People v. Delarosa

Opinion

THE COURT* Delarosa was convicted on his guilty plea of escape (Pen. Code, § 4530, subd. (b)). He was sentenced to prison for the 16-month [320]lower base term to run consecutively to the concurrent state prison sentences that he was then serving for three counts of forgery. The sentencing judge awarded 91 days credits, representing the credits which the instant escape caused him to lose on his forgery sentences. On this appeal, Delarosa contends that, instead of 91 days, he should have received presentence actual time and conduct credits for the period from his February 2, 1985, arrest on the escape charge until his June 11, 1985, sentencing on the escape. Our review of the record persuades us that on no theory was Delarosa entitled to credits against his escape term.

The pertinent facts show that on November 11, 1984, Delarosa arrived at the Turning Point, described in the probation officer’s report as a resident inmate work furlough facility. His scheduled release date on the forgeries was February 6, 1985. On December 7, 1984, he escaped. He was arrested on February 2, 1985. By June 11, 1985, the date of sentencing herein, the Department of CorrectiÓns had changed his release date on the forgeries to September 7, 1985. According to defense representations not challengéd by the prosecutor or probátion officer and accepted by the sentencing judge, the instant escape caused Delarosa to lose 91 days credits against his forgery sentences. Delarosa also lost additional credits for other incidents.1 Preliminarily, we agree with Delarosa that the sentencing judge improperly awarded 91 days credit to recompense him for credits lost on his forgery terms. In People v. Quijada (1984) 156 Cal.App.3d 789 [202 Cal.Rptr. 846], the court held that the defendant was not entitled to additional presentence custody credits against his escape charge in the amount equal to in-prison behavioral credits lost by reason of the escape. The court reasoned as follows: “Relying on In re Atiles (1983) 33 Cal.3d 805 [191 Cal.Rptr. 452, 662 P.2d 910], defendant contends that he is entitled to have his sentence for escape credited with the 45 days of behavior taken from him due to the escape. He errs and his reliance on Atiles is misplaced.

“Atiles was on parole when he committed, inter alia, a robbery and his parole was revoked and he was sentenced to six months due in part to the robbery. He spent six months in the county jail awaiting trial on the robbery charge during which time he was unable to obtain his freedom by posting bail because of a parole revocation ‘hold.’ Upon Atiles’ later conviction of the robbery he sought to credit the sentence imposed with the six months presentence custody he spent in the county jail attributable to the parole