Filed 6/30/16 P. v. Robles-Carvajal CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

 v.

EVERARDO JOSE ROBLESCARVAJAL,

Defendant and Appellant.

 H039162

 (San Benito County

 Super. Ct. Nos. CR-09-02513,

 CR-09-00337, CR-11-00255)

Defendant Everardo Jose Robles-Carvajal appeals from an eight-year prison 

sentence the trial court imposed after formal probation was revoked in three criminal 

cases following defendant’s incarceration in federal prison for federal offenses. He

argues that the judgment should be reversed because: the trial court erred by sentencing 

him in one of the cases without obtaining a waiver of defendant’s right to be present at 

the sentencing hearing (Pen. Code, § 1203.2a)1; his trial counsel provided ineffective 

assistance by not presenting adequate argument to support his request that the court run 

defendant’s state prison sentences concurrent to his federal sentence; and the trial court 

improperly calculated defendant’s presentence custody credits (§ 2900.5, subd. (b)). For 

 

1

 Unspecified statutory references are to the Penal Code.
2

the reasons stated here, we will reverse the judgment and remand for resentencing with 

instructions to add certain presentence custody credits after resentencing.

Defendant’s appellate counsel also filed a petition for writ of habeas corpus, 

alleging ineffective assistance of trial counsel. We dispose of the habeas petition by 

separate order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)2

I. TRIAL COURT PROCEEDINGS

Defendant was arrested in February 2009 and charged by amended felony 

complaint in Case No. CR-09-00337 (Prop. 36 case) with the sale, transportation, or offer 

to sell a controlled substance (Health & Saf. Code, § 11352, subd. (a)); and possession of 

a controlled substance (Health & Saf. Code, § 11350, subd. (a)).

3

 The trial court 

dismissed the transportation count at the prosecutor’s request, defendant pleaded guilty to 

possession, and the court suspended imposition of sentence and placed defendant on three 

years formal probation.

In December 2009, defendant was arrested and charged by felony complaint in 

Case No. CR-09-02513 (2009 assault case) with assault by means likely to produce great 

bodily injury (former § 245, subd. (a)(1); Stats. 2004, ch. 494, § 1, p. 4040).

4

 The 2009 

assault complaint was later amended to add a section 186.22, subdivision (b)(1) gang 

enhancement. The San Benito County Probation Department filed a petition to revoke 

defendant’s probation in the Prop. 36 case. The sole ground for that petition was 

defendant’s arrest for the 2009 assault. According to the probation report for the 2009 

assault, the charges were based on an incident where defendant repeatedly punched a 

 

2

 Unspecified references to “Rules” are to the California Rules of Court.

3

 For clarity, we refer to defendant’s cases by the abbreviations selected by 

defendant.

4

 The prohibition on assault by means of force likely to produce great bodily 

injury is now codified at section 245, subdivision (a)(4). (Stats. 2011, ch. 183, § 1, 

p. 2287.)
3

victim as two other assailants kicked the victim while the victim lay on the ground. 

Defendant pleaded no contest to the 2009 assault as well as the gang special allegation 

and the court suspended imposition of sentence and placed defendant on four years 

formal probation. The court reinstated probation in the Prop. 36 case, which had been 

summarily revoked. 

Between defendant’s arrest in December 2009 for the 2009 assault and the court’s 

April 2010 orders granting and reinstating probation in the 2009 assault case and Prop. 36 

case, respectively, defendant was in local custody. His custody status in the Prop. 36 

case was described in the trial court’s minute orders between December 20, 2009 and 

March 10, 2010 as “Bail $ Body Only.” During that same period, the minute orders for 

the 2009 assault case indicated defendant was “released on O.R.” but “in custody on 

other charges.” (Capitalization omitted.) From March 11, 2010 until he was released on 

probation in April 2010, defendant was in custody with bail set at $50,000 in the 2009 

assault case and “released on O.R.” but “in custody on other charges” in the Prop. 36 

case. (Capitalization omitted.) Defendant did not receive presentence custody credit in 

the 2009 assault case for the period between December 2009 and March 2010.

The trial court summarily revoked probation in the Prop. 36 and 2009 assault cases

in December 2010. The probation office amended the petitions to revoke probation in 

January 2011.

5

 The January 2011 petitions alleged the following probation violations: 

defendant’s admissions that he smoked marijuana on one occasion and that he used 

methamphetamine and marijuana on another occasion; one failed drug test 

(methamphetamine); and defendant’s failure to report for a scheduled appointment with a 

probation officer in January 2011. Defendant apparently was not taken into custody for 

those violations in December 2010 or January 2011.

 

5

 Defendant’s October 5, 2015 motion to augment the record is granted.
4

In February 2011, defendant was arrested and charged by felony complaint in

Case No. CR-11-00255 (2011 assault case) with, among other things, assault upon a 12-

year-old girl by means likely to produce great bodily injury (former § 245, subd. (a)(1)),

6

with a special allegation that defendant had been previously convicted of a serious or 

violent felony (§ 667, subds. (b)–(i)) based on the 2009 assault case. The probation 

department filed new petitions to revoke probation in the Prop. 36 and 2009 assault cases

in February 2011. The February 2011 petitions were based on the same allegations as the 

January 2011 petitions but also included defendant’s arrest for the 2011 assault as an 

additional ground for revocation. 

Defendant pleaded no contest to the 2011 assault, admitted the prior serious or 

violent felony conviction special allegation, and was once again placed on four years 

formal probation. The court imposed but suspended execution of an eight-year prison

sentence in the 2011 assault case in June 2011, consisting of the upper term of four years 

for the assault (former § 245, subd. (a)(1)), doubled because of the prior strike conviction 

(§ 667, subd. (e)(1)). The court ordered defendant to enter long term residential drug 

treatment as a condition of probation. The trial court also reinstated probation in the 

Prop. 36 and the 2009 assault cases.

Defendant was in local custody while the 2011 assault charges were pending.

Between February 2011 and June 2011, his custody in the 2009 assault case was 

described as “Bail $ Body Only.” During that period, the minute orders for the Prop. 36 

and the 2011 assault cases indicated defendant was “released on O.R.” but “in custody on 

other charges.” (Capitalization omitted.) Defendant did not receive presentence custody

credit in the 2011 assault or Prop. 36 cases for the period in custody between 

February 2011 and May 2011.

 

6

 See footnote 4, infra.
5

Petitions to revoke probation were filed in defendant’s three criminal cases in 

November 2011. The petitions were based on defendant’s arrest by federal authorities. 

Defendant faced charges in two federal cases for being a felon in possession of a firearm 

and for possessing a controlled substance with the intent to distribute. The trial court 

summarily revoked defendant’s probation in the Prop. 36, 2009 assault, and 2011 assault

cases pending resolution of the federal charges and noted that defendant was in federal 

custody.

Defendant’s state trial counsel filed requests under section 1203.2a in the 2009 

assault and 2011 assault cases asking the court to impose sentence. Defendant’s federal 

trial counsel filed declarations in support of those requests, stating that the conduct 

leading to the federal charges occurred in 2010 and that defendant pleaded guilty and was

sentenced under a plea agreement by the federal court in May 2012 to nine years in 

federal prison. Also filed with those requests in the 2009 and 2011 assault cases were 

waivers signed by defendant that admitted he violated probation and waived his right to 

be present at the probation revocation hearing; his right against self-incrimination; and 

his right to call, confront, and cross-examine witnesses at the hearing. No waiver was 

filed in the Prop. 36 case.

At a probation revocation hearing in early June 2012, defendant’s trial counsel 

asked the court to sentence defendant on his California offenses concurrent to the federal 

prison sentence and the court indicated it had “no objection to granting concurrent time in 

the matter.” The matter was continued because the prosecutor had not been served with 

defendant’s section 1203.2a requests. Defendant’s trial counsel waived time for 

sentencing. At a hearing in late June 2012, defense counsel renewed his request that 

defendant be sentenced concurrent to his federal sentence. The probation department 

recommended a concurrent sentence because defendant had been doing “very well” in his 

treatment program before being arrested on the federal charges. The prosecutor argued 

that defendant should receive a consecutive sentence to prevent defendant from 
6

benefitting from committing both federal and state crimes but having to serve only a 

single sentence for them all. Defense counsel responded that while the matter was 

“purely discretionary,” defendant requested that the court impose a concurrent sentence.

The court purported to sentence defendant in the 2009 assault and 2011 assault 

cases in August 2012, executing the previously-suspended eight-year sentence for the 

2011 assault, ordering that sentence to run consecutive to defendant’s federal sentence, 

and imposing a concurrent eight-year sentence for the 2009 assault (consisting of the 

upper term of four years for the assault (former § 245, subd. (a)(1)) and the upper term of 

four years for the gang enhancement (§ 186.22, subd. (b)(1)(A))). The court made no 

findings regarding its decision to make the state term run consecutive to the federal term 

and defense counsel made no argument to support a concurrent sentence. The court held 

a new sentencing hearing in October 2012 upon discovering that the conduct giving rise 

to defendant’s federal convictions occurred before he had been placed on probation in the 

2011 assault. The court made the eight-year sentence in the 2009 assault case the 

principal term, ordered that it run consecutive to the federal sentence, and ordered that the 

sentence for the 2011 assault case run concurrent.7 Once again, the trial court made no 

findings regarding consecutive sentencing and defense counsel made no argument to 

support a concurrent sentence.

During the October 2012 sentencing hearing, the parties and court realized that 

defendant had not been sentenced in the Prop. 36 case. Defense counsel acknowledged 

there was no section 1203.2a written waiver of rights but stated defendant “did waive in 

the other two more serious matters. I believe I can represent to the Court it would be 

 

7

 At the hearing, the court stated it would “vacate” the eight-year sentence in the 

2011 assault case. The minute order for the October 2012 sentencing hearing contains a 

handwritten note (apparently made by, or at the direction of, the trial judge), dated 

November 6, 2012, stating that the 2011 assault sentence is “to run concurrent to” the 

2009 assault sentence. The abstract of judgment lists the 2009 assault case sentence as 

the principal term, with the 2011 assault case’s eight-year sentence running concurrent.
7

[defendant’s] intention to waive his personal presence and admit the violation” based on 

the federal convictions. The court accepted that representation and sentenced defendant 

to the upper term of three years for possession of cocaine (former Health & Saf. Code, 

§ 11350, subd. (a)),

8

to be served concurrent to defendant’s other sentences. 

II. DISCUSSION

A. SENTENCING IN THE PROP. 36 CASE WITHOUT DEFENDANT (§ 1203.2a)

Defendant contends that the trial court violated his constitutional right to due 

process by sentencing him without first obtaining a waiver of his right to be present. 

Section 1203.2a provides, in relevant part: “If any defendant who has been released on 

probation is committed to a prison in this state or another state for another offense, the 

court which released him or her on probation shall have jurisdiction to impose sentence, 

if no sentence has previously been imposed for the offense for which he or she was 

granted probation, in the absence of the defendant, on the request of the defendant made 

through his or her counsel, or by himself or herself in writing . . . .” That section was 

enacted “to provide a mechanism by which the probationary court could consider 

imposing a concurrent sentence” so that defendants did not inadvertently receive 

consecutive sentences. (In re Hoddinott (1996) 12 Cal.4th 992, 999.) Whether the trial 

court complied with section 1203.2a involves application of a statute to undisputed facts, 

and is thus reviewed de novo. (See People v. Groat (1993) 19 Cal.App.4th 1228, 1231 

[“The application of a statute to undisputed facts raises a pure question of law and on 

appeal the court will make an independent determination” of an argument’s merits.].)

 

8

 When defendant was convicted and sentenced, a violation of Health & Safety 

Code section 11350, subdivision (a) was a felony punishable by the general section 1170, 

subdivision (h)(1) sentencing range of 16 months, two years, or three years. (Former 

Health & Saf. Code, § 11350, subd. (a), Stats. 2000, ch. 8, § 3, p. 50.) That offense was 

reduced to a misdemeanor in most situations by the Safe Neighborhoods and Schools Act 

(Prop. 47) in 2014. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, 

§ 11, pp. 72-73; Stats. 2014, vol. 3, § 11, p. A-18.)
8

Defendant did not file a section 1203.2a request or a waiver of rights in the 

Prop. 36 case. His trial counsel’s statement that “I believe I can represent to the Court it 

would be his intention to waive his personal appearance” suggests that defendant did not 

direct his trial counsel to make that request. The People argue that no error occurred 

because a probationer may waive his right to be present at a probation revocation hearing. 

(Citing People v. Dale (1973) 36 Cal.App.3d 191, 194-195.) But a defendant’s ability as 

a general matter to waive his right to be present is irrelevant to resolution of this issue. 

Defendant did not expressly waive that right here, nor is there evidence he directed his 

attorney to do so. By sentencing defendant without a valid waiver, the trial court erred.

Based on that error, defendant argues the “judgment is thus improper and must be 

vacated and remanded to the trial court,” but does not explain how that error prejudiced 

him. To the extent defendant argues that the error was structural, mandating reversal per 

se, he provides no authority in support. To rise to the level of structural error, the error

must be one which affects “the framework within which the trial proceeds, rather than 

simply an error in the trial process itself.” (Arizona v. Fulminante (1991) 499 U.S. 279, 

310.) The Ninth Circuit has held that a defendant’s absence from a jury’s announcement 

of the verdict, while potentially violating the defendant’s right to due process under the 

Fourteenth Amendment to the United States Constitution, is nonetheless “subject to 

harmless-error analysis” because it “does not fall within the narrow category of structural 

errors.” (Rice v. Wood (1996) 77 F.3d 1138, 1141, 1144 (Rice).) We find Rice 

persuasive. Defendant’s absence from sentencing here was not structural error.

Defendant provides no analysis regarding the applicable standard for prejudice. 

The People argue “there was no prejudice” to defendant but likewise do not identify the 

applicable standard. The trial court’s decision is contrary to section 1203.2a and 

potentially violates article I, section 15 of the California Constitution, which protects a 

defendant’s right to be “personally present with counsel” at trial. (See In re Perez (1966) 

65 Cal.2d 224, 229–232 [finding previous version of section 1203.2a that did not require 
9

an express waiver by defendant of right to counsel and right to be present violated 

California Constitution].) Such state law errors require reversal if a defendant can 

demonstrate a reasonable probability of a more favorable result had the errors not 

occurred. (People v. Watson (1956) 46 Cal.2d 818, 837.) It is also possible the trial 

court’s error violated defendant’s Fourteenth Amendment due process rights, which 

would implicate the harmless-beyond-a-reasonable-doubt standard announced in 

Chapman v. California (1967) 386 U.S. 18, 24. (See Rice, supra, 77 F.3d at p. 1140-141 

& 1140, fn. 2 [assuming, based on a concession, that the defendant’s absence from the 

courtroom during announcement of verdict was federal constitutional error, but noting 

that the “concession is surprising, as this is an open question”].)

Under either standard, we find the error harmless. Defendant had already admitted 

that his federal convictions constituted probation violations in the 2009 assault and 2011 

assault cases in the signed waivers he filed in support of his section 1203.2a requests in 

those cases. The petition to revoke his probation in the Prop. 36 case was based on the 

same federal convictions. Given that defendant had violated his probation in the Prop. 36 

case numerous times and the court was aware defendant would be incarcerated in federal 

prison for a several years following the sentencing hearing, there is essentially no 

possibility the trial court would have decided to reinstate probation had defendant been 

present at the sentencing hearing. On this record, the trial court’s failure to obtain waiver 

of defendant’s right to be present at the sentencing hearing was harmless beyond a 

reasonable doubt.

B. CONSECUTIVE SENTENCING AND TRIAL COUNSEL’S ASSISTANCE

Defendant argues that his trial counsel provided ineffective assistance by not 

offering meaningful argument to support his request that the court sentence defendant’s 

state cases concurrent to his federal prison sentence. Defendant also argues that 

section 667, subdivision (c)(8) does not apply, meaning that the trial court had discretion 

to make all of defendant’s state sentences run concurrent to his federal sentence. As trial 
10

counsel’s performance would be irrelevant if section 667, subdivision (c)(8) mandated a 

consecutive sentence, we address that argument first.

1. Section 667, Subdivision (c)(8) Does Not Apply

Defendant argues that section 667, subdivision (c)(8) did not apply to his sentence, 

meaning that the trial court had discretion to impose concurrent sentences. Interpretation 

of a statute is a question of law we review de novo. “If the statutory language is 

unambiguous, ‘we presume the Legislature meant what it said, and the plain meaning of 

the statute governs.’ ” (People v. Toney (2004) 32 Cal.4th 228, 232.)

Section 667, subdivision (c)(8) provides: “Any sentence imposed pursuant to 

subdivision (e) will be imposed consecutive to any other sentence which the defendant is 

already serving, unless otherwise provided by law.” Section 667, subdivision (e)(1) 

provides that when a defendant who has a prior serious or violent felony conviction is 

convicted of a new felony, the new sentence “shall be twice the term otherwise provided 

as punishment for the current felony conviction.” 

The 2011 assault case was the only one of defendant’s cases that involved a 

“sentence imposed pursuant to subdivision (e)” of section 667 (§ 667, subd. (c)(8)), with 

the court imposing a four-year upper term (former § 245, subd. (a)(1)), doubled because 

defendant admitted a prior serious or violent felony conviction based on the 2009 assault 

case (§ 667, subd. (e)(1)). The 2009 assault case was not sentenced under section 667, 

subdivision (e) because defendant had no prior serious or violent felony conviction when 

he was convicted of the 2009 assault. Thus, the only way that section 667, subdivision 

(c)(8) would apply to defendant is if: (1) his sentence in the 2011 assault case was 

imposed while he was serving a federal sentence; and (2) a federal sentence is 

encompassed within the phrase “any other sentence which the defendant is currently 

serving,” as it is used in section 667, subdivision (c)(8). 

Though the parties focus on whether a federal sentence can be “any other 

sentence” (§ 667, subd. (c)(8)), they overlook the timing of the 2011 assault case 
11

sentence. The trial court imposed the eight-year prison sentence in the 2011 assault case 

in June 2011, stayed execution of that sentence, and placed defendant on formal 

probation. (People v. Scott (2014) 58 Cal.4th 1415, 1424 [“[W]hen a court elects to 

impose a sentence, a judgment has been entered and the terms of the sentence have been 

set even though its execution is suspended pending a term of probation.”].) Defendant 

was not sentenced in the federal case until May 2012. Therefore, by the plain meaning of 

section 667, subdivision (c)(8), defendant was not “currently serving” the federal 

sentence when the 2011 assault case sentence was imposed and section 667, subdivision 

(c)(8) did not mandate a consecutive sentence. 

The People rely on People v. Rosbury (1997) 15 Cal.4th 206 (Rosbury) to argue 

that defendant was already serving his federal sentence “when the trial court sentenced 

him under the Three Strikes Law in the 2011 assault case.” The defendant (Rosbury) was 

on probation for a serious felony when he was convicted of attempted robbery in a new 

case. The trial court sentenced Rosbury in the new case and the sentence in that new case 

was doubled because of the prior serious felony conviction. The court revoked probation 

in the earlier case and imposed a prison term in that case to run concurrent to the sentence 

in the new case. (Rosbury, at pp. 207-209.) On review in the Supreme Court, the People 

contended that the trial court was required to impose consecutive sentences in Rosbury’s 

two cases by operation of section 667, subdivision (c)(8), because Rosbury’s probation 

status in the earlier case meant he was “ ‘already serving’ ” a sentence when he was 

sentenced in the new case. (Id. at p. 210.) The Supreme Court disagreed, finding that 

because Rosbury was on probation in the earlier case when he was sentenced in the new 

case, he “was not already serving his sentence for purposes of section 667, subdivision 

(c)(8).” (Id. at p. 211.) 

Rosbury does not assist the People. That case did not involve a situation where, as 

here, a sentence had already been imposed but its execution had been suspended. To the 

contrary, the Rosbury court stated that the trial court imposed a prison term in the earlier 
12

case only after sentencing Rosbury in the new case and revoking probation in the earlier 

case. (Rosbury, supra, 15 Cal.4th at pp. 208-209 [“The court also found him in violation 

of his grant of probation for the [earlier case] and revoked the same, imposing a threeyear prison term to be served concurrently with the nine-year term for the current 

offense.”].)

Because defendant’s sentence in the 2011 assault case had been imposed before he 

was sentenced in the federal case, section 667, subdivision (c)(8) did not compel a 

consecutive sentence. 

2. Trial Court Had Discretion to Run State Sentences Concurrent 

Section 669, subdivision (a) provides the general rule for trial courts to follow 

when sentencing a defendant in multiple cases: “When a person is convicted of two or 

more crimes, whether in the same proceeding or court or in different proceedings or 

courts, and whether by judgment rendered by the same judge or by different judges, the 

second or other subsequent judgment upon which sentence is ordered to be executed shall 

direct whether the terms of imprisonment or any of them to which he or she is sentenced 

shall run concurrently or consecutively.” (§ 669, subd. (a).) Section 669 applies even 

when the first judgment upon which sentence is ordered to be executed is a federal 

sentence. (People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1557 (Gulbrandsen); 

accord In re Alstatt (1964) 227 Cal.App.2d 305, 307-308.) Under section 669, “a 

California court has discretion . . . to choose either a consecutive or a concurrent 

relationship between a California prison term and a federal term.” (Gulbrandsen, at 

p. 1558.) “A decision to impose consecutive sentences is a sentencing choice for which a 

statement of reasons is required.” (People v. McLeod (1989) 210 Cal.App.3d 585, 590

(McLeod).) 

As applied to defendant’s case, the first judgment upon which sentence was 

ordered to be executed was the federal case. When defendant requested that the trial 

court sentence him in his three state cases, the trial court had discretion to order that 
13

defendant serve his sentence for the three state cases either consecutive or concurrent to 

the federal term. And the trial court was required to provide a statement of reasons for 

that sentencing choice. 

3. Defendant Was Prejudiced by His Trial Counsel’s Ineffective Assistance

Defendant argues that his trial counsel provided ineffective assistance by failing to 

provide meaningful argument in favor of ordering defendant’s state sentences to run 

concurrent to his federal sentence. To establish ineffectiveness of trial counsel in 

violation of defendant’s right to counsel under the Sixth Amendment to the United States 

Constitution, defendant must show that counsel’s performance was deficient and that he 

was prejudiced by the deficiency. (People v. Ledesma (1987) 43 Cal.3d 171, 216–217 

(Ledesma).) 

a. Sentencing Proceedings

Defendant’s trial counsel told the court the decision whether to impose concurrent 

sentences was “purely discretionary” and requested concurrent sentencing at two hearings 

in June 2012 where the court considered defendant’s section 1203.2a requests. At the 

first hearing, the court indicated: “I have no objection to granting concurrent time” in the 

state cases. The probation department recommended a concurrent sentence, stating that 

defendant had been doing well in his drug treatment program prior to his arrest for the 

federal offenses. The prosecutor requested a consecutive sentence at the June 2012 

hearings, arguing that a concurrent sentence would effectively prevent defendant from 

having to serve any time for his state crimes. Defense counsel did not provide detailed 

argument to support his request at those June 2012 hearings.

At the August and October 2012 sentencing hearings, defendant’s trial counsel 

neither renewed the request for concurrent sentencing nor provided any argument in 

support of that request. The court imposed an eight-year sentence in the 2009 assault 

case, ordered that it run consecutive to defendant’s federal sentence, and did not provide 

a statement of reasons for its decision to make that sentence run consecutive.
14

b. Trial Counsel’s Performance Was Deficient 

Though trial counsel correctly indicated to the court that it had discretion to order 

defendant’s state sentences to run concurrent to his federal sentence at the June 2012 

hearings, trial counsel provided no argument to support his request for a concurrent 

sentence at the two sentencing hearings the court conducted in August and October 2012. 

Trial counsel should have argued factors in mitigation on behalf of his client, including 

reminding the court that the probation department had recommended concurrent 

sentencing because defendant was doing “very well” in his drug treatment program prior 

to his arrest for the federal offenses. 

At the very least, trial counsel should have insisted that the trial court comply with 

its obligation to provide a statement of reasons to support its sentencing choice to run the 

2009 assault case consecutive to the federal term. (McLeod, supra, 210 Cal.App.3d at 

p. 590.) Insisting upon a statement of reasons to support the trial court’s decision was

particularly important under these facts because of the unique considerations that apply 

when a court is deciding whether to run a California determinate sentence consecutive to 

a federal term. As the Gulbrandsen court observed, “running a California determinate 

sentence consecutively to a federal term” is “substantially different” from “establishing a 

consecutive relationship among California offenses.” (Gulbrandsen, supra, 209 

Cal.App.3d at p. 1560.) That difference is due to section 1170.1, subdivision (a)’s 

aggregation rules not applying to federal sentences. (People v. Veasey (1979) 98 

Cal.App.3d 779, 789-790 [finding federal term cannot be principal term for purposes of 

section 1170.1, subdivision (a), such that state sentence ordered to run consecutive to a 

federal sentence is not a subordinate term under that section]; see also rule 4.451(b), 

italics added [“When a defendant is sentenced . . . and the sentence is to run 

consecutively to a sentence imposed by a court of the United States . . . , the judgment 

must specify the determinate term imposed under section 1170 computed without 
15

reference to the sentence imposed by the other jurisdiction”].) Thus, defendant’s eightyear sentence for the 2009 assault case was the full eight years when ordered to run 

consecutive to a federal sentence whereas a similar sentence would have been only two 

years

9

if the federal sentence was a California sentence.

Trial counsel’s total failure to make any argument in support of concurrent 

sentencing at the two sentencing hearings amounted to deficient performance.

c. Defendant Was Prejudiced

To prove prejudice from his trial counsel’s performance, defendant must 

affirmatively show a reasonable probability that, but for his trial counsel’s errors, the 

result would have been different. (Ledesma, supra, 43 Cal.3d at pp. 217-218.) A 

reasonable probability is one “ ‘sufficient to undermine confidence in the outcome.’ ” 

(Id. at p. 218, quoting Strickland v. Washington (1984) 466 U.S. 668, 693–694

(Strickland).)

At the initial hearing regarding defendant’s section 1203.2a request, the trial court 

indicated it was not opposed to running defendant’s state sentences concurrent to his 

federal sentence. The probation department recommended a concurrent sentence based 

on defendant’s recent satisfactory performance on probation. (See rule 4.423(b)(6) 

[circumstance in mitigation applies when the “defendant’s prior performance on 

probation or parole was satisfactory”]; see also rule 4.425(b) [generally, “[a]ny 

circumstances in aggravation or mitigation may be considered in deciding whether to 

impose consecutive rather than concurrent sentences”].) And defendant was ineligible to 

have any of his state sentences served at one-third the middle term as subordinate terms 

because the federal term could not serve as a principal term for purposes of section 

1170.1, subdivision (a). Had defendant’s trial counsel made those arguments to the trial 

 

9

 Two years is one-third the three-year midterm for assault with a deadly weapon 

(§ 245, subd. (a)(1)) plus one-third the three-year midterm for the gang enhancement 

(§ 186.22, subd. (b)(1)(A)).
16

court, we find a reasonable probability that defendant would have achieved a better result 

(either by the trial court ordering all three state sentences to run concurrent to the federal 

term or by the trial court imposing a shorter consecutive sentence). Though a more

lenient sentence is not mandated by law, we find that defendant has met his burden under 

Strickland to show a reasonable probability of a more favorable result.

We will therefore reverse the judgment and remand the matter for resentencing in 

the 2009 assault case and Prop. 36 case. Because sentence was imposed (with execution 

of sentence suspended) in the 2011 assault case in June 2011 and defendant did not 

appeal that determination, the eight-year sentence in the 2011 assault case is final and 

may not be modified on remand but the trial court retains discretion to order that sentence 

to run concurrent to the federal term. (People v. Gipson (2013) 213 Cal.App.4th 1523, 

1530 [“ ‘[W]here sentence is imposed and execution thereof suspended, an appeal may be 

taken from the sentence to state prison as the final judgment or an order granting 

probation as an order made after judgment.’ ”]; § 669.) If the trial court chooses to order 

any of the three California cases to run consecutive to the federal term, the court must 

state its reasons for that sentencing decision on the record. (McLeod, supra, 210 

Cal.App.3d at p. 590; Gulbrandsen, supra, 209 Cal.App.3d at p. 1560-1561.)

C. PRESENTENCE CUSTODY CREDITS

Defendant argues that he is entitled to additional presentence custody credits. 

Specifically, defendant seeks an additional 81 actual days credit in the 2009 assault case 

for December 20, 2009 through March 10, 2010; an additional 144 actual days credit in 

the 2011 assault case for February 6, 2011 through June 29, 2011; and an additional 144

actual days credit in the Prop. 36 case for that same period.

10

 

 

10

 Defendant originally sought credit in the Prop. 36 case for the 43 days he was 

in custody in the 2009 assault case between March 11, 2010 and April 22, 2010. After 

supplemental briefing, defendant now concedes that he is not entitled to credit for that 

period in the Prop. 36 case. (Citing People v. Jacobs (2013) 220 Cal.App.4th 67, 72-73, 
17

1. Section 2900.5 and People v. Bruner (1995) 9 Cal.4th 1178

Section 2900.5, subdivision (a) provides, in relevant part: “In all 

felony . . . 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 . . . .” But “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.” (§ 2900.5, subd. (b).) Whether defendant is entitled to additional credits 

“involves application of a statute to undisputed facts and is subject to our independent 

review.” (People v. Anaya (2007) 158 Cal.App.4th 608, 611.)

People v. Bruner (1995) 9 Cal.4th 1178 (Bruner) explored “how section 2900.5 

should be applied when a defendant sentenced to a new criminal term seeks credit for 

presentence custody attributable to a parole revocation caused in part, but not exclusively, 

by the conduct that led to the new sentence.” (Id. at pp. 1182-1183, fn. omitted.) Bruner 

was on parole after serving a prison term for armed robbery. He was arrested for three 

parole violation allegations and the police found “a substantial quantity of rock cocaine” 

during a search incident to that arrest. (Id. at p. 1181.) While in custody awaiting 

sentencing for violating parole, Bruner was cited for possessing the cocaine and “then 

released on his own recognizance on that charge.” (Ibid.) Bruner remained in custody 

until he was sentenced to 12 months in prison for violating parole, based on the three 

parole violation allegations as well as cocaine possession. Bruner was subsequently 

charged with, and pleaded guilty to, possessing the cocaine the police had found when he 

was arrested for the parole violation. Because Bruner had been released on his own 

recognizance in the cocaine possession case, the trial court awarded no presentence 

custody credit in that case when it imposed sentence. (Id. at pp. 1181-1182.) 

 

83-84 [denying presentence custody credit in one rape case for period the defendant was 

on bail in that case but in custody on rape allegations in a different case].)
18

The Supreme Court affirmed the denial of credits, holding 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.” (Bruner, supra, 9 Cal.4th at pp. 1193-1194.) The court explained that 

section 2900.5 “is intended only to prevent inequalities in total confinement among 

defendants, each similarly sentenced in a single proceeding, which inequalities arise 

solely because one defendant suffered presentence confinement while another did not,”

by virtue of that second hypothetical defendant’s ability to afford bail. (Bruner, at 

p. 1191, original italics.) “Section 2900.5 is not intended to bestow the windfall of 

duplicative credits against all terms or sentences that are separately imposed in multiple 

proceedings.” (Ibid.) 

As an example of the showing necessary to satisfy the burden it announced, the 

Bruner court cited People v. Williams (1992) 10 Cal.App.4th 827 (Williams), where the 

court of appeal found that Williams was entitled to credit in both the probation violation 

phase of an earlier case and a new sexual assault case that was the sole ground for the 

violation of probation in the earlier case. (Bruner, supra, 9 Cal.4th at p. 1193, fn. 10; 

citing Williams, at pp. 832-834; see Williams, at p. 833, fn. omitted [“[T]he only basis of 

proof of appellant’s violation of the ‘obey all laws’ condition of his misdemeanor 

probation was his criminal conduct which resulted in the charges in this case.”].)

2. 2009 Assault Case

Defendant received credit in the Prop. 36 case for December 20, 2009 through 

March 10, 2010 when he was in jail pending resolution of his probation revocation 
19

petition. The parties now agree that defendant was also entitled to credit for that period

in the 2009 assault case. The petition to revoke probation filed in December 2009 in the 

Prop. 36 case lists failure to obey all laws (based on defendant’s arrest in the 2009 assault 

case) as the sole ground for his probation violation. Because the conduct underlying the 

2009 assault was the sole reason defendant was arrested for violating his probation in the 

Prop. 36 case, defendant is entitled to custody credit in the 2009 assault case for the time 

he spent in custody in the Prop. 36 case from December 20, 2009 to March 10, 2010. 

(Bruner, supra, 9 Cal.4th at p. 1193, fn. 10.)

Defendant is thus entitled to 81 additional actual days presentence custody credit 

in the 2009 assault case and section 4019 conduct credit for those actual days. Before 

January 25, 2010, defendants were entitled to six days total credit for every four days 

spent in actual custody. (Former § 4019, subd. (f); Stats. 1982, ch. 1234, § 7, pp. 4553-

4554; see People v. Brown (2012) 54 Cal.4th 314, 318 [amendments to § 4019 do not 

apply retroactively].) After January 25, 2010 and continuing through defendant’s release 

in March 2010, defendants were generally entitled to four days total credit for every two 

days spent in actual custody unless they were committed for, or had been previously 

convicted of, a serious or violent felony, as defined in sections 1192.7 and 667.5, 

respectively. (Former § 4019, subds. (b), (c), (f); Stats. 2009, 3d Ex. Sess., 2009-2010, 

ch. 28, § 50, p. 4427-4428.) Defendants with a current or prior serious or violent felony 

conviction were entitled to only the more limited six days total credit for every four days 

spent in actual custody. (Ibid.) Because the 2009 assault was a serious or violent felony, 

defendant is entitled to only the more limited section 4019 credit formula for the entire 81 

days he served between December 2009 and March 2010.11 Applying that formula, 

defendant is entitled to 40 additional conduct credits in the 2009 assault case.

 

11

 When entering his plea in the 2011 assault case, defendant admitted the special 

allegation that the 2009 assault was a serious or violent felony.
20

3. 2011 Assault Case

Defendant next contends he is entitled to credits in the 2011 assault case for the 

time he spent in jail pending resolution of his probation revocation petition in the 2009 

assault case from February 6, 2011 through June 29, 2011. The People argue that 

defendant is not entitled to additional credit in that case because the 2011 assault case 

allegations “were not the sole basis for the February 2011 petitions to revoke” 

defendant’s probation.

The February 2011 petition to revoke probation filed in the 2009 assault case 

contains multiple grounds for revoking probation. Defendant admitted smoking 

marijuana in October 2010, admitted using methamphetamine and marijuana in 

December 2010, failed to report for a scheduled appointment with a probation officer in 

January 2011, and was arrested for the 2011 assault. However, before his arrest for the 

2011 assault defendant’s probation in the 2009 assault case had already been summarily 

revoked in January 2011 based on the other probation violations. Despite that summary 

revocation, defendant was not taken into custody until his arrest in the 2011 assault case. 

Thus, though the February 2011 petition to revoke probation contained grounds for 

revocation other than the 2011 assault allegations, the record supports defendant’s 

argument that the 2011 assault allegations were “the sole reason for his loss of liberty”

between February and June 2011. (See Bruner, supra, 9 Cal.4th at pp. 1193-1194.) 

Defendant is therefore entitled to an additional 144 actual days credit in the 2011 assault 

case for the period between February 6, 2011, and June 29, 2011, as well as 72 additional 

conduct credits (applying the more limited section 4019 formula because of the 2009 

assault case conviction). (Former § 4019, subds. (b), (c), (f); Stats. 2009, 3d Ex. Sess., 

2009-2010, ch. 28, § 50, p. 4428.) 

4. Prop. 36 Case

Defendant seeks an additional 144 days presentence custody credit in the Prop. 36 

case for the time he was in custody in the 2009 assault case between February 6, 2011 
21

and June 29, 2011. The People now concede that defendant’s “concurrent sentence in 

[the Prop. 36 case] may be credited with jail time attributable to the probation revocation 

matters which were based only in part upon the criminal incident which led to his 

conviction and sentence in” the 2011 assault case, such that he is entitled to credit for the 

period between February and June 2011. (Original italics.) We accept that concession. 

Defendant is thus entitled to an additional 144 actual days presentence custody credit in 

the Prop. 36 case for his time in custody between February 6, 2011 and June 29, 2011. 

Defendant is also entitled to 144 additional section 4019 conduct credits in the Prop. 36 

case.

12

 (Former § 4019, subds. (b), (c), (f); Stats. 2009, 3d Ex. Sess., 2009-2010, ch. 28, 

§ 50, p. 4428.) 

III. DISPOSITION

The judgment is reversed and the matter is remanded for resentencing. After 

resentencing, the new abstract of judgment must reflect the following credits: 423 total 

days presentence custody credit in Case No. CR-09-02513 (consisting of 269 actual days 

and 154 conduct credits); 218 total days presentence custody credit in Case No. CR-11-

00255 (consisting of 146 actual days and 72 conduct credits); and 438 total days 

presentence custody credit in Case No. CR-09-00337 (consisting of 230 actual days and 

208 conduct credits). (§ 4019, subd. (f).)

 

12

 Defendant is entitled to four days total credit for every two days spent in actual 

custody in the Prop. 36 case because that conviction predated his serious or violent 

conviction in the 2009 assault case. (Former § 4019, subds. (f); Stats. 2009, 3d Ex. Sess., 

2009-2010, ch. 28, § 50, p. 4428.)
22

______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

PREMO, J.

____________________________________

MÁRQUEZ, J.

People v. Robles-Carvajal

H039162