People v. Kephart CA3 ( 2023 )

Filed 7/6/23 P. v. Kephart 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(El Dorado)
----
THE PEOPLE, C096842
Plaintiff and Respondent, (Super. Ct. Nos. P20CRF0094,
22CR1288)
v.
ROBERT LEE KEPHART,
Defendant and Appellant.
Defendant Robert Lee Kephart’s sole argument on appeal is that the trial court’s
failure to apply excess custody credits accrued on a subordinate term to the then principal
term resulted in “dead time” in contravention of In re Marquez (2003) 30 Cal.4th 14, 20
(Marquez) and its progeny. We disagree and will affirm.
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I
FACTUAL AND PROCEDURAL BACKGROUND
On February 25, 2020, defendant pled no contest to possessing a controlled
substance for sale (Health & Saf. Code, § 11351) in El Dorado County Superior Court
case No. P20CRF0094 (the 2020 drug case) and in exchange received a split sentence of
one year six months in jail with two years six months on mandatory community
supervision (Pen. Code, § 1170, subd. (h))1 under specified terms and conditions.
Nearly 28 months later, defendant was charged with willfully inflicting corporal
injury on a spouse resulting in a traumatic condition (§ 273.5, subd. (a)) in El Dorado
County Superior Court case No. 22CR1288 (the 2022 domestic violence case). The
prosecution also sought to revoke his mandatory community supervision in the 2020 drug
case because of this new law violation.
On July 21, 2022, defendant pled no contest to the sole count in the 2022 domestic
violence case and also admitted he had violated his mandatory supervision in the 2020
drug case. In exchange, defendant would receive a low-term sentence of two years in the
2022 domestic violence case and a consecutive one-year term (one-third the midterm) in
the 2020 drug case.
Prior to sentencing, defendant filed a custody credit brief seeking to apply the
excess custody credit from the 2020 drug case to the term associated with the 2022
domestic violence case. The prosecution opposed this request.
Thereafter, on August 2, 2022, the trial court sentenced defendant in accordance
with his plea agreement. The parties submitted the custody credit issue on the briefs, and
the court issued its ruling, finding defendant’s authorities distinguishable and denying his
request to apply excess credits from the 2020 drug case to the 2022 domestic violence
1 Undesignated statutory references are to the Penal Code.
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case. Rather, the court found because defendant was not arrested on the 2022 domestic
violence case until June 20, 2022, defendant was not entitled to have the credit earned
before that date applied to the two-year term associated with the 2022 domestic violence
case. Nonetheless, the court awarded defendant the custody credit attributable to the
2022 domestic violence case—44 actual days plus 44 conduct days for a total of 88 days’
custody credits.
Defendant timely appealed and complied with section 1237.1 by presenting his
custody credit arguments in the trial court at the time of sentencing.
II
DISCUSSION
Defendant challenges the trial court’s failure to apply excess credits earned in the
2020 drug case to defendant’s principal two-year term for the 2022 domestic violence
case. Specifically, he complains the trial court’s failure to apply his excess custody
credits has resulted in dead time in contravention of Marquez, supra, 30 Cal.4th 14 and
its progeny. While we agree defendant has excess credits on the 2020 drug case, we do
not agree they should be applied to the term associated with the 2022 domestic violence
case.
Custody credits are case specific—they accrue only in the case in which they are
earned. (§ 2900.5, subd. (b); In re Joyner (1989) 48 Cal.3d 487.) Here, defendant argues
the trial court should have applied the excess credits from the 2020 drug case to the 2022
domestic violence case. Contrary to defendant’s assertion, however, the excess credits
cannot be credited to the 2022 domestic violence case because they were not earned in
that case.
Section 2900.5, subdivision (b) specifies custody “credit shall be given only where
the custody to be credited is attributable to proceedings related to the same conduct for
which the defendant has been convicted. Credit shall be given only once for a single
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period of custody attributable to multiple offenses for which a consecutive sentence is
imposed.” (See also People v. Lathrop (1993) 13 Cal.App.4th 1401, 1403.) “The crucial
element of the statute is not where or under what conditions the defendant has been
deprived of his liberty but rather whether the custody to which he has been subjected ‘is
attributable to charges arising from the same criminal act or acts for which the defendant
has been convicted.’ (§ 2900.5, subd. (b).)” (In re Watson (1977) 19 Cal.3d 646, 651;
accord In re Rojas (1979) 23 Cal.3d 152, 156.)
Recognizing that there may be instances where a defendant is in custody that is
attributable to multiple cases, a strict causation rule has developed to limit defendants
from obtaining a windfall of duplicative credits. (See, e.g., People v. Bruner (1995)
9 Cal.4th 1178, 1191.) Thus, if a period of 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.)
Moreover where, as here, multiple proceedings lead to terms imposed by the last
sentencing court, the “attributable” requirement of section 2900.5 still governs.2 Credits
are not reallocated; they remain strictly assigned to the proceedings in which they were
earned. (People v. Lacebal (1991) 233 Cal.App.3d 1061, 1066 (Lacebal); People v.
Adrian (1987) 191 Cal.App.3d 868, 877 (Adrian).) “ ‘Therefore, if the last court orders
consecutive sentences and the credits earned on the terms ordered to run consecutive
exceed the resulting one-third of middle base terms imposed, the consecutive terms are
2 Defendant has provided no authority establishing that the trial court’s duty to
pronounce one aggregate prison term at sentencing (§ 1170.1; Cal. Rules of Court, rule
4.452(a)) alters these long-established rules.
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“served,” but the excess credits are not available to reduce the unrelated full base term.
[Citations.]’ [Citation.]” (Lacebal, at p. 1066.)
Here, the credits awarded in the 2020 drug case were based upon periods of
custody and supervision that predated defendant’s arrest in the 2022 domestic violence
case, and as such, those credits were not attributable in any way to the 2022 domestic
violence case. Under these circumstances, reallocating the excess custody credits in the
2020 drug case to the 2022 domestic violence case would violate the “attributable”
requirement. (§ 2900.5, subd. (b).)
It is well established that where, as here, the credit on a subordinate consecutive
term exceeds one-third of the midterm imposed, excess credit may not be used to reduce
the unrelated principal term. (Lacebal, supra, 233 Cal.App.3d at p. 1066; Adrian, supra,
191 Cal.App.3d at p. 877; People v. Brown (1984) 156 Cal.App.3d 1131, 1134-1135.)
The Lacebal-Adrian-Brown line of cases has interpreted section 2900.5 to preclude
defendant’s view that he is entitled to a reallocation of credits to avoid so-called dead
time. (Lacebal, at pp. 1064-1066; Adrian, at pp. 876-877 [“credits are not reallocated:
they remain assigned only to the proceedings in which they were earned”]; Brown, at
pp. 1134-1136.)
Defendant argues that we should not follow the Lacebal-Adrian-Brown line of
cases because these authorities predate and are “at odds” with the Supreme Court’s
decision in Marquez and the authorities following it. None of defendant’s cases support
his position, as they are all readily distinguishable. Each of these cases involves
instances where excess credits accrued during custodial periods attributable to multiple,
yet separate cases. (Marquez, supra, 30 Cal.4th at p. 20 [“after Monterey County placed
a hold on petitioner, his custody was attributable to the charges in both counties”]; People
v. Gonzalez (2006) 138 Cal.App.4th 246, 252 [custody attributable to “ ‘multiple,
unrelated causes’ ”]; People v. Torres (2012) 212 Cal.App.4th 440, 447 [custody between
sentencing in two cases attributable to both cases]; People v. Phoenix (2014)
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231 Cal.App.4th 1119, 1128-1129 [custody attributable to both cases such that once
resentenced in one matter, excess credit could be applied to the other]; People v.
Shropshire (2021) 70 Cal.App.5th 938, 948-949 [same].) Thus, these cases do not speak
to the propriety of allocating credit to a case not in existence when that credit was
accrued. (See, e.g., Marquez, supra, 30 Cal.4th at pp. 22-23 [because the earlier action
had been dismissed, the strict causation rule did not prohibit the awarding of credit for the
period where the latter case had placed a custody hold on the defendant then in custody in
the earlier action].)
Nothing in Marquez signals an intent to discard the “attributable” requirement for
the awarding of custody credit. In point of fact, Marquez expressly acknowledged that
dead time is sometimes unavoidable. (Marquez, supra, 30 Cal.4th at pp. 20-21.)
Defendant’s stipulated sentence results in one of those instances.
III
DISPOSITION
The judgment is affirmed.
/s/
EARL, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
KRAUSE, J.
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