In Re Nickles

While on parole, petitioner David Lewis Nickles was arrested in Solano County on firearm and drug charges. His parole was revoked based on those same criminal allegations and on two administrative violations. He served a revocation term and was returned to Solano County to face the criminal charges. Pursuant to a negotiated disposition, petitioner pled nolo contendere to the firearms count. In sentencing petitioner, however, the trial court gave him no presentence credit for his parole revocation *417 term. Petitioner now seeks credit pursuant to Penal Code 1 section 2900.5 for the time spent in prison on the parole revocation. We will hold that, where a defendant’s presentence custody arises from conduct which is only partially attributable to the conduct for which he was convicted and sentenced, he has the burden of proving entitlement to credit therefor. That burden was not discharged in this case.

I. Facts and Procedural History

Petitioner is a criminal recidivist 2 who was on parole from his most recent conviction and commitment to CDC when arrested for the offenses here pertinent.

On April 17, 1988, petitioner was arrested and charged, in case No. C26526 in…

The majority opinion characterizes In re Joyner (1989) 48 Cal.3d 487 [ 256 Cal.Rptr. 785 , 769 P.2d 967 ] as, in effect, overruling In re Atiles (1983) 33 Cal.3d 805 [ 191 Cal.Rptr. 452 , 662 P.2d 910 ], Though our Supreme Court may well adopt that position, it has not heretofore done so. It is not the function of an intermediate appellate court to anticipate Supreme Court action.

*425 The present case is materially indistinguishable from In re Atiles. Atiles is still good law. I respectfully dissent because I do not believe we are free to ignore it.

Joyner does not necessarily spell the demise of Atiles because the two cases are factually distinguishable. Joyner involved two unrelated offenses committed in Florida and California. The petitioner was arrested in Florida and kept in jail due to the outstanding warrant in California. In denying credit on the subsequent California sentence for the Florida jail time, the Supreme Court held that “duplicative credits against separately imposed concurrent sentences for unrelated offenses will be granted only on a showing of strict causation,” a showing which Joyner failed to make. (Joyner, supra, 48 Cal.3d at p. 489 , italics added.)…

While on parole, petitioner David Lewis Nickles was arrested in Solano County on firearm and drug charges. His parole was revoked based on those same criminal allegations and on two administrative violations. He served a revocation term and was returned to Solano County to face the criminal charges. Pursuant to a negotiated disposition, petitioner pled nolo contendere to the firearms count. In sentencing petitioner, however, the trial court gave him no presentence credit for his parole revocation term. Petitioner now seeks credit pursuant to Penal Code [1] section 2900.5 for the time spent in prison on the parole revocation. We will hold that, where a defendant's presentence custody arises from conduct which is only partially attributable to the conduct for which he was convicted and sentenced, he has the burden of proving entitlement to credit therefor. That burden was not discharged in this case.

Petitioner is a criminal recidivist [2] who was on parole from his most recent conviction and commitment to CDC when arrested for the offenses here pertinent.

On April 17, 1988, petitioner was arrested and charged, in case No. C26526 in Solano County, with one…