People v. Kramer CA2/6 ( 2021 )

Filed 7/27/21 P. v. Kramer CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B304830
(Super. Ct. No. BA435471)
Plaintiff and Respondent, (Los Angeles County)
v.
ANDREW H. KRAMER,
Defendant and Appellant.
Andrew H. Kramer appeals the trial court’s order denying
his motion for presentence custody credit for time spent in county
jail between imposition of sentence in a federal case and
imposition of sentence in the underlying state case. (See Pen.
Code, § 2900.5.)1 He contends the prosecution failed to establish
that the time spent in county jail following the federal sentencing
hearing was applied toward his federal sentence. But that was
not the prosecution’s burden. Appellant had to prove he
remained in state custody between imposition of the two
1 All statutory references are to the Penal Code.
sentences, thereby entitling him to full presentence custody
credit on the state sentence. He failed to do so. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
George Lanning was appellant’s business partner and
landlord. Following a rift between the two, appellant hired men
to terrorize Lanning and his family. They stalked Lanning’s
family for several years and repeatedly vandalized his home.
During a home invasion, the men attacked and seriously injured
Lanning’s wife and son.
Appellant was arrested on April 16, 2013 for the crimes
perpetrated against the Lanning family. He was confined in the
Los Angeles County Jail.
In 2015, federal prosecutors charged appellant with
conspiracy to distribute marijuana, alleging that he distributed
1000 kilograms of marijuana over the course of six years. The
parties’ plea agreement provided for a 16-year sentence to be
served concurrently with any sentence subsequently imposed by
the state court. Appellant was sentenced on January 28, 2016.
The federal court stated it had no objection to the concurrent
sentence and that “the State court [can do] anything they want
with it.”
In 2016, an indictment was filed in state court charging
appellant with 30 offenses involving the Lanning family,
including arson and attempted murder. On July 17, 2018,
pursuant to a plea agreement, appellant pled guilty to two counts
of stalking (§ 646.9, subd. (a)), six counts of arson of a structure
(§ 451, subd. (c)), two counts of assault by means likely to produce
great bodily injury (§ 245, subd. (a)(4)) and one count of
attempted arson (§ 455).
2
As provided in the plea agreement, the superior court
sentenced appellant to state prison for 33 years and four months,
to be served concurrently with the federal sentence. Appellant
was awarded 974 days of presentence custody credit for days
actually served. The probation report estimated appellant had
been in county jail for a total of 1,185 days.2
In 2019, appellant filed, in pro. per., a habeas petition
seeking additional presentencing credit. He contended the
superior court erred by denying him custody credits from
January 28, 2016, the date of the federal sentencing, to July 17,
2018, the date of the state sentencing. Appellant claimed the
charges from the two cases were “related and simultaneous.” The
superior court denied the petition, noting that “[p]etitioner was
serving a sentence on an unrelated federal crime” and that
“[c]redits were properly denied under In re Rojas (1979) 23 Cal.3d
152 [Rojas].”
Thereafter, appellant filed a motion, in pro. per., seeking
the same relief as his habeas petition. The superior court denied
the motion, citing its past rejection of appellant’s claim that the
court erroneously applied Rojas.
DISCUSSION
The sole issue on appeal is whether appellant was entitled
to presentence custody credit for the period he was in county jail
between imposition of his federal sentence on January 28, 2016
and imposition of his state sentence on July 17, 2018. (See
§ 2900.5.) Under Rojas, a defendant does not receive presentence
2The actual number of days between appellant’s arrest on
April 16, 2013 and his federal sentencing on January 28, 2016 is
1,017. It is unclear why he received 974 actual days of credit for
that period.
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credit for time spent in custody awaiting sentencing if he or she is
already serving a term of incarceration during that same period.
(Rojas, supra, 23 Cal.3d at pp. 155-156.) Thus, appellant was not
entitled to custody credit for his time in county jail if he had
begun to serve his federal sentence after the federal sentencing
hearing. The question is whether appellant was in fact serving
his federal sentence during that period. If he was not, he is
entitled to the additional credit on his state sentence. (See ibid.)
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 (Purvis); § 2900.5, subd. (b).)
This is a “mixed conduct” case because appellant’s
presentence custody may be “‘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 [in state court].’ [Citation.]” (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.; People v. Johnson (2007) 150
Cal.App.4th 1467, 1485 [“A defendant must prove that the
conduct which led to the conviction was a ‘dispositive’ or ‘“but
for”’ cause of the presentence custody”].)
The parties acknowledge they do not know whether
appellant actually received county jail time credit on his federal
4
sentence. Appellant attempts to shift his burden of proof to the
prosecution, stating: “If there is an order from the United States
Attorney General or [federal] Bureau of Prisons [BOP] showing
that appellant was in fact taken into federal custody before
appellant was sentenced by the superior court on July 17, 2018,
then the California State Attorney General’s Office can prove it
by augmenting the appellate record with such an order.”
Drawing inferences from an undeveloped record is not a
substitute for direct evidence demonstrating appellant was not
accorded jail time credit on his federal sentence. “[T]he Attorney
General, through [the] BOP, has the responsibility for
administering the sentence.” (United States v. Wilson (1992) 503
U.S. 329, 335 [117 L.Ed.2d 593].) Whether the federal sentence
had commenced in this case ultimately depends upon the BOP,
which has discretion to run the state and federal sentences
concurrently. Yet there is no law requiring it to do so. (See
United States v. Yepez (9th Cir. 2012) 704 F.3d 1087, 1091; Taylor
v. Sawyer (9th Cir. 2002) 284 F.3d 1143, 1150 [“[C]oncurrent
sentences imposed by state judges are nothing more than
recommendations to federal officials”].)
We conclude appellant has failed to provide sufficient
evidence that the BOP did not credit him with the jail time. Nor
has he shown that such information is not reasonably obtainable
from the BOP or the United States Attorney’s Office. Should
appellant acquire that information, “nothing in this decision is
intended to preclude a resort to such other remedies as may be
available to him.”3 (Purvis, supra, 11 Cal.App.4th at p. 1200.)
3 On July 15, 2020, appellant filed, in pro. per., a petition
for writ of habeas corpus (No. B306611) raising the same issues
presented on appeal. We deferred resolution of the petition
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DISPOSITION
The judgment (order denying motion for presentence
custody credit) is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P. J.
TANGEMAN, J.
pending disposition of this appeal. By separate order, we deny
the petition effective this date. (See Cal. Rules of Ct., rule
8.387(b)(2)(B).)
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Ronald S. Coen, Judge
Superior Court County of Los Angeles
______________________________
Wayne C. Tobin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Matthew Rodriguez, acting
Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Senior Assistant Attorney
General, Paul R. Roadarmel, Jr., Supervising Deputy Attorney
General, and John Yang, Deputy Attorney General, for Plaintiff
and Respondent.
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