Filed 7/23/21 P. v. Busby CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A161125
v. (Del Norte County
MERLEN DEAN BUSBY, Super. Ct. Nos. 98-341-C &
CRF 98-1785)
Defendant and Appellant.
Defendant Merlen Dean Busby was convicted in federal court of
kidnapping a man at gunpoint and sentenced to 18 years in federal prison.
He was subsequently convicted on multiple state charges arising out of the
same incident and received a 24-year consecutive state prison sentence.
Defendant was awarded no custody credits at his state sentencing. He
recently filed a motion to correct his sentence in the trial court, seeking
“22 months, 16 days” of presentence custody credits against his state
sentence. The trial court denied the motion. Defendant appealed.
We conclude defendant is not entitled to credit under Penal Code1
section 2900.5, subdivision (b) because his state sentence is consecutive to his
federal sentence. Accordingly, we affirm.
1 All statutory references are to the Penal Code.
I. BACKGROUND
The underlying facts of this case are set forth in greater detail in this
court’s prior opinion on defendant’s direct appeal. (People v. Busby (Aug. 24,
2001, A092785) [nonpub. opn.].) We provide only a brief summary of the
most pertinent facts here.
Around 11:30 p.m. on November 30, 1998, Marc and Pattie M. were
asleep at home with their two young children. Defendant broke into their
house and ordered the family into a bedroom at gunpoint. Defendant
demanded money and led Marc around the house looking for money.
Defendant forced Marc out of the house and into the family’s car in the
garage. He then made Marc drive to Oregon and withdraw $400 from an
ATM. Around 4:30 a.m., defendant was stopped by a sheriff’s deputy.
Defendant was armed and driving the car. Marc was found in the trunk.
Defendant was arrested and taken into federal custody.2 On
December 2, 1998, the United States Attorney’s Office filed a complaint
charging defendant with kidnapping. (18 U.S.C. § 1201(a)(1).) A state
warrant for his arrest also issued on December 2, and was amended the
following day. In September 1999, defendant pleaded guilty in federal court
to kidnapping and a related gun charge and was sentenced to 18 years in
federal prison.
On March 30, 2000, defendant was arrested by state authorities and
extradited to Del Norte County to face charges in the present case. He was
arraigned the next day. On August 29, 2000, a jury found defendant guilty of
carjacking (§ 215, subd. (a)), first degree robbery (§ 212.5, subd. (a)), first
2 The record is limited as to certain procedural aspects of the federal
case. We rely in part on undisputed statements of fact made by defendant in
the trial court.
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degree burglary (§§459, 460), two counts of false imprisonment by violence
(§ 236), three counts of assault with a firearm (§ 245, subd. (a)(2)), and
possession of a firearm by a felon (former § 12021, subd. (a)(1)). The jury
also found true enhancement allegations pursuant to sections 12022.53,
subdivision (b) and 12022.5, subdivision (a)(1).
On September 28, 2000, defendant was sentenced to state prison for 24
years. The trial court ordered his sentence to run consecutive to his federal
sentence. The trial court did not award pretrial custody credits. Defendant
was returned to federal prison to complete his prison commitment.
Defendant began serving his state sentence after completing his federal
term. On May 14, 2020, he filed a “Motion to Correct Sentence, to Appoint
Counsel” in the superior court seeking presentence custody credits under
section 2900.5. In his motion, defendant argued he was entitled to 667 days
of custody credits, spanning the period from December 1, 1998, the date of his
arrest, to September 28, 2000, the date he was sentenced in this case.
The trial court heard and denied the motion, finding defendant was not
entitled to custody credits against his state sentence. In its ruling from the
bench, the court stated: “It’s my order that the sentence imposed was clearly
indicated that it was going to be consecutive to the felony matter. [¶] And I
don’t think you’re entitled to credits for—when you’re serving time on the
federal charges and, specifically, where it’s indicated that these are going to
be consecutive that I—I don’t think you’re entitled to the double credits.”
II. DISCUSSION
The sole issue presented in this appeal is whether the trial court erred
in refusing to award defendant presentence custody credits on his state
sentence. Defendant contends he is entitled under section 2900.5 to pretrial
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credits on his state sentence for the period of pretrial custody under which he
was mutually restrained by federal and state authorities.
Defendant bears the burden of proving his entitlement to credits at
sentencing. (People v. Bruner (1995) 9 Cal.4th 1178, 1191 (Bruner); People v.
Jacobs (2013) 220 Cal.App.4th 67, 81.) On this record, we conclude the trial
court correctly denied defendant presentence custody credits.
Section 2900.5 allows a defendant to receive credit “upon his or her
term of imprisonment” for time spent in custody prior to being sentenced.
(§ 2900.5, subd. (a).) Subdivision (b), however, contains an express limitation
on presentence credits when consecutive sentences are imposed. (§ 2900.5,
subd. (b) [“Credit shall be given only once for a single period of custody
attributable to multiple offenses for which a consecutive sentence is
imposed.”].)
The second sentence of section 2900.5, subdivision (b) precludes an
award of credits here. Defendant was sentenced in state court to a 24-year
prison term, to run consecutive to his 18-year federal sentence. It would be
an improper windfall to allow defendant credit against two separate,
consecutive sentences for one period of pretrial custody.3 (See Bruner, supra,
9 Cal.4th at p. 1191 [“Section 2900.5 is not intended to bestow the windfall of
duplicative credits against all terms or sentences that are separately imposed
in multiple proceedings.”]; People v. Santa Ana (2016) 247 Cal.App.4th 1123,
1144, 1139 (Santa Ana) [“defendant cannot receive double credit against
3 Although the record does not state whether defendant received
presentence custody credit on his federal sentence, he was entitled to receive
it and makes no showing he did not receive credit. (See 18 U.S.C. § 3585(b)
[“A defendant shall be given credit toward the service of a term of
imprisonment for any time he has spent in official detention prior to the date
the sentence commences”].)
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consecutive sentences”]; Couzens et al., Sentencing Cal. Crimes (The Rutter
Group 2020) ¶ 15.12 [“If consecutive sentences are imposed, the court is to
award credit only once for any given period in custody. [Citations.] In other
words, if the sentences for different cases are imposed consecutively, the
court must be careful not to award duplicate credit for any particular day in
custody.”].)
Defendant summarily asserts that “the fact that [he] first was required
to serve a federal term has no bearing on his state law-based [sic] claim to
credits. . . . [because he] was not given a consecutive state prison term and
the federal imprisonment had no bearing on the application of state law to a
state prison sentence.” (Italics added.) But defendant does not make a legal
argument or cite any authority in support of this contention. (People v.
Stanley (1995) 10 Cal.4th 764, 793 [reviewing court may treat as waived any
claim not supported by a legal argument with citation of authorities on the
points made]; Cal. Rules of Court, rule 8.204(a)(1)(B).) The statute does not
distinguish between state and federal sentences but proscribes dual credit for
a single period of custody “for which a consecutive sentence is imposed.”
(§ 2900.5, subd. (b).) Defendant received “a consecutive sentence” here when
the trial court ordered him to serve his state prison sentence consecutive to
the federal sentence.
Nor are we persuaded by defendant’s reliance on Santa Ana, supra,
247 Cal.App.4th 1123, 1127, and People v. Cooksey (2002) 95 Cal.App.4th
1407, 1414–1415 (Cooksey), for his argument that “case law would authorize
confinement credits where ‘dual custodial restraints’ exist and there is a
single period of custody.” In Cooksey, the defendant was arrested for robbery
while on probation for discharging a firearm into a residence. (Cooksey, at
p. 1414.) The trial court revoked probation and eventually sentenced
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defendant to a principal term of 10 years on the robbery conviction and a
consecutive term of one year eight months for his earlier firearm conviction.
(Ibid.) Relying on the second sentence of section 2900.5, subdivision (b), the
court concluded the defendant was not entitled to credits on the subordinate
term because the trial court had imposed a consecutive sentence. (Cooksey,
at pp. 1414–1415.) Defendant does not explain how the holding of Cooksey
supports his position in this case.
Santa Ana likewise does not assist defendant. There, the appellate
court denied the defendant duplicate credits where the trial court imposed a
consecutive jail term as a condition of probation. Construing section 2900.5,
subdivision (b), the court determined that “where a defendant was under dual
custodial restraints resulting from the defendant’s arrest for one new offense
and a probation hold or revocation based only on the new offense, [a single
period of custody] is legally ‘attributable to’ both the new offense and the
offense of conviction underlying the grant of probation.” (Santa Ana, supra,
247 Cal.App.4th at p. 1137.) Because the trial court had awarded the
defendant custody credit against the earlier probationary jail term, it
properly denied credit for the consecutive jail term imposed as a condition of
probation. (Id. at p. 1145.) Thus, contrary to defendant’s contention, the
Santa Ana court’s analysis supports denial of presentence credit in this case,
where defendant seeks credit against a consecutive state sentence for the
same period of custody served on his federal offense.
The Santa Ana court also explored the legislative history of the 1978
amendment of former section 2900.5 that added subdivision (b). As the court
explained, “[i]t is clear from the legislative history of the 1978 amendment [of
former section 2900.5] that the Legislature intended to disallow dual credits
for a single period of custody in the situation where a court imposes a
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consecutive sentence.” (Santa Ana, supra, 247 Cal.App.4th at p. 1138.) For
example, “[t]he Assembly Committee on Criminal Justice’s analysis of Senate
Bill No. 1507 (1977–1978 Reg. Sess.) expressed concern that under existing
law, ‘[i]f a person is detained in custody for the full amount of time that a
consecutive sentence would allow prior to sentence, judges would be unable to
adequately impose harsher penalties for consecutive sentences.’ ” (Ibid.)
Further, the court observed, “[t]he legislative history of Senate Bill No. 1507
(1977–1978 Reg. Sess.) is replete with general expressions of legislative
intent indicating that a defendant cannot receive double credit against
consecutive sentences. (See Assem. Off. of Research, 3d reading analysis of
Sen. Bill No. 1507 (1977–1978 Reg. Sess.) as amended May 31, 1978 [‘This
bill provides that no double credit be given for the same period of time in
custody if a consecutive sentence is imposed.’]; Assem. Com. on Criminal
Justice, Analysis of Sen. Bill No. 1507 (1977–1978 Reg. Sess.) as amended
May 17, 1978, p. 1 [‘S.B. 1507 would provide that no double credit be given
for the same period of time in custody if a consecutive sentence is imposed.’];
see also Dept. of Corrections, Enrolled Bill Rep. on Sen. Bill No. 1507 (1977–
1978 Reg. Sess.) June 26, 1978, p. 2 [‘Double credit is eliminated by a
provision that requires that credit be given only once for a single period of
custody attributable to multiple offenses for which a consecutive sentence is
imposed. . . . [¶] The elimination of the potential for using the same jail
credits on each of several sentences solves a problem that has existed for
years. The change gives meaning to a consecutive sentence.’].)” (Id. at
p. 1139.) The repeated expressions of general legislative intent to prohibit
dual credit for the same period of custody when a consecutive sentence is
imposed lead us to conclude that defendant is not entitled to credit against
his consecutive state sentence here.
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Moreover, a construction of section 2900.5 that allowed defendant
presentence credits against his state sentence under the circumstances of this
case would not be consistent with the general purpose of the statute, which is
to “ensure that one held in pretrial custody on the basis of unproven criminal
charges will not serve a longer overall period of confinement upon a
subsequent conviction than another person who received an identical
sentence but did not suffer preconviction custody.” (Bruner, supra, 9 Cal.4th
at pp. 1183–1184.) “[T]he statute is intended only to prevent inequalities in
total confinement among defendants, each similarly sentenced in a single
proceeding, which inequalities arise solely because one defendant suffered
presentence confinement while another did not.” (Id. at p. 1191; People v.
Kunath (2012) 203 Cal.App.4th 906, 911 [“Where . . . the defendant’s custody
is solely presentence on all charges and he is simultaneously sentenced on all
charges to concurrent terms, the policy behind section 2900.5 applies.
Presentence custody credits must apply to all charges to equalize the total
time in custody between those who obtain presentence release and those who
do not.”].) Because defendant was separately convicted and sentenced on
federal kidnapping charges and the trial court determined his state sentence
should run consecutive to that federal sentence, he cannot show he spent
more time in custody than a hypothetical defendant who obtained
presentence release in an otherwise identical state proceeding. Granting
defendant presentence custody credit in this case would not promote the
statute’s legislative purpose.
Because we conclude defendant is not entitled to presentence credit
against his consecutive state sentence, we need not address the Attorney
General’s alternative argument that defendant is not entitled to presentence
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credit because he cannot show the state proceedings had any effect on his
liberty.
III. DISPOSITION
The trial court’s September 3, 2020 order denying defendant’s motion to
correct his sentence is affirmed.
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MARGULIES, ACTING P. J.
WE CONCUR:
BANKE, J.
SANCHEZ, J.
A161125
People v. Busby
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