People v. Ayon

California Court of Appeal Dec 8, 1987 No. No. F008243Published

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Holding. The court held that a defendant is entitled to presentence custody credit for time served on a concurrent charge, but not for time served as a condition of probation for a previously sentenced crime. The case was remanded for the trial court to recalculate credits based on when the defendant's probationary jail term expired.

Issues

Whether a defendant is entitled to presentence custody credit for time served while simultaneously serving a probationary jail term for a separate offense.
How to calculate presentence credits when a defendant is in custody for multiple pending charges and a prior sentence.

Disposition. Affirmed in part, reversed in part, and remanded.

Quotations verified verbatim against the opinion

“We hold that appellant is entitled to additional credits. We remand for redetermination of these credits and for resentencing.”

“Once the defendant is actually serving a sentence for a crime, he is not entitled to credit for that incarceration in any other criminal matters then at the presentence stage”

[1116]Opinion

THE COURT.* This matter originally was submitted by appellant’s .court-appointed counsel for review pursuant to People v. Wende (1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071]. The court directed the parties to file supplemental briefs concerning appellant’s entitlement to further credits for presentence custody. We hold that appellant is entitled to additional credits. We remand for redetermination of these credits and for resentencing.

Facts

Sotero Ayon was arrested for cultivating marijuana. He was referred to a diversion program and prosecution was suspended. After Ayon repeatedly failed to appear for a diversion review hearing, the criminal proceedings were reinstated and a warrant for his arrest issued.

In the meantime, the diversion classes had been ineffective—Ayon was arrested when he delivered about two pounds of cocaine to an undercover officer. This arrest occurred on July 22, 1986. The arrest warrant on the cultivation charge was apparently executed the same day. Ayon eventually entered a guilty plea to the charge of transporting cocaine (Health & Saf. Code, § 11352) with an arming enhancement (Pen. Code, § 12022, subd. (a))-

Ayon was in custody in Tulare County from July 22, 1986, through his sentencing on January 21, 1987, which is 184 days. During that time in custody, Ayon had a jury trial on the cultivation charge (No. 24282), and was convicted. On November 7, 1986, he was admitted to probation in that case; one condition of probation was that he serve the first year in jail. He received 219 days of presentence credit toward the year commitment, based on the July 22, 1986, arrest date as well as the brief period of custody before the original referral to the diversion program.

When sentence was imposed in the present case, No. 24281, Ayon was awarded 45 days presentence credit, based on 30 days of incarceration between his guilty plea and the sentencing hearing. The issue on this appeal is whether Ayon is also entitled to credit for custody between July 22, 1986, and the guilty plea.

[1117]

People v. Ayon

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