Opinion
H029727
12-11-2006
THE PEOPLE, Plaintiff and Respondent, v. JORGE ALBERTO AYALA, Defendant and Appellant.
A felony complaint filed May 27, 2004, charged appellant Jorge Ayala with possession of a firearm by a felon. (Pen. Code, § 12021, subd. (a)(1).) The complaint contained an allegation that the offense was committed to benefit a criminal street gang. (Pen. Code, § 186.22, subd. (b)(1)(A).)
On October 18, 2005, appellant pleaded guilty to the offense and admitted the gang enhancement allegation on the condition that he received only a two-year "top/bottom" prison term.
On December 14, 2005, the court dismissed the gang enhancement pursuant to Penal Code section 1385 and sentenced appellant to prison for two years (the mid-term) pursuant to the plea bargain.
At the sentencing hearing, appellant requested additional presentence credits for jail time that he spent in Merced County on an unrelated matter. It is with the calculation of these custody credits that appellant takes issue. Specifically, appellant contends that he is entitled to 163 days of actual credits for the time spent in the Merced County jail. Alternatively, he is entitled to one additional day of actual presentence credit because of a miscalculation in the trial court, and to the corresponding adjustment to his Penal Code section 4019 credits. For reasons that follow, we agree with appellants first contention.
Statement of Facts
The facts underlying appellants offense are not relevant to this appeal. However, we detail the chronology of appellants arrests and corresponding jail time in order to address the issues relating to appellants custody credits.
The probation report prepared for appellants sentencing in the Santa Clara County case indicates that appellant was arrested in Santa Clara County on May 24, 2004 and released on bail on May 27, 2004. Appellant failed to appear for a court appearance on June 22, 2004 and a bench warrant issued. Subsequently, Merced County authorities arrested appellant on unrelated charges on July 27, 2004. Appellant stayed in custody in Merced County from the date of his arrest until January 5, 2005, when he received a two-year prison sentence on the Merced County charges. It appears that Merced County gave appellant credit for time served in the Merced County case from the time of his arrest until January 5, 2005. He was paroled in that case on September 5, 2005.
Appellant was returned to Santa Clara County from Solano prison on April 27, 2005. On October 18, 2005 appellant entered into the aforementioned plea agreement to settle the Santa Clara County case. Thereafter, on December 14, 2005, appellant was sentenced according to the terms of the plea bargain. At appellants sentencing hearing, counsel argued that appellant was entitled to presentence credits for his jail time in Merced County. Specifically, counsel argued that appellant was entitled to custody credits from July 27, 2004 (the date he was arrested in Merced County) to January 5, 2005 (the date he was sentenced in Merced County). The court concluded that appellant was not entitled to receive dual credits for the time he spent in the Merced County jail prior to sentencing in that case because the court could not impose a concurrent sentence. The court stated that if it could have imposed a concurrent sentence, appellant would be entitled to dual custody credits because he had made a sufficient showing that he was entitled to them.
As noted, appellant had completed his sentence in the Merced County case before he was sentenced in the Santa Clara County case.
Appellant took the stand and testified that he tried to bail out in Merced County, but was prevented from so doing solely because of the Santa Clara County bench warrant. Although the court stated that it would have to get more information from Merced County, it appears the court accepted appellants testimony as true. The court did not indicate whether it would have imposed a concurrent sentence if it could have done so. However, the court did state that if a concurrent sentence were imposed, defendant had "established sufficient cause that he will be entitled to dual credits based on what [he] presented this morning."
The court awarded appellant total credits of 153 days consisting of 103 actual days and 50 days of Penal Code section 4019 credits.
Appellant filed a timely notice of appeal.
Discussion
Relying on People v. Bruner (1995) 9 Cal.4th 1178 (Bruner), In re Joyner (1989) 48 Cal.3d 487 (Joyner) and In re Atiles (1983) 33 Cal.3d 805 (Atiles), appellant argues that he is entitled to an additional 163 days of actual credits for the Merced County jail time. He reasons that he presented evidence that he could have been free during this period "but for" the bench warrant in the Santa Clara County case.
Appellant seeks presentence credit from the date of his arrest in Merced County to the date he was sentenced in the Merced County case.
Penal Code section 2900.5 provides: "(a) In 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, 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 . . . . If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served. . . . [¶] (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. Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed."
Initially we note that application of Penal Code section 2900.5 is clear-cut in just two situations. First, when a defendant is arrested for an offense and held in custody solely for that offense, then unquestionably he is entitled to credit against his sentence for the time in custody from arrest until sentencing. (See In re Watson (1977) 19 Cal.3d 646, 651.) Second, when defendant is serving time for one offense and is charged with another, unrelated offense, indisputably he is not entitled to credit. As the Supreme Court concluded in In re Rojas (1979) 23 Cal.3d 152, 156 (Rojas), "There is no reason in law or logic to extend the protection intended to be afforded one merely charged with a crime to one already incarcerated and serving his sentence for a first offense who is then charged with a second crime. As to the latter individual the deprivation of liberty for which he seeks credit cannot be attributed to the second offense. Section 2900.5 does not authorize credit where the pending proceeding has no effect whatever upon a defendants liberty."
In between those two ends of the spectrum is an infinitely troublesome muddled area involving defendants on parole, defendants on probation, and defendants charged with multiple crimes in multiple jurisdictions. As appellant points out, since Penal Code section 2900.5s enactment in 1971, "considerable ink has been spilled by our state courts as to the correct interpretation of this statutory provision to situations where a defendant claims entitlement to credits for a time period where he is in custody for more than one unrelated criminal charge with fairly confusing results."
In People v. Bruner, supra, 9 Cal.4th 1178, a warrant issued for the defendants arrest for three alleged parole violations. When parole agents served the warrant, they found rock cocaine in the defendants possession. The defendant was cited for possession of cocaine and released on that charge on his own recognizance. Nonetheless, he remained in custody under a parole hold. The Board of Prison Terms revoked the defendants parole based on the three alleged violations and his possession of cocaine, and imposed a prison term of 12 months. While the defendant was serving that term, he pled guilty to the charge that he possessed cocaine, and was sentenced to prison for 16 months. The court found that the defendant was not entitled to any presentence custody credits on the current charge. The California Supreme Court affirmed the trial courts ruling. The Supreme Court held: "[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. 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." (People v. Bruner, supra, 9 Cal.4th at pp. 1193-1194.)
The Bruner court concluded that "when 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 Joyner [supra, 48 Cal.3d 487] should apply." (Bruner, supra, 9 Cal.4th at pp. 1180.) In Bruner, since the defendant received credit for all presentence custody in his parole revocation proceeding, and he failed to demonstrate that "but for" the cocaine possession leading to his current sentence he would have been free, or at least "bailable," during that presentence period, he was not entitled to duplicative credit against his current sentence. (Id. at p. 1181.)
Appellant contends that this case presents this court with a unique application of the principles announced in Bruner. Appellant points out that he was arrested on May 24, 2004 for the charges leading to his sentence for the current offense in Santa Clara County. He bailed out on May 27, 2004, but skipped bail. In Merced County, he picked up new charges leading to his arrest on July 27, 2004. Since he demonstrated that he would have bailed out and been free of custody on the Merced County charges but for the hold placed on him by Santa Clara County, he has met the "but for" causation test under Bruner.
Respondent notes that, as the trial court found, appellant received presentence credit for the time in question on his Merced sentence. Thus, respondent argues, appellant is seeking dual credits towards his sentence in this case. Accordingly, relying on In re Marquez (2003) 30 Cal.4th 14, respondent points out that our Supreme Court concluded that " If an offender is in pretrial detention awaiting trial for two unrelated crimes, he ordinarily may receive credit for such custody against only one eventual sentence. Once the pretrial custody is credited against the sentence for one of the crimes, it, in effect, becomes part of that sentence, bringing the case within the embrace of the rule in [In re] Rojas [(1979)] supra, 23 Cal.3d 152. In such circumstances, the pretrial custody ceases to be "attributable" to the second crime, thus prohibiting its being credited against the sentence subsequently imposed for that crime. [Citation.] (In re Marquez, supra, 30 Cal.4th at p. 21; emphasis added.)"
In re Marquez, supra, 30 Cal.4th 14, involved a defendant convicted of burglary in Monterey County and convicted of an unrelated burglary in Santa Cruz County. Marquez had been in custody in Santa Clara County continuously since his arrest for the Santa Cruz County burglary. (Id. at p. 17.) He was sentenced for the Santa Cruz County burglary before being sentenced for the Monterey County burglary. (Id. at p. 18.) Eventually, this court reversed and dismissed the Santa Cruz County conviction. Subsequently, the defendant sought credit for time spent in custody from the time he was sentenced in the Santa Cruz County case until he was sentenced in the Monterey County case. (Ibid.) Marquez argued that once the Santa Cruz County conviction was reversed and dismissed, his confinement was attributable to the Monterey County case. (Id. at p. 19.) The California Supreme Court agreed, holding that this approach was consistent with the plain meaning of section 2900.5, subdivision (b). (Id. at p. 20.)
The Marquez court found that Bruners rule of " strict causation " did not change the result. (See In re Marquez, supra, 30 Cal.4th at p. 23.) It held that this rule "is applicable in cases involving the possibility of duplicate credit that might create a windfall for the defendant." (Ibid.) Since the Santa Cruz County charges were dismissed, there was no threat of awarding defendant the windfall of double credits. The Marquez court noted: "The choice is instead between granting petitioner credit once for his time in custody between December 11, 1991, and April 2, 1992, [the time between sentencing in the Santa Cruz County case and sentencing in the Monterey County case] or granting him no credit at all for this period of local custody." (Ibid.)
Although we find respondents reliance on Marquez misplaced because it is distinguishable on its facts, we do find Marquez instructive in this unique situation. In Marquez, supra, 30 Cal.4th 14, in concluding that the defendant was entitled to credit for "all custody following Monterey Countys hold, including the period between [the defendants] sentencing in Santa Cruz County and his Monterey County sentencing," our Supreme Court explained: "[A]fter Monterey County placed a hold on [the defendant], his custody was attributable to the charges in both counties. Thus, once Santa Cruz County dismissed its charges, all custody following Monterey Countys hold . . . is properly characterized as attributable to [the Monterey County] proceedings related to the same conduct for which the defendant has been convicted. " (Id. at p. 20, quoting § 2900.5, subd. (b).)
In so holding, the court found "as an initial matter, the Santa Cruz County Superior Court correctly awarded [the defendant] credit against his Santa Cruz County sentence for his time spent in pretrial custody up until . . . the date he was sentenced on the Santa Cruz County charges . . . [b]ecause [the defendants] Santa Cruz conviction occurred first . . . ." (Marquez, supra, 30 Cal.4th at p. 22.)
In this case, if Merced County had refused to grant appellant bail we would have little problem disposing of this case based on Marquezs approval of the action taken by the Santa Cruz County court in awarding Marquez credit for his pretrial custody in that case. However, this is not the case, because appellant was able to prove to the satisfaction of the trial court that he would have bailed out in Merced County but for the Santa Clara County hold.
We find this case to be more factually similar to Joyner, supra, 48 Cal.3d 487 than to Marquez. Joyner was convicted of grand theft and robbery with an enhancement for being armed with a firearm. He was sentenced to a term of four years in state prison concurrent with two Florida prison terms previously imposed for unrelated offenses. (Id. at p. 489.) He sought presentence custody credits against his California sentence for custody time in Florida and California from the date a " hold " was placed against him for the California offenses until he was sentenced in California. (Ibid.)
In January 1983, arrest warrants were issued in California for Joyners arrest. On March 15 of the same year, Joyner was arrested in Florida for crimes committed in that state. On the same day, Florida authorities discovered the outstanding California arrest warrants and, after notifying California authorities placed a hold on Joyner. (Joyner, supra, 48 Cal.3d at pp. 489-490.) Joyner did not allege that he attempted to be released from custody in Florida, nor was there any evidence that the California hold prevented him from so doing. (Id. at p. 490.) When the Florida authorities learned that Joyner was a Florida probationer, they instituted probation revocation proceedings. (Ibid.)
Joyner pleaded guilty in Florida to burglary and grand theft charges. On July 19, 1983, he was sentenced to concurrent terms of three years in the Florida state prison with credit for 126 days of presentence custody. On September 2, 1983, Joyners Florida probation was revoked and he was sentenced to a three-year term for burglary, with credit for 352 days of presentence custody. The court ordered that the term run concurrently with the terms imposed on July 19. (Joyner, supra, 48 Cal.3d at p. 490.)
Subsequently, Joyner was extradited to California where he entered a negotiated plea to the charges of robbery and grand theft. Before accepting Joyners plea, the court advised Joyner that his California sentence would be served " independently of his Florida sentence. " (Joyner, supra, 48 Cal.3d at p. 490.) On December 29, 1983, the California court sentenced Joyner to four years in state prison. The court failed to state whether the term was concurrent or consecutive to the Florida term. Accordingly, by operation of law (Pen. Code, § 669), the term ran concurrently with the Florida sentences. The court denied Joyners request for presentence custody credit. Joyner continued to serve his Florida sentence while in California, both before and after sentencing in this state. (Ibid.)
In addressing Joyners claim that he was entitled to presentence custody credits against his California sentence, our Supreme Court noted that once the first Florida sentence was imposed, Joyners custody was unavoidable and therefore could not be attributable to the California proceeding. Accordingly, In re Rojas, supra, 23 Cal.3d 152 controlled. The Supreme Court explained that the period of custody from Joyners arrest in Florida until he was sentenced in Florida presented a slightly different issue. The Supreme Court observed that it was significant that the period had been credited against Joyners Florida sentence making it a period during which Joyner was serving a sentence on another conviction. The Supreme Court explained that while Joyners custody during this time may not have been unavoidable, the record contained no evidence that he ever posted bail on the Florida charges or that he could have obtained release had the California hold not been placed on him. In short, Joyner failed to demonstrate that the California hold had any effect on his liberty at any time. Thus, Joyner failed to show that his presentence custody was "attributable to" anything other than the Florida proceedings. Accordingly, the logic of Rojas, supra, 23 Cal.3d 152 dictated that Joyners claim to presentence credit be rejected in its entirety on the record presented. (Joyner, supra, 48 Cal.3d at p. 492.)
Thus, the Supreme Court held that a period of time previously credited against a sentence for unrelated offenses cannot be deemed " attributable to proceeding " resulting in a later imposed sentence unless it is demonstrated that the claimant would have been at liberty during the period were it not for a restraint relating to the proceedings resulting in the later sentence. "In other words, duplicative credits against separately imposed concurrent sentences for unrelated offenses will be granted only on a showing of strict causation." (Joyner, supra, 48 Cal.3d at p. 489.)
Appellant argues that he has met In re Joyners requirement of strict causation and thus is entitled to the credits for the Merced County presentence jail time against his Santa Clara County sentence.
Appellant concedes that if sentences are imposed consecutively, dual credits are expressly prohibited by statute. (Pen. Code, § 2900.5, subd. (b).) However, he asserts that where sentences are run concurrently, dual credits are possible where strict causation is shown. We do not disagree. However, in this case, as appellant admits, the Santa Clara County sentencing judge could impose neither a concurrent nor a consecutive sentence because appellant had served out his Merced County sentence. Accordingly, appellant argues, in this situation, "a defendant can still obtain credits in the second case for a period of custody attributable to both cases if he can show strict causation." Thus, he argues, this case is like Atiles, supra, 33 Cal.3d 805.
While free on parole from an earlier robbery sentence, Atiles was arrested and charged with new crimes of robbery and sodomy. Both counts arose from a single incident. A parole hold was placed on him, and he remained in jail after his arrest. Subsequently Atiless parole was revoked because of the robbery and sodomy charges, as well as violation of a parole condition against use of alcohol. Atiles was returned to custody for a six-month period, with credit for his jail time prior to revocation. (Atiles, supra, 33 Cal.3d at p. 807.)
Atiles completed his parole term on November 3, 1979. Three days later, he made bail and was released to await disposition of the still-pending criminal charges. The new criminal matter was resolved when Atiles pled guilty to robbery and admitted his prior conviction as a sentence enhancement. The court imposed a four-year prison term. It granted credit only for the three days of custody between the expiration of his parole term and his release on bail. By petition for habeas corpus, Atiles sought additional credit for his entire parole revocation term (including his prerevocation jail time). (Atiles, supra, 33 Cal.3d at p. 807.)
In a four-to-three decision, the Supreme Court granted the requested relief. At the outset, the majority rejected the Peoples claim that under Rojas, one should not receive credit on a new sentence for time served, and already credited, on another sentence (i.e., the parole revocation term). The Atiles majority observed that in Rojas, the prisoner was already incarcerated for an unrelated crime when charged, convicted, and sentenced on new charges. This unrelated incarceration, standing alone, would have prevented Rojass liberty during all periods of custody for which he later sought credit against the second sentence. Hence, such custody (though it took place in county jail awaiting trial on the new charges) was not "attributable" to the "same conduct" which led to Rojass new term. (Atiles, supra, 33 Cal.3d at p. 809.)
By contrast, Atiles "was not serving his [earlier] term [for a prior, unrelated robbery] when arrested. He was on parole. The conduct which led to his arrest and conviction on the new criminal charge also formed a basis for the parole hold and subsequent revocation proceedings. Thus his custody in the county jail was, literally, attributable to proceedings related to the same conduct for which the defendant has been convicted. . . ." (Atiles, supra, 33 Cal.3d at pp. 809-810.)
The People pointed out that Atiless new criminal sentence was based solely on a robbery, while the earlier parole revocation was based on the robbery plus other acts of misconduct. Accordingly, the People reasoned, Atiles was not entitled to have his parole revocation term credited against his criminal sentence, because, contrary to the intent of Penal Code section 2900.5, subdivision (b), his custody arising from the parole violations was not exclusively attributable to the "same conduct" that produced the criminal sentence. (Atiles, supra, 33 Cal.3d at p. 810.)
However, the Atiles majority ruled that the statutory phrase "attributable to the same conduct" was not so restricted. The majority conceded that Rojas had criticized In re Bentley (1974) 43 Cal.App.3d 988, for observing unnecessarily, given the facts of that case, that Penal Code section 2900.5, subdivision (b) does not contain the phrase " exclusively attributable" (italics added). Nevertheless, said the majority, this portion of Rojas was not a holding that the statute does contain such a limitation. (Atiles, supra 33 Cal.3d at p. 810.) On the contrary, the majority opined, nothing in the statute expressed a requirement of absolute identity, and no such requirement may be implied. (Ibid.)
In In re Bentley, supra, 43 Cal.App.3d 988, (Bentley), the Court of Appeal had granted credit against a robbery sentence for two periods of pretrial jail custody during which the prisoner was simultaneously serving a term of incarceration for violation of his parole in another case. The Bentley court had justified this outcome by stressing that subdivision (b) of Penal Code section 2900.5 does not say pretrial custody must be exclusively attributable to the charges for which credits are sought. (Id. at p. 992.)
Rojas, supra, 23 Cal.3d at page 157 concluded that although Bentley s result was correct on the particular facts there presented, its reasoning must be disapproved. Though petitioner Bentleys parole status stemmed from an earlier offense, apparently the sole reason for revocation of that parole was the identical robbery which had also led to his new criminal sentence. Under these narrow circumstances, Rojas conceded, "[a] literal interpretation of [Penal Code] section 2900.5" would have allowed Bentley his credits (even though duplicative).
Accordingly, the Atiles majority held: "In determining whether custody for which credit is sought under [Penal Code] section 2900.5 is attributable to proceedings leading to the conviction, the sentencing court is not required to eliminate all other possible bases for the defendants presentence incarceration. The court need only determine that the defendant was not already serving a term for an unrelated offense when restraints related to the new charge were imposed on him, and the conduct related to the new charge is a basis for those restraints." (Atiles, supra, 33 Cal.3d at p. 810, italics added, fn. omitted.) Thus, " custody . . . attributable to proceedings related to the same conduct for which the defendant has been convicted [includes] time in presentence custody during which a restraint or restraints related to that conduct made it impossible for the defendant to obtain his freedom, regardless of whether the defendant was also subject to other restraints on his liberty." (Id. at p. 811.)
The Atiles majority said that this conclusion was supported not only by the statutes "literal language," and by the maxim that any ambiguity favors the criminal defendant, but also by other indicia of legislative intent. For example, the majority observed, a post-Bentley amendment to Penal Code section 2900.5, subdivision (b) provides that "[c]redit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed." (Stats. 1978, ch. 304, § 1, p. 632, italics added.) The "limited focus" of this amendment, the majority concluded, implied that in all other cases, the Legislature intended to permit duplicative credits for a single period of custody attributable to multiple offenses. (Atiles, supra, 33 Cal.3d at p. 812.)
Moreover, the Atiles majority said this construction was consistent with the broad legislative purpose to "[equalize] the actual time served in custody for given offenses. [Citation.]" (Atiles, supra, 33 Cal.3d at p. 812.) Sentence inequality may arise, the majority explained, when the prisoner was arrested and held for multiple acts of misconduct that later result in terms intended by the sentencing court to be served concurrently. (Ibid.)
The Atiles majority reasoned that if all terms are imposed in a single proceeding, such that they all begin together, any presentence custody related to all will apply as a credit against all. On the other hand, if identical sentences for the same conduct are imposed in separate proceedings, maximum concurrency is defeated, and the overall period of confinement lengthened, unless each term is credited with time served on the others, and with all presentence custody that was jointly attributable to the multiple offenses. (Atiles, supra, 33 Cal.3d at pp. 812-813.)
For example, when multiple charges are severed and tried separately, or result in both a parole revocation term and a "concurrent" criminal sentence.
Joined by Chief Justice Bird and Justice Richardson, Justice Mosks dissent expressed "doubt that the Legislature intended to bestow a special benefit on recidivists." (Atiles, supra, 33 Cal.3d at p. 814 (dis. opn. of Mosk, J.).) Quoting the Court of Appeal, the dissent noted that " [t]o allow credit on the current term for the incarceration for parole violation on a former offense would not only afford petitioner double credit but would negate the imposition of any sentence for parole violation and render such provisions meaningless. " (Ibid.)
Respondent points out that the holding in Bruner, supra, 9 Cal.4th at page 1190, disavowed Atiles broad interpretation of Penal Code section 2900.5, which in effect maximized a defendants entitlement to dual credits on concurrently served terms. Essentially, appellant contends, however, that Atiles is still viable in a situation such as his, where neither consecutive sentences nor concurrent sentences are involved, and a defendant can show strict causation.
Nothing in Penal Code section 2900.5 limits the award of credits in a case such as this. The question of whether appellant is entitled to the presentence custody credits he seeks can be resolved by resort to the plain language of Penal Code section 2900.5. "If the statutory language is not ambiguous, we presume the Legislature meant what it said, and we apply the plain meaning of the statute without resort to extrinsic sources." (Marquez, supra, 30 Cal.4th at p. 20.) The crucial element of the statute is whether the custody to which appellant has been subjected "is attributable to charges arising from the same criminal act or acts for which defendant has been convicted." (Pen. Code, § 2900.5, subd. (b).) Since, according to the trial court, appellant was able to carry that burden, he is entitled to the credits he seeks notwithstanding the fact that he was awarded the same custody credits in the Merced case. (See Marquez, supra, 30 Cal.4th at p. 23 ["The requirement of strict causation . . . is applicable in cases involving the possibility of duplicate credit that might create a windfall for the defendant"].)
In summary, we conclude that, once appellant became subject to the Santa Clara County no-bail hold, and because he was able to prove the Santa Clara County hold was the "but for" cause of his detention, his presentence custody in Merced County was attributable to proceedings related to the criminal conduct for which he was sentenced in this case.
Since we have determined that appellant is entitled to have his credits recalculated, we need not address his remaining contention.
Disposition
The judgment is reversed. The matter is remanded to the trial court for the limited purpose of determining and awarding defendant custody and conduct credits pursuant to Penal Code sections 2900.5 and 4019, for the time he spent in the Merced County jail from the date of the imposition of the Santa Clara County hold until he was sentenced in the Merced County case. The court shall prepare an amended abstract of judgment and forward it to the California Department of Corrections.
We Concur:
RUSHING, P. J.
PREMO, J.