(Super. Ct. Nos. 2010033493 & 2010034605) Superior Court County of Ventura (Ventura County) Bruce A. Young, Judge
The opinion of the court was delivered by: Gilbert, P.J.
CERTIFIED FOR PUBLICATION
In People v. Bruner (1995) 9 Cal.4th 1178, 1180, our Supreme Court cautioned that "difficult problems" arise when computation of presentence custody credits stem from multiple charges. When such computation does not involve post-sentence custody, "difficult problems" are less likely to arise.
Here we decide that under Penal Code section 2900.5 (section 2900.5), when concurrent sentences are imposed at the same time for unrelated crimes, the defendant is entitled to presentence custody credits on each sentence, provided he is not also in post-sentence custody for another crime. We reverse and remand for recalculation of presentence custody credits.
On September 17, 2010, Kunath was arrested for possession of a controlled substance for sale. (Health & Saf. Code, § 11378, subd. (a).) He was released on bond. A short time later, Kunath was arrested in an unrelated case for possession of a controlled substance and confined pending trial. (Id. at § 11377, subd. (a).)
On January 4, 2011, Kunath pled guilty in both cases. On February 16, 2010, in a single sentencing hearing, the trial court sentenced Kunath to concurrent 16-month prison terms.
The trial court rejected Kunath's argument that he should receive presentence custody credits in each case for the time he was in custody on both cases. Instead, the court awarded him full custody credits on the first case. In the second case, the court awarded Kunath custody credits for only the few days he was in custody solely on the second case.
Kunath contends the trial court erred in refusing to apply presentence custody credits in each case for the time he was simultaneously in presentence custody.
Section 2900.5, subdivision (b) allows presentence credit to 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."
Both parties rely on Bruner. In Bruner, while the defendant was being arrested for parole violations, agents found rock cocaine on his person. The defendant was cited and released for the cocaine possession, but remained in custody on a parole hold. The defendant's parole was revoked, and he was sentenced to 12 months in prison with full credit for presentence custody. Thereafter, the defendant was charged with cocaine possession. He pled guilty and the court sentenced him to 16 months concurrent with the probation revocation term. The trial court found the defendant was not entitled to any presentence credit.
In Bruner, our Supreme Court agreed that the defendant was not entitled to presentence credits. It 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. Accordingly, 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 which led to his conviction and sentence was 'a' basis for the revocation matter as well. [Fn. omitted.]" (People v. Bruner, supra, 9 Cal.4th at pp. 1193-1194.)
The Attorney General argues that because Kunath was in custody on the first case, he cannot show he would have been free of custody "but ...