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CRIMINAL LAW-SENTENCING
Criminal Law Sentencing Case Summaries
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■ People v. Stump, No. G040446

 John Leroy Stump (defendant) was charged by information with driving under the influence of alcohol/drugs with a prior felony within 10 years, in violation of Vehicle Code section 23152, subdivision (a) (count one), and with driving with a blood-alcohol content of at least .08 percent with a prior felony within 10 years, in violation of Vehicle Code section 23152, subdivision (b) (count two).  The information alleged, pursuant to Vehicle Code section 23538, subdivision (b)(2), that defendant had a blood-alcohol content of at least .20 percent.  It further alleged, pursuant to Penal Code section 667.5, subdivision (b), that defendant had suffered three prior convictions of Vehicle Code section 23152, for which he had served separate prison terms.
                        Defendant, who was on parole at the time of his arrest, pleaded guilty, in exchange for a sentencing cap of no more than four years.  The court sentenced defendant to a total of four years in state prison.  Defendant was given credit for 504 actual days served and 252 days for conduct, for a total of 756 days.

                        Defendant appeals his sentence.  He argues the court erred in denying him credit for an additional 152 days, which he served in parole revocation custody.  He also says that, in addition to the 152 days of actual custody, he should be entitled to a credit of 76 days for good behavior.  We disagree. 

                        Defendant has not shown that “but for” having driven under the influence of alcohol, he would not have been held in custody for the period of time in question.  (People v. Bruner (1995) 9 Cal.4th 1178, 1180 (Bruner).)  He committed one violation of the terms of his parole simply by driving without his parole officer’s permission.  He committed a second violation by the isolated act of drinking alcohol.  Although it is true that defendant committed a third violation of the terms of his parole by combining the two aforementioned acts and driving under the influence of alcohol, either the act of driving without permission or the act of drinking, standing alone, was sufficient to constitute a violation of the terms of his parole.  We affirm.

I

FACTS

                        On July 16, 2006, the police were dispatched in connection with a family disturbance.  When they arrived upon the scene, they saw a pickup truck driving away.  They were told that the driver was the person involved in the disturbance in question.  The police followed the truck and observed that the license plate was obstructed from view.  They pulled over the truck because of both the obstructed license plate and the investigation of the disturbance.  Defendant, who was the driver of the truck, smelled strongly of alcohol, and had bloodshot and watery eyes and slurred speech.  He failed field sobriety tests and was transported to jail, where his blood was drawn.  His blood-alcohol content was .37 percent.

                        At the time of his arrest, defendant, who has a lengthy criminal record, was on parole for driving under the influence.  A parole revocation hold was placed on defendant and he remained in custody from July 16, 2006 forward.  According to a status report of the Department of Corrections and Rehabilitation, defendant violated the terms of his parole in three ways:  (1) by driving under the influence of alcohol/drugs; (2) by violating the special condition prohibiting alcohol consumption; and (3) by violating the special condition prohibiting the operation of a motor vehicle without a parole officer’s approval.  The parties agree defendant was placed in parole revocation custody for up to 12 months.

                        With respect to the July 16, 2006 incident, defendant pleaded guilty to driving under the influence of alcohol, with a blood-alcohol content exceeding .08 percent.  He admitted his prior convictions for violations of Vehicle Code section 23152, subdivisions (a) and (b), in three prior cases.  Defendant also admitted that his blood-alcohol content exceeded .20 percent.

                        In subsequent briefs on sentencing credits, defendant requested that he receive custody credits for the entire period of incarceration, from July 16, 2006 forward.  He based his request on Penal Code section 2900.5.

                        The court considered the presentence report and defendant’s briefs on custody credits.  On May 2, 2008, the court sentenced defendant to two years in state prison on count one and stayed the prison sentence on count two.  It imposed two additional years for prior convictions, for a total of four years in state prison.  Defendant was given credit for 504 actual days served from December 20, 2006, the date he was arraigned with respect to the July 16, 2006 incident, plus an additional 252 days for good conduct.  The court did not award credit for the time defendant served on the parole violation between July 16, 2006 and December 20, 2006.

■ HELD:
 

Sentence for driving under the influence of alcohol/drugs with a prior felony within 10 years is affirmed where the trial court properly denied defendant credit for time served in parole revocation custody as defendant has not shown that, but for having driven under the influence of alcohol, he would not have been held in custody for the period of time in question.
People v. Stump -G040446-4/16/09 CA4/3
People v. Stump -G040446-4/16/09 CA4/3-PDF

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