Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. Nos. SCR574892, SCR589456.
Pollak, J.
Defendant Albert Thomas Ruiz III appeals judgments entered against him in two separate criminal cases, challenging only the calculation of his presentence custody and conduct credits. Although it appears that defendant is entitled to additional credits, the record does not contain sufficient information to calculate the correct number of credits to which he is entitled. We shall therefore remand the matter to the trial court to determine the number of presentence credits to which defendant is entitled.
Background
On December 18, 2009, in case No. SCR574892, defendant was charged by felony complaint with one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and misdemeanor possession of a smoking device (Health & Saf. Code, § 11364, subd. (a)). The information alleged two prior prison terms under Penal Code section 667.5, subdivision (b). Those charges were realleged by information on January 14, 2010. Defendant plead guilty to both counts and admitted the two prior prison terms. The court struck one of the two prior prison terms and on August 3, 2010, suspended imposition of sentence and placed defendant on probation for three years pursuant to Penal Code section 1210.
On September 22, 2010, defendant’s probation was revoked. On September 24, defendant admitted the probation violation and the court terminated probation and sentenced defendant to the mitigated term of two years on the first count. The court gave defendant credit for four days of actual custody plus four days of local conduct credit.
Also on September 22, 2010, defendant was charged by felony complaint in a second case—No. SCR589456—with interference with an officer by use of threats or violence (Pen. Code, § 69), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)), and misdemeanor being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)). The complaint alleged two prior prison terms under Penal Code section 667.5, subdivision (b). Defendant plead no contest to possession of methamphetamine and resisting arrest. In exchange for his plea, on September 24, 2010, defendant received the midterm sentence of two years for possession of methamphetamine to be served concurrently with the sentence in the first case, and dismissal of the remaining charges and allegations. Defendant was given four days of actual custody credit plus four days of local conduct credit.
Defendant timely appealed.
Discussion
Defendant argues that he is entitled to additional days of presentence custody credit.
“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 including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment....” (Pen. Code, § 2900.5, subd. (a).) “It shall be the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section....” (Id., subd. (d).)
“ ‘[T]he court imposing a sentence’ has responsibility to calculate the exact number of days the defendant has been in custody ‘prior to sentencing, ’ add applicable good behavior credits earned pursuant to section 4019, and reflect the total in the abstract of judgment.” (People v. Buckhalter (2001) 26 Cal.4th 20, 30.) “It is the trial court, and not the appellate court, which has the capability of determining the facts from which the credit may be computed. If the court does not have enough facts at the time of sentencing, its duty is to direct ‘the sheriff, probation officer or other appropriate person’ to produce the information. At the time sentence is pronounced, the defendant and his attorney will be present and will have seen what is in the reports submitted to the court on this subject.” (People v. Montalvo (1982) 128 Cal.App.3d 57, 62.)
On October 10, 2010, defendant personally sent a letter to the court asserting that he was entitled to credit for 145 days of actual presentence custody and an additional 145 days for good conduct, specifying the time periods during which he was in custody. However, defendant also was in custody on other unrelated charges and a parole hold was in effect for at least a portion of the period for which defendant claims credit. Defendant’s appellate brief states that the number of days of credit to which he is entitled cannot be calculated from the existing record because it cannot be determined how many of those days are attributable to the offenses for which he was sentenced, and that with respect to the parole hold which he acknowledges, “there is nothing in the record on appeal actually documenting a parole hold, when the parole hold may have been imposed or lifted, or any other information as to the dates appellant was confined in county jail after his arrests or prior to sentencing” in the two instant cases. The Attorney General acknowledges that defendant is entitled to at least 34 days of presentence credits and states further that “[w]hat is not clear from the record is the reason for appellant’s one day in custody on April 8, 2010, and the basis and commencement date of his parole hold that began sometime before he appeared in custody in court on May 25, 2010, and ended with his release on August 3 or 4, 2010.”
Whether defendant was in custody solely for the offenses for which he was sentenced here, or whether he would have nevertheless been in custody because of a “parole hold” is of course relevant to the calculation of custody credits. “[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 (1995) 9 Cal.4th 1178, 1193-1194.)
It is clear that defendant is entitled to more credits than he received, that the present record does not permit us to determine the amount of credit to which he is entitled, and that defendant is not responsible for the lack of clarity in the record and has not waived his right to all credits to which he is entitled. At the sentencing hearing on August 3, 2010, the trial court stated, “I don’t know if you received a memorandum from probation that they’re unsure about the credits because state parole did not confirm this was the sole matter he was being held on.” The court also commented that “imposition of judgment would be suspended and the defendant would be permitted to participate in 1210 sentencing after the parole hold was lifted. The matter has been put over a few times for that purpose. Do we know the termination date of the parole hold?” The prosecutor stated, “I don’t think that the credit issue at this point in time is critical.” At the sentencing hearing on September 24, 2010, after defendant’s probation was revoked, defendant waived preparation of a probation report. The prosecutor represented that defendant was entitled to eight days of credit and defense counsel agreed. However, as indicated above, on October 10, 2010, defendant wrote to the trial court stating that his custody credits had been miscalculated, and that he believed he was entitled to 145 days of custody credit and 145 days of good conduct credit. In support of this assertion, defendant submitted copies of court minutes reflecting time that he was in custody. The trial court replied to the letter advising defendant of the credit he would receive for good conduct while incarcerated in prison but the response did not address defendant’s contention that his presentence credits were miscalculated. Appellate counsel advises us that he has sought records from the trial court that would permit the calculation of defendant’s presentence credits, but was advised that the clerk was unable to provide the necessary information.
The Attorney General submits that the judgment should be modified to give defendant the additional credits that the Attorney General acknowledges he is entitled to receive, but nothing further since he has failed to establish the number to which he is entitled. However, defendant has unsuccessfully attempted to obtain a correct determination from the trial court. The fact that defendant waived preparation of a probation report does not preclude review and remand. “As with the waiver of any significant right by a criminal defendant, a defendant’s waiver of entitlement to section 2900.5 custody credits must, of course, be knowing and intelligent.” (People v. Johnson (2002) 28 Cal.4th 1050, 1055.) “The gravamen of whether such a waiver is knowing and intelligent is whether the defendant understood he was relinquishing or giving up custody credits to which he was otherwise entitled under section 2900.5.” (People v. Arnold (2004) 33 Cal.4th 294, 308.) Moreover, “failure to object at trial does not waive the issue of custody credits on appeal since the issue does not involve a discretionary sentencing choice but is a purely mathematical calculation.” (People v. Johnson (2007) 150 Cal.App.4th 1467, 1485.)
It is the obligation of the trial court in the first instance to determine the correct presentence credit to which defendant is entitled. (People v. Buckhalter, supra, 26 Cal.4th at p. 30.) Because the trial court has not yet done so and we are unable on the present record to make that determination, and because it does not appear that any consideration has thus far been given to the potential retroactive application of an amendment to Penal Code section 4019 increasing the number of credits to which he may be entitled, we believe the most appropriate disposition of this appeal is to remand the matter to the trial court for a redetermination of the presentence custody and conduct credits to which defendant is entitled.
In People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552, this court concluded that the amended presentence conduct credit provisions of section 4019 are retroactive as to all sentences not yet final on direct appeal at the time the amendments went into effect. The California Supreme Court has granted review of the issue, both in cases that reached the same conclusion as we did, and in cases that reached the opposite conclusion. (E.g., People v. Brown III, review granted June 9, 2010, S181963; People v. Rodriguez, review granted June 9, 2010, S181808.)
Disposition
The matter is remanded to the trial court for a redetermination of the presentence conduct and custody credits to which defendant is entitled. In all other respects the judgment is affirmed.
We concur: McGuiness, P. J., Siggins, J.