In Re Smith

81 Cal.App.3d 325 (1978) 146 Cal. Rptr. 304 In re EMMETT E. SMITH on Habeas Corpus.

Docket No. 32392. Court of Appeals of California, Second District, Division Three.

May 25, 1978. [326] COUNSEL

Emmett E. Smith, in pro. per., for Petitioner.

Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, William R. Pounders and Michael Nash, Deputy Attorneys General, for Respondent.

OPINION

COBEY, J.

Our Supreme Court directed the Director of Corrections to show cause before us in habeas corpus why Emmett E. Smith should not be granted, pursuant to Penal Code section 2900.5, an eight months, seventeen days presentence custody credit upon his current state prison sentence.[1] Smith spent approximately this amount of time in the Los Angeles County jail under sentence from the local federal court, but was, as well, awaiting trial on certain state charges during practically all of that period. These charges were unrelated to the conduct upon which his federal conviction was based (2 Crim. 30201).

[327] More specifically, apparently on February 2, 1976, Smith was placed in the county jail by federal authorities pending his transfer to an appropriate federal prison facility. On February 25, 1976, the state brought its charges against Smith. On November 9, 1976, he was sentenced to prison on two of the state charges to which he had pled guilty.

(1) Smith spent 259 days in the Los Angeles County jail in presentence custody. The fact that he was then apparently doing time on his earlier unrelated federal sentence as well is without legal consequence. (See In re Pollock (1978) 80 Cal. App.3d 779, 783-784 [145 Cal. Rptr. 833] (custody on two state matters).[2]) As another division of this court noted in In re Bentley (1974) 43 Cal. App.3d 988, 992-993 [118 Cal. Rptr. 452], the governing statutory provision (Pen. Code, § 2900.5, subd. (b)) does not state that eligible presentence custody must be attributable exclusively or solely "to proceedings related to the same conduct for which the defendant has been convicted."