Filed 6/17/15 P. v. Johnson CA2/6
                       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                         SECOND APPELLATE DISTRICT

                                                        DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B257770
                                                                          (Super. Ct. No. F439849001)
     Plaintiff and Respondent,                                             (San Luis Obispo County)

v.

NATHANIEL JOHNSON, JR.,

     Defendant and Appellant.


         Nathaniel Johnson, Jr., appeals from a postjudgment order denying his motion to
correct an error in the calculation of presentence custody credits. (Pen. Code, § 1237,
subd. (b).)1 We reverse.
                                         Factual and Procedural Background
         In February 2010 appellant was convicted by a jury of three counts of robbery (§
211) and one count of first degree residential burglary. (§§ 459, 460, subd. (a).) Two of
the robberies were committed on January 6, 2008. The residential burglary was
committed on October 22, 2008. The third robbery was committed six days later on
October 28, 2008. On the latter date appellant was arrested inside his apartment, where
the police recovered some of the items taken during the burglaries and a backpack taken
from the victim of the third robbery.


1
    Unless otherwise stated, all statutory references are to the Penal Code.
         On two of the robbery counts, the jury found true an allegation that appellant had
personally used a deadly weapon (a knife). (§ 12022, subd. (b)(1).) The trial court found
true allegations of one prior serious felony conviction (§ 667, subd. (a)(1)), one prior
prison term (§ 667.5, subdivision (b)), and one prior serious or violent felony conviction
within the meaning of California's "Three Strikes" law. (§§ 1170.12, subds. (a)-(d); 667,
subds. (b)-(i).)
         Appellant was sentenced to prison for 24 years, 8 months. He appealed to this
court from the judgment. He did not raise the issue of presentence custody credits. In an
unpublished opinion, we modified the judgment by striking a one-year prior prison term
enhancement imposed pursuant to section 667.5, subdivision (b). We affirmed the
judgment as modified. (People v. Johnson, Jr. (May 16, 2011) 2d Crim. No. B223724.)
We take judicial notice of our unpublished opinion, including the recitation of the facts
underlying appellant's crimes. (Evid. Code, §§ 452, subd. (d), 459.)
         The trial court gave appellant credit for 311 days of presentence custody,
consisting of 270 actual days and 41 days of conduct credit. The court relied on the
probation report's statement that appellant had been in actual custody from October 28 to
November 10, 2008, and from July 25, 2009 until sentencing on April 6, 2010. The gap
between November 10, 2008 and July 25, 2009 was due to a violation of appellant's
parole. Appellant was initially placed on parole on May 10, 2007. On October 28, 2008,
he was arrested for the residential burglary and third robbery in this case, and a parole
hold was placed against him. On November 10, 2008, he was returned to state prison.
On November 17, 2008, his parole was revoked and he was recommitted to prison for a
term of nine months. On July 25, 2009, he was transported from state prison to county
jail, where he was arrested for the two robberies committed on January 6, 2008.
         In May 2014 appellant moved for credit for the 256 days of presentence custody
between November 10, 2008 and July 25, 2009.2 The trial court denied the motion. In a



2
    In his motion, appellant miscalculated the number of days as 255.
                                                  2
minute order, it concluded that "the credits given [appellant] were accurate." The court
did not explain why it had reached this conclusion.
                                    Standard of Review
       The sole issue on this appeal is whether appellant is entitled to credit against his
sentence for the period between November 10, 2008 and July 25, 2009. "The issue
involves application of a statute [section 2900.5] to undisputed facts and is subject to our
independent review. [Citation.,]" (People v. Anaya (2007) 158 Cal.App.4th 608, 611.)
                                       Section 2900.5
       "[S]ection 2900.5 provides that a convicted person shall receive credit against his
sentence for all days spent in custody, including presentence custody (subd. (a)), but 'only
where the custody to be credited is attributable to proceedings related to the same conduct
for which the defendant has been convicted' (subd. (b), italics added). The statute's
application is clear when the conduct that led to the conviction and sentence was the sole
cause of the custody to be credited. But difficult problems arise when, as often happens,
the custody for which credit is sought had multiple, unrelated causes." (People v. Bruner
(1995) 9 Cal.4th 1178, 1180 (Bruner).)
                                         Discussion
       The controlling authority is our Supreme Court's decision in Bruner, supra, 9
Cal.4th 1178. There, the defendant's parole was revoked based on his possession of
cocaine and three earlier violations of parole. The defendant was recommitted to prison
for a period of 12 months. He later pleaded guilty to possession of cocaine and was
sentenced to prison for 16 months for the drug offense. The trial court denied his request
for credit for the presentence time served upon revocation of his parole.
       The Supreme Court upheld the trial court's ruling because the defendant was
unable to show that his possession of cocaine was a "but for" cause of his presentence
custody. (Bruner, supra, 9 Cal.4th at p. 1180.) The Supreme Court noted: "When
arrested by parole agents, defendant had already committed a flurry of violations for
which his parole had been suspended. These violations alone amply demonstrated his
unsuitability for parole and made a revocation term probable entirely apart from the
                                                3
last- minute cocaine charge which later led to his criminal conviction." (Id., at p. 1193.)
       The Supreme Court concluded that "when one seeks credit upon a criminal
sentence for presentence time already served and credited on a parole or probation
revocation term, he cannot prevail simply by demonstrating that the misconduct [i.e., new
offense] which led to his conviction and sentence was 'a' basis for the revocation matter
as well." (Bruner, supra, 9 Cal.4th at p. 1194.) The court continued: "It is often . . . true
that a parolee or probationer would have been remanded to custody for reasons entirely
unrelated to the new offense, even though the new crime also constitutes 'a' basis for such
restraint." (Id., at p. 1193.) Accordingly, "when presentence custody may be
concurrently attributable to two or more unrelated acts, and where the defendant has
already received credit for such custody in another proceeding" (e.g., credit on a parole
revocation term), the defendant "cannot obtain credit for confinement prior to his
sentence if he cannot prove the conduct which led to the sentence was a dispositive, or
'but for' cause of the presentence custody." (Id., at p. 1180.)
       The People contend that appellant's presentence custody upon revocation of parole
may have been attributable to two or more unrelated acts: appellant's new crimes and
other failures to comply with the terms of his parole. The inference of other failures is
based upon statements in the probation report. Appellant's parole agent, Luce Wardlow,
said "[appellant] has been 'a jerk' with her, and was completely inappropriate and out of
order at his parole hearing . . . ." Wardlow also said that "reports about his behavior and
compliance from his former parole agent were similarly unfavorable." As a factor in
aggravation, the probation report noted, "[T]he defendant's prior performance on
probation or parole was unsatisfactory." (See Cal. Rules of Court, rule 4.421(b)(5).)
       But CDC Form 1244 (Rev. 4/99), entitled "Parole Violations Dispositions," shows
that the revocation of appellant's parole was based solely on the residential burglary and
receipt of stolen property taken in that burglary and the third robbery. Form 1244 is not
in the record on appeal and was apparently not before the trial court. Pursuant to
appellant's request, we have taken judicial notice of the form. It shows that the Board of
Parole Hearings ordered that appellant be returned to custody for a parole violation
                                                4
committed on October 28, 2008, the date of appellant's arrest for the residential burglary
and the date of the commission of the third robbery. The violation is identified as
"Burglary/RSP." "RSP" is an abbreviation for receiving stolen property. Appellant,
therefore, is entitled to credit for his presentence custody between November 10, 2008
and July 25, 2009, because he has proved that "the conduct which led to the sentence [for
residential burglary and the third robbery] was a dispositive, or 'but for,' cause of the
presentence custody." (Bruner, supra, 9 Cal.4th at p. 1180.)
                                         Disposition
       The order denying appellant's postjudgment motion is reversed. The cause is
remanded to the trial court with directions to grant the motion and award appellant credit
for presentence custody between November 10, 2008 and July 25, 2009.
              NOT TO BE PUBLISHED.


                                                          YEGAN, J.


       We concur:



              GILBERT, P.J.



              PERREN, J.




                                                  5
                                  Michael L. Duffy, Judge

                          Superior Court County of San Luis Obispo

                            ______________________________


             Jonathan B. Steiner and Richard B. Lennon, under appointment by the
Court of Appeal, for Defendant and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Stephanie A.
Miyoshi, Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.




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