Opinion
H044045 H044343
11-29-2017
THE PEOPLE, Plaintiff and Respondent, v. JOHN WILLIAM MARSHALL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS151966A)
Defendant John Williams Marshall pleaded no contest to a violation of Penal Code section 273.5, subdivision (a) (corporal injury resulting in a traumatic condition upon his former cohabitant) on condition that he receive felony probation. The trial court granted probation, but it subsequently revoked probation and imposed a three-year term of imprisonment. The trial court denied defendant's post-judgment motion for additional presentence custody credits. Defendant filed two, separate appeals, one from the judgment of conviction (People v. Marshall, H044045 (case No. H044045)) and one from the post-judgment order denying additional presentence custody credits (People v. Marshall, H044343 (case No. H044343)).
All further statutory references are to the Penal Code.
This court ordered defendant's appeals to be considered together for briefing, oral argument, and decision.
On appeal in case No. H044045, defendant contends that the trial court abused its discretion in revoking and failing to reinstate probation because there were extenuating circumstances justifying his violations of probation. On appeal in case No. H044343, defendant claims the trial court erred by not granting additional presentence credits under section 2900.5, subdivision (b), (hereafter 2900.5(b)) as interpreted by People v. Bruner (1995) 9 Cal.4th 1178 (Bruner).
We reject defendant's appellate claims and affirm the judgment.
I
Procedural History
The information in this case (case No. SS151966A), filed on December 28, 2015, charged defendant with four offenses. It alleged that defendant committed two crimes on or about November 17, 2015: a felony violation of section 273.5, subdivision (a) (corporal injury on a current or former spouse or cohabitant) (count 1) and a felony violation of section 245, subdivision (a)(4) (assault by means of force likely to produce great bodily injury) (count 2). The information further alleged that defendant committed two crimes on or about November 16, 2015: a violation of section 243, subdivision (e)(1) (misdemeanor battery on a current or former spouse or cohabitant) (count 3) and a violation of section 166, subdivision (c)(1) (misdemeanor violation of a criminal protective order) (count 4).
As indicated, defendant pleaded no contest to a felony violation of section 273.5, subdivision (a), (count 1) in exchange for a grant of probation. A probation report indicated that the offense occurred at a transient encampment and involved two women, referred to as Jane Doe I and Jane Doe II.
At the sentencing hearing on March 17, 2016, the trial court addressed three separate cases: this case (case No. SS151966A) and two misdemeanor cases (case Nos. MS328068 and MS325081). In this case, the trial court suspended imposition of sentence and placed defendant on three years of formal probation on certain terms and conditions. The probationary terms and conditions included among other requirements that defendant serve 120 days in Monterey County Jail "with credit for time served of zero days," that defendant report to the probation officer immediately upon his release from custody, that defendant obey all laws, and that defendant complete a one-year domestic violence counseling program approved by the probation department. The trial court directed defendant to have no direct or indirect contact with the two female victims and to not come within 100 yards of them, their residences, their places of employment, and their vehicles. It also issued a criminal protective order protecting one of the Jane Does (defendant's girlfriend) against defendant.
Also at the sentencing hearing on March 17, 2016, the trial court revoked probation and reinstated probation, as modified, in case Nos. MS328068 and MS325081. In case No. MS32868, the trial court ordered defendant to consecutively serve 180 days in jail, with credit for 25 days (13 actual days plus 12 days of conduct credit). In case No. MS325081, the court ordered defendant to consecutively serve 216 days in county jail, with credit for time served of 216 days (108 actual days plus 108 days of conduct credit).
A notice of probation violation filed July 18, 2016 alleged that defendant violated probation by failing to report to probation upon his release from the Monterey County Jail on July 1, 2016. A notice of probation violation filed September 2, 2016 alleged that defendant violated probation by (1) violating section 166, subdivision (c)(1), on or about August 31, 2016 (the date of his second arrest) and (2) failing to obey all laws and court orders, citing case No. MS343660A.
Defendant was found to have violated probation in this case by (1) committing a misdemeanor violation of section 166, subdivision (c)(1) (violation of a criminal protective order) on or about August 31, 2016 (as reflected by his plea of no contest entered in case No. MS343660A) and (2) failing to report to the probation officer immediately upon his release from county jail on July 1, 2016 (as admitted). The trial court impliedly revoked probation, it denied reinstatement of probation, and it sentenced him to a three-year term of imprisonment.
Defendant timely filed a notice of appeal from the judgment of conviction.
Subsequently, in the trial court below, defendant brought a motion seeking additional presentence credits in this case, asserting that he was entitled to additional credit against his prison term for the period of custody in the Monterey County Jail between December 7, 2015 (initial arrest) and March 17, 2016 (grant of probation). (See §§ 1237.1, 2900.5.) On January 26, 2017, the trial court denied defendant's credit request.
Defendant timely filed a notice of appeal from the post-judgment order denying his motion for additional presentence credits.
II
Case No. H044045
Defendant argues that the trial court abused its discretion by revoking defendant's probation for a first-time violation because there were extenuating circumstances "presented by his girlfriend's medical crisis and his own lack of resources." Defendant asks this court to reverse the judgment and remand the matter to allow the court to reconsider its order revoking probation in light of all the mitigating factors.
"Revocation of probation typically requires proof that the probation violation was willful. [Citations.]" (People v. Hall (2017) 2 Cal.5th 494, 498-499, fn. omitted.) Section 1203.2, subdivision (a), states that a "court may revoke . . . the supervision of [a probationer] if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the [probationer] has violated any of the conditions of . . . supervision . . . or has subsequently committed other offenses . . . ." "It has been long recognized that the Legislature, through this language, intended to give trial courts very broad discretion in determining whether a probationer had violated probation. (See, e.g., People v. Lippner (1933) 219 Cal. 395, 400 ['. . . only in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation . . . .']; People v. Martin (1943) 58 Cal.App.2d 677, 683-684 ['[N]o particular source, manner or degree of proof is required by statute'].)" (People v. Rodriguez (1990) 51 Cal.3d 437, 443 (Rodriguez).) Here, it is undisputed that defendant failed to report to probation as ordered and that he violated a criminal protective order.
In 2012 the Legislature amended section 1203.2 as part of the criminal justice realignment. (See People v. Leiva (2013) 56 Cal.4th 498, 502, fn. 2; see also People v. DeLeon (2017) 3 Cal.5th 640, 647.)
Section 1203.2, subdivision (a), confers "great flexibility upon judges making the probation revocation determination." (Rodriguez, supra, 51 Cal.3d at p. 443.) Indeed, "trial courts are granted great discretion in determining whether to revoke probation. [Citation.]" (Id. at p. 445.) The abuse-of-discretion standard of review is deferential. (People v. Williams (1998) 17 Cal.4th 148, 162.) The standard "asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts [citations]." (Ibid.) "A merely debatable ruling cannot be deemed an abuse of discretion. [Citations.]" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.) "When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citations.]" (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)
A court's exercise of its discretion "must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" (People v. Jordan (1986) 42 Cal.3d 308, 316.) "[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation." (People v. Lippner, supra, 219 Cal. at p. 400.)
A supplemental probation report was prepared for the sentencing hearing after defendant had been found in violation of probation. In the opinion of the probation officer who prepared the report, defendant was not "a suitable candidate for further probation services" based on his prior performance on probation and parole, the offense in this case, and the new violation of the law. The report indicated that the current protective order would "likely remain in effect" because defendant had "not completed any domestic-violence counseling" and that the probation officer anticipated that defendant would not "comply with reporting directives, counseling or the protective order."
At the sentencing hearing on October 4, 2016, the probation officer reiterated that defendant had 15 prior felony convictions and prior domestic violence convictions. The officer stated that defendant had previously failed to submit proof of employment and domestic violence counseling. For those reasons, the probation department was recommending a prison sentence.
At the hearing, the prosecutor also emphasized that defendant had not enrolled in domestic violence counseling and had not reported to probation as directed. She argued that defendant had demonstrated his unwillingness to comply with probation.
Defense counsel asked the court to consider reinstating probation with additional county jail time. Defendant and his girlfriend addressed the court, but they were not called as witnesses. His girlfriend indicated that she was in the ICU when defendant was released from jail, that she had suffered a stroke and had diabetes, that defendant "was at [her] side where he belongs," and that defendant was her caregiver. Defendant told the court that he had been released from jail at 4:00 a.m., that he had no money, and that he decided to walk to Seaside to get food stamps. He indicated that he "stayed at [his girlfriend's] side." According to defendant, since he was already in violation of probation, he decided to try to make some money so he could enroll in "the DV class."
The trial court understood that defendant was requesting another opportunity to participate in probation. The court pointed out that it had originally granted probation even though defendant was presumptively ineligible. The court found the circumstances did not warrant reinstatement of probation.
We discern no abuse of discretion. Defendant apparently made no effort to report to the probation department, or to even contact the department, between July 1, 2016 (the date he was released from jail) through August 31, 2016 (the date of his arrest pursuant to warrant), a period of approximately two months. He apparently never informed the department of his whereabouts or any extenuating circumstances preventing him from reporting in person. He presented no evidence that he was prevented from reporting to, or communicating with, the probation department throughout that entire period. Since his girlfriend was reportedly in the ICU when defendant was released from jail, thus presumably under the care of medical professionals, there was no emergency that kept him from promptly reporting to the probation office. The record contains no evidence that defendant made any attempt to seek a modification of probation so that he could serve as his girlfriend's caregiver without violating probation. Defendant has not demonstrated that the trial court acted arbitrarily or capriciously in revoking and not reinstating probation. Under the deferential abuse-of-discretion standard of review, there is no basis to reverse the judgment. (Cf. People v. Lippner, supra, 219 Cal. at pp. 401-402.)
III
Case No. H044343
A. Custody Credits
1. Background
The probation report prepared for the initial sentencing hearing disclosed that defendant had been found in violation of probation in both misdemeanor cases based on defendant's plea in this case. In case No. MS328068A, defendant had been convicted of violating section 243, subdivision (e)(1). In case No. MS325081A, defendant had been convicted of a misdemeanor violation of section 273.5, subdivision (a).
The probation report stated that defendant was arrested on December 7, 2015 in this case. On February 9, 2016, defendant had pleaded no contest to count 1 in this case, and he had remained in custody. According to the report, defendant was entitled to 100 actual days of credit, plus 100 days of conduct credit, for total credit of 200 days for the period commencing on December 7, 2015 (date of arrest) through March 15, 2016 (date of the scheduled sentencing hearing), and that period of custody was attributable to both this case and case Nos. MS328068A and MS325081A.
As to this case, the probation report indicated that defendant was presumptively ineligible for a grant of probation pursuant to section 1203, subdivision (e)(4), because he had 15 prior adult felony convictions, and it recommended that the court deny probation. But in view of the accepted plea bargain, the probation report alternatively recommended that the court grant felony probation on certain terms and conditions, including serving 120 days in county jail, with no credit for time served.
The probation report further recommended that probation be reinstated in case Nos. MS328068A and MS325081A under the same terms and conditions of probation and that the court additionally impose a consecutive jail term in each misdemeanor case as specified. As calculated by the report, the total credit applicable in case No. MS325081A included the period in custody from December 7, 2015 (date of arrest) through March 15, 2016 (date of the scheduled sentencing hearing).
On March 15, 2016, the hearing was continued to March 17, 2016.
At the sentencing hearing on March 17, 2016, the trial court granted or reinstated probation in the three cases. In this case, the trial court placed defendant on probation on certain terms and conditions, including serving 120 days in county jail, with no credit for time served. In case No. MS328068A, the court ordered defendant to serve a consecutive jail term with total credit of 25 days. In case No. MS325081A, the trial court ordered defendant to serve 216 days in county jail, with credit for time served of 216 days (108 actual days plus 108 conduct credits), consecutive to Case Nos. SS151966A and MS328068A, which impliedly reflected the two extra days spent in custody and included credit for the period spent in custody from December 7, 2015 through March 17, 2016.
A supplemental probation report was prepared for the October 4, 2016 sentencing hearing after defendant was found in violation of probation. It stated that defendant was released from the Monterey County Jail on July 1, 2016. On July 28, 2016, a no-bail bench warrant was issued for defendant's arrest because he had failed to report to probation as required, and the grant of probation was summarily revoked in this case. On August 31, 2016, defendant was arrested by Seaside Police Department pursuant to the warrant. At the time of that arrest, defendant was in the company of the woman protected by the protective order issued on March 17, 2016 in this case. Defendant was also booked into the Monterey County Jail on a charge of violating section 166, subdivision (c)(1) (case No. MS343660A).
Defendant was sentenced in this case and case No. MS343660A on October 4, 2016. In this case, defendant was given credit 95 actual days of custody plus 94 days conduct credit, for a total credit of 189 days (consistent with the supplemental probation report's calculation). He was not given credit for the period of custody from December 7, 2015 (date of his initial arrest) through March 16, 2016. That period of custody was awarded against a consecutive probationary jail term imposed on March 17, 2016 in case No. MS325081A.
The supplemental probation report stated that, in case No. MS343660A, defendant entered a no contest plea on condition that the court deny probation and that any custody time imposed be served concurrently.
That credit included the probationary jail term served in this case and the subsequent period of custody following his arrest on August 31, 2016 through sentencing on October 4, 2016.
It appears that defendant may have been given dual credit for March 17, 2016, the date of the grant of probation in this case. Credit for that day (actual and conduct) was awarded against the consecutive probationary term imposed in case No. MS325081A on March 17, 2016. The supplemental probation report included March 17, 2016 in its calculation of the total credit against the three-year term imposed in this case on October 4, 2014.
2. Analysis
a. Governing Law
"In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, . . . all days of custody of the defendant, including days served as a condition of probation in compliance with a court order [and] credited to the period of confinement pursuant to Section 4019 . . . shall be credited upon his or her term of imprisonment . . . ." (§ 2900.5, subd. (a).) Section 2900.5, subdivision (b), 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."
In Bruner, the California Supreme Court was concerned with the language now found in the first sentence of section 2900, subdivision (b). (Bruner, supra, 9 Cal.4th at p. 1180; see People v. Jacobs (2013) 220 Cal.App.4th 67, 78, fn. 3 (Jacobs).) The Supreme Court observed in Bruner that "[t]he statute's application is clear when the conduct that led to the conviction and sentence was the sole cause of the custody to be credited." (Bruner, supra, at p. 1180.) But, as in this case, the Bruner situation presented a "multiple restraint" issue. (Ibid.) Unlike this case, however, the defendant in Bruner received a sentence concurrent to a parole revocation term.
In Bruner, the defendant, who was "[c]onvicted of cocaine possession" (Bruner, supra, 9 Cal.4th at p. 1180), "received a prison sentence 'concurrent' to a term he was already serving for violation of his parole in another case." (Ibid.) "His custody as a parole violator was based in part on the same drug incident that led to the later conviction, but also upon additional, unrelated grounds." (Ibid.) The defendant sought "credit against his drug sentence for time already served and credited on the parole term." (Ibid.)
The California Supreme Court held in Bruner that "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." (Bruner, supra, 9 Cal.4th at pp. 1193-1194.) Therefore, when a defendant "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." (Id. at p. 1194.) Consequently, the defendant in Bruner, who had "not shown that he could have been free during any period of his presentence custody but for the same conduct that led to the instant conviction and sentence" (id. at p. 1195), was "not entitled to credit on that sentence for the period of presentence restraint." (Ibid.)
The credit limitation imposed by the second sentence of section 2900.5(b) was at issue in People v. Santa Ana (2016) 247 Cal.App.4th 1123 (Santa Ana), review denied September 14, 2016, S235780. In that case, this court held that credit limitation applies where a single period of custody arises from a defendant's commission of one, new offense, the defendant is subject to dual custodial restraints (due to arrest and a probation hold or revocation in an earlier case based on only the new offense), and, at the time of sentencing in the two cases, the trial court imposes a probationary jail term in one case and imposes a consecutive probationary jail term in the other case. (Id. at p. 1127.) b. First Sentence of Section 2900 .5(b)
Defendant argues that he is "subject to the general rule announced in Bruner" and that "[b]ut for the conduct giving rise to the charges in the present case, [he] would have been free from custody." Consequently, according to defendant, he is entitled to additional credit against the three-year term for the period of presentence custody from December 7, 2015 through March 17, 2016, a total of 204 days credit (102 actual days plus 102 days of conduct credit).
Presentence custody from December 7, 2015 through March 17, 2016 was clearly attributable to the charged offense in this case. But defendant does not dispute that the same period of presentence custody was also attributable to MS325081A, as reflected in the probation report. As we explained in Santa Ana, while a defendant is in jail under dual custodial restraints resulting from an arrest for a single new offense and from a probation hold or revocation based on only the new offense, the period of custody is legally "attributable to" both the new offense and the offense of conviction underlying the grant of probation in the earlier case. (Santa Ana, supra, 247 Cal.App.4th at pp. 1137-1139.)
"A hold refers generally to any document or agreement or understanding, formal or informal, used to prevent the release of a prisoner." (In re Joyner (1989) 48 Cal.3d 487, 489-490, fn. 2.) The record before us does not disclose whether a probation hold was placed on defendant or probation was summarily revoked in case No. MS325081A on December 7, 2015.
In this case, as in Santa Ana, the period of custody at issue did not stem from multiple, unrelated incidents of misconduct. (See Santa Ana, supra, 247 Cal.App.4th at p. 1134; cf. Bruner, supra, 9 Cal.4th at p. 1193.) But, assuming arguendo that Bruner applies here, defendant's offense in this case (§ 273.5, subd. (a)) was the factually dispositive, or the "but for," cause of his presentence custody following his December 7, 2015 arrest. There appears to be no dispute that defendant "could have been free" during that period of custody "but for the same conduct that led to" his conviction and ultimately the three-year term of imprisonment imposed in this case. (See Bruner, supra, at p. 1195.)
Defendant acknowledges that "even if he can meet the 'strict causation' test articulated in Bruner," the second sentence of section 2900.5(b) dictates that credit may be awarded against only one sentence when consecutive sentences are imposed. Accordingly, we consider whether the second sentence of section 2900.5(b) bars the award of dual credit in this case. c. The Second Sentence of Section 2900 .5(b)
Defendant now contends that Santa Ana was wrongly decided and its construction of the second sentence of section 2900.5(b) should be reconsidered. He disagrees with Santa Ana's interpretation of the term "consecutive sentence" as used in section 2900.5(b). He also asserts that when he was "ultimately sentenced to a state prison term on October 4, 2016, that sentence was not run consecutive to any other case . . .—meaning the second sentence of subdivision (b) is inapplicable."
We find no merit to any of defendant's arguments that Santa Ana was wrongly decided. For all the reasons given in our Santa Ana opinion, we continue to adhere to its analysis and holding.
In addition, the proscription 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" applies here because credit was already given for a single period of custody attributable to multiple offenses (the offense in this case and the offense in case No. MS325081A) for which a consecutive sentence was imposed. Even if that credit limitation was not enacted with the present circumstances in mind (see Bruner, supra, 9 Cal.4th at p. 1192, fn. 9), we reject defendant's proposed statutory construction.
"A concurrent term is one that begins on the day it is imposed and is not postponed until the completion of a prior term. Thus, a concurrent new term 'overlaps' the prior term to the extent service of the earlier sentence is not complete on the day the new term is imposed. '[S]entences may be concurrent, i.e., may run together, without either starting together or ending together. What is meant is that they run together during the time that the periods overlap.' [Citation.]" (Bruner, supra, 9 Cal.4th at p. 1182, fn. 3.)
We recognize that in the different context of Bruner, the Supreme Court noted with respect to the statutory amendment originally adding the language now found in the second sentence of section 2900.5(b): "[T]here is no indication the 1978 amendment was concerned with concurrent sentences for unrelated conduct imposed in multiple proceedings. By its terms, the amendment does no more than clarify that when consecutive terms are imposed for multiple offenses in a single proceeding, only one of the terms shall receive credit for presentence custody, while leaving undisturbed the accepted principle that when concurrent sentences are imposed at the same time, presentence custody is credited against all." (Bruner, supra, 9 Cal.4th at p. 1192, fn. 9.)
It might be argued the court's comment in Bruner suggests that the second sentence of section 2900.5(b) has no application when a court sentences a defendant to a term of imprisonment following a probation violation and does not impose a consecutive sentence. But we reject that argument because it disregards the purpose of section 2900.5 and subdivision (b)'s credit limitations and the fact that the period of custody at issue was already credited against a consecutive probationary jail term imposed in another case during an earlier proceeding.
" 'Our role in construing a statute is to ascertain the Legislature's intent so as to effectuate the purpose of the law. [Citation.]' [Citation.] In the end, we must adopt the construction that is most consistent with the apparent legislative purpose and avoids absurd consequences. [Citations.]" (People v. Barker (2004) 34 Cal.4th 345, 357.)
At the time of sentencing in this case on October 4, 2016, the trial court had already, on March 17, 2016, credited the period of custody at issue against the consecutive probationary term imposed in case No. MS325081A. A construction of section 2900.5(b) that allowed duplicate credits under the circumstances of this case would be overly technical and not serve the purpose of section 2900.5, which is to "ensure that one held in pretrial custody on the basis of unproven criminal charges will not serve a longer overall period of confinement upon a subsequent conviction than another person who received an identical sentence but did not suffer preconviction custody." (Bruner, supra, 9 Cal.4th at pp. 1183-1184.) "[T]he statute is intended only to prevent inequalities in total confinement among defendants, each similarly sentenced in a single proceeding, which inequalities arise solely because one defendant suffered presentence confinement while another did not. Section 2900.5 is not intended to bestow the windfall of duplicative credits against all terms or sentences that are separately imposed in multiple proceedings." (Id. at p. 1191.) Defendant's proposed construction of section 2900.5(b) would undermine the holding in Santa Ana and produce an unintended, duplicate-credit windfall for him. It would not promote the statute's legislative purpose.
"The California Supreme Court has recognized that 'there is no simple or universal formula to solve all presentence credit issues . . .' but the 'aim is to provide for section 2900.5 a construction which is faithful to its language, which produces fair and reasonable results in a majority of cases, and which can be readily understood and applied by trial courts.' (In re Joyner (1989) 48 Cal.3d 487, 495 (Joyner), accord People v. Bruner (1995) 9 Cal.4th 1178, 1195 (Bruner).) 'As with many determinations of credit, a seemingly simple question can reveal hidden complexities. Although the statutory language in section 2900.5 "may appear to have meaning which is self-evident, the appellate courts have had considerable difficulty in applying the words to novel facts." [Citation.] "Probably the only sure consensus among the appellate courts is a recognition that section 2900.5, subdivision (b), is 'difficult to interpret and apply.' [Citation.] As [the California Supreme Court has] noted, in what is surely an understatement, '[c]redit determination is not a simple matter.' " [Citation.]' (In re Marquez (2003) 30 Cal.4th 14, 19.)" (Jacobs, supra, 220 Cal.App.4th at p. 79.)
The result in this case was both fair and reasonable, and defendant is not entitled to additional presentence credits.
DISPOSITION
The judgment is affirmed.
The January 26, 2017 order denying additional presentence credit is affirmed
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.