People v. Simpson

*778COLOGNE, Acting P. J.—I respectfully dissent.

I would not allow Simpson to receive credit for time served for each of the offenses and, similarly, he should not receive double credit for good time/work time. He should not be rewarded in each of the two separate prison terms for the one period of custody when persons who are convicted of two crimes in a similar fashion but separated in time would not be given that benefit. In re Rojas (1979) 23 Cal.3d 152 [151 Cal.Rptr. 649, 588 P.2d 789], says: “[A] defendant is not to be given credit for time spent in custody if during the same period he is already serving a term of incarceration.

“There is no reason in law or logic to extend the protection intended to be afforded one merely charged with a crime to one already incarcerated and serving his sentence for a first offense who is then charged with a second crime. As to the latter individual the deprivation of liberty for which he seeks credit cannot be attributed to the second offense. Section 2900.5 does not authorize credit where the pending proceeding has no effect whatever upon a defendant’s liberty.” (id., at pp. 155-156; italics in original.)

Although the record is not as clear as it could be regarding the parole revocation and sentence fixing by the Board of Prison Terms (BPT), formerly Community Release Board (CRB), it is apparent on March 5, 1980:

1. Simpson’s parole had been revoked;
2. CRB had fixed his sentence on the revocation at a six-month term ending April 29, 1980; and
3. The CRB gave him credit for the 129-day period1 toward service of the 6 months it fixed for the first offense.

At the time of sentencing by the court, CRB had thus both revoked Simpson’s parole and fixed his term to include the period of custody from the date of arrest so he was then “serving a term of incarceration.” *779Under the clear language and holding of Rojas, at the time of sentencing Simpson was “already” serving a term and thus should not be given additional credit for the time spent in that kind of custody.

As Rojas says, there is no reason in law or logic to extend the protection to be afforded a person merely charged with a crime to a person already incarcerated and serving a sentence for a first offense and then charged and convicted of a second crime. Considering the penal purpose of imprisonment in general (§ 1170, subd. (a)(1)), when dual credit is awarded under these factual circumstances there is no incentive for a parolee to avoid additional criminality. He is rewarded with double the value of time served. The statute proscribes dual credit where consecutive sentences are imposed,2 and clearly that does not apply to Simpson’s case because his sentence was concurrent, but that language can be viewed as an expression of legislative policy disfavoring the grant of dual credit in like cases. This case is, however, very much like a consecutive sentence case in that only the first 50 odd days of the sentences run concurrently and the extensive remainder of the 6-year term on the second offense follows completion of the term of the first.

There is authority for the position taken by the majority in the form of cases such as People v. Penner (1980) 111 Cal.App.3d 168 [168 Cal.Rptr. 431], In re Pollock (1978) 80 Cal.App.3d 779 [145 Cal.Rptr. 833], and In re Bentley (1974) 43 Cal.App.3d 988 [118 Cal.Rptr. 452]. Penner, involving facts essentially indistinguishable from those in Simpson’s case, did not discuss the Rojas court’s statement “a defendant is not to be given credit for time spent in custody if during the same period he is already serving a term of incarceration” (23 Cal.3d at pp. 155-156), and did not explain why a defendant whose term was fixed by CRB before sentencing was not one “already serving a term of incarceration.” Instead, Penner relied on the flexible concept of causation as reflected by a statement in Rojas describing the Bentley case and saying that if the new charge “caused” the loss of physical freedom, the time in custody is based on the same conduct for which the defendant is convicted, the new offense, and the section 2900.5 credit thus applies.3 In my view, this statement does not represent the holding of *780the Rojas case, and there is little assistance gained from applying the statement to situations where there are multiple causes of a loss of freedom, such as a parole hold and a new arrest and charge, each of which can be said to “cause” the lost freedom either by initiating custody or causing its continuation through inability to make bail. Penner is not persuasive authority for granting a section 2900.5 credit in Simpson’s case.

The Pollock case, supra, 80 Cal.App.3d 779, involved dual state prison sentences as in Rojas, and was expressly overruled by Rojas; and the Bentley case, supra, 43 Cal.App.3d 988, though approved in its result by Rojas, was disapproved in its key language showing its reasoning which declared section 2900.5 does not say “attributable exclusively to charges arising” etc. (In re Rojas, supra, 23 Cal.3d 152, 157).

While not specifically saying so, the Rojas case as I read it stands for the proposition the section 2900.5 credit applies only where the custody is exclusively attributable to the proceedings related to the same conduct for which the defendant is convicted, for not only does the court disapprove the contrary statement in Bentley, but it says: “Defendant’s chief semantic argument is that because subdivision (b) of section 2900.5 does not read ‘exclusively attributable to proceedings’ he should be granted the credit he seeks. He is in error. Although the word ‘exclusively’ does not appear, it is clearly provided that credit is to be given ‘only where’ custody is related to the ‘same conduct for which the defendant has been convicted.’” (23 Cal.3d 152 at p. 155; italics in original.)

Thus, as to persons, such as Simpson, already serving a term of incarceration by virtue of the CRB or BPT fixing the term to include the new offense presentence custody, the custody is not exclusively attributable to proceedings related to the same conduct, the new charge, for which the defendant is convicted. It follows the section 2900.5 credit is inapplicable to the conviction of the new charge.

*781I would follow the rule of Rojas as above discussed, and cases denying the dual credit such as People v. Brown (1980) 107 Cal.App.3d 858 [166 Cal.Rptr. 144], and In re Hodges (1979) 89 Cal.App.3d 221 [152 Cal.Rptr. 394], which declares: “It is not unreasonable to deny to those under a subsisting prison sentence credit upon a later imposed term for time that in any event would be exacted as the price of an antecedent conviction, while granting such credit to others who are similarly situated except for the prior claim upon their liberty. In fact, if but for his prison commitment petitioner could arrange for his pretrial release, award of credit to petitioner notwithstanding that fact, while denying credit to the unconvicted but accused defendant because he did in fact make bail, constitutes a reward for repeated criminal conduct. The purpose of Penal Code section 2900.5 is to eliminate the inequality between those financially able to post bail and the poor who are unable to do so. (In re Watson (1977) 19 Cal.3d 646, 651-652 ...). Petitioner’s continued incarceration is a result of his recidivous criminality, not his poverty.” (Id., 89 Cal.App.3d at pp. 225-226; italics in original.)

I would affirm the judgment in Simpson’s case without modification.

Respondent’s petition for a hearing by the Supreme Court was denied October 2, 1981. Richardson, J., was of the opinion that the petition should be granted.

The 129-day period of time from arrest to sentencing extended from October 29, 1979, to March 5, 1980.

Section 2900.5, subdivision (b), reads: “Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.”

In Rojas, the court said of Bentley. “In In re Bentley ..., the defendant was on parole pursuant to a prior narcotics conviction when he was arrested for robbery. It was the new charge which caused his loss of physical freedom and thus the time in custody *780for which he sought credit was based on the same conduct for which he was convicted, the robbery charge. A literal interpretation of section 2900.5 would have allowed Bentley his credit under those facts.” (In re Rojas, supra, 23 Cal.3d 152, 157; italics added.)

Looking to the above-italicized language of Rojas, the court in Penner concluded: “Here, as described by the court in Rojas, defendant was at liberty on parole and it was the commission of new offenses involved in the instant proceedings which caused his parole to be revoked and his liberty to be lost.” (People v. Penner, supra, 111 Cal.App.3d 168, 171.)