Filed 8/1/13 P. v. Miller CA2/1 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

JUSTIN THOMAS MILLER, 

 Defendant and Appellant. 

 B242973 

 (Los Angeles County 

 Super. Ct. No. MA014304) 

 APPEAL from an order of the Superior Court of Los Angeles County. Charles A. 

Chung, Judge. Appeal treated as a petition for writ of habeas corpus and denied. 

 California Appellate Project, under appointment by the Court of Appeal, Jonathan 

B. Steiner, Executive Director, and Richard B. Lennon, Staff Attorney, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Marc A. Kohm and Alene 

M. Games, Deputy Attorneys General, for Plaintiff and Respondent. 

_________________________________ 
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 Defendant Justin Thomas Miller appeals from an order of the trial court denying 

his motion to award additional presentence credit. Defendant contends that although his 

probation was revoked on a different case and he was sentenced on that case while he 

was awaiting his trial in the present case, he should have been given credit in the present 

case for his entire period of custody, from arrest until sentencing on the present case. We 

conclude the order was not appealable, but treat the appeal as a petition for writ of habeas 

corpus and deny the petition for failure to make a prima facie showing of entitlement to 

additional credit. 

BACKGROUND 

 In 1997 a jury convicted Justin Thomas Miller of assault with a firearm, 

discharging a firearm from a motor vehicle, and possession of a firearm by a convicted 

felon. The jury further found that he used a firearm in the commission of the first two 

offenses and committed all three offenses in association with a criminal street gang. The 

trial court sentenced him to 18 years in prison and awarded no presentence credit. We 

affirmed his conviction on appeal, but agreed that the firearm-use enhancement had been 

improperly imposed on his conviction for discharging a firearm from a motor vehicle and 

remanded for resentencing. (People v. Miller (B118884) [nonpub. opn.].) Upon remand, 

the trial court sentenced defendant to 17 years in prison and directed the Department of 

Corrections to calculate defendant’s credits. Defendant again appealed, and we affirmed. 

(People v. Miller (B139535) [nonpub. opn.].) 

 The California Appellate Project apparently filed an ex parte motion to correct 

defendant’s presentence credits, and on November 20, 2000, the trial court awarded 

defendant a total of 104 days of presentence credit, consisting of 91 days of actual 

custody time and 13 days of conduct credit. 

 On May 14, 2012, defendant filed a motion for presentence credit, asking the trial 

court to award him 159 days for actual custody, citing and attaching pages from his 

probation report prepared for both the present case and case No. MA012399. The 
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recommendation of the reporting deputy probation officer was “that the defendant be 

sentenced to state prison with pre-imprisonment credit of 159 days . . . .” 

 On June 26, 2012, the trial court denied defendant’s motion, stating, “The motion 

is denied for failure to state a prima facie case for relief. The defendant was arrested on 

6/28/97 and sentenced in cased [sic] number MA012399 on 9/26/97, which entitled him 

to 91 days actual credit, plus good time/work time credits.” 

 Defendant appealed on July 27, 2012. 

DISCUSSION 

 Defendant contends the trial court erred by denying his motion, arguing he was 

entitled to 159 days of presentence credit because his sentences on the present case and 

the prior case were to run concurrently. 

 A threshold issue raised by the Attorney General is appealability. As noted, the 

trial court, pursuant to defendant’s motion, awarded presentence credits against the 

sentence in the current case on November 20, 2000. Defendant had a right to appeal the 

ruling on that order (People v. Gainer (1982) 133 Cal.App.3d 636, 642), but failed to do 

so. He instead appeals from a second motion filed in the trial court a year and one-half 

later. “He cannot now allege claims of error, which should have been raised at an earlier 

time [citation]. To permit this would allow [defendant] to greatly extend the period for 

filing an appeal through bootstrapping.” (People v. Lynn (1978) 87 Cal.App.3d 591, 

593.) Accordingly, we conclude the court’s order is not an appealable order but is 

reviewable by means of a petition for writ of habeas corpus. Although no petition for 

writ of habeas corpus has been filed in this court, in the interests of judicial economy, we 

will treat this appeal as a petition for writ of habeas corpus. (People v. Garrett (1998) 67 

Cal.App.4th 1419, 1423.) 

 Penal Code section 2900.5 governs the circumstances in which custody credits 

will be awarded. Subdivision (a) of that section provides, in pertinent part, that “[i]n all 

felony and misdemeanor convictions, either by plea or by verdict, when the defendant 

has been in custody, including . . . any time spent in a jail, . . . all days of custody of the 
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defendant . . . shall be credited upon his or her term of imprisonment . . . .” 

Subdivision (b) of Penal Code section 2900.5 further states, “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.” 

 A defendant is not entitled to credit for presentence confinement unless he shows 

that the conduct that led to the sentence against which he seeks credit “was the true and 

only unavoidable basis for” his loss of liberty during the presentence period. (People v. 

Bruner (1995) 9 Cal.4th 1178, 1192 (Bruner).) “[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.) The 

defendant must prove that the conduct that “led to the sentence was a dispositive, or ‘but 

for,’ cause of the presentence custody.” (Id. at p. 1180.) 

 As stated by the trial court, defendant has not shown a prima facie case for relief. 

He based his claim of error in the award of credits upon a statement in the probation 

report, but failed to show that “but for” the conduct giving rise to his conviction and 

sentence in the present case, he would not have been in custody for his probation 

revocation in case No. MA012399. Although he argues on appeal that his probation was 

revoked in case No. MA012399 “as a result of this arrest,” nothing in the record 

establishes the nature of the violations that caused the trial court to revoke his probation. 

There may have been one or more grounds in addition to the conduct giving rise to the 

charges in the present case. Notably, the probation report pages upon which defendant 
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relied revealed that he was convicted by a jury in the present case on November 5, 1997, 

whereas, according to the trial court, he had been sentenced in case No. MA012399, 

following probation revocation, on September 26, 1997. The mere asserted concurrence 

of the terms imposed (a matter the appellate record does not demonstrate) does not lead 

to a different result. The parole revocation and new sentence terms in Bruner, supra, 9 

Cal.4th at page 1181, were concurrent, yet the court concluded Bruner had not made the 

requisite showing. 

 Accordingly, defendant failed to make a prima facie showing that he is entitled to 

additional credit. 

DISPOSITION 

 We treat the appeal as a petition for writ of habeas corpus and deny the petition. 

 NOT TO BE PUBLISHED. 

 MALLANO, P. J. 

We concur: 

 CHANEY, J. 

 JOHNSON, J.