People v. Busby CA1/1

Filed 7/23/21 P. v. Busby CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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