Filed 9/16/15 P. v. Boon CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A143096
v.
CHRISTOPHER ROBERT BOON,                                             (Sonoma County
                                                                     Super. Ct. No. SCR-606882)
         Defendant and Appellant.


         While on felony probation, defendant and appellant Christopher Robert Boon
committed a misdemeanor offense, prompting the trial court to revoke his probation. The
trial court awarded appellant presentence custody credits for the underlying misdemeanor
offense but not for time served related to the probation revocation matter. On appeal, he
contends the trial court erred in refusing to award him presentence custody credits in both
matters. We affirm the judgment.
                                                I. BACKGROUND
         The facts of the underlying offenses are not relevant to the issue raised on appeal
and thus are omitted.
         On September 15, 2011, appellant was charged in an amended complaint with
driving in willful or wanton disregard for safety of persons or property while fleeing from
a pursuing police officer (Veh. Code, § 2800.2, subd. (a) (count I)), being a driver of a
vehicle involved in an accident resulting in damage to property and failing to stop his
vehicle at the scene of the accident (Veh. Code, § 20002, subd. (a) (count II)), willfully
resisting, delaying, and obstructing a peace officer (Pen. Code, § 148, subd. (a)(1) (count


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III)), and driving a vehicle while under the influence of an alcoholic beverage and a drug
and under their combined influence (Veh. Code, § 23152, subd. (a) (count IV)). The
amended complaint also alleged one prior conviction in 2008 for driving with a blood
alcohol level of .08 percent or more (Veh. Code § 23152, subd. (b)).
       On September 15, 2011, appellant also pled guilty to counts I, III, and IV and
admitted his prior conviction while the court dismissed count II on the prosecutor’s
motion. The trial court suspended imposition of sentence and placed appellant on felony
formal probation for three years (“felony probation matter”). Among many of the
conditions on probation, appellant was ordered not to possess or to use alcohol and to
obey all laws. The trial court ordered appellant to serve six months in jail.
       On August 19, 2014, the trial court summarily revoked appellant’s probation after
he was charged with misdemeanor driving under the influence charges with two prior
convictions against him (“misdemeanor matter”).
       On September 17, 2014, appellant pled no contest to the driving under the
influence count in the misdemeanor matter. The trial court suspended imposition of
sentence and placed appellant on “36 months of a conditional sentence.” The trial court
ordered appellant to serve 120 days in jail and awarded appellant a total of 64 days of
presentence credits on the misdemeanor matter.
       Turning to the felony probation matter, the trial court found appellant in violation
of probation and extended the length of his probation by twelve months. The trial court
refused to award appellant any presentence credits in this matter because his second
driving under the influence violation was “very serious.” The trial court also determined
that appellant would not receive presentence credits for the probation revocation of the
underlying felony because the violation was a “[d]ifferent place, different time” and that
it would “give [appellant] an incentive for the next year not to reoffend at all, because
then you’d have more prison time exposure.”
       On September 19, 2014, appellant filed a timely notice of appeal from the
judgment in the felony probation matter.



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                                      II. DISCUSSION
         Preliminarily, appellant’s argument that the trial court’s refusal to award
presentence credits is cognizable on appeal. Appellant properly objected to the trial
court’s decision during sentencing and, thus, preserved the issue on appeal.
         Penal Code1 section 2900.5, subdivision (a) provides in relevant part, “In all
felony and misdemeanor convictions, either by plea or by verdict, when the defendant has
been in custody . . . all days of custody of the defendant, including days served as a
condition of probation in compliance with a court order, . . . shall be credited upon his or
her term of imprisonment . . . .”
         Under section 2900.5, a defendant is entitled to custody credit against a sentence
when the “custody to be credited is attributable to proceedings related to the same
conduct for which the defendant has been convicted.” (Id., subd. (b).) This has been
interpreted to require a defendant claiming custody credit to demonstrate that “the
conduct which led to his conviction was the sole reason for his loss of liberty during the
presentence period.” (People v. Bruner (1995) 9 Cal.4th 1178, 1191 (Bruner).)
         “[T]he purpose of section 2900.5 is to ensure that one held in pretrial custody on
the basis of unproven criminal charges will not serve a longer overall period of
confinement upon a subsequent conviction than another person who received an identical
sentence but did not suffer preconviction custody.” (Bruner, supra, 9 Cal.4th at
pp. 1183-1184.)
         In Bruner, supra, 9 Cal.4th 1178, 1194, the California Supreme Court
acknowledged that it is not always a straightforward matter to determine a defendant’s
entitlement to presentence credits under section 2900.5 where multiple proceedings are in
play. For that reason, in order “ ‘to provide for section 2900.5 a construction which is
faithful to its language, which produces fair and reasonable results in a majority of cases,
and which can be readily understood and applied by trial courts’ ” (id. at p. 1195), the
Bruner court developed a rule of strict causation for cases where the same conduct is


1
    All further undesignated statutory references are to the Penal Code.

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implicated in multiple proceedings. Thus, the Bruner court held that “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 Bruner court
approved of a number of decisions which reasoned that a prisoner’s “criminal sentence
may not be credited with jail or prison time attributable to a parole or probation
revocation that was based only in part upon the same criminal episode. [Citations.]” (Id.
at p. 1191.) To put it another way, “a prisoner is not entitled to credit for presentence
confinement unless he shows that the conduct which led to his conviction was the sole
reason for his loss of liberty during the presentence period.” (Ibid.)
       In Bruner, the Supreme Court acknowledged the potential unfairness of the strict
causation rule it applied, but explained, “it arises from the limited purposes of the credit
statute itself. The alternative is to allow endless duplicative credit against separately
imposed terms of incarceration when it is not at all clear that the misconduct underlying
these terms was related. . . . [S]uch credit windfalls are not within the contemplation of
section 2900.5.” (Bruner, supra, 9 Cal.4th at p. 1193, fn. omitted.) Responding to the
suggestion that a rule of strict causation in these circumstances worked an undue hardship
on defendants, the court noted a “defendant’s burden, while onerous, is not necessarily
impossible.” (Id. at p. 1193, fn. 10.) Thus, a defendant in custody on multiple causes,
such as parole violations and new charges, bears the burden of establishing that he is
entitled to presentence custody credits. (Id. at pp. 1193–1194.)
       Here, appellant argues that he is entitled to presentence credits in both the
misdemeanor offense and the felony probation revocation. This is precisely the type of
windfall that our supreme court was trying to prevent in Bruner. (See In re Marquez
(2003) 30 Cal.4th 14, 23.)
       People v. Stump (2009) 173 Cal.App.4th 1264 (Stump), although cited by neither
party, is particularly instructive on the application of Bruner to the facts of the instant
case. In Stump, the defendant was convicted of driving under the influence of alcohol


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with a prior felony within 10 years (Veh. Code, § 23152, subd. (a)), and driving with a
blood-alcohol content of at least .08 percent with a prior felony within 10 years (id.
subd. (b)). (Stump, supra, at p. 1266.) Stump was arrested on July 16, 2006. (Id. at
p. 1267.) At the time of his arrest he was on parole with special conditions prohibiting
him from, among other things, drinking alcohol or driving without his parole officer’s
permission. (Ibid.) Stump was found to have violated the terms of his parole not just by
committing the two charged offenses, but also for drinking alcohol and not obtaining the
permission of his parole officer before driving. (Id. at p. 1268.) Stump was arraigned
“with respect to the July 16, 2006 incident” on December 20, 2006 and remained in
custody through the date of sentencing in May 2008. (Ibid.) He was awarded credits for
the period of December 20, 2006, through sentencing, but denied credits for the period of
his pre-arraignment custody (i.e., from July 16, 2006 through December 20, 2006).
(Ibid.)
          On appeal, Stump challenged the court’s failure to award credits for his pre-
arraignment custody, asserting that this period “was ‘attributable to proceedings related to
the same conduct for which’ he was convicted” because “there was only one ‘single,
uninterrupted, incident of misconduct,’ and ‘. . . a single episode of criminal behavior
may [not] be parsed into separate acts in order to deny the award of credit for revocation
custody. . . .’ ” (Stump, supra, 173 Cal.App.4th at pp. 1268, 1271.)
          The court in Stump noted that Bruner was not “directly on point” because “[t]he
decision in [that case], inasmuch as it addressed only a fact pattern with completely
unrelated incidents—alleged parole violations and a subsequent cocaine possession—did
not address a fact pattern such as the one before us, where all of the acts in question were
temporally related.” (Stump, supra, 173 Cal.App.4th at p. 1271.) The question
presented, the court stated, was “how the Bruner ‘but for’ test should be applied when a
defendant engages in a course of illegal conduct, such as drunk driving, that encompasses
certain independent acts, none of which would be illegal per se, but each of which
happens to be a separate ground for a parole violation, such as driving (without parole
officer permission), or consuming alcoholic beverages in any amount.” (Ibid.)


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       The court answered that question as follows: “In the case before us, the conduct
for which defendant was arrested gave rise to two drunk driving charges (violations of
Veh. Code, § 23152, subds. (a) & (b)). It is not the case that ‘but for’ a drunk driving
charge defendant would have been free of parole revocation custody. He still would have
been held for driving, which is not necessarily a crime in and of itself but may be, and
was here, a parole violation. Likewise, he still would have been held for consuming
alcohol, which is not necessarily a crime in and of itself but may be, and was here, a
parole violation. [¶] Penal Code ‘section 2900.5 did not intend to allow credit for a
period of presentence restraint unless the conduct leading to the sentence was the true
and only unavoidable basis for the earlier custody.’ (Bruner, supra, 9 Cal.4th at
p. 1192.) Here, the conduct of driving under the influence of alcohol, for which
defendant was sentenced in the underlying action, was not the ‘only unavoidable basis’
for the custody. The act of driving without permission was a basis for the earlier custody.
The act of drinking alcohol, irrespective of driving, was a basis for the earlier custody.
‘ “Section 2900.5 does not authorize credit where the pending proceeding has no effect
whatever upon a defendant’s liberty.” [Citation.]’ (Id. at p. 1184.)” (Stump, supra, 173
Cal.App.4th at p. 1273.)
       Here, appellant would not have been free of custody “but for” the criminal
charges. Like Stump, this is not a case in which the conduct leading to the sentence was
the “true and only unavoidable basis” for the period of custody in question. (Bruner,
supra, 9 Cal.4th at p. 1192.) Appellant violated his probation by using or possessing
alcohol. That is not illegal per se. When the arresting officers discovered appellant had
consumed alcohol, appellant was in violation of probation, regardless of whether he
illegally drove with a blood alcohol level of 0.13. Thus, he cannot establish that “but for”
the criminal charges he would not have been in custody. Accordingly, we conclude that
the trial court properly refused to award appellant double presentence credits.
       The cases cited by appellant are factually distinguishable and do not alter this
conclusion. For example, in People v. Johnson (2007) 150 Cal.App.4th 1467, 1485, the
“defendant was found in violation of his probation based only upon the crimes for which


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he was convicted in this case. Accordingly, the conduct that led to his conviction in this
case was the ‘but for’ cause of his presentence custody.” (Italics added.) Equally
inapposite is People v. Pruitt (2008) 161 Cal.App.4th 637. There, the new criminal
charges were dismissed, thereby obviating the application of duplicate credits. (Id. at p.
648.)
        As Bruner, explains “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, the strict causation rules . . . should apply.” (Bruner,
supra, at p. 1180; see In re Joyner (1989) 48 Cal.3d 487 [explaining that the strict
causation principles require a defendant to show that his conduct leading to his
conviction was the exclusive reason for his loss of liberty].) Here, appellant already
received presentence custody credits for his misdemeanor matter, but he has failed to
demonstrate that “but for” the driving under the influence charge leading to his current
sentence he would have been free during that presentence period. Therefore, he is not
entitled to duplicative credit in both the misdemeanor matter and the felony probation
revocation.
                                    III. DISPOSITION
        The judgment is affirmed.




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                                _________________________
                                REARDON, ACTING P. J.


We concur:


_________________________
RIVERA, J.


_________________________
STREETER, J.




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People v. Boon A143096




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