People v. Mercurio

Opinion

WORK, J. Esther Marie Mercurio appeals a judgment entered after she pleaded guilty to petty theft (Pen. Code,1 § 484) and admitted being previously convicted of burglary and being imprisoned as a condition of probation. The sole issue on this appeal is whether the trial court erred in denying her presentence custody and conduct credits because she was assigned to a work furlough program of the California Department of Corrections and residing at a half-way house as part of a prison term imposed for the prior felony, when she committed and was arrested for her present offense. For the reasons which follow, we conclude the trial court properly denied her the cited credits and thus affirm the judgment.

Factual and Procedural Background

On September 20, 1984, Mercurio was arrested for shoplifting $127.48 worth of baby clothes from the J. C. Penney Department Store. At the time of her arrest, she was residing in a half-way house for the remainder of a prison term for a prior conviction of burglary, due to expire in January 1985, and participating in a work furlough program. At sentencing, she argued she was entitled to presentence custody and conduct credits because her incarceration on September 20, 1984, continuing to the date of sentencing, February 8, 1985, was due to her arrest for petty theft and deprived her of the liberty and privileges associated with the work furlough program. [1110]She argued that when participating in the work furlough program while residing at a half-way house, she was neither on parole nor in custody, but free to work during the day among the public at large. Unpersuaded, the trial court denied her presentence custody and conduct credits. Impliedly, the trial court held she was in custody within the meaning of section 2900.5, subdivision (b) when assigned to the work furlough program.

Discussion

Generally, a defendant is entitled to presentence credit for any time spent in custody before trial. (§ 2900.5, subd. (a).) More precisely, section 2900.5, subdivision (a) provides in pertinent part: “In all felony and misdemeanor convictions, either by plea or by verdict, when defendant has been in custody, including but not limited to any time spent in a jail, camp, work furlough facility, half-way house, . . . prison, ... or similar residential institution, all days of custody of the defendant . . . shall be credited upon his term of imprisonment . . . .” However, this award of pretrial custody credit is not without limitation, as section 2900.5, subdivision (b) provides in pertinent part: “[Cjredit 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. ...” Within the various potential contexts, this language has proved difficult to interpret and apply. (Compare for example People v. Ross (1985) 165 Cal.App.3d 368 [211 Cal.Rptr. 595], with People v. Veley (1984) 157 Cal.App.3d 1046 [204 Cal.Rptr. 83]; People v. Cornett (1985) 165 Cal.App.3d 752 [212 Cal.Rptr. 24], with People v. Joyner (1984) 161 Cal.App.3d 364 [207 Cal.Rptr. 636], and People v. Schaaf (1983) 150 Cal.App.3d 45 [197 Cal.Rptr. 458].) Looking to Supreme Court precedent for guidance, we note the following language in In re Watson (1977) 19 Cal.3d 646, 651 [139 Cal.Rptr. 609, 566 P.2d 243]: “[Section 2900.5] . . . pertains to the pretrial incarceration of a person charged with crime but not yet tried much less convicted, and therefore clothed with the presumption of innocence. To implement the underlying philosophy of section 2900.5, the courts have therefore given the term ‘custody’ as used in that section a liberal interpretation. (In re Jordan (1975) 50 Cal.App.3d 155, 157-158 [123 Cal.Rptr. 268], presentence time credit for time spent in federal medical center; People v. Meals (1975) 48 Cal.App.3d 215, 226 [121 Cal.Rptr. 742], presentence time credit although defendant also on parole hold prior to sentencing.) . . .