People v. Simpson , 174 Cal. Rptr. 790 ( 1981 )

Opinion

WORK, J.

Convicted of robbery, Michael Tyrone Simpson, contends the trial court erred in enhancing his term because of his admitted prior felony conviction, while aggravating his base term because he was on parole for the same previous conviction when committing his present offense. He meritoriously claims additional presentence custodial credits.

Unless otherwise prohibited the proved fact Simpson served a previous prison term within the meaning of Penal Code¹ section 667.5, subdivision (b) permits a one-year enhancement to his sentence. Similarly, the admitted fact he was on prison parole when committing the current crime is a factor which a sentencing court may use to justify imposition of the aggravated upper-base term. (Rule 421(b)(4), Cal. Rules of Court.)

Section 1170, subdivision (b) and rule 441(b) and (c), California Rules of Court, prohibit the dual use of a single factor to both justify imposing the upper-base term and to enhance that term.

Simpson describes the trial court’s action as the proscribed double use of a single fact. The Attorney General claims the fact of serving a previous prison term is separate from the fact of being on parole for the offense on which the previous prison term was served.

We resist the opportunity to give our advisory solution to the posed question because Simpson can in no way benefit by such an analysis. The trial court graphically articulated six appropriate factors, aside from the parole item: violence, weapon use, victim vulnerability, dominance in the crime, premeditation, and prior convictions other than the enhancing violation. These are factors relevant under rule 421(a)(1), (a)(2), (a)(3), (a)(5), (a)(8) and (b)(2), California Rules of Court, respectively. None of these factors are contested. If error were made its effect is miniscule and it is not reasonably probable a different sentence would have resulted in its absence (People v. Watson (1956) 46 Cal.2d 818 [299 P.2d 243]), and does not justify remand for resentencing. (People v. Dozier (1979) 90 Cal.App.3d 174, 179 [153 Cal.Rptr. 53].)

A different picture emerges regarding the significance of Simpson’s claim for presentence custodial credits (§ 2900.5) as augmented by good-time/work-time credit in accordance with People v. Sage (1980) 26 Cal.3d 498 [165 Cal.Rptr. 280, 611 P.2d 874].

The sentencing court refused presentence custodial credits because it noted Simpson was concurrently incarcerated under a parole hold making him ineligible for release at any time following his arrest on the new charge. Both the sentencing court and the Attorney General on this appeal incorrectly rely on the decision of the Supreme Court, on different facts, in In re Rojas (1979) 23 Cal.3d 152 [151 Cal.Rptr. 649, 588 P.2d 789], to support denial of presentence credits.

Factually, Simpson was arrested and jailed October 29, 1979, and on the same day a parole hold was placed. Upon revocation of his parole he was given credit against the parole revocation term from October 29, the day of initial custody. He was sentenced on the current charge March 5, 1980, and requests section 2900.5 credits against his current sentence for the entire 129 days even though he had accrued custodial credits against his revoked parole term for those 129 days. Although it makes little practical sense and unwarrantedly removes any substantial deterrent effect from the threat of being remanded for further incarceration upon revocation of parole, under the law as presently written we hold he is entitled to dual credits.

Section 2900.5, subdivision (b) relied on in the Rojas decision, and the cases cited therein, was amended effective January 1977.² As stated in Rojas “‘[t]he crucial element of ... [section 2900.5] is ... whether the custody ... “is attributable to charges arising from the same criminal act or acts for which the defendant has been convicted.” (§ 2900.5, subd. (b).)’” (In re Rojas, supra, 23 Cal.3d 152, 156, quoting In re Watson (1977) 19 Cal.3d 646, 651 [139 Cal.Rptr. 609, 566 P.2d 243], italics added.) The section now reads: “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.” (Italics added.) The change is irrelevant in the factual context of this case.

Rojas involves an individual asking for section 2900.5 credits where his confinement, while waiting trial and sentencing on the charge for which he made the claim, commenced only after he had already begun serving a sentence for a separate and unrelated conviction, which sentence was being served during the time he waited trial on the new offense. The court noted the legislative intent for presentence credits was to prevent indigents charged with a crime, but not yet tried, from being forced to spend more time in custody solely because of their indigency than those persons whose greater affluence allowed them presentence freedom. It found no legislative purpose to extend this protection to one already in custody and serving a sentence for one offense who was then charged with a second crime. “Section 2900.5 does not authorize credit where the pending proceeding has no effect whatever upon a defendant’s liberty.” (In re Rojas, supra, 23 Cal.3d 152, 156; italics added.)

However, the Supreme Court did not stop there, it proceeded to analyze In re Bentley (1974) 43 Cal.App.3d 988 [118 Cal.Rptr. 452], upon which Simpson also relies. It held a literal reading of section 2900.5 did, as Bentley found, entitle a defendant to presentence custodial credits where the new charge causes the loss of physical freedom. The petitioner in Bentley was given credit for the time spent in jail awaiting conviction even though he also received simultaneous credit for serving a term following revocation of a previous parole for committing the very offense for which he was awaiting trial. Thus Rojas implicitly holds that, while section 2900.5 will not allow credits where the pending proceeding has no effect whatever upon a defendant’s liberty, it authorizes their grant where the presentence custody is at least partly due to the new proceedings. (See also People v. Brown (1980) 107 Cal.App.3d 858, 864, 865 [166 Cal.Rptr. 144]; People v. Penner (1980) 111 Cal.App.3d 168 [168 Cal.Rptr. 431].)

The Attorney General urges our result creates an absurd double credit situation such as that referred to in People v. Brown, supra, 107 Cal.App.3d 858, 861-862. Brown does, indeed, roundly condemn allowing double credits, although on facts significantly different from ours. However, even here it is clear the parole revocation was meaningless except as it may have prevented Simpson from obtaining his release on bail. He, in effect, did his parole time “standing on his head” because he was also serving his sentence for the new charge. The eviscerating of deterrent effect for parole violation recommitments due to commission of new felonies, is apparent.

However, section 2900.5 does not proscribe the giving of double credits in this situation, nor can we read the section to allow presentence custodial credits for the current offense only on condition the parole authorities do not give simultaneous credits. (Accord Cerda v. Superior Court (1974) 42 Cal.App.3d 491, 493-495 [116 Cal.Rptr. 896].)

To the argument our result does not further the legislative purpose in eliminating disparity between times in custody for the indigent and the wealthy, we note our Supreme Court in In re Kapperman (1974) 11 Cal.3d 542, 549 [114 Cal.Rptr. 97, 522 P.2d 657], holds section 2900.5 is to be applied without regard to whether presentence detention results from indigency and ability to post bail.

We too are frustrated by the apparent unfairness of negating the punishment recommitment following a parole revocation was intended to impose. The thoughtful analysis and consideration of issues expressed by Justice Cologne in his dissent points out the desirability for legislative direction to insure a meaningful difference in treatment between those persons whose parole violation consists of new criminal conduct and those whose recommitment is for some lesser defalcation. Our difference with our dissenting colleague is in interpretation, not philosophy. We would hope the Legislature will address this issue and eliminate the ambiguity.

Simpson is entitled to 129 days presentence custodial credits and to an additional 64 days good-time/work-time Sage credits. The judgment is modified to reflect additional credits in a total amount of 193 days. As modified, the judgment is affirmed.

Wiener, J., concurred.

1 All references are to the Penal Code unless otherwise specified.

2 Statutes 1976, chapter 1045, section 2, page 4665.