P. v. Greer

Filed 5/15/09 P. v. Greer CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
DONALD W. GREER,
Defendant and Appellant.
B205392
(Los Angeles County
Super. Ct. No. BA280774)
APPEAL from a sentence of the Superior Court of Los Angeles County, Marsha
Revel, Judge. Affirmed, in part, reversed, in part, and remanded with instructions.
Marcia R. Clark for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney General, Daniel C. Chang, Deputy Attorney
General, for Plaintiff and Respondent.

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INTRODUCTION
Defendant and appellant Donald Greer (defendant) pleaded no contest to charges
of possession of a deadly weapon and possession of a controlled substance. After a
lengthy delay, the trial court sentenced defendant to six years in state prison and awarded
him 394 days of presentence custody credit. The trial court also issued a certificate of
probable cause allowing defendant to challenge his sentence on appeal.
On appeal, counsel for defendant filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 requesting this court to review independently the entire record.
Defendant‟s counsel advised him of the nature of the brief filed on his behalf and of his
right to file a supplemental brief. Defendant filed a handwritten supplemental brief
contending, inter alia, that he was entitled to presentence custody credit for the entire
period he was in custody awaiting sentence in this case, i.e., substantially more credit
than awarded by the trial court.
After reviewing the entire record, we requested that counsel of record for the
parties file letter briefs addressing only the presentence custody credit issue raised by
defendant‟s supplemental brief. 1 We received the parties‟ letter briefs and filed our
opinion on January 23, 2009. Defendant then filed a petition for rehearing, which we
granted on February 21, 2009.
We requested further letter briefing from the parties and, after review of those
briefs, we hold that the trial court properly denied presentence custody credit for the
period defendant was also remanded to custody in a subsequent, unrelated case. We
further hold that the trial court failed to award defendant presentence custody credit for
the period of time from the date of defendant‟s arrest to the date he posted bail and for the
period of time from the date he was remanded in this case to the date he was remanded in
1 Defendant‟s request for judicial notice is granted. Based on our review of the
entire record as required by People v. Wende, supra, 25 Cal.3d 436, we have identified a
single arguable issue concerning the trial court‟s award of presentence custody credit, but
there are no other arguable issues concerning defendant‟s judgment of conviction or
sentence.

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the subsequent, unrelated case. We also hold that the trial court must determine the date
defendant was paroled or became eligible for parole in the subsequent, unrelated case and
award defendant presentence custody credit from that date through the date he was
sentenced in this case. We therefore reverse the award of presentence custody credit and
remand this case to the trial court with instructions to amend the abstract of judgment to
reflect the correct amount of presentence custody credit. In all other respects, the
judgment of conviction and sentence are affirmed.
PROCEDURAL BACKGROUND
Defendant was arrested in this case on March 6, 2005, and charged with
possession of a deadly weapon and possession for sale of a controlled substance.
According to the docket in this case, defendant posted bail on March 14, 2005.2
Defendant apparently remained free on bail through the May 8, 2006, hearing in this
case.
On May 19, 2006, however, defendant was arrested for committing four narcotics-
related offenses (the second case [No. SA060525]). Defendant posted bail in the second
case and was released from custody on or about May 20, 2006.
Less than a week later, on May 24, 2006, defendant was again arrested for
committing narcotics-related offenses (the third case [No. LA052510]). He was
arraigned in the third case on May 26, 2006, and remanded to custody in that case.
At a hearing in this case on June 2, 2006, the trial court exonerated bail and reset it
at $20,000 based on defendant‟s arrest in the third case. Defendant was remanded to
custody in this case and the trial court issued a “temporary commitment.”
2 We have obtained a copy of the trial court docket in this case and, on our own
motion, take judicial notice of it. (Evid. Code, § 452, subd. (d); § 459.)

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On June 8, 2006, a preliminary hearing was held in the third case. Because the
People were unable to proceed, the trial court granted defendant‟s motion to dismiss the
third case pursuant to Penal Code section 1385.3
On June 14, 2006, at the arraignment in the second case, the trial court noted that
defendant had been arrested in a new case, apparently referring to the third case. The
trial court in the second case exonerated defendant‟s bail, reset it at $50,000, and
remanded defendant to custody in the second case as well.
Defendant was apparently unable to make bail in either this case or second case
and remained in presentence custody in both cases through sentencing in the second case.
On January 26, 2007, the trial court in the second case accepted defendant‟s plea of nolo
contendere as to Count 1 and sentenced defendant pursuant to a plea agreement. The trial
court denied probation and imposed a sentence of 16 months in any state prison on Count
1. The remaining counts were dismissed pursuant to the agreement, and defendant was
awarded 372 days of custody credit, comprised of 248 days of actual credit,4 apparently
for the time spent in custody in the second case, and 124 days of conduct credit. As to
the 16-month sentence on Count 1, the trial court indicated that it was “to run concurrent
with any other time.” Following pronouncement of sentence in the second case, a
“temporary commitment issued.”
In this case, defendant‟s custody status between the June 2, 2006, hearing at which
defendant was remanded to custody and the December 11, 2007, sentencing hearing was
consistently shown in the intervening minute orders as “remanded.” It also appears that
defendant was present in court in this case on several occasions between the January 26,
3 All statutory references are to the Penal Code.
4 It is unclear from the record what dates the trial court used to calculate defendant‟s
custody credit in the second case, but the 248-day period appears to include all of the
time spent in custody from June 14, 2006, through January 27, 2007.

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2007, sentencing hearing in the second case and the December 11, 2007, hearing in this
case.5
On December 11, 2007, pursuant to a prior plea of no contest in this case,6 the
trial court sentenced defendant on Count 2 to a total of six years in any state prison and
on Count 1 to two years in any state prison to run concurrently with the sentence on
Count 2. The trial court awarded defendant 394 days of presentence custody credit,
consisting of 263 days of actual custody credit and 131 days of conduct credit. A
handwritten calculation on the first page of the Probation Officer‟s Report indicates that
the 263 days of actual custody credit were calculated from March 25, 2007. But there is
no indication in the record why defendant‟s actual custody credit in this case was
calculated from that date.
Following his sentencing in this case, defendant filed a “Motion to Appeal” in the
trial court. In response, the trial court issued a certificate of probable cause that
“allow[ed] the defendant to proceed with his appeal of his sentence in this case.”
5 That defendant was able to appear repeatedly in the trial court in this case
following the January 26, 2007, sentencing hearing in the second case suggests that
defendant was remanded in the second case to county jail, not state prison, presumably to
await sentencing in this case.
6 On November 30, 2005, defendant entered a plea of no contest, but sentencing was
put over to a later date. Pursuant to the plea agreement, a sentence of ten years,
suspended, and one year in county jail would be imposed, but it was conditional and
would be imposed only if defendant appeared for sentencing and was not arrested and
charged with any other offenses prior to sentencing. If, prior to sentencing, defendant
failed to appear or committed another offense, the plea would convert to an open plea
with a maximum sentence of 13 years, eight months. As noted above, prior to sentencing
in this case, defendant was arrested and charged in the second and third cases.

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DISCUSSION
A. Credit for The Period Defendant Was in Custody From his Arrest in
this Case to the Posting of Bail.
Defendant was arrested in this case on March 5, 2005, and posted bail on March
14, 2005, but it does not appear that he was awarded any presentence custody credit for
this period. Thus, defendant is entitled to nine days of actual custody credit for this
period.
B. Credit for the Period Defendant Was Remanded to Custody in this
Case but not Yet Remanded to Custody in the Second Case
Defendant was remanded to custody in this case on June 2, 2006, and was not
remanded to custody in the second case until June 14, 2006, but again it does not appear
that the trial court awarded any presentence custody credit for this period. Defendant
should therefore receive credit for the period between June 2 and 13, for a total of 13
additional days of actual custody credit.
C. Credit for the Period Defendant Was in Presentence Custody in the
Second Case
Defendant‟s counsel contends that he is entitled to additional presentence custody
credit in this case for the entire period that he was simultaneously in custody in the
second case—June 14, 2006, through January 27, 2007—notwithstanding that defendant
received full credit for that same period against his sentence in the second case.
According to his counsel, defendant‟s incarceration during that period “was attributable
at least in part, to the instant case.” We disagree.
The presentence custody credit issue is controlled by section 2900.5 which reads
in pertinent part: “(a) In all felony and misdemeanor convictions, either by plea or by
verdict, when the defendant has been in custody, including, but not limited to, any time
spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility,

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hospital, prison, juvenile detention facility, or similar residential institution, all days of
custody of the defendant, including days served as a condition of probation in compliance
with a court order, and including days credited to the period of confinement pursuant to
Section 4019, shall be credited upon his or her term of imprisonment, . . . [¶] (b) 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. Credit shall be given only once for a single period of custody attributable to
multiple offenses for which a consecutive sentence is imposed.”
The Supreme Court in In re Joyner (1989) 48 Cal.3d 487 (Joyner) applied section
2900.5 in a factual situation analogous to this case. In that case, arrest warrants issued in
California charging the defendant with robbery and grand theft. (Id. at p. 489.) The
defendant was thereafter arrested in Florida for unrelated crimes committed in that state.
(Ibid.) When the Florida authorities discovered the outstanding California arrest
warrants, they placed a hold on the defendant at the California authorities‟ request. (Id. at
pp. 489-490.)
The defendant pleaded guilty to the Florida charges, was sentenced to concurrent
terms of three years in Florida state prison, and received presentence custody credit for
the entire time he was in custody in Florida prior to his sentencing there. (Joyner, supra,
48 Cal.3d at p. 490.) The defendant was then extradited to California where he pleaded
guilty to the robbery and grand theft charges. (Ibid.) The California trial court sentenced
defendant to a four-year prison term which ran concurrent to the Florida terms pursuant
to section 669. (Ibid.) The California trial court, however, expressly denied the
defendant‟s request for presentence custody credit for the entire time he was in custody
on hold in Florida and in custody in California. (Ibid.)
The defendant in Joyner, supra, 48 Cal.3d 487 filed a petition for a writ of habeas
corpus that the Court of Appeal denied. (Id. at p. 490.) The defendant then filed a writ of
habeas corpus in the Supreme Court which issued an order to show cause. (Id. at p. 491.)
According to the defendant, he was entitled to “presentence custody credits against his
California sentence for custody time in Florida and California from the date a „hold‟ was

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placed against him for the California offenses until he was sentenced in California, all of
which time ha[d] already been credited against [the defendant‟s] Florida sentence.” (Id.
at p. 489.) The Supreme Court characterized the issue before it as “the recurring
troublesome question of when custody is „attributable to proceedings related to the same
conduct for which the defendant has been convicted‟ within the meaning of section
2900.5, subdivision (b).” (Ibid.)
In denying the defendant‟s petition, the court in Joyner, supra, 48 Cal.3d 487 held
that “a period of time previously credited against a sentence for unrelated offenses cannot
be deemed „attributable to proceedings‟ resulting in a later-imposed sentence unless it is
demonstrated that the claimant would have been at liberty during the period were it not
for a restraint relating to the proceedings resulting in the later sentence. In other words,
duplicative credits against separately imposed concurrent sentences for unrelated offenses
will be granted only on a showing of strict causation. Under this test, [the defendant] has
not demonstrated entitlement to the credits he seeks.” (Id. at p. 489.)
In the instant case, defendant was awarded full custody credit in the unrelated
second case for the time he spent in custody in that case from June 14, 2006, through his
January 26, 2007, sentencing hearing. Thus, just as the defendant in Joyner, supra, 48
Cal.3d 487, defendant here is not entitled to duplicative credit for that time period against
his sentence in this case because he cannot show that, but for this case, he would have
been at liberty.
D. Credit for the Period Defendant Was in Custody Between Sentencing
Hearings
The trial court awarded defendant presentence custody credit for a portion of the
time he was in custody after the January 26, 2007, sentencing hearing in the second case
awaiting sentencing in this case. Defendant contends that he is entitled to presentence
custody credit for the entire period of time he was in custody in this case following the
January 26, 2007, sentencing hearing in the second case. Based on the Supreme Court‟s
decision in In re Rojas (1979) 23 Cal.3d 152 (Rojas), we disagree.

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In Rojas, supra, 23 Cal.3d 152, the defendant was convicted of manslaughter and
sentenced to state prison. (Id. at p. 154.) A year later, he was charged with murder in an
unrelated case. (Ibid.) The defendant was transferred from state prison to county jail to
await trial in the murder case. (Ibid.) Following trial, the defendant was convicted of
second degree murder and sentenced to state prison for the term prescribed by law to run
concurrently with his prior sentence for manslaughter. (Id. at p. 155.) The defendant
remained in county jail until the date of his sentencing in the murder case, a period of 207
days. (Ibid.)
The defendant filed a petition for writ of habeas corpus seeking presentence
custody credit against the sentence in his murder case for the 207 days he spent in county
jail awaiting trial on the murder charge. (Rojas, supra, 23 Cal.3d at p. 155.) The
Supreme Court denied the petition, stating that “[t]he sole question is whether [the]
defendant is entitled to a credit against his second degree murder sentence for the 207
days he spent in county jail while awaiting trial and disposition of that charge when he
would necessarily have served that 207-day period in state prison for the original
manslaughter conviction and when he was already receiving credit for that period against
his original conviction. We conclude that the proper interpretation of Penal Code section
2900.5 denies [the] defendant the credit he seeks.” (Rojas, supra, 23 Cal.3d at p. 155.)
According to the court in Rojas, “[t]here 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.”
(Rojas, supra, 23 Cal.3d at p. 156.)
In this case, as in Rojas, supra, 23 Cal.3d 152, defendant was sentenced to state
prison in the second case well before the trial court imposed sentence in this case. Under
the reasoning of Rojas, the time he spent in custody after sentence was imposed in the
second case cannot be attributed to the offenses charged in this case because, regardless

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of those offenses, he would have been in custody due to the sentence in the second case.
As the court in Rojas stated, “the pending proceeding [in this case had] no effect
whatever upon defendant‟s liberty” once the trial court imposed sentence in the second
case on January 27, 2007. (Id. at p. 156.) Accordingly, defendant is not entitled to any
credit in this case for the time he was serving his sentence in the second case. He should,
however, receive credit in this case for time in custody after he finished his sentence in
the second case, but before he was sentenced in this case.
Defendant was sentenced in the second case on January 26, 2007. The trial court
in that case imposed a 16-month term and awarded defendant 372 days of presentence
custody credit comprised of 248 days of actual credit and 124 days of conduct credit.
Defendant was not sentenced in this case until December 11, 2007. At some point prior
to the December 11, 2007, sentencing in this case, however, defendant became eligible
for release on parole or was paroled in the second case. Thereafter, he remained in
custody solely in this case. Thus, defendant is entitled to actual custody credit for the
period of time from the date he became eligible for parole in the second case until the
date he was sentenced in this case.
The record does not indicate the date defendant became eligible for parole in the
second case. Accordingly, we remand the matter to the trial court to determine that date
and to calculate the number of days of actual custody credit to which defendant is entitled
for the period between his parole in the second case and his sentencing in this case.

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DISPOSITION
The trial court‟s decision not to award presentence custody credit for the period
defendant was also in custody in the second case (No. SA060525) is affirmed. The trial
court‟s award of 394 days of presentence custody credit in this case is reversed and the
matter is remanded to the trial court with instructions to determine the date on which
defendant became eligible for parole in the second case and to calculate the number of
days of actual custody credit to which defendant is entitled for the period from that parole
date to the date of sentencing in this case. The trial court should then award defendant
the number of days of actual custody credit determined by that calculation, award an
additional nine days of actual custody credit for the period from defendant‟s arrest to the
posting of bail, and award an additional 13 days of actual custody credit for the period
between the date he was remanded to custody in this case and the date he was remanded
in the second case. The trial court should aggregate defendant‟s actual custody credit for
purpose of calculating the conduct credit to which he is entitled and amend the abstract of
judgment to reflect the total presentence custody credit awarded.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK, J.
We concur:
TURNER, P. J.
ARMSTRONG, J.

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