People v. Joyner

¶1—I dissent.

¶2The majority relies upon the overbroad and incorrect dicta of People v. Schaaf (1983) 150 Cal.App.3d 45 [197 Cal.Rptr. 458]. In re Atiles (1983) *37033 Cal.3d 805 [191 Cal.Rptr. 452, 662 P.2d 910], awarded presentence credits. People v. Schaaf, supra,150 Cal.App.3d 45, applied Atilesto award credits. The majority now applies incorrect dicta in Schaaf to deny credit where credit would have been granted even before Atilesand SchaafI would decline to follow the incorrect dicta of Schaafand instead follow the Supreme Court decisions in In re Atiles, supra,33 Cal.3d 805, and In re Rojas (1979) 23 Cal.3d 152 [151 Cal.Rptr. 649, 588 P.2d 789], (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].)

¶3In re Rojas, supra,23 Cal.3d 152, 156, the court denied credit with the explanation that “[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.” Atiles, supra,33 Cal.3d 805, 810, acknowledged the Rojasruling when it prescribed the test to be applied by trial courts: “In determining whether custody for which credit is sought under section 2900.5 is ‘attributable to proceedings leading to the conviction,’ the sem tencing court is not required to eliminate all other possible bases for the defendant’s presentence incarceration. The court need only determine that the defendant was not already serving a term for an unrelated offense when restraints related to the new charge were imposed on him, and the conduct related to the new charge is a basis for those restraints.” (Fn. omitted.)

¶4The Rojasexception was for one serving a “sentence.” Atilesrestated that the exception applied to one serving a “term” when the restraints related to the new charge were imposed.

¶5Up to a point, Schaaf’s analysis of In re Atiles, supra,33 Cal.3d 805 was correct: “We conclude from Atilesthat except for the Rojassituation where the defendant is already serving a sentence when the restraints related to the instant sentencing are first imposed, that a defendant is entitled to presentence credit under section 2900.5 for all presentence jail time spent while awaiting sentence in the pending case.” (Schaaf, supra,150 Cal.App.3d at pp. 51-52.) Applying this portion of the Schaafanalysis to the instant case would result in credit because at the time of the California holding petitioner was not “already serving a sentence” in Florida.

¶6The error in Schaafwas in its next sentence, where the court substituted the broad term “restraints” for the narrow exception of Rojasand Atilesfor one already serving a “sentence” or “term.” Thus, Schaafstated: “Such presentence jail time is deemed attributable to the pending offense even though restraints on other unrelated cases were also imposed on the defendant, provided that the restraints on the unrelated cases did not pre*371cede the restraints caused by the pending case.” (Schaaf, supra, 150 Cal.App.3d at p. 52, italics added.) The same error had been made in the first paragraph of the Schaafopinion, where the court previewed its conclusion that “a defendant is entitled to credit for the entire time he spends in jail awaiting sentence if the restraint on the unrelated crime does not precede the restraint caused by the pending case.” (Id., at p. 47, italics added.)

¶7Because the Schaafdicta is at odds with both Rojasand AtilesI cannot join the majority in following it. I would order the trial court to grant presentence credits for the period of confinement in Florida between placement of the California warrant hold and sentencing on the Florida charges.1

¶8Appellant’s petitions for a hearing by the Supreme Court were denied December 20, 1984.