Filed 11/23/15 P. v. McZeal CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----




THE PEOPLE,                                                                                  C074751

                   Plaintiff and Appellant,                                     (Super. Ct. No. CRF131666)

         v.

RONALD JAMES McZEAL,

                   Defendant and Appellant.




         Appointed counsel for defendant Ronald James McZeal asks this court to review
the record and determine whether there are any arguable issues on appeal. (People v.
Wende (1979) 25 Cal.3d 436.) We find no arguable error that would result in a
disposition more favorable to defendant.
         The People also filed a cross-appeal and contend the trial court erred in awarding
defendant duplicate custody credits. We are not persuaded and affirm.
                                    BACKGROUND
      In May 2010, following his conviction in Alameda County for possession of
concentrated cannabis, defendant was placed on probation and ordered to spend 88 days
in county jail. In December 2010, his supervision was transferred to Solano County.
      On December 4, 2011, defendant engaged law enforcement officers in a high-
speed chase in Yolo County. That chase ended when defendant crashed his car; he
suffered serious injuries as a result of the crash. Defendant was treated at UC Davis
Medical Center and later released without being arrested.
      On February 22, 2012, the Yolo County District Attorney charged defendant with
reckless driving while evading a police officer. A warrant issued the following day.
      On September 14, 2012, the Solano County Superior Court revoked defendant’s
probation and sentenced him to two years for his cannabis conviction.
      On January 30, 2013, the Yolo County District Attorney received defendant’s
demand for trial under Penal Code1 section 1381. On February 5, 2013, the Yolo County
District Attorney applied for an order removing defendant from custody in Solano
County and transporting him to Yolo County for trial; an order issued two days later.
Defendant was then transported to the Yolo County Jail on March 20, 2013. Trial was set
for April 29, 2013, but there were no available courtrooms that day.
      The following day, the Yolo County District Attorney refiled the complaint
charging defendant with reckless driving while evading a police officer. At his
arraignment on May 1, 2013, defendant requested four to six weeks to hire his own
attorney. Defendant knew his sentence in Solano County was ending in less than 30
days. The court set the case for May 10, 2013, and defendant waived time to that date.
The court set the preliminary examination for May 20, 2013.




1     Undesignated statutory references are to the Penal Code.
       On May 17, 2013, defendant filed a motion to dismiss the complaint. In support
of his motion, defendant argued his due process rights were violated because the People
failed to bring him to trial on the reckless evading charge within 90 days of his
section 1381 demand. He argued he was prejudiced because the car he was driving on
December 4, 2011, could no longer be located and it was critical to his defense. He also
argued the delay caused him to lose the opportunity to be sentenced to a term concurrent
to the one he was already serving in Solano County, as well as the opportunity to serve
only one-third the midterm consecutively to the term he was serving in Solano County.
The court denied defendant’s motion, finding defendant was not prejudiced by the delay.
       On June 10, 2013, the trial court granted defendant’s motion to continue the trial.
Trial began on July 8, 2013, and ended with the jury finding defendant guilty as charged.
The trial court subsequently found true allegations that defendant previously served three
prison terms. Defendant later filed a motion asking the trial court to consider the delay in
getting his case to trial when determining his sentence.
       At sentencing, the trial court agreed with the People that defendant’s crime
warranted the upper term. The court noted, however, that had the People “moved more
expeditiously” defendant may have been brought to trial sooner. The court also noted
that defendant’s conduct resulted in injuries only to himself. On balance, the court found
the midterm to be appropriate and sentenced defendant to an aggregate term of five years
in state prison.
       The trial court awarded defendant 177 days of custody credit. Defense counsel
then asked the trial court to exercise its discretion and give defendant credit for the 72
days he was in custody awaiting trial after giving his section 1381 demand. The court
observed those days were “part of the sentence [defendant] was completing in Solano
County”; the court did not believe it had authority to apply those days to the current
sentence. The court nevertheless told counsel that if she had authority to support her
request, it would consider awarding defendant those 72 days.
       Defendant subsequently filed a written request for the additional 72 days he spent
in Yolo County Jail awaiting trial, while also serving the remainder of the sentence
imposed for his cannabis conviction. In support of his argument, defendant relied
primarily on the Supreme Court’s decision in Crockett v. Superior Court (1975)
14 Cal.3d 433. The probation department advised the trial court defendant was not
entitled to credit for this time period; the People argued the same.
       On September 12, 2013, the trial court granted defendant’s motion and modified
its prior order for credits, awarding defendant a total of 161 days of custody credit and
160 days of conduct credit. In reaching its decision, the trial court stated: “The Court
finds that equitable credits are allowed under the Crockett case and that [defendant] is an
appropriate candidate for that. The Court will then add 72 days of credit.” Defendant
appeals and the People cross-appeal.
                                       DISCUSSION
                                             A
                                       Wende Review
       Counsel filed an opening brief that sets forth the facts of the case and requests this
court review the record and determine whether there are any arguable issues on appeal.
(People v. Wende, supra, 25 Cal.3d at p. 436.) Counsel advised defendant of his right to
file a supplemental brief within 30 days of the date of filing of the opening brief. More
than 30 days have elapsed, and we have received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error that
would result in a disposition more favorable to defendant.
                                             B
                                       Cross-Appeal
       In their cross-appeal, the People argue the trial court erred in awarding defendant
duplicative custody credits that were “not attributable to the conduct in the instant case.”
Defendant argues the award of such “credits . . . was required by Equal Protection
because of the disparate treatment in sentencing accorded to [him] when he was not
brought to trial within the 90-day period after the section 1381 request, compared to
similarly situated defendants who are brought to trial within that time period.” We agree.
       “The purpose of section 1381 ‘is to permit a defendant to obtain concurrent
sentencing at the hands of the court in which the earlier proceeding is pending, if such is
the court’s discretion. . . .’ [Citation.] ‘That section was placed in the law so that a
prisoner could clean up pending charges as well as charges arising while in a prison
status so that he would not have these charges hanging over him and waiting for him on
his release.’ ” (People v. Boggs (1985) 166 Cal.App.3d 851, 855.)
       As discussed by the Court of Appeal in People v. Queen (1987) 194 Cal.App.3d
501 (Queen), “[i]t is clear that it is to the advantage of a defendant to have a trial on the
pending charges while serving an unrelated prison sentence. In the event of a conviction,
he will either be sentenced to a concurrent term or, if sentenced to a consecutive term, he
gains the advantage of section 1170.1 which limits the sentence to one-third of the
midterm and, in most cases, a limit of a maximum commitment of double the base term.”
(Queen, at p. 504.)
       By failing to comply with section 1381, the prosecutor denies a section 1381
defendant the benefits of sections 1381 and 1170.1. (Queen, supra, 194 Cal.App.3d at
p. 504.) The prosecutor thus “creates two classifications without constitutional
justification:” those section 1381 defendants who can benefit from sections 1381 and
1170.1, and those who cannot. (Queen, at p. 504.) “Since sentencing has a relationship
to a defendant’s personal liberty, the defendant’s interest in sentencing is fundamental.
[Citation.] Thus, the state must establish that it has a compelling interest which justifies
the law and the state must demonstrate that the distinctions drawn by the law are
necessary to further that purpose.” (People v. Terflinger (1978) 77 Cal.App.3d 302, 303-
304; quoting Queen, at pp. 504-505.)
       Here, as in Queen, “there is no state interest which justifies treating equally
situated prisoners differently nor is such a distinction in any way necessary to further the
purpose of sections 1381 and 1170.1.” (Queen, supra, 194 Cal.App.3d at p. 505.)
Accordingly, we find the court correctly gave defendant equitable credits for time he
served in prison, beginning with the date the prior proceedings were dismissed.
                                      DISPOSITION
       The judgment is affirmed.


                                                  /s/
                                                  Robie, J.

We concur:



/s/
Blease, Acting P. J.



/s/
Nicholson, J.
