1 

Filed 10/1/13 

CERTIFIED FOR PUBLICATION 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SIXTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

v. 

MATHEW JAMES JACOBS, 

Defendant and Appellant. 

 H038082 

 (San Benito County 

 Super. Ct. Nos. CR-11-01306 

 and CR-11-01572) 

 Pursuant to a plea bargain, Mathew James Jacobs pleaded no contest to forcible 

rape (Pen. Code, § 261, subd. (a)(2))1

 and admitted a sentence enhancement allegation 

pursuant to section 12022.8 in Case No. CR-11-01306 and pleaded no contest to unlawful 

sexual intercourse with a minor more than three years younger than him (§ 261.5, subd. 

(c)) in Case No. CR-11-01572. On appeal, defendant Jacobs raises an ineffective 

assistance claim with respect to defense counsel's failure to argue for a lesser sentence 

within the agreed range and asserts that he is entitled to additional presentence credits for 

time served.2

 

1

 All further statutory references are to the Penal Code. 

2

 Section 1237.1 provides: "No appeal shall be taken by the defendant from a 

judgment of conviction on the ground of an error in the calculation of presentence 

custody credits, unless the defendant first presents the claim in the trial court at the time 

of sentencing, or if the error is not discovered until after sentencing, the defendant first 

makes a motion for correction of the record in the trial court." We reach the issue of 

presentence custody credit, however, because it is not the only issue on appeal. (See 

People v. Acosta (1996) 48 Cal.App.4th 411, 420-428.) 
2 

 We reject the ineffective assistance claim but we find errors in the calculation of 

presentence credit. Accordingly, we modify the judgments and affirm them as modified. 

I 

PROCEDURAL HISTORY 

 Defendant was arrested on July 22, 2011. The record reflects that bail in the 

amount of $50,000 was posted on defendant's behalf by Luna Bail Bonds on July 23, 

2011. 

 On August 15, 2011, a complaint was filed in Case No. CR-11-01306. It alleged 

that defendant had committed forcible rape in violation of section 261, subdivision (a)(2), 

on or about July 21, 2011. It further alleged that defendant had inflicted great bodily 

harm upon the victim within the meaning of section 12022.8. 

 Defendant was arraigned on August 16, 2011. The minute order indicates a bond 

and specifies that defendant waived time and entered pleas of not guilty. 

 Defendant was arrested on unrelated charges on September 17, 2011. 

 On September 20, 2011, a complaint was filed in Case No. CR-11-01572. It 

alleged that defendant had committed five offenses against one victim: forcible rape on or 

about July 8, 2011 (§ 261, subd. (a)(1)) (count one), sexual penetration by a foreign 

object on or about July 8, 2011 (§ 289, subd. (a)(1)) (count two), contact with a minor for 

sexual offense on or about June 30, 2011 (§ 288.3, subd. (a)) (count three), and annoying 

telephone calls on or about July 10, 2011 (§ 653m, subd. (a)) (count four). The complaint 

also contained special allegations with respect to counts one and two. 

 Defendant was arraigned the same day. Defendant waived time and entered pleas 

of not guilty. 

 The September 27, 2011 minute order in Case No. CR-11-01306 reflects that 

defendant was "released on bail posted." The September 27, 2011 minute order in Case 

No. CR-11-01572 indicates that defendant was in custody and bail was set at $200,000 in 

that case. 
3 

 On October 18, 2011 in Case No. CR-11-01306, the matter was continued on 

defendant's motion. The October 18, 2011 minute order in Case No. CR-11-01306 

reflects a bond. The next hearing was set for November 15, 2011. 

 The October 18, 2011 minute order in Case No. CR-11-01572 reflects that 

defendant was in custody and bail was set at $200,000. The next hearing was set for 

November 15, 2011. 

 On November 15, 2011 in Case Nos. CR-11-01306 and CR-11-01572, the next 

hearing dates were scheduled. The preliminary examinations in those cases were set for 

December 19, 2011. The November 15, 2011 minute order in Case No. CR-11-01306 

reflects that defendant was released in that case and "in custody on other charges." The 

November 15, 2011 minute order in Case No. CR-11-01572 reflects that defendant was 

in custody and bail was set at $200,000. 

 On November 29, 2011, the court rescheduled the preliminary examinations for 

January 9, 2012 and set the next hearing date for January 3, 2012 in Case Nos. CR-11-

01306 and CR-11-01572. The November 29, 2011 minute order in Case No. CR-11-

01306 reflects that defendant was "released on bail posted" in that case and "in custody 

on other charges." The November 29, 2011 minute order in Case No. CR-11-01572 

reflects that defendant was in custody and bail was set at $200,000. 

 On January 3, 2012, the January 9, 2012 date for the preliminary examinations 

was confirmed in Case Nos. CR-11-01306 and CR-11-01572. The January 3, 2012 

minute order in Case No. CR-11-01306 reflects that defendant was released in that case 

and "in custody on other charges." The January 3, 2012 minute order in Case No. CR11-01572 reflects that defendant was in custody and bail was set at $200,000. 

 On January 9, 2012, on motion of the People and pursuant to a plea bargain 

involving both cases, the court added a fifth count in Case No. CR-11-01572 that charged 

defendant with committing a felony violation of section 261.5, subdivision (c), on July 8, 

2011. The agreed sentencing range was eight years, eight months to 11 years. The court 
4 

informed defendant that the maximum term based on the anticipated pleas and 

admissions under the bargain would have been 13 years, eight months. Defense counsel 

later noted that defendant would have been facing a maximum term of 29 years, eight 

months for the offenses as charged. The court advised defendant that he would be 

required to register with law enforcement for life. 

 In Case No. CR-11-01306, defendant pleaded no contest to committing a forcible 

rape in violation of section 261, subdivision (a)(2), on July 21, 2011 (count one) and 

admitted the enhancement allegation of great bodily injury within the meaning of section 

12022.8. In Case No. CR-11-01572, defendant pleaded no contest to unlawful sexual 

intercourse in violation of section 261.5, subdivision (c), on July 8, 2011. The trial court 

referred the matters to the probation department for presentencing reports. 

 The record reflects that on January 9, 2012, the court ordered the bond 

"exonerated" and placed a "body only hold" on defendant in Case No. CR-11-01306. 

The court also granted defendant an "OR release" (own recognizance) in Case No. CR11-01572. The January 9, 2012 minute order in Case No. CR-11-01306 states "body 

only" as to bail. The January 9, 2012 minute order in Case No. CR-11-01572 states that 

defendant is "released on O.R." and "in custody on other charges." 

 The presentencing probation reports recommended that the court impose a total 

term of 11 years in state prison. A Static-99R assessment that placed defendant in the 

moderate-high risk category was attached to the reports. 

 The probation report for Case No. CR-11-01306 indicated that defendant was in 

San Benito County jail from July 22, 2011 (date of arrest for conduct leading to charges 

in that case) to July 23, 2011 (bond posted) and January 10, 2012 (the day after bond 

exonerated and "body only hold" imposed) to February 16, 2012 (the date of sentencing). 

It calculated that defendant had served 40 actual days and he was entitled to six days of 

conduct credit under the 15 percent limitation imposed by section 2933.1, for total 

presentence credit of 46 days. 
5 

 The probation report for Case No. CR-11-01572 indicated that defendant was in 

San Benito County jail from September 17, 2011 (the date of arrest for conduct leading to 

charges in that case) to January 9, 2012 (the date of O.R. release in that case after 

pleading). It calculated that defendant had served 115 actual days and he was entitled to 

56 days of conduct credit, for total presentence credit of 171 days. 

 The sentencing hearing was held on February 16, 2012. The prosecutor urged the 

court to follow the recommendation of the probation reports and impose a total term of 

11 years. The prosecutor argued that defendant had "lured his victims through means of 

communications: texting, Facebook" and defendant had physically injured the victim of 

the forcible rape. Defense counsel stated, "I think the offer and the indicated was 11 

years, your Honor." He indicated that was "our discussion" and "that's the reason he 

pled." 

 The court imposed the middle term of six years for forcible rape and added an 

additional five years pursuant to section 12022.8, for a total sentence of 11 years in Case 

No. CR-11-01306. In Case No. CR-11-01572, the court imposed a middle term of two 

years for unlawful sexual intercourse and ordered the sentence to be served concurrently. 

As to presentence credit, the court awarded credits consistent with the probation reports' 

calculations. The court ordered defendant to register pursuant to section 290. 

II 

DISCUSSION 

A. Alleged Ineffective Assistance of Counsel 

 Defendant now argues that his counsel's failure to argue for the minimum sentence 

within the plea-bargained range constituted ineffective assistance of counsel under 

Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052] (Strickland). 

 A defendant claiming ineffective assistance of counsel must satisfy Strickland's 

two-part test requiring a showing of counsel's deficient performance and prejudice. (Id. 

at p. 687.) As to deficient performance, a defendant "must show that counsel's 
6 

representation fell below an objective standard of reasonableness" measured against 

"prevailing professional norms." (Id. at p. 688.) "Judicial scrutiny of counsel's 

performance must be highly deferential," a court must evaluate counsel's performance 

"from counsel's perspective at the time" without the "the distorting effects of hindsight," 

and "a court must indulge a strong presumption that counsel's conduct falls within the 

wide range of reasonable professional assistance." (Id. at p. 689.) 

 The prejudice prong requires a defendant to establish that "there is a reasonable 

probability that, but for counsel's unprofessional errors, the result of the proceeding 

would have been different." (Id. at p. 694.) "A reasonable probability is a probability 

sufficient to undermine confidence in the outcome." (Ibid.) "In assessing prejudice 

under Strickland, the question is not whether a court can be certain counsel's performance 

had no effect on the outcome or whether it is possible a reasonable doubt might have 

been established if counsel acted differently. [Citations.] Instead, Strickland asks 

whether it is 'reasonably likely' the result would have been different. [Citation.] This 

does not require a showing that counsel's actions 'more likely than not altered the 

outcome,' but the difference between Strickland's prejudice standard and a moreprobable-than-not standard is slight and matters 'only in the rarest case.' [Citation.] The 

likelihood of a different result must be substantial, not just conceivable. [Citation.]" 

(Harrington v. Richter (2011) ___ U.S. ___, ___ [131 S.Ct. 770, 791-792].) 

 "[A] court need not determine whether counsel's performance was deficient before 

examining the prejudice suffered by the defendant as a result of the alleged 

deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack 

of sufficient prejudice, . . . that course should be followed." (Id. at p. 697.) 

 Defendant first points out that he was a 21 year old at the time of the offenses and 

he had no criminal record. These circumstances were reflected in the probation reports. 

He also mentions as circumstances in mitigation his accomplishments with respect to 

education and independence in the face of difficulties involving his family, citing to a 
7 

letter attached to a probation report. The probation reports detail his education and 

employment. At the time of sentencing, the court indicated that it had read and reviewed 

the probation reports. (See § 1170, subd.(b).) 

 Defendant maintains that "defense counsel's failure to urge and argue the case for 

the minimum sentence in the indicated range undermines confidence in the outcome of 

the sentencing proceeding" and establishes his claim. The probation reports specified 

that on separate occasions defendant forced two female victims to have sexual 

intercourse. The victims were 18 years old and 16 years old. Defendant connected with 

his victims through Facebook or MyYearbook, social networking sites, and then met 

them in person. He brought them to his residence where the incidents occurred. 

Defendant has not identified any mitigating circumstances of which the court was 

unaware or which would have reasonably supported sentencing him to the lower, rather 

than the middle, term for forcible rape. He has not shown by reference to the record that 

there is a reasonable probability that the result of the sentencing hearing would have been 

different if defense counsel had highlighted the referenced letter and argued for the lower 

term. (See Strickland, supra, 466 U.S. at p. 694.) 

 Defendant refers us to People v. Cropper (1979) 89 Cal.App.3d 716, a case in 

which defense counsel failed to adequately advocate for his client at sentencing. This 

authority predates Strickland and did not apply the Strickland standard of ineffective 

assistance. 

 Defendant's brief also contains a "see also" citation to United States v. Cronic

(1984) 466 U.S. 648 [104 S.Ct. 2039] (Cronic) when discussing Cropper. Cronic

recognized three categories of cases that constitute per se violations of the Sixth 

Amendment right to counsel with respect to which prejudice is presumed: (1) "the 

complete denial of counsel" (id. at p. 659) at a critical stage of trial, (2) counsel's failure 

"to subject the prosecution's case to meaningful adversarial testing" (ibid.), and (3) "the 

likelihood that any lawyer, even a fully competent one, could provide effective assistance 
8 

is so small [under the particular circumstances] that a presumption of prejudice is 

appropriate without inquiry into the actual conduct of the trial." (Id. at pp. 659-660.) 

Defendant has not explicitly argued that this case is governed by Cronic. Accordingly, 

we conclude that he is not advancing such claim and any such contention is deemed 

waived. " '[E]very brief should contain a legal argument with citation of authorities on 

the points made. If none is furnished on a particular point, the court may treat it as 

waived, and pass it without consideration. [Citations.]' [Citations.]" (People v. Stanley

(1995) 10 Cal.4th 764, 793.) 

 In any case, the Strickland standard applies to the alleged deficient performance of 

defense counsel at the sentencing hearing. (Cf. Bell v. Cone (2002) 535 U.S. 685, 697-

698 [122 S.Ct. 1843] [Strickland, not Cronic, governed analysis of claim that defense 

counsel had rendered ineffective assistance at the capital sentencing hearing because 

"[t]he aspects of counsel's performance challenged by respondent—the failure to adduce 

mitigating evidence and the waiver of closing argument—are plainly of the same ilk as 

other specific attorney errors we have held subject to Strickland's performance and 

prejudice components"].) We reject defendant's ineffective assistance claim since we 

have found no reasonable probability that, but for trial counsel's alleged failings at the 

sentencing hearing, the court would have imposed a lesser sentence. 

B. Presentence Credits 

1. Basic Law

 "Persons who remain in custody prior to sentencing receive credit against their 

prison terms for all of those days spent in custody prior to sentencing, so long as the 

presentence custody is attributable to the conduct that led to the conviction. (§ 2900.5.) 

This form of credit ordinarily is referred to as credit for time served. [¶] Additional 

credit may be earned, based upon the defendant's work and good conduct during 

presentence incarceration. (§§ 2900.5, subd. (a), 4019.) Such presentence credit is 
9 

referred to as conduct credit. (See People v. Cooper (2002) 27 Cal.4th 38, 40.)" (People 

v. Duff (2010) 50 Cal.4th 787, 793.) 

 Section 2900.5, subdivision (a), states in pertinent part and effectively stated at all 

pertinent times: "In all felony and misdemeanor convictions . . . , when the defendant has 

been in custody, including, but not limited to, any time spent in a jail . . . , all days of 

custody of the defendant, including days . . . credited to the period of confinement 

pursuant to Section 4019 . . . , shall be credited upon his or her term of imprisonment 

. . . ." (Stats. 2011, ch. 15, § 466, p. 480, eff. April 4, 2011, operative Oct. 1, 2011, see 

Stats.1998, ch. 338, § 6, pp. 2718-2719, eff. Aug. 21, 1998, operative Jan. 1, 1999; see 

also Stats. 2011, ch. 15, § 636, p. 622; Stats. 2011, ch. 40, § 3, p. 1748, eff. June 30, 

2011.) A partial day spent in county jail is counted as a day of custody for which a 

defendant is entitled to credit. (People v. King (1992) 3 Cal.App.4th 882, 886; People v. 

Smith (1989) 211 Cal.App.3d 523, 526.) 

 Section 2900.5, subdivision (b), provides and at all relevant times provided: "For 

the purposes of this section, 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 period of custody attributable to 

multiple offenses for which a consecutive sentence is imposed."3

 (Stats. 2011, ch. 15, 

§ 466, pp. 480-481, eff. April 4, 2011, operative Oct. 1, 2011; Stats.1998, ch. 338, § 6, 

pp. 2718-2719, eff. Aug. 21, 1998, operative Jan. 1, 1999; see Stats. 2011, ch. 15, § 636, 

 

3

 From its inception, predecessor section 2900.5 contained very similar language to 

the first sentence of section 2900.5, subdivision (b). (Stats. 1971, ch. 1732, § 2, p. 3686 

[former § 2900.5, subd. (b)].) As amended in 1976, it contained the identical language 

now found in the first sentence of section 2900.5, subdivision (b). (Stats. 1976, ch. 1045, 

§ 2, p. 4666 [former § 2900.5, subd. (b)].) In 1978, the predecessor section was amended 

to add the identical language now found in the second sentence of section 2900.5, 

subdivision (b). (Stats. 1978, ch. 304, § 1, p. 632 [former § 2900.5, subd. (b)].) 
10 

p. 622; Stats. 2011, ch. 40, § 3, p. 1748, eff. June 30, 2011; Stats. 2011, ch. 40, § 3, p. 

1748, eff. June 30, 2011.) 

 Effective September 28, 2010, the Legislature amended section 4019 and section 

2933. (Stats. 2010, ch 426, §§ 1, 2, pp. 2087-2088.) As then amended, section 2933 

provided for enhanced presentence conduct credit in certain circumstances. (Stats. 2010, 

ch. 426, § 1, p. 2987 [former § 2933, subd. (e)].) Section 2933 was subsequently 

amended to eliminate its presentence conduct credit provisions. (See Stats. 2011-2012, 

1st Ex. Sess., ch. 12, § 16, p. 5963, eff. Sept. 21, 2011 and operative Oct. 1, 2011].) 

Section 4019 was subsequently amended multiple times but section 4019 as amended in 

2011 did not become operative until October 1, 2011. (See Stats. 2011, ch. 15, § 482, p. 

498, eff. April 4, 2011, operative Oct. 1, 2011; Stats. 2011, ch. 39, § 53, p. 1731, eff. June 

30, 2011, operative Oct. 1, 2011; Stats. 2011-2012, 1st Ex. Sess., ch. 12, § 35, p. 5977, 

eff. Sept. 21, 2011, operative Oct. 1, 2011.) 

 The current version of section 4019 went into effect on September 21, 2011 and 

became operative October 1, 2011. (Stats. 2011-2012, 1st Ex. Sess., ch. 12, §§ 35, 47, 

pp. 5976-5977, 5981.) It applies to crimes committed on or after October 1, 2011: "The 

changes to this section enacted by the act that added this subdivision shall apply 

prospectively and shall apply to prisoners who are confined to a county jail . . . for a 

crime committed on or after October 1, 2011. Any days earned by a prisoner prior to 

October 1, 2011, shall be calculated at the rate required by the prior law." (§ 4019, subd. 

(h).) 

 Section 2933.1 subdivision (c), however, limits presentence conduct credit 

"[n]otwithstanding Section 4019 or any other provision of law" to "15 percent of the 

actual period of confinement" where a defendant is convicted of a felony offense listed in 

subdivision (c) of Section 667.5. It appears undisputed that defendant was convicted of a 

violent felony within the meaning of section 667.5, subdivision (c), under the law as it 

existed at the time of defendant's offenses and under current law. (See § 667.5, 
11 

subds. (c)(3) [includes rape in violation of § 261, subd. (a)(2)] & (c)(8) [includes any 

felony in which a sentence enhancement for great bodily harm is pleaded and proved 

pursuant to section 12022.8]; Prop. 83, § 9, approved Nov. 7, 2006, eff. Nov. 8, 2006 

[former 667.5, subds. (c)(3) & (c)(8)].) 

2. Credit for Actual Time Spent in Presentence Custody 

a. Governing Legal Principles

 The California Supreme Court has recognized that "there is no simple or universal 

formula to solve all presentence credit issues" but the "aim is to provide for section 

2900.5 a construction which is faithful to its language, which produces fair and 

reasonable results in a majority of cases, and which can be readily understood and 

applied by trial courts." (In re Joyner (1989) 48 Cal.3d 487, 495 (Joyner), accord People 

v. Bruner (1995) 9 Cal.4th 1178, 1195 (Bruner).) "As with many determinations of 

credit, a seemingly simple question can reveal hidden complexities. Although the 

statutory language in section 2900.5 'may appear to have meaning which is self-evident, 

the appellate courts have had considerable difficulty in applying the words to novel facts.' 

[Citation.] 'Probably the only sure consensus among the appellate courts is a recognition 

that section 2900.5, subdivision (b), is "difficult to interpret and apply." [Citation.] As 

[the California Supreme Court has] noted, in what is surely an understatement, "[c]redit 

determination is not a simple matter." ' [Citation.]" (In re Marquez (2003) 30 Cal.4th 14, 

19.) 

 In Joyner and Bruner, the California Supreme Court recognized and applied a rule 

of "strict causation" to "cases involving the possibility of duplicate credit that might 

create a windfall for the defendant." (In re Marquez, supra, 30 Cal.4th at p. 23.) Joyner

involved criminal proceedings in California and Florida. (Joyner, supra, 48 Cal.3d at p. 

489.) Joyner sought "presentence custody credits against his California sentence for 

custody time in Florida and California from the date a 'hold' was placed against him for 

the California offenses until he was sentenced in California, all of which time has already 
12 

been credited against petitioner's Florida sentence." (Ibid.) The court held: "[A] period 

of time previously credited against a sentence for unrelated offenses cannot be deemed 

'attributable to proceedings' resulting in a later-imposed sentence unless it is 

demonstrated that the claimant would have been at liberty during the period were it not 

for a restraint relating to the proceedings resulting in the later sentence. In other words, 

duplicative credits against separately imposed concurrent sentences for unrelated offenses 

will be granted only on a showing of strict causation." (Ibid.) 

 In reaching its holding in Joyner, the Supreme Court examined the purposes for 

presentence credits: "(1) eliminating the unequal treatment suffered by indigent 

defendants who, because of their inability to post bail, serve a longer overall confinement 

for a given offense than their wealthier counterparts [citation] and (2) equalizing the 

actual time served in custody by defendants convicted of the same offense [citation]." 

(Id. at p. 494.) It noted that both "purposes are concerned with equalizing the treatment 

of different individuals each convicted in a single proceeding of the same offense or 

offenses." (Ibid.) 

 In Bruner, supra, 9 Cal.4th 1178, the Supreme Court applied Joyner's "strict 

causation" test to a different factual scenario. Defendant Bruner was convicted of a new 

crime and received a prison sentence "concurrent" to a term he was already serving for 

violation of parole in another case. (Id. at p. 1180.) The defendant's "custody as a parole 

violator was based in part on the same drug incident that led to the later conviction, but 

also upon additional, unrelated grounds." (Ibid.) The court reasoned: "[S]ection 2900.5 

is intended to provide equitable treatment for one held in pretrial custody on mere 

charges of crime, not to give credit for time already being served and credited on another 

term or sentence for unrelated violations. In this case, once defendant began serving a 

parole revocation term founded upon multiple, unrelated acts of misconduct, his custody 

was unavoidable on that basis regardless of the fact that he was simultaneously awaiting 

trial on the single criminal charge. [Citation.]" (Id. at p. 1192.) 
13 

 In Bruner, the court held: "[W]here 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." (Id. at pp. 1193-1194.) Thus, "when 

presentence custody may be concurrently attributable to two or more unrelated acts, and 

where the defendant has already received credit for such custody in another proceeding, 

the strict causation rules of Joyner should apply." (Id. at p. 1180.) The court concluded: 

"Here, defendant received credit for all presentence custody in his parole revocation 

proceeding, and he has failed to demonstrate that but for the cocaine possession leading 

to his current sentence, he would have been free, or at least bailable, during that 

presentence period. Hence, he is not entitled to duplicative credit against the current 

sentence." (Id. at pp. 1180-1181.) 

 In Bruner, the Supreme Court briefly discussed the second sentence of section 

2900.5, subdivision (b), which limits credit where a single period of custody is 

attributable to multiple offenses for which a defendant receives consecutive sentences. 

(Id. at p. 1192, fn. 9.) It noted: "[T]here is no indication the 1978 amendment [to section 

2900.5, which added the second sentence to subdivision (b),] was concerned with 

concurrent sentences for unrelated conduct imposed in multiple proceedings. By its 

terms, the amendment does no more than clarify that when consecutive terms are 

imposed for multiple offenses in a single proceeding, only one of the terms shall receive 

credit for presentence custody, while leaving undisturbed the accepted principle that 

when concurrent sentences are imposed at the same time, presentence custody is credited 

against all." (Ibid.) 
14 

 This "accepted principle" was discussed in People v. Adrian (1987) 191 

Cal.App.3d 868. The appellate court explained: "If the defendant is arrested and charged 

with multiple offenses, the presentence time is credited against the term imposed on each 

crime where concurrent sentences are imposed. (People v. Schuler (1977) 76 Cal.App.3d 

324, 330. . . .) Thus, if the multiple crimes are prosecuted in a single proceeding and 

concurrent sentences are ordered, it makes no difference that the crimes were committed 

at different times." (People v. Adrian, supra, 191 Cal.App.3d at pp. 875-876; see People 

v. Ayon (1987) 196 Cal.App.3d 1114, 1117.) 

People v. Kunath (2012) 203 Cal.App.4th 906, extended this principle to 

simultaneous concurrent sentencing in multiple cases. 

b. Actual Days in Presentence Custody 

 Defendant asserts in his opening brief that the credit calculations were incorrect 

and, pursuant to statute and case law applying it, he is entitled as a matter of statute and 

case law to have additional presentence custody to be credited against the concurrent 

sentences imposed in both Case No. CR-11-01306 and Case No. CR-11-01572. 

Defendant has the burden, "as the party claiming credit, to demonstrate his entitlement to 

credit" for any particular period. (People v. Huff (1990) 223 Cal.App.3d 1100, 1106.) 

 Defendant claims that he is entitled to be credited in both cases for presentence 

custody commencing with his arrest on September 17, 2012 (for the conduct attributable 

to Case No. CR-11-01572) through the date of sentencing in both cases on February 16, 

2012, a total of 153 actual days. There is no dispute that, in Case No. CR-11-01306, he is 

also entitled to credit for the two days he spent in San Benito County jail following his 

arrest in July 2011. Thus, according to defendant's calculations, he is entitled to 155 

actual days in Case No. CR-11-01306 and 153 actual days in Case No. CR-11-01572. 

People v. Gisbert (2012) 205 Cal.App.4th 277, the only case cited by defendant in 

support of his argument, does not aid him. In that case, the court held that the defendant 

was "not entitled to any presentence custody credits because he would not have been free 
15 

of custody but for his incarceration while awaiting trial on the second degree vehicle 

burglary charge, as he was already committed to state prison in connection with an earlier 

burglary conviction." (Id. at p. 279.) 

 The People initially agreed with defendant's credit calculations, however, citing 

People v. Kunath, supra, 203 Cal.App.4th 906 (Kunath). We asked the parties to discuss 

in supplemental briefs, among other issues, Kunath's holding and its proper construction 

in light of the "attributable " requirement of section 2900.5, subdivision (b). The People 

withdrew their concession. 

 In Kunath, the defendant was arrested for possession of a controlled substance for 

sale and then "released on bond." (Kunath, supra, 203 Cal.App.4th at p. 909.) The 

defendant was arrested a short time later for an unrelated possession of a controlled 

substance and "confined pending trial." (Ibid.) The defendant pleaded guilty in both 

cases. (Ibid.) When subsequently sentenced in those cases, the trial court imposed 

concurrent prison terms. (Ibid.) "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." (Ibid., italics added.) 

 On appeal, defendant Kunath contended that "the trial court erred in refusing to 

apply presentence custody credits in each case for the time he was simultaneously in 

presentence custody." (203 Cal.App.4th at p. 909, italics added.) The appellate court 

agreed: "Where . . . the defendant's custody is solely presentence on all charges and he is 

simultaneously sentenced on all charges to concurrent terms, the policy behind section 

2900.5 applies. Presentence custody credits must apply to all charges to equalize the total 

time in custody between those who obtain presentence release and those who do not. [¶] 

Here Kunath was in presentence custody on mere charges of crime until he was sentenced 

simultaneously on both cases. Unlike Bruner, at no time did Kunath's presentence 

custody overlap custody on a crime for which he had previously been convicted. 

Because Kunath was in presentence custody on mere charges of crimes in both cases, he 
16 

is entitled to full credit for the time spent in presentence custody in both cases." (Id. at p. 

911, italics added.) The appellate court could not determine how the trial court had 

calculated presentence custody credit, however, and remanded for recalculation, 

impliedly consistent with its determinations. (Ibid.) 

 The appellate court in Kunath clearly recognized that "[s]ection 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.' " (Kunath, supra, 203 Cal.App.4th at p. 909, italics 

added.) Accordingly, we understand Kunath as holding, consistent with that statutory 

provision and with Bruner, that when a trial court imposes only concurrent sentences in 

multiple cases at the same time, a defendant is entitled to all presentence custody 

attributable to each of the proceedings so long as that custody has not been already 

credited to a previously imposed sentence. (See id. at pp. 909–911.) We do not read 

Kunath as authorizing credit for a period of custody that cannot be attributed to a 

proceeding. "Section 2900.5 does not authorize credit where the pending proceeding has 

no effect whatever upon a defendant's liberty." (In re Rojas (1979) 23 Cal.3d 152, 156.) 

To the extent that Kunath may be construed as disregarding the "attributable" 

requirement and reaching a result that is inconsistent with the express language of section 

2900.5, subdivision (b), we respectfully disagree with that result. 

 Defendant, who limited his appeal to a question of statutory application, now 

contends in his supplemental briefs that, if Kunath was wrongly decided, he has been 

disparately treated compared to "those pretrial detainees for whom bail has been formally 

revoked on the second arrest." He insists that if he is not entitled to presentence custody 

credits in both cases for the entire period from September 17, 2011 to February 16, 2012 

"by force of statute, he is by the force of the Equal Protection Clause of the Fourteenth 

Amendment." He also maintains that "if Kunath is wrong, then trial counsel was 

ineffective for failing to move to exonerate bail" and he is "entitled to full credits . . . by 
17 

virtue of his right to effective assistance of counsel as guaranteed by the Sixth 

Amendment." We did not ask for additional briefing on issues unrelated to the proper 

credit calculation based on statute. We deem these new, alternative contentions waived. 

(See People v. Lewis (2008) 43 Cal.4th 415, 536, fn. 30 ["Generally, a contention may 

not be raised for the first time in the reply brief. [Citation.]"]; Hibernia Sav. & Loan 

Society v. Farnham (1908) 153 Cal. 578, 584 [An appellant should "make the points on 

which he relies in his opening brief, and not reserve them for his reply, and that the court 

may properly consider them as waived unless so made. [Citations.]".) 

 As the People now note in their supplemental brief: "Kunath's holding [was] 

designed to protect a defendant held in presentence custody on two charges at the same 

time" but in this case defendant "was not simultaneously in custody on both charges, save 

for one day." In Case No. CR-11-01306, defendant posted bail for conduct leading to his 

conviction before he was arrested on September 17, 2011 for another crime and he 

remained free on bail in that case until January 9, 2012. Defendant has not shown that 

that proceeding effected any restraint on his liberty on or after September 17, 2011 and 

before January 9, 2012. Even under the reasoning of Kunath as we understand it in light 

of subdivision (b) of section 2900.5, defendant is not entitled to credit in Case No. CR11-01306 for the period from his arrest on September 17, 2011 to January 8, 2012 

because his presentence custody during that period was not attributable to that 

proceeding. Similarly, defendant is not entitled to credit in Case No. CR-11-01572 for 

the period from January 10, 2012 to February 16, 2012 (the date of sentencing) because 

he was released on his own recognizance in that case on January 9, 2010. As the People 

observe, defendant was effectively in custody in both cases only on January 9, 2012.4

 

4

 The probation report for Case No. CR-11-01306 did not report that defendant was 

in custody on January 9, 2012 and, consequently, the court credited defendant with only 

40 actual days in that case. On January 9, 2012, defendant was in custody for at least part 

of the day in each case and, therefore, is entitled to credit for a full day in both cases. 
18 

 In his original briefs, defendant does not challenge the court's orders regarding his 

custody or release in Case Nos. CR-11-01306 and CR-11-01572 or claim ineffective 

assistance of counsel with respect to those orders. Accordingly, we do not consider 

whether the court erred or defense counsel should have done something to avoid 

defendant being, for the most part, in presentence custody on only one of the two cases. 

 Based on the record, credit for actual presentence custody from July 22, 2011 to 

July 23, 2012 (two actual days) and from January 9, 2012 to February 16, 2012 (39 actual 

days), a total of 41 (rather than 40) actual days, should have been awarded in Case No. 

CR-11-01306. Credit for actual presentence custody from September 17, 2011 to 

January 9, 2012, a total of 115 actual days, was properly awarded by the trial court in 

Case No. CR-11-01572. The People reach the same conclusions in their supplemental 

brief. 

3. Conduct Credit

 In their original briefs, the parties implicitly recognized that the presentence 

conduct credit authorized by law is limited by section 2933.1, subdivision (c), because 

defendant was convicted by plea of forcible rape and he admitted inflicting great bodily 

injury in the commission of that offense. (§§ 2933.1, subds. (a), (c); 667.5, subd. (c).) 

Defendant maintains that, under the 15 percent limitation of 2933.1, he is entitled to 23 

days of conduct credit (155 x 0.15) in Case No. CR-11-01306 and 22 days of conduct 

credit (153 x 0.15) in Case No. CR-11-01572. The People initially agreed with those 

assertions. Defendant's conduct calculations are incorrect because they are not based on 

the number of actual days in custody attributable to each proceeding. 

 In their supplemental brief, the People maintain that the trial court correctly 

calculated that defendant was entitled to six days of conduct credit in Case No. CR-11-

 

(See Kunath, supra, 203 Cal.App.4th at pp. 909–911; People v. King (1992) 3 

Cal.App.4th 882, 886; People v. Smith (1989) 211 Cal.App.3d 523, 526.) 
19 

01306 and 56 days of conduct credit in Case No. CR-11-01572. The trial court 

overlooked, as the People now seem to do, that 2933.1's 15 percent limitation applies to 

"any person who is convicted of a felony offense listed in subdivision (c) of Section 

667.5." (§ 2933.1, subds. (a), (c).) 

 "[B]y its terms, section 2933.1 applies to the offender not to the offense and so 

limits a violent felon's conduct credits irrespective of whether or not all his or her 

offenses come within section 667.5." (People v. Ramos (1996) 50 Cal.App.4th 810, 817; 

see People v. Nunez (2008) 167 Cal.App.4th 761, 765.) Therefore, section 2933's 

limitation on presentence conduct credit "applies to each offense of a defendant's entire 

prison term if any of the offenses for which he is sent to prison is violent." (People v. 

Nunez, supra, 167 Cal.App.4th at p. 765 [court correctly applied the 15 percent limitation 

on presentence conduct credit to two felony offenses, one violent (robbery) and one 

nonviolent (unlawful driving), charged in separate cases where court imposed concurrent 

prison sentences following revocation of probation in the robbery case]; see In re Reeves

(2005) 35 Cal.4th 765, 774.) 

 Accordingly, in Case No. CR-11-01306, conduct credit is limited to six days 

conduct credit (41 x 0.15) and, in Case No CR-11-01572, conduct credit is limited to 17 

days conduct credit (115 x 0.15). (See People v. Ramos, supra, 50 Cal.App.4th at pp. 

816-817 [defendant entitled to greatest whole number of days that do not exceed 15 

percent of actual period of presentence confinement].) 

DISPOSITION 

 In Case No. CR-11-01306, the judgment is modified to reflect 41 days of actual 

days credit plus six days of local conduct credit for total presentence credit of 47 days. In 

Case No CR-11-01572, the judgment is modified to reflect 115 days of actual days credit 

plus 17 days of local conduct credit for total presentence credit of 132 days. As 

modified, the judgment is affirmed. The trial court is directed to prepare an amended 
20 

abstract of judgment reflecting the modifications and to forward a certified copy to the 

Department of Corrections and Rehabilitation. 
21 

 _________________________________ 

 ELIA, J. 

WE CONCUR: 

 ________________________________ 

 RUSHING, P. J. 

 ________________________________ 

 PREMO, J. 

People v. Jacobs 

H038082 
22 

Trial Court: San Benito County Superior Court 

Trial Judge: Hon. Steven R. Sanders 

Attorney for Appellant: Mark David Greenberg, 

 Under Appointment by the 

 Court of Appeal 

Attorneys for Respondent: Kamala D. Harris, 

 Attorney General, 

 Dane R. Gillette, 

 Chief Assistant Attorney General, 

 Gerald A. Engler, 

 Senior Assistant Attorney General, 

 Stan Helfman and 

 Jeffrey M. Laurence, 

 Deputy Attorneys General 

People v. Jacobs 

H038082