody credit should be denied, the court noted the “strict causation” requirement of it earlier decisions in Rojas and Joyner, supra, and explained that where a period of presentence custody stems from multiple, unrelated incidents of misconduct [such as failure to report to the parole officer and testing positive for cocaine in violation of his parole], such custody may not be credited against a subsequent formal term of incarceration unless the prisoner has 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 . . . ;” rather s/he must demonstrate that the misconduct which led to his conviction and sentence was “the only” basis for the revocation. People v. Bruner, supra, 9 Cal.4th at pp. 1193-1194. In contrast to the above, People v. Williams, (1992) 10 Cal.App.4th 827, is an example of a case wherein the “same conduct” exists such that the defendant does earn custody credit on both the revocation and the new, unadjudicated matter. In Williams, defendant was initially placed on 12 months of summary probation for petty theft [Section 484/488]; he was subject to various conditions of probation including “obey all laws”. Thereafter, defendant was arrested on a variety of charges including kidnaping [Section 207] and rape [Section 264.1]. At the preliminary hearing, on October 10, 1991, the court found defendant in violation of his grant of misdemeanor probation, revoked the same and sentenced him to 177 days custody. Subsequently, on December 6, 1991, defendant entered a no contest plea to one count of Section 264.1; thereafter the court sentenced him to 9 years in state prison and denied him presentence credits relying on Section 2900.5; defendant filed a timely appeal asserted that he was entitled to presentence credits even though he had been sentenced, and was serving time, on his probation violation. Ibid at pp. 829-830.
Division Two of the First District Court of Appeals reversed and held defendant was entitled to the presentence credits even though he was then serving time imposed on his probation violation. In so doing the court explained that the issues the trial judge is required to consider in cases such as these are (1) Would the defendant have been at liberty (free of incarceration for probation violation) absent his custody (as a probation violator) being attributable to proceedings related to the same conduct for which he was subsequently sentenced? If so, presentence credits are applicable. (2) Conversely, would appellant have been returned to custody as a probation violator on grounds having nothing to do with the proceedings relating to the same conduct for which he was subsequently so sentenced, i.e., for violating some other condition of probation? If so, such presentence credits are inapplicable. People v. Williams, supra, 10 Cal.App.4th at pp. 832-833.
A condensation of the appellate opinions interpreting Section 2900.5 suggests that if you can demonstrate a strict causation such that it can be said that “but for” the new law violation, the defendant would still be on the street–s/he is entitled to custody credits on both matters. Court consolidation generally, and as discussed above custody credits specifically, will present a plethora of challenges which the bar, the bench and the probation department will be wrestling with in the days to come. Finding a balance between fairness and expediency will be the task of all concerned so as to ensure that the odoriferous and wholly unsavory camel is kept out of the tent.
- Rick Layon received his Bachelor of Science Degree in Biology from San Diego State University in 1986, and his Juris Doctor from Willamette University in 1990. Mr. Layon is chair of the Criminal Section of the North County Bar Association. He is a partner in the firm of Layon & Holck, A.P.L.C. and limits his practice to the area of criminal defense.
- In the event that sentencing after revocation is continued to obtain a probation report, the new guidelines are noticeably silent as to what your client’s custody status will be while awaiting sentencing. The skeptics among our ranks suggest that the client who walks in the front door will likely be “fished” out the back following the preliminary/evidentiary hearing regardless of when the sentence after revocation occurs.
- Contrast this de facto disclosure of witness information and statements with the statutory requirement of section 1054.3 of the Penal Code which mandates disclosure by defendant of the same information 30 days prior to trial. People v. Superior Court (Mitchell), (1993) 5 Cal.4th 1229.
- Unless indicated to the contrary, all subsequent statutory references are to the Penal Code.