In Re Marquez , 131 Cal. Rptr. 2d 911 ( 2003 )

MORENO, J., Concurring.

I agree with the result and reasoning of the majority opinion. I write separately to express my views regarding the majority’s discussion of People v. Huff (1990) 223 Cal.App.3d 1100 [273 Cal.Rptr. 44] (Huff). (Maj. opn., ante, at pp. 23-24.) After reciting the facts of Huff, the majority states that, “[bjecause Huff is distinguishable on its facts, it is unhelpful here.” (Maj. opn., ante, at p. 24.) While I agree that Huff is “distinguishable on its facts,” I am inclined to go further in order to point out that, in People v. Bruner (1995) 9 Cal.4th 1178 [40 Cal.Rptr.2d 534, 892 P.2d 1277] (Bruner), we endorsed a method of computing presentence custody credits contrary to that utilized in Huff.

In 1988, the defendant in Huff was placed on three years’ probation for possession of phencyclidine. On January 17, 1989, he was arrested for grand theft automobile. He did not post the $15,000 bail and remained in custody. Yet his probation was not revoked until March 27, 1989, more than two months after the date of his arrest. Most importantly, the probation revocation was based solely on the grand theft automobile charge. On April 24, 1989, the underlying grand theft automobile charge was dismissed, but, after a probation violation hearing in which the court heard evidence regarding the automobile theft, the defendant was found in violation of probation and his probation remained revoked. (Huff supra, 223 Cal.App.3d at p. 1103.) In sentencing the defendant, the Court of Appeal declined to award him presentence custody credit for the period of January 17, 1989, through March 26, 1989, for the reason that he was not “in custody”, on the probation violation until March 27, 1989, and thus his custody was not attributable to the probation violation until that date. (Id. at pp. 1105-1106.)

But in Bruner, we stated that “post-[People v. Joyner (1989) 48 Cal.3d 487, 489 [256 Cal.Rptr. 785, 769 P.2d 967]] decisions apply a general rule that a prisoner 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. Thus, these cases reason, his 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. [Citations.] . . . [W]e conclude that these authorities construe the statute correctly.” (Bruner, supra, 9 Cal.4th at p. 1191, italics omitted.) We then cited, with approval, People v. Williams (1992) 10 Cal.App.4th 827, 832-834 [13 Cal.Rptr.2d 107], a case in which the Court of Appeal held that the defendant “was entitled to credit against his sentence for time spent in custody on the probation revocation because this custody arose from the identical conduct that led to the criminal sentence.” (Bruner, supra, 9 Cal.4th at p. 1194, fn. 10, italics added.)

In Huff, the Court of Appeal failed to award presentence custody credit where the probation revocation was based on the identical conduct that led to the criminal offense. Therefore, the method used to calculate presentence custody credits in Huff is contrary to the method we endorsed in Bruner.¹

The majority also states that “Huff would be relevant only if petitioner had sought credit for the time spent in custody from the time he was arrested in Santa Cruz County, before Monterey County placed a hold on him, because that period would be analogous to the period in Huff commencing with that defendant’s arrest for auto theft.” (Maj. opn., ante, at p. 24.) While I agree that Huff might be factually relevant, it should be noted that, even if petitioner had sought presentence custody credit from the time spent in custody from the day he was arrested in Santa Cruz County, Huff is not analogous to the present case because the custody credit rules governing the interplay between an underlying crime and probation violation (i.e., a Huff situation) are different from the custody credit rules that govern a Marquez situation, i.e., where a defendant commits two distinct crimes in two different counties. As noted, in a Huff situation, the defendant is entitled to custody credit from the date of arrest. In a Marquez situation, a defendant is not entitled to credit from the date of arrest by the first county in the event that charge is dismissed. Instead, he receives credit only from the date the hold was placed by the second county, which makes his custody attributable to both distinct cases.

For the reasons stated above, I would go further than the majority and recognize that the Huff situation is not analogous to the facts of the present case and, where a probation revocation is based on the identical conduct that led to criminal charges, the Huff court’s method of computing presentence custody credits is contrary to the method we endorsed in Bruner.

Brown, J., concurred.

On May 21, 2003, the opinion was modified to read as printed above.

1 In the Huff-type of situation, moreover, whether the probation hold precedes or is subsequent to the filing of criminal charges is of no moment because custody credit accrues from the date of arrest.