Filed 12/17/15 P. v. Dandy CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JENNIFER NOEL DANDY,

Defendant and Appellant.

 B259775

 (Los Angeles County

 Super. Ct. No. BA409414)

APPEAL from a judgment of the Superior Court of Los Angeles County. 

Craig E. Veals, Judge. Affirmed as modified.

Carey D. Gorden, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez, Deputy 

Attorney General, and Andrew S. Pruitt, Deputy Attorney General, for Plaintiff and 

Respondent.

* * *
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Defendant Jennifer Noel Dandy (defendant) appeals the trial court’s calculation of 

her presentence custody credits. We conclude that the court’s calculations are not 

correct, and order that her total custody credits be reduced by eight days. 

FACTS AND PROCEDURAL BACKGROUND

On July 2, 2013, defendant entered a plea to a single count of possessing cocaine 

for sale (Health & Saf. Code, § 11351.5). The trial court imposed but suspended a fouryear prison sentence and placed her on probation for five years. The court noted that 

defendant had four days of custody credit. 

Just over a year later, on August 1, 2014, defendant was present in a hotel room 

with narcotics in plain view; she also possessed a purse containing $560 in various 

denominations of cash and the keys to a car containing additional narcotics. Police 

arrested her that day, and her bail was set at $30,000. 

Six days later, on August 7, 2014, the trial court summarily revoked her probation 

on the 2013 case and issued a no bail bench warrant. 

The People opted to proceed against defendant for this 2014 conduct as a violation 

of her probation in the 2013 case rather than as a separate prosecution. On October 1, 

2014, the trial court held an evidentiary hearing on the probation violation, and found 

defendant in violation. 

The trial court imposed the previously suspended four-year prison term. The court 

awarded defendant 124 days of custody credit—62 days of actual credit (from August 1, 

2014 through October 1, 2014), and 62 days of good time/work time credit. Although the 

People informed the court that defendant had four days of unused custody credit from the 

time of her initial sentencing, the court did not award those credits. The abstract of 

judgment is consistent with the court’s oral pronouncement of judgment. 

Defendant timely appeals. 

DISCUSSION

Defendant phrases her sole argument on appeal as a challenge to the trial court’s 

“fail[ure] to correct the abstract of judgment to show the correct amount of presentence 

custody credits.” But the abstract of judgment matches the court’s oral pronouncement of 
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sentence. Consequently, defendant is challenging the court’s calculation of custody 

credits.

I. Jurisdiction

Where, as here, the “sole issue on appeal” is the alleged “error in the calculation of 

presentence custody credits,” the appeal is proper only if (1) the defendant “first 

present[ed] the claim in the trial court at the time of sentencing,” or (2) “the defendant 

[made] a motion for correction of the record in the trial court” when “the error [was] not 

discovered until after sentencing.” (Pen. Code, § 1237.1

1

; People v. Acosta (1996) 48 

Cal.App.4th 411, 415 (Acosta).) In this case, although it was the People and not 

defendant who presented defendant’s entitlement to four days of custody credit from the 

initial imposition of her sentence in 2013, it is undisputed that the issue was presented to 

the trial court. We consequently have jurisdiction to entertain this appeal.

II. Merits

As a general matter, a criminal defendant is entitled to credit for “all days” that she 

spends in presentence custody. (§ 2900.5, subd. (a).) However, this presentence “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).) 

We independently consider the meaning of these statutes as well as the application of 

these statutes to undisputed facts. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 

24 Cal.4th 415, 432; Pasadena Police Officers Assn. v. Superior Court (2015) 240 

Cal.App.4th 268, 284.) A defendant bears the burden of showing her entitlement to 

custody credits. (E.g., People v. Jacobs (2013) 220 Cal.App.4th 67, 81.)

A. Entitlement to credits from initial imposition of probation

Defendant argues that the trial court erred in not giving her presentence custody 

credit for the four days of custody credit she earned prior to being placed on probation in 

2013. As the People concede, defendant is entitled to this credit. (E.g., People v. Huff

 

1 Unless otherwise indicated, all further statutory references are to the Penal Code.
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(1990) 223 Cal.App.3d 1100, 1106 (Huff) [upon revocation of probation, awarding 

custody credit for time served prior to imposition of probationary sentence].)

B. Entitlement to credits between time of arrest and when the court 

summarily revoked probation

The People contend that the trial court erred in giving defendant actual custody 

credit for the six days between her arrest on August 1, 2014 and the court’s summary 

revocation of her probation on August 7, 2014; thus, the People reason, defendant is 

entitled to 12 fewer days of custody credit (six fewer actual days, and six fewer good 

time/work time credits under section 2933, subdivision (b).) The People may raise this 

issue, even though defendant appealed, because we are “empowered to correct these 

errors whenever either side requests such relief.” (People v. Duran (1998) 67 

Cal.App.4th 267, 269-270.)

The People’s argument is well taken. The identical scenario arose in both Huff, 

supra, 223 Cal.App.3d 1100, and People v. Pruitt (2008) 161 Cal.App.4th 637 (Pruitt). 

“[I]n both cases the probationers were arrested on new charges, held in custody solely on 

those charges for a period prior to summary revocation of their probation and ultimately 

sentenced on the underlying convictions not the new charges, albeit for engaging in the 

conduct that led to the filing of the new charges.” (Pruitt, at p. 643.) In both cases, the 

appellate courts upheld the trial court’s refusal to award custody credit for the time spent 

in custody after arrest but before summary revocation of probation. (Huff, at pp. 1105-

1106; Pruitt, at pp. 630-645.) In both cases, the time the defendant spent in custody prior 

to summary revocation of his probation was not “attributable to proceedings related to the 

same conduct for which the defendant has been convicted” because the defendant was 

never convicted on the new charges, and thus fell within limitation on custody credits set 

forth in section 2900.5, subdivision (b). (§ 2900.5, subd. (b), italics added.) The same is 

true here.

Defendant offers three arguments against this result. First, she argues that this 

result cannot be squared with our Supreme Court’s decision in In re Marquez (2003) 30 

Cal.4th 14 (Marquez). To begin, the court in Pruitt considered and rejected the same 
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argument. (Pruitt, supra, 161 Cal.App.4th at p. 639.) We also do not perceive any 

conflict. The issue in Marquez was whether a defendant who was in the physical custody 

of one county but under a “hold” in a second county was entitled to custody credit in the 

second county after his conviction in the first county was overturned on appeal; the court 

concluded he was. (Marquez, at p. 20; accord, People v. Lathrop (1993) 13 Cal.App.4th 

1401, 1404-1406 [defendant entitled to custody credit against sentence imposed in one 

county for time spent in custody of another county where the first county had placed a 

hold on him]; People v. Gonzalez (2006) 138 Cal.App.4th 246, 254 (Gonzalez) [where 

probation had been summarily revoked, defendant entitled to custody credit against the 

sentence imposed for a probation violation for the time spent in custody after arrest for a 

different case].) The court in Marquez was careful to note that the defendant would not 

have been entitled to custody credit in the second county “had [that county] never placed 

a hold” on him, and distinguished Huff on that ground. (Marquez, at pp. 20-21, 24.) In 

other words, Marquez specifically preserved Huff’s rule on the scenario presented in Huff

and in this case.

Second, defendant argues Pruitt, supra, 161 Cal.App.4th 637 is wrongly decided 

because it relies on our Supreme Court’s inapplicable decision in People v. Bruner (1995) 

9 Cal.4th 1178 (Bruner). We agree that Bruner is inapplicable to the scenario presented 

in this case because Bruner examined the circumstances under which a criminal 

defendant is entitled to have the same custody credits applied against two different 

sentences. (Id. at pp. 1180-1181; accord, Marquez, supra, 30 Cal.4th at p. 23 

[distinguishing Bruner on this basis]; Gonzalez, supra, 138 Cal.App.4th at p. 254 

[same].) But Pruitt, while discussing Bruner, did not rely on its rule or its rationale. 

(Pruitt, at pp. 641-645.)

Lastly, defendant asserts that unless she is credited those six days for the probation 

violation, they will not be credited against any sentence and will become “dead time.” 

Although such “dead time” is not preferred, our Supreme Court has acknowledged that 

“[s]ometimes [it] is unavoidable.” (Marquez, supra, 30 Cal.4th at p. 20.) Section 2900.5, 

subdivision (b) made it unavoidable in Huff and Pruitt, and does so in this case as well. 
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Defendant relatedly argues that this outcome violates equal protection. We disagree. 

“Dead time” is not inherently unconstitutional. A person who is arrested on criminal 

charges that are later dismissed will suffer “dead time.” That “dead time” does not 

somehow become unconstitutional just because it happens to be followed by custodial 

time for which that person does receive custody credit by virtue of a subsequent 

revocation of probation.

DISPOSITION

We order that the trial court grant defendant an additional four days of custody 

credit earned prior to her placement on probation, but that the court subtract a total of 

twelve days—six days of actual custody credit and six days of good time/work time 

credit—for the time between August 1, 2014 and August 7, 2014. The clerk of the 

superior court is directed to modify the abstract of judgment to reflect these changes in 

custody credit, and forward a copy of the corrected abstract of judgment to the 

Department of Corrections and Rehabilitation. In all other respects the judgment is 

affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

HOFFSTADT 

We concur:

______________________, P.J.

BOREN

______________________, J.

ASHMANN-GERST