Filed 3/28/18
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


THE PEOPLE,                           2d Crim. No. B280619
                                     (Super. Ct. No. 1450951)
     Plaintiff and Respondent,       (Santa Barbara County)

v.

KODY LEE SAMUELS,

     Defendant and Appellant.


            In 2011, the Legislature enacted the Criminal Justice
Realignment Act (Realignment Act or Act) to address public
safety issues. (People v. Scott (2014) 58 Cal.4th 1415, 1418
(Scott).) Among the Act’s purposes are: (1) reducing recidivism,
and (2) using resources more efficiently by supporting
community-based corrections programs. (Pen. Code,1 § 17.5,
subd. (a)(1) & (8)(B); see also People v. Lynch (2012) 209
Cal.App.4th 353, 361; People v. Cruz (2012) 207 Cal.App.4th 664,
679.) One such community-based program is the “‘split sentence,’
which allows a defendant to serve a realigned sentence partially


        1 All
          further undesignated statutory references are to the
Penal Code.
in local custody and partially on mandatory supervision by the
probation department.” (People v. Borynack (2015) 238
Cal.App.4th 958, 963; see § 1170, subd. (h)(5).) While under
mandatory supervision, a defendant is “entitled to only actual
time credit against the term of imprisonment” unless “in actual
custody related to the sentence imposed by the court.” (§ 1170,
subd. (h)(5)(B).)
             Here, we hold that pursuant to section 1170,
subdivision (h)(5)(B), an incarcerated defendant may not accrue
section 4019 credits against a term of mandatory supervision
unless the conduct resulting in the supervision was the “true and
only unavoidable basis” for the incarceration.2 (People v. Bruner
(1995) 9 Cal.4th 1178, 1192, italics omitted (Bruner).) If the
defendant’s status and performance on mandatory supervision
were merely factors the court considered in its decision to impose
custodial time in another case, the defendant is entitled to only
actual time credits against the term of mandatory supervision.
We affirm.
            FACTUAL AND PROCEDURAL HISTORY
            In March 2014, Kody Lee Samuels pled no contest to
the unlawful driving or taking of a vehicle (the vehicle case).
(Veh. Code, § 10851, subd. (a).) The trial court suspended
execution of sentence and ordered five years of mandatory
supervision. (§ 1170, subd. (h)(5)(B).)
            Over the next 14 months, Samuels violated the terms
of his supervision multiple times. He served several stints in


      2 We  do not consider, and our holding does not affect, the
credits a defendant may earn during a period of incarceration if
mandatory supervision is revoked. (See §§ 1203.2, 1203.3,
1203.35, 4019, subd. (i)(2).)


                                 2
custody. In May 2015, he pled no contest to possession of
methamphetamine for sale (the drug case). (Health & Saf. Code,
§ 11378.) He also admitted violating the terms of his mandatory
supervision. The trial court sentenced him to three years in
county jail on the drug case. It released him from custody on the
vehicle case, and reinstated mandatory supervision.
             Samuels was incarcerated from May 21, 2015, to May
5, 2016. After his release, Samuels moved to correct the credit
calculation in his vehicle case, claiming entitlement to work and
conduct credits for the 351 days he spent in jail. (See § 4019,
subds. (a)(6), (b) & (c).) The trial court denied the motion. It
found that Samuels was released from custody in his vehicle case
on May 20, 2015, and that Samuels’s drug case was “unrelated”
to his vehicle case. Accordingly, it ruled that Samuels was not in
“actual custody” on his vehicle case from May 2015 to May 2016,
and was not entitled to work and conduct credits against his term
of mandatory supervision.
                            DISCUSSION
             Samuels contends he was in “actual custody related
to the sentence imposed by the [trial] court” on his vehicle case
when he was incarcerated on his drug case, and is thus entitled
to work and conduct credits against his term of mandatory
supervision. His logic is as follows: The court presumably
considered all relevant factors when it sentenced him on his drug
case. (Cal. Rules of Court, rule 4.409.) Relevant factors in
aggravation include his status as a mandatory supervisee and his
performance during supervision. (Cal. Rules of Court, rule
4.421(b)(4) & (5).) The mandatory supervision in Samuels’s
vehicle case is thus presumed to have factored into the sentence
imposed on his drug case. His custody on the latter is therefore




                                3
“related to the sentence imposed” on the former. We are not
persuaded.
              This appeal presents a question of statutory
interpretation subject to de novo review. (People v. Prunty (2015)
62 Cal.4th 59, 71.) “‘“‘As in any case involving statutory
interpretation, our fundamental task . . . is to determine the
Legislature’s intent so as to effectuate the law’s purpose.
[Citation.]’”’” (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.)
“‘“‘We begin by examining the statute’s words, giving them a
plain and commonsense meaning.’”’ [Citation.]” (Ibid.) We “give
meaning to every word in [the] statute and . . . avoid
constructions that render words, phrases, or clauses superfluous.
[Citations.]” (Klein v. United States of America (2010) 50 Cal.4th
68, 80.) “We must follow the statute’s plain meaning, if such
appears, unless doing so would lead to absurd results the
Legislature could not have intended. [Citations.]” (People v.
Birkett (1999) 21 Cal.4th 226, 231 (Birkett).)
              “If our examination of the statutory language leaves
doubt about its meaning, we may consult other evidence of the
Legislature’s intent, such as the history and background of the
measure. [Citations.]” (Birkett, supra, 21 Cal.4th at pp. 231-
232.) We may also examine “the statutory scheme of which the
statute is a part. [Citations.]” (People v. Woodhead (1987) 43
Cal.3d 1002, 1008.) We strive to harmonize provisions relating to
the same subject matter (Lakin v. Watkins Associated Industries
(1993) 6 Cal.4th 644, 659), bearing in mind that “[w]here a
statute is framed in language of an earlier enactment on the
same or an analogous subject, and that enactment has been
judicially construed, the Legislature is presumed to have adopted
that construction” in the more recently enacted statute (People v.




                                4
Harrison (1989) 48 Cal.3d 321, 329 (Harrison); see also Scott,
supra, 58 Cal.4th at p. 1424 [construing other provisions of the
Realignment Act]).
             Applying these principles here, we conclude that the
trial court properly denied Samuels’s request for section 4019
credits against the term of mandatory supervision because he
was not “in actual custody related to the sentence imposed by the
court” in his vehicle case from May 21, 2015, to May 5, 2016. The
court released Samuels from custody on his vehicle case and
reinstated mandatory supervision on May 20, 2015. By
definition, a defendant under mandatory supervision is not under
restraint. (§ 1170, subd. (h)(5)(B) [mandatory supervision
commences “upon release from physical custody or an alternative
custody program”].) A defendant may not accrue section 4019
credits if not under restraint. (People v. Blunt (1986) 186
Cal.App.3d 1594, 1600.)
             Moreover, allowing Samuels to accrue section 4019
credits against both his drug case and his vehicle case would
condone the “dual-credit windfall” our Supreme Court has
repeatedly disavowed. (Bruner, supra, 9 Cal.4th at p. 1192; see
also In re Joyner (1989) 48 Cal.3d 487, 494-495 (Joyner); In re
Rojas (1979) 23 Cal.3d 152, 155-157 (Rojas).) Bruner, Joyner,
and Rojas considered situations in which defendants sought
presentence credit under section 2900.5 while in custody on
pending charges, despite already being incarcerated for separate
offenses. (Bruner, at pp. 1183-1192.) In all three cases, the court
rejected the defendants’ requests for credits. (Ibid.) The
defendants were not in custody because of the pending charges;
they were in custody because of the sentences imposed in
previous cases. (Ibid.) Even if they posted bail in their pending




                                 5
cases, they would not be released. (Id. at p. 1192.) There was
thus no nexus between the defendants’ incarceration and the
pending charges, and credits under section 2900.5 were not
permitted. (Ibid.) “[S]ection 2900.5 is intended to provide
equitable treatment for one held in pretrial custody on mere
charges of crime, not to give credit for time already being served
and credited on another term or sentence for unrelated
violations.” (Ibid., italics omitted.)
              Bruner overruled In re Atiles (1983) 33 Cal.3d 805
(Atiles) to the extent it reached a contrary conclusion. (Bruner,
supra, 9 Cal.4th at p. 1194.) Both Bruner and Atiles considered
the dual-credit issue in the context of a defendant’s parole
violation: “how section 2900.5 [is] applied when a defendant
sentenced to a new criminal term seeks credit for presentence
custody attributable to a parole revocation caused in part, but not
exclusively, by the conduct that led to the new sentence.”
(Bruner, at pp. 1182-1183.) In Atiles, the court held that a trial
court “is not required to eliminate all other possible bases for the
defendant’s presentence incarceration” before granting section
2900.5 credits. (Atiles, at p. 810.) Instead, “[t]he court need only
determine that the defendant was not already serving a term for
an unrelated offense when restraints related to the new charge
were imposed on him, and the conduct related to the new charge
is a basis for those restraints.” (Ibid., italics added.)
              The Bruner court rejected this holding, finding
persuasive the concerns Justice Mosk expressed in his dissent in
Atiles. (Bruner, supra, 9 Cal.4th at p. 1193.) “[N]either the
words nor the history of section 2900.5 implie[d] that separately
imposed criminal and revocation terms based on unrelated
conduct should collapse into one simultaneous term whenever it




                                 6
happens that there was some common factual basis for both
proceedings.” (Ibid.) Rather, “where a period of presentence
custody stems from multiple, unrelated incidents of misconduct,
such custody may not be credited against a subsequent formal
term of incarceration if the prisoner has not shown that the
conduct which underlies the term to be credited was also a ‘but
for’ cause of the earlier restraint.” (Id. at pp. 1193-1194.)
             The situation here is analogous. Like the Bruner,
Joyner, and Rojas defendants, Samuels seeks dual credits for
“separately imposed . . . terms based on unrelated conduct”: that
in his vehicle case, and that in his drug case. (Bruner, supra, 9
Cal.4th at p. 1193.) But Samuels’s vehicle case was not the “true
and only unavoidable basis” for the time he spent in custody (id.
at p. 1192, italics omitted); it was merely one factor the trial
court presumably considered when it sentenced him to jail in his
drug case. Under Bruner, that the vehicle case provided a basis
for Samuels’s jail sentence does not entitle him to credits against
his term of mandatory supervision. (Id. at p. 1193.) “But for”
causation is required. (Id. at pp. 1193-1194.)
             The purposes of the Realignment Act reinforce our
conclusion. The Act aims to “reduc[e] recidivism among criminal
offenders” and to increase “[i]ntensive community supervision.”
(§ 17.5, subd. (a)(1) & (8)(B).) Allowing Samuels to accrue section
4019 credits on his vehicle case while incarcerated on his drug
case could encourage recidivism by rewarding him with a shorter
term of mandatory supervision. And a shorter term of mandatory
supervision would decrease, rather than increase, the intensive
community supervision the trial court ordered Samuels to
receive.




                                7
              Samuels argues we should not apply the Bruner
standard here because the Legislature was aware of the strict
“but for” causation requirement of section 2900.5 and used
different language when it wrote section 1170, subdivision
(h)(5)(B). (See People v. Weidert (1985) 39 Cal.3d 836, 844 [the
Legislature is “deemed to be aware of existing laws and judicial
constructions in effect at the time legislation is enacted”].) But
under section 2900.5, subdivision (b), a defendant can only earn
credits “where the custody . . . is attributable to proceedings
related to the same conduct for which the defendant has been
convicted.” (Italics added.) And under section 1170, subdivision
(h)(5)(B), a defendant can only earn credits where the “custody
[is] related to the sentence imposed by the court.” (Italics added.)
Because the relevant language in the two statutes is identical, we
presume the Legislature meant to adopt the strict causation
requirement of section 2900.5, subdivision (b), when it wrote
section 1170, subdivision (h)(5)(B). (Scott, supra, 58 Cal.4th at p.
1424; Harrison, supra, 48 Cal.3d at p. 329; see Bruner, supra, 9
Cal.4th at p. 1180 [“related to” requires application of a strict
causation standard].)
              Samuels also argues that the trial court’s application
of a strict causation requirement to section 1170, subdivision
(h)(5)(B), forced counsel to argue against release on his vehicle
case—and for a jail term concurrent with his drug case instead—
to entitle him to conduct credits, which he deems an absurd
proposition. (See Flatt v. Superior Court (1994) 9 Cal.4th 275,
289 [attorney should not take a position adverse to a client’s
interest].) But counsel did not argue for a concurrent jail term on
the vehicle case at sentencing. We thus need not consider
Samuels’s argument here. (People v. Brawley (1969) 1 Cal.3d




                                 8
277, 294-295 [issues not raised at trial and not supported by
record on appeal need not be considered].) We note, however,
that arguing for incarceration over release is not an inherently
absurd proposition; a defendant may rationally choose a shorter
term of custody over a longer term of supervision. (See In re
Tyrell J. (1994) 8 Cal.4th 68, 82, overruled on other grounds by In
re Jaime P. (2006) 40 Cal.4th 128, 139.)
              Finally, Samuels urges us to apply the rule of lenity
to resolve this case in his favor. But “the rule of lenity applies
‘“‘only if two reasonable interpretations of the statute stand in
relative equipoise.’ [Citation.]” [Citations.]’ [Citations.] ‘The
rule “has no application where, ‘as here, a court “can fairly
discern a contrary legislative intent.”’” [Citations.]’ [Citation.]”
(Scott, supra, 58 Cal.4th at p. 1426.)
                            DISPOSITION
              The trial court’s January 25, 2017, order denying
Samuels’s motion to correct credits is affirmed.
              CERTIFIED FOR PUBLICATION.




                                     TANGEMAN, J.
We concur:


             YEGAN, Acting P. J.



             PERREN, J.




                                 9
                  Gustavo E. Lavayen, Judge

            Superior Court County of Santa Barbara

                ______________________________

            Wayne C. Tobin, under appointment by the Court of
Appeal, for Defendant and Appellant.

            Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, Analee J. Brodie, Deputy Attorney
General, for Plaintiff and Respondent.
