Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA700974, Raymond L. Haight III, Judge.
Terrence Verson Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
Pursuant to a plea agreement, defendant and appellant La Vonce Darnell Wilson pled nolo contendere to possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) and admitted that he had served a prior prison term (§ 667.5, subd. (b)). He also admitted that, in committing the underlying charge, he violated the terms of his probation in case No. FSB036730. The court later sentenced defendant to a total term of four years in state prison and dismissed other counts and allegations under the plea agreement. The court awarded defendant credit for time served, as follows: 137 days of actual custody credit and 68 days of conduct credit, for a total of 205 days. As to case No. FSB036730, the court imposed the previously suspended three-year sentence, ordered that the term be served concurrently with the four-year term imposed in the instant case (No. FVA700974), and awarded defendant custody credits in the amount of 738 days.
All further statutory references will be to the Penal Code unless otherwise noted.
On appeal, defendant argues the court erred in calculating his custody credits in the instant case based on its alleged misunderstanding of when his bail was exonerated. He also contends his counsel rendered ineffective assistance by failing to correctly represent to the court when his bail was exonerated. We remand the matter to the trial court to make the relevant factual determinations and recalculate the number of custody credits to which defendant is entitled.
ANALYSIS
The Matter Is Remanded for the Trial Court to Recalculate Defendant’s Custody Credits
The court awarded defendant custody credits from January 25, 2008, to May 9, 2008. Defendant now contends that he was entitled to presentencing credit for his time in confinement from November 8, 2007, until he was sentenced on May 9, 2008. He claims the court exonerated his bail in the instant case on November 8, 2007, and thus, he began earning custody credits on that date. In the alternative, he argues that he was entitled to credit starting from December 17, 2007, since the court agreed to give him credits back to that date. The People concede that defendant was entitled to custody credits dating back to December 17, 2007. We remand for recalculation.
A. Procedural Background
On November 12, 2004, defendant was convicted of criminal threats (§ 422) and possession of a firearm by a felon (§ 12021, subd. (a)(1)) (case No. FSB036730). On December 20, 2004, he was granted three years’ probation.
On June 16, 2007, a felony complaint was filed in the instant case charging defendant with possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), as well as other charges (case No. FVA700974). Defendant posted bail. While free from custody on bail, defendant was arrested on September 14, 2007, for sale/transport of marijuana. (Health & Saf. Code, § 11360, subd. (a).) Defendant apparently posted bail on this case as well, and was not in custody when his preliminary hearing in the instant case was held on November 8, 2007.
At the November 8, 2007, preliminary hearing, the court held defendant to answer for further proceedings. The court then noted defendant was on probation (in case No. FSB036730), and that there was a petition of violation of that probation filed with the court based on the instant charges, as well as defendant’s arrest on September 14, 2007. The court revoked defendant’s probation and remanded him into custody. The court then asked defense counsel if she wanted “to exonerate his bond or leave it in place[.]” Initially defense counsel asked the court to leave it in place. Defense counsel stated, “It’s my understanding he has—he’s out on bond on that case as well.” The court said he was not. When defendant insisted that he was on bond, the court stated, “Well, I’m telling you, you’re in custody, and you’re going to remain in custody until November 15th. [¶] . . . [¶] . . . I’m making it a ‘no bail,’ okay? If you want me to, I’ll exonerate the bonds. What do you want me to do? Leave them in place or exonerate them?” Defense counsel said, “Exonerate it.”
On November 15, 2007, the court arraigned defendant. Defendant entered a plea of not guilty. Defense counsel stated, “I asked him [defendant] if he would like to be remanded in on the new case. He said what he’d rather do is have me address The Court just briefly on the VOP [Violation of Probation]. He’d like to have bail set on that case. He indicates or represents to me that he’s been a life-long resident of Southern California. He’s never had a violation of probation. He honestly, though mistakenly, thought when he bailed out on this case that he was bailing out on the VOP as well.” Defense counsel subsequently added, “[H]e’s already bailed out, and he wants the bail to remain on the new case. He just wanted bail to be set on the VOP so he could . . . .” Before defense counsel could finish, the court interrupted and said, “That’s denied. It’s a no bail, and it should be a no bail to be on probation and commit a new felony.” Defense counsel replied, “Your Honor, I spoke with him. He still wants to keep the bail remaining on the new case.”
At a hearing on December 11, 2007, the clerk of the court raised the following issue: “[Defendant] is technically in on the FVA [the instant case]. Do you want to exonerate so he can earn custody credits?” The court stated, “I remember that he wants to keep on bond on the other one.” Defense counsel stated, “Especially as we approach the 60th day with the holidays, if The People are able to work out any kind of a disposition on this case, it would allow him to be released on the current case. Or actually it’s the VOP that’s holding him in. He’s on bond on the current case.” Defense counsel addressed defendant and said, “Well, it’s up to you. [Defendant], do you want him to remand you into custody on the current case and release your bail on that case? You’ll get custody credits on that. Or do you want a bond to stay in? Of course, in case we’re able to officiate your release on the violation of probation . . . .” The court added, “And it’s so few days at this point. It may not be worthwhile. We’re talking about two weeks.” Defense counsel then said, “Keep it as it’s currently set.”
At the hearing on December 21, 2007, defendant’s aunt appeared in court. Defense counsel told the court, “Your Honor, what she’s asking is [defendant] has renewed his request several times for a[n] OR on his VOP. He’s bonded out on the present case. I asked The People if they would reconsider it. They are not reconsidering their position on the VOP. He was asking the bail be set on the VOPs. He’s already bailed out on the new case. He has not been remanded in on that case . . . .” The court denied defendant’s request.
On December 26, 2007, the People filed an amended complaint in the instant case. That same day, defendant entered a no contest plea, admitted the prison prior allegation, and admitted that, in committing the offense, he violated the terms of his probation in case No. FSB036730. The court addressed defense counsel, as follows: “[Y]ou were requesting the bond be exonerated and remand him on a no-bail warrant?” Defense counsel answered in the affirmative. The court stated, “So he might as well get credits.”
On April 25, 2008, the court denied defendant’s motion to withdraw his plea and then began discussing sentencing and credits. A discussion ensued and the court mentioned that defendant was on bail. Defendant disagreed and said, “No, I came in custody November 8th.” The court stated, “[O]h, this is the case where you would not agree to have your bond exonerated because [you] thought [you were] going to get out. Do you remember that? . . . [¶] . . . [¶] Remember, I told you you would not get credits if you do that. I remember that. [¶] Yeah, he was actually in, but he would not let me exonerate the bond so he could get credits.” Defendant disagreed and said, “But you did exonerate, Your Honor.” The court replied, “I did on the date of sentencing I exonerated it.” Defendant said, “No, when I came in custody. . . .” Defense counsel stated, “No, The Court’s right about that.” The court replied, “I kept trying to get you to do it. You kept thinking you were going to bail on the new case. You wouldn’t let me.” Defendant argued that he had another charge for which he was supposed to appear before the court on December 17 that he was out on bail on, but the charges were never filed. Defendant said he had his fiancé come to court to let the court know he was already in custody. Defendant told the court he “was out on bail for two cases, not the old case.” Defendant continued to explain that he “had the old case and two cases [he] was out on bail on.” The court stated that it exonerated the bail on December 26, 2007. Defendant said the court did not exonerate the bond on this case, but on the marijuana sales case. The clerk then stated there was a “no complaint” filed on December 17, 2007, and that defendant was not present that day. The clerk further stated: “He was off calendar, and you exonerated the bond. There was no complaint filed yet.” The court asked what the difference between December 26 and December 17 was, and the prosecutor said 10 days. The court then stated “there [was] enough there to corroborate [defendant’s] story,” and that it would add 10 actual days and give him custody credits back to December 17, 2007.
Defense counsel conferred with defendant off the record and then informed the court that he was requesting to get credit back to the date he went into custody—November 8, 2007. Defense counsel explained: “And the reason he is asking, he’s aware of the fact that The Court told him that when he was taken into custody he should be [sic] asked that bail be exonerated and be remanded on the new case. And that way he would get custody credits. But he mistakenly, though honestly, believed that because there was another case that was triggering that probation violation, he had this new case, he had another case he was arrested on, which I [sic] was innocent of. When the D.A. turned that other case down, [sic] that The Court would lower bail or perhaps give him an OR on the probation violation. So it was a mistake.” (Italics added.) At defendant’s request, the court continued the sentencing hearing so that defense counsel could review all the custody credits with defendant. The court stated that instead of giving defendant credit from December 27, 2007, it would give him credit back to December 17, 2007.
The continued sentencing hearing was held on May 9, 2008. The court noted that it needed to update the credits and asked defense counsel “what [she] came up with[.]” Defense counsel stated that she calculated credits from January 25 to that day (May 9, 2008) and concluded that defendant should receive 137 days of actual credit. The court awarded defendant 137 days of actual credit and 68 days of conduct credit.
B. The Matter Must Be Remanded for the Trial Court to Make the Relevant Factual Determinations and to Recalculate the Credits
Defendant contends he began earning custody credits on November 8, 2007, since that is the date the court exonerated his bail. However, the record is confusing as to when his bond was actually exonerated, because there are references throughout the record to several bonds. For example, the dialogue between the court and defense counsel at the November 8, 2007, preliminary hearing was unclear. After the court revoked defendant’s probation and remanded him into custody, the following discussion ensued:
“THE COURT: Probation on the first case will be revoked. He’s going to be remanded. What else? You want me to exonerate his bond?
“[DEFENSE COUNSEL]: I’m sorry. I have two people talking to me. One second.
“THE COURT: I said, do you want me to exonerate his bondor leave it in place?
“[DEFENSE COUNSEL]: Could you leave it in place, your Honor?
“THE COURT: Thank you. You’re in custody. November 15th.
“[DEFENSE COUNSEL]: It’s my understanding he has—he’s out on bond on that case as well.
“THE COURT: No, he is not.
“[DEFENSE COUNSEL]: Okay.
“UNIDENTIFIED SPEAKER: He is on bond. [¶] . . . [¶]
“THE COURT: Well, I’m telling you, you’re in custody, and you’re going to remain in custody until November 15th.
“THE DEFENDANT: I have the bond, your Honor, in my custody.
“THE COURT: Well, I’m making it a ‘no bail,’ okay? If you want me to, I’ll exonerate the bonds. What do you want me to do? Leave them in place or exonerate them?
“[DEFENSE COUNSEL]: That’s fine.
“THE COURT: What?
“[DEFENSE COUNSEL]: Exonerate it.
“THE COURT: I’ll exonerate the bond.” (Italics added.)
As demonstrated by the italicized portions above, it is difficult to discern to which case and which bond or bonds the court and the parties were referring. Thus, it is unclear which bond was actually exonerated that day.
We note the court stated it exonerated the bail in the instant case on December 26, 2007. However, then which bond did the court exonerate on November 8, 2007? Defendant was on probation, not on bail, on case No. FSB036730, and the record seems to indicate the court exonerated the bond on the marijuana case on December 17, 2007. There is no reasonable manner in which the apparent conflict can be resolved by this court. Moreover, we note the court agreed to give defendant custody credits back to December 17, 2007. However, the court ultimately awarded defendant credits starting from January 25, 2008, with no indication of why it used that date to start the credits.
The People argue that defendant’s bail bond status is immaterial, since defendant is only entitled to custody credits from December 17, 2007—the date on which the prosecution decided not to charge defendant on the marijuana case.
Section 2900.5, subdivision (a), provides that “time spent in confinement before sentencing shall be credited against any prison term ultimately imposed. Subdivision (b) limits such credit to situations ‘where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted.’” (People v. Purvis (1992) 11 Cal.App.4th 1193, 1196; § 2900.5, subd. (b).)
In People v. Johnson (2007) 150 Cal.App.4th 1467 (Johnson), the defendant spent a total of 244 days in custody prior to sentencing. (Id. at pp. 1484-1485.) The trial court, however, did not award any custody credits, which the defendant claimed was error. (Id. at p. 1485.) The Attorney General argued that the defendant was not entitled to presentence credit because his presentence custody was attributable to a violation of probation. He was on probation at the time he was arrested in this case, and the probation report indicated that probation was violated based upon the current case. (Ibid.)
The Johnson court held that “[a] defendant is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period. A criminal sentence may not be credited with jail or prison time attributable to a parole or probation revocation that was based only in part upon the same criminal episode. [Citation.] A defendant must prove that the conduct which led to the conviction was a ‘dispositive’ or ‘but for’ cause of the presentence custody. [Citation.]” (Johnson, supra, 150 Cal.App.4th at p. 1485, italics added; People v. Bruner (1995) 9 Cal.4th 1178, 1191.) The record showed the defendant was found in violation of probation “based only upon the crimes for which he was convicted in this case.” (Johnson, supra, at p. 1485.) The court thus concluded that “the conduct that led to his conviction in this case was the ‘but for’ cause of his presentence custody.” (Ibid.) The court awarded the defendant the presentence custody credits. (Id. at pp. 1485-1486.)
The instant case, unlike Johnson, is a “mixed conduct” case, which is “‘one where the presentence custody of [defendant] is attributable . . . both to conduct which is, and conduct which is not, attributable to the proceedings related to the conduct for which he was convicted and sentenced.’ [Citation.]” (People v. Purvis, supra, 11 Cal.App.4th at p. 1196.) “‘[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.’ [Citation.]” (Ibid.) The record indicates that prior to his November 8, 2007, preliminary hearing, defendant was free from custody on bail on the instant case, as well as on the September 14, 2007, marijuana arrest. At the end of the November 8, 2007, preliminary hearing, the court held defendant to answer on the charges alleged in this case and set the matter for further proceedings. The court then noted that defendant was on probation (in case No. FSB036730) and that there was a petition to violate that probation filed with the court based on the instant charges, as well as defendant’s arrest on September 14, 2007. The court revoked defendant’s probation and remanded him into custody. The record shows that it was not until December 17, 2007, that the prosecution decided to refrain from filing criminal charges on the September 14, 2007, arrest. Therefore, defendant’s presentence confinement, between November 8, 2007, and December 17, 2007, was not “strictly caused” by the instant offense.
Thus, to the extent the People argue that the only basis for revoking defendant’s probation in case No. FSB036730 as of December 17, 2007, was the conduct in the instant case, we agree. The trial court found that defendant should have started earning credit on that day. However, at the sentencing hearing, the court calculated defendant’s presentence credit award as of January 25, 2008, for reasons that are not apparent.
Ultimately, there appear to be factual determinations which need to be made in order to correctly calculate defendant’s custody credits. The court that imposed the sentence, which has access to the information necessary to resolve the disputes, is in the best position to make those factual determinations. (People v. Hyde (1975) 49 Cal.App.3d 97, 102.) Thus, we decline to make a final ruling and remand the case to the trial court for redetermination of custody credits. (See People v. Fares (1993) 16 Cal.App.4th 954, 957.)
DISPOSITION
The judgment is affirmed. However, the case is remanded to the trial court with instructions that the court reconsider the information before it and render a revised order correctly determining the number of days of custody credit to which defendant is entitled.
We concur: RAMIREZ, P.J., MCKINSTER, J.