Filed 7/23/21 P. v. Busby CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

MERLEN DEAN BUSBY,

Defendant and Appellant.

 A161125

 (Del Norte County

Super. Ct. Nos. 98-341-C & 

CRF 98-1785)

Defendant Merlen Dean Busby was convicted in federal court of 

kidnapping a man at gunpoint and sentenced to 18 years in federal prison. 

He was subsequently convicted on multiple state charges arising out of the 

same incident and received a 24-year consecutive state prison sentence. 

Defendant was awarded no custody credits at his state sentencing. He 

recently filed a motion to correct his sentence in the trial court, seeking 

“22 months, 16 days” of presentence custody credits against his state 

sentence. The trial court denied the motion. Defendant appealed. 

We conclude defendant is not entitled to credit under Penal Code1

section 2900.5, subdivision (b) because his state sentence is consecutive to his 

federal sentence. Accordingly, we affirm. 

1 All statutory references are to the Penal Code.
2

I. BACKGROUND

The underlying facts of this case are set forth in greater detail in this 

court’s prior opinion on defendant’s direct appeal. (People v. Busby (Aug. 24, 

2001, A092785) [nonpub. opn.].) We provide only a brief summary of the 

most pertinent facts here. 

Around 11:30 p.m. on November 30, 1998, Marc and Pattie M. were 

asleep at home with their two young children. Defendant broke into their 

house and ordered the family into a bedroom at gunpoint. Defendant 

demanded money and led Marc around the house looking for money. 

Defendant forced Marc out of the house and into the family’s car in the 

garage. He then made Marc drive to Oregon and withdraw $400 from an 

ATM. Around 4:30 a.m., defendant was stopped by a sheriff’s deputy. 

Defendant was armed and driving the car. Marc was found in the trunk.

Defendant was arrested and taken into federal custody.2 On 

December 2, 1998, the United States Attorney’s Office filed a complaint 

charging defendant with kidnapping. (18 U.S.C. § 1201(a)(1).) A state 

warrant for his arrest also issued on December 2, and was amended the 

following day. In September 1999, defendant pleaded guilty in federal court 

to kidnapping and a related gun charge and was sentenced to 18 years in 

federal prison. 

On March 30, 2000, defendant was arrested by state authorities and 

extradited to Del Norte County to face charges in the present case. He was 

arraigned the next day. On August 29, 2000, a jury found defendant guilty of 

carjacking (§ 215, subd. (a)), first degree robbery (§ 212.5, subd. (a)), first 

2 The record is limited as to certain procedural aspects of the federal 

case. We rely in part on undisputed statements of fact made by defendant in 

the trial court. 
3

degree burglary (§§459, 460), two counts of false imprisonment by violence 

(§ 236), three counts of assault with a firearm (§ 245, subd. (a)(2)), and 

possession of a firearm by a felon (former § 12021, subd. (a)(1)). The jury 

also found true enhancement allegations pursuant to sections 12022.53, 

subdivision (b) and 12022.5, subdivision (a)(1). 

On September 28, 2000, defendant was sentenced to state prison for 24 

years. The trial court ordered his sentence to run consecutive to his federal 

sentence. The trial court did not award pretrial custody credits. Defendant 

was returned to federal prison to complete his prison commitment. 

Defendant began serving his state sentence after completing his federal 

term. On May 14, 2020, he filed a “Motion to Correct Sentence, to Appoint 

Counsel” in the superior court seeking presentence custody credits under 

section 2900.5. In his motion, defendant argued he was entitled to 667 days 

of custody credits, spanning the period from December 1, 1998, the date of his 

arrest, to September 28, 2000, the date he was sentenced in this case. 

The trial court heard and denied the motion, finding defendant was not 

entitled to custody credits against his state sentence. In its ruling from the 

bench, the court stated: “It’s my order that the sentence imposed was clearly 

indicated that it was going to be consecutive to the felony matter. [¶] And I 

don’t think you’re entitled to credits for—when you’re serving time on the 

federal charges and, specifically, where it’s indicated that these are going to 

be consecutive that I—I don’t think you’re entitled to the double credits.” 

II. DISCUSSION

The sole issue presented in this appeal is whether the trial court erred 

in refusing to award defendant presentence custody credits on his state 

sentence. Defendant contends he is entitled under section 2900.5 to pretrial 
4

credits on his state sentence for the period of pretrial custody under which he 

was mutually restrained by federal and state authorities.

Defendant bears the burden of proving his entitlement to credits at 

sentencing. (People v. Bruner (1995) 9 Cal.4th 1178, 1191 (Bruner); People v. 

Jacobs (2013) 220 Cal.App.4th 67, 81.) On this record, we conclude the trial 

court correctly denied defendant presentence custody credits. 

Section 2900.5 allows a defendant to receive credit “upon his or her 

term of imprisonment” for time spent in custody prior to being sentenced. 

(§ 2900.5, subd. (a).) Subdivision (b), however, contains an express limitation 

on presentence credits when consecutive sentences are imposed. (§ 2900.5, 

subd. (b) [“Credit shall be given only once for a single period of custody 

attributable to multiple offenses for which a consecutive sentence is 

imposed.”].) 

The second sentence of section 2900.5, subdivision (b) precludes an 

award of credits here. Defendant was sentenced in state court to a 24-year 

prison term, to run consecutive to his 18-year federal sentence. It would be 

an improper windfall to allow defendant credit against two separate, 

consecutive sentences for one period of pretrial custody.3 (See Bruner, supra,

9 Cal.4th at p. 1191 [“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.”]; People v. Santa Ana (2016) 247 Cal.App.4th 1123, 

1144, 1139 (Santa Ana) [“defendant cannot receive double credit against 

3 Although the record does not state whether defendant received 

presentence custody credit on his federal sentence, he was entitled to receive 

it and makes no showing he did not receive credit. (See 18 U.S.C. § 3585(b) 

[“A defendant shall be given credit toward the service of a term of 

imprisonment for any time he has spent in official detention prior to the date 

the sentence commences”].) 
5

consecutive sentences”]; Couzens et al., Sentencing Cal. Crimes (The Rutter 

Group 2020) ¶ 15.12 [“If consecutive sentences are imposed, the court is to 

award credit only once for any given period in custody. [Citations.] In other 

words, if the sentences for different cases are imposed consecutively, the 

court must be careful not to award duplicate credit for any particular day in 

custody.”].) 

Defendant summarily asserts that “the fact that [he] first was required 

to serve a federal term has no bearing on his state law-based [sic] claim to 

credits. . . . [because he] was not given a consecutive state prison term and 

the federal imprisonment had no bearing on the application of state law to a 

state prison sentence.” (Italics added.) But defendant does not make a legal 

argument or cite any authority in support of this contention. (People v. 

Stanley (1995) 10 Cal.4th 764, 793 [reviewing court may treat as waived any 

claim not supported by a legal argument with citation of authorities on the 

points made]; Cal. Rules of Court, rule 8.204(a)(1)(B).) The statute does not 

distinguish between state and federal sentences but proscribes dual credit for 

a single period of custody “for which a consecutive sentence is imposed.”

(§ 2900.5, subd. (b).) Defendant received “a consecutive sentence” here when 

the trial court ordered him to serve his state prison sentence consecutive to 

the federal sentence. 

Nor are we persuaded by defendant’s reliance on Santa Ana, supra, 

247 Cal.App.4th 1123, 1127, and People v. Cooksey (2002) 95 Cal.App.4th 

1407, 1414–1415 (Cooksey), for his argument that “case law would authorize 

confinement credits where ‘dual custodial restraints’ exist and there is a 

single period of custody.” In Cooksey, the defendant was arrested for robbery 

while on probation for discharging a firearm into a residence. (Cooksey, at 

p. 1414.) The trial court revoked probation and eventually sentenced 
6

defendant to a principal term of 10 years on the robbery conviction and a 

consecutive term of one year eight months for his earlier firearm conviction.

(Ibid.) Relying on the second sentence of section 2900.5, subdivision (b), the 

court concluded the defendant was not entitled to credits on the subordinate 

term because the trial court had imposed a consecutive sentence. (Cooksey,

at pp. 1414–1415.) Defendant does not explain how the holding of Cooksey 

supports his position in this case. 

Santa Ana likewise does not assist defendant. There, the appellate 

court denied the defendant duplicate credits where the trial court imposed a 

consecutive jail term as a condition of probation. Construing section 2900.5, 

subdivision (b), the court determined that “where a defendant was under dual 

custodial restraints resulting from the defendant’s arrest for one new offense 

and a probation hold or revocation based only on the new offense, [a single 

period of custody] is legally ‘attributable to’ both the new offense and the 

offense of conviction underlying the grant of probation.” (Santa Ana, supra,

247 Cal.App.4th at p. 1137.) Because the trial court had awarded the 

defendant custody credit against the earlier probationary jail term, it 

properly denied credit for the consecutive jail term imposed as a condition of 

probation. (Id. at p. 1145.) Thus, contrary to defendant’s contention, the 

Santa Ana court’s analysis supports denial of presentence credit in this case, 

where defendant seeks credit against a consecutive state sentence for the 

same period of custody served on his federal offense. 

The Santa Ana court also explored the legislative history of the 1978 

amendment of former section 2900.5 that added subdivision (b). As the court 

explained, “[i]t is clear from the legislative history of the 1978 amendment [of 

former section 2900.5] that the Legislature intended to disallow dual credits 

for a single period of custody in the situation where a court imposes a 
7

consecutive sentence.” (Santa Ana, supra, 247 Cal.App.4th at p. 1138.) For 

example, “[t]he Assembly Committee on Criminal Justice’s analysis of Senate 

Bill No. 1507 (1977–1978 Reg. Sess.) expressed concern that under existing 

law, ‘[i]f a person is detained in custody for the full amount of time that a 

consecutive sentence would allow prior to sentence, judges would be unable to 

adequately impose harsher penalties for consecutive sentences.’ ” (Ibid.)

Further, the court observed, “[t]he legislative history of Senate Bill No. 1507 

(1977–1978 Reg. Sess.) is replete with general expressions of legislative 

intent indicating that a defendant cannot receive double credit against 

consecutive sentences. (See Assem. Off. of Research, 3d reading analysis of 

Sen. Bill No. 1507 (1977–1978 Reg. Sess.) as amended May 31, 1978 [‘This 

bill provides that no double credit be given for the same period of time in 

custody if a consecutive sentence is imposed.’]; Assem. Com. on Criminal 

Justice, Analysis of Sen. Bill No. 1507 (1977–1978 Reg. Sess.) as amended 

May 17, 1978, p. 1 [‘S.B. 1507 would provide that no double credit be given 

for the same period of time in custody if a consecutive sentence is imposed.’]; 

see also Dept. of Corrections, Enrolled Bill Rep. on Sen. Bill No. 1507 (1977–

1978 Reg. Sess.) June 26, 1978, p. 2 [‘Double credit is eliminated by a 

provision that requires that credit be given only once for a single period of 

custody attributable to multiple offenses for which a consecutive sentence is 

imposed. . . . [¶] The elimination of the potential for using the same jail 

credits on each of several sentences solves a problem that has existed for 

years. The change gives meaning to a consecutive sentence.’].)” (Id. at 

p. 1139.) The repeated expressions of general legislative intent to prohibit

dual credit for the same period of custody when a consecutive sentence is 

imposed lead us to conclude that defendant is not entitled to credit against 

his consecutive state sentence here.
8

Moreover, a construction of section 2900.5 that allowed defendant 

presentence credits against his state sentence under the circumstances of this 

case would not be consistent with the general purpose of the statute, which is 

to “ensure that one held in pretrial custody on the basis of unproven criminal 

charges will not serve a longer overall period of confinement upon a 

subsequent conviction than another person who received an identical 

sentence but did not suffer preconviction custody.” (Bruner, supra, 9 Cal.4th 

at pp. 1183–1184.) “[T]he statute 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.” (Id. at p. 1191; People v. 

Kunath (2012) 203 Cal.App.4th 906, 911 [“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.”].) Because defendant was separately convicted and sentenced on 

federal kidnapping charges and the trial court determined his state sentence 

should run consecutive to that federal sentence, he cannot show he spent 

more time in custody than a hypothetical defendant who obtained 

presentence release in an otherwise identical state proceeding. Granting

defendant presentence custody credit in this case would not promote the 

statute’s legislative purpose. 

Because we conclude defendant is not entitled to presentence credit 

against his consecutive state sentence, we need not address the Attorney 

General’s alternative argument that defendant is not entitled to presentence 
9

credit because he cannot show the state proceedings had any effect on his 

liberty. 

III. DISPOSITION

The trial court’s September 3, 2020 order denying defendant’s motion to 

correct his sentence is affirmed. 
10

MARGULIES, ACTING P. J.

WE CONCUR:

BANKE, J.

SANCHEZ, J.

A161125

People v. Busby