Opinion
On appeal from a judgment of conviction and sentence of nine years’ imprisonment, Melton Jake Williams II contends the trial court erred in denying presentence credit for time served. The Attorney General concedes appellant is entitled to the amount of credit which he seeks. In the published part of this opinion, we agree with the parties, and hold that presentence custody cannot be attributed to “mixed conduct”
(In re Nickles
(1991)
I. Procedural History
On May 29, 1991, 2 prior to commission of the crimes charged in the case at bench, appellant was arrested for burglary. He was charged by complaint (No. C-5305) with misdemeanor petty theft from a merchant. (§§ 488, 490.5.) On June 18, he pled no contest. The municipal court suspended imposition of sentence and granted 12 months’ summary probation subject to stated conditions.
Appellant was arrested in this case on July 28. Misdemeanor probation was summarily revoked July 30 by the municipal court for two violations—
On the same day, August 29, in municipal court, appellant waived preliminary examination in this case and entered a plea of guilty to violation of one count of section 264.1. On September 20, in superior court, he made a
Marsden
motion
(People
v.
Marsden
(1970)
On October 10, the municipal court held a preliminary examination in this case. At the close of the preliminary examination, the court found appellant in violation of his probation on the misdemeanor conviction for failure to “obey all laws”; the municipal court revoked probation and sentenced appellant, on the misdemeanor charge, to 177 days in jail with credit for timе served of 76 days.
Appellant, having withdrawn his superior court plea, was charged by information number 10999-C filed October 24 with 13 felony counts committed on or about July 27 against the 13-year-old victim, Amy: count 1 —forcible kidnapping (§ 207); count 2—kidnapping for the purpose of committing lewd or lascivious acts on a child under the age of 14 years (§§ 207, subd. (b); 288); counts 3 and 10—assault with intent tо commit lewd or lascivious acts with a child under 14 years (§§ 220, 288, subd. (a)); counts 4, 7 (aiding and abetting), and 11—lewd or lascivious acts with a child under 14 years (§ 288, subd. (a)); counts 5, 8 (aiding and abetting), and 12—lewd or lascivious acts with a child under 14 years by force (§ 288, subd. (b)); counts 6, 9, and 13—rape in concert by force (§ 264.1).
Appellant pled not guilty on October 25 in superior court, followed on December 6 by his plea of no contest to count 6 (§ 264.1). That court found appellant guilty as to count 6 on December 6, and sentenced him in accordance with a plea agreement to the upper term of nine years in prison 3 on December 13. The superior court then denied appellant any presentence credits. Appellant timely appealed the denial of presentence credits. (Cal. Rules of Court, rule 31(d).)
The details of the offense are not relevant to this appeal; a brief summary will suffice. According to a Mendocino County Sheriff’s Office report referred to in the probation report, on July 27, about 9:30 p.m., the victim and two other girls were on the street when appellant and his codefendant pulled up in a car and invited them to go to Burger King, which they did. When they returned to the area, the other two girls got out of the car; but appellant drove away before the victim could exit. The codefendant reassured the victim everything was all right and that they were just playing a joke on her friends. They drove arоund for a while. They passed the other two girls; the victim called to them and they called back for her to get out of the car; the codefendant grabbed her, pulled her back, and told her to shut up.
Appellant drove the car to the vicinity of a prune orchard. The codefendant took the victim from the car and started walking into the orсhard. She broke away, but the two men caught her and forced her to the ground. The codefendant pulled her pants down; she struggled. Appellant held her down and rubbed his penis on her body while the codefendant had sexual intercourse with her.
III. Appellant’s Contention
When appellant’s misdemeanor probation was revoked, he was given 76 days’ credit for time served. This calculation (which should have been 75 days) represented the period from the day of arrest on the new charges, July 28, to the day he was sentenced to serve 177 days in jail, October 10.
Appellant served another 64 days for probation violation from October 11 to December 13, the date of sentencing on his plea to count 6 of the information filеd in superior court, Appellant contends he is entitled to full credit of 140 days (which should be 139 days), plus conduct credit under section 4019. Appellant argues in the alternative that he is entitled to one of several lesser amounts.
The People agree appellant is entitled to full credit for the time in custody from July 28 to December 13, plus section 4019 сredit.
IV. Discussion
Section 2900.5 provides, in general, that a defendant sentenced to imprisonment shall receive credit for time spent in custody from the date of arrest.
A. Applicability of the Nickles Decision
We recently analyzed the leading Supreme Court decisions on presentence credit under section 2900.5, subdivision (b) and held, “[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.”
(In re Nickles, supra,
The prosecution argued, and the lower court agreed, as follows in considering the application of Nickles: Appellant was charged with multiple counts in the information, pled guilty to only one (rape in concert), and the others were dismissed. Probation was revoked not only because of the rape in concert, but because of the other dismissed charges as well. This fact resulted in appellant’s presentence custody being ascribed to “mixed custody,” and appellant did not meet his burden under Nickles of showing the violation of probation was the same conduct for which he was convicted and sentenced. Therefore, appellant was not entitled to presentence credit. Finding probation could have been revoked based on any one of the counts of the information other than count 6, the one to which aрpellant entered a plea, the court denied appellant all presentence custody credit.
We reiterate our observation in
Nickles
that the presentence credit statute, section 2900.5, is difficult to interpret and apply.
(In re Nickles, supra,
In
Nickles,
we defined the “mixed conduct” which generates a defendant’s present custody as consisting of
both
“conduct which is, and conduct which is not,
attributable to the proceedings related to the conduct for which [the
defendant]
was convicted and
sentenced.” (
The trial court here observed that the only basis of proof of appellant’s violation of the “obey all laws” condition of his misdemeanor prоbation was his criminal conduct which resulted in the charges in this case. 5
After appellant pled no contest to, and was sentenced on, a single count of the 13-count information, the prosecution moved for dismissal of the 12 remaining counts as part of a plea agreement; and the court granted the motion.
The court, in considering appellant’s entitlement to presentence custody credit implicitly found that, by reason of their voluntary dismissal, the 12 dismissed counts ceased to be “attributable to the proceedings related to [appellant’s] conduct for which he was convicted and sentenced”
(In re Nickles, supra,
“Legal proceedings” are defined as “all proceedings authorized or . . . instituted in a court. . . [for] the enforcement of a remedy.” (Black’s
The 12 dismissed counts, and the cоunt to which appellant pled and on which he was convicted, were connected or related to each other, all describing the criminal conduct for which he was in presentence custody and here perpetrated against the same victim. All counts of the information were authorized for filing and charged in superior court by the People to enforce a criminal remedy against appellant. This prosecutorial action was part of the “proceedings” against appellant, as that term is used in section 2900.5, subdivision (b) for purposes of considering the application of presentence custody credit.
In short, appellant’s presentence custody was attributable to “proceedings relating to the same conduct” for which he was convicted
(In re Nickles, supra,
It is not uncommon for the People to dismiss certain of multiple counts charged in a criminal accusatory pleading. Such action is frequently undertaken for a variety of reasons—some counts are redundant, some are more difficult to prove than others, some are simply overcharged in the first instance and so recognized by the prosecution.
We are aware of the extensive prosecutorial discretion vested in the executive branch. (See
People
v.
Brigham
(1989)
The lower court’s erroneous conclusion, that the dismissal of 12 counts of the information converted this case to one of mixed conduct, would allow award of presentence custody credit, with no shift of burden to appellant to prove entitlement thereto,
only
where that presentence custody was attributable
solely
to the conduct described in the count of which he was convicted;
We are referred to nо authority, and have found none, displaying any legislative intent in support of the lower court’s conclusion. Appellant and the Attorney General, commendably, agree none exists. The lower court’s ruling would also automatically shift to defendant the burden of proving entitlement to presentence custody credit, whenever the prosecution elected to dismiss some of the counts of an accusatory pleading directed to the conduct for which the defendant received pretrial custody. Put another way, that holding would skew the required judicial consideration, of whether the conduct generating presentence custody is attributable to proceedings wholly or partially related to the same conduct for which defendant is convicted, by necessarily compelling a finding that such custody had only a partial relationship to such conduct when a count of the accusatory pleading was dismissed before conviction.
We must, therefore, reject the lower court’s ruling. Appellant’s presentence custody was erroneously attributеd to mixed conduct, solely on the basis of the People’s dismissal of some of the counts of a multiple count accusatory pleading that charged appellant in separately stated offenses for the criminal conduct generating his presentence custody; his presentence custody clearly was wholly attributable to proceedings related to the criminal conduct for which he was convicted.
B. Computation of Credits *
V. Disposition
The Mendocino County Superior Court is directed to forthwith amend the abstract of judgment in People v. Williams (No. 10999-C) to reflect the correct sentence of nine years rather than three years entered by clerical error, and to show one hundred thirty-nine days of seсtion 2900.5 credit for the period of incarceration from July 28 to December 13, 1991, plus sixty-eight days additional credit under section 4019, subdivision (f), and to forward a certified copy of the amended abstract of judgment to the Department of Corrections.
Smith, Acting P. J., and Benson, J., concurred.
Notes
Presiding Justice of the Court of Appeal, First District, Division Five, sitting under assignment by the Chairperson of the Judicial Council.
Section 2900.5, subdivisions (a) and (b) provide in pertinent part: “In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, . . . H] . . . 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. Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.”
Unless otherwise indicated, all further statutory references are to the Penal Code.
All dates are in 1991 unless otherwise indicated.
The abstract of judgment in the record before us erroneously reflects a sentence of three years instеad of nine years. This is obviously a clerical error which we will order corrected.
The difficulties inherent in the statutory scheme are illustrated by a recent decision of Division Three of this district,
In re Davis
*
(Cal.App.).
Davis
declined to follow our decision in
Nickles,
because “reading of
[In re] Joyner
[(1989)
Reporter’s Note: Opinion (A056411) deleted upon direction of Supreme Court by order dated November 25, 1992.
Regarding misdemeanor probation termination, the court said, inter alia: “[I]t’s clear to me that there’s no basis for a violation of probation absent the defendant’s plea to this case. If he withdrew the plea to this case, then there was no basis at all for violation of probation.”
See footnote, ante, page 827.