Pruitt

A probationer is arrested and jailed on new criminal charges. Sometime thereafter the same conduct that led to the probationer’s arrest is alleged as a probation violation, and probation is summarily revoked. Following a probation violation hearing, probation remains revoked; a previously stayed state prison sentence is imposed; and the prosecutor asks the court to dismiss the new criminal charges in furtherance of justice. Is the probationer in this situation entitled to presentence custody credit pursuant to Penal Code section 2900.5, subdivision (b), for the time spent in jail on the new criminal charges following his or her arrest but prior to the summary revocation of his or her probation?

In an opinion written by Justice Epstein nearly 18 years ago, Division Four of this court answered no to a virtually identical question. (People v. Huff (1990) 223 Cal.App.3d 1100 [ 273 Cal.Rptr. 44 ] (Huff).) However, in In re Marquez (2003) 30 Cal.4th 14, 26-28 [ 131 Cal.Rptr.2d 911 , 65 P.3d 403 ] (conc. opn. of Moreno, J.) (Marquez) Justice Moreno, in a concurring opinion joined by Justice Brown, suggested the manner of computing presentence custody credits utilized in Huff…