NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

THE COURT*

As part of a plea bargain, appellant Joshua Roy Durand pled no contest in case No. 2060984 to assault with a firearm (Pen. Code, § 245, subd. (b)/count 2);1 in case No. 1494470 to first degree burglary (§ 459/count 1); in case No. 1495264 to unlawful use or transfer of personal identifying information (§ 530.5, subd. (c)(1)/count 1); in case No. 4001228 to second degree burglary (§ 459/count 1); in case No. 2063113 to two counts of second degree burglary (counts 1 & 2) and carrying a concealed dirk or dagger (§ 21310); and in case No. 4001199 to receiving a stolen vehicle (§ 496d, subd. (a)/count 1) and unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)/count 2).2

On appeal, Durand contends the court erred in its award of presentence custody credit. We affirm.

FACTS3

On October 9, 2015, a complaint was filed in case No. 1494470 charging Durand with committing first degree burglary on or about June 6, 2015.4

On October 29, 2015, a complaint was filed in case No. 1495264 that, in pertinent part, charged Durand with unlawful use or transfer of personal identifying information on or about October 27, 2015.

On April 28, 2016, in case No. 2063113, a complaint was filed charging Durand, in pertinent part, with two counts of second degree burglary and possession of a concealed dirk and dagger that allegedly occurred on or about April 22, 2016.

On July 18, 2016, in case No. 2060984, a first amended complaint was filed that, in pertinent part, charged Durand with assault with a semiautomatic firearm that allegedly occurred on or about March 1, 2016.

On October 13, 2016, complaints were filed in case Nos. 4001199 and 4001228. The complaint in case No. 4001199 charged Durand, in pertinent part, with receiving a stolen vehicle on or about October 11, 2016, and unauthorized use of a vehicle on the same date. The complaint in case No. 4001228 charged Durand, in pertinent part, with committing second degree burglary on or about June 28, 2016.

On February 3, 2017, as part of a negotiated plea, Durand entered his plea in the six cases as noted above. After Durand waived time for sentencing, the court sentenced him to an aggregate nine-year prison term: the middle term of three years on his assault with a semiautomatic firearm conviction, a consecutive 16-month term (one-third the middle term of four years) on his first degree burglary conviction, and a consecutive eight-month term (one-third the middle term for each offense) on each of his seven remaining convictions. The court also awarded presentence custody credits in the following cases: in case No. 2060984, 236 days of presentence custody credit consisting of 118 days of presentence actual custody credit and 118 days of presentence conduct credit; in case No. 1495264, 37 days of presentence custody credit consisting of 19 days of presentence actual custody credit and 18 days of presentence conduct credit; in case No. 4001228, 1 day of presentence custody credit consisting of 1 day of presentence actual custody credit and 0 days of presentence conduct credit; in case No. 2063113, 1 day of presentence actual custody credit and 0 days of presentence conduct credit, and 0 days of presentence custody credit in the two remaining cases.

DISCUSSION

Section 4019 provides that a person confined prior to sentencing may earn two days of conduct credit for every two days served. (People v. Chillelli (2014) 225 Cal.App.4th 581, 588.) "[U]nder the two days for every two days rate of accrual, there can be only an even number of presentence conduct credits. This is because conduct credits are given in two day increments and no rounding up is permitted." (Ibid.)

Durand contends the court should have aggregated all his presentence actual custody credit in all the cases and awarded him presentence conduct credit based on the total amount of his actual custody credit. Therefore, based on the 139 days he was in presentence actual custody on all the cases,5 the court should have awarded him 138 days of presentence conduct credit6 and a total of 277 days7 of presentence custody credit, rather than the 275 days it awarded him. Durand attributes the court's error to its failure to aggregate his two, one-day periods of incarceration in case Nos. 2063113 and 4001228 to the days he spent in presentence actual custody in the other cases.8 He cites People v. Culp (2002) 100 Cal.App.4th 1278 (Culp) to contend that in calculating his conduct credit, the court must aggregate actual custody time from noncontiguous periods of incarceration. Durand is wrong.

Section 2900.5, subdivision (b), provides in full: "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." (Italics added.)

In In re Marquez (2003) 30 Cal.4th 14, 21 the Supreme Court noted: "[A]lthough section 2900.5 does not expressly limit credit to situations where the custody is `exclusively' attributable to a charge of which a defendant is later convicted, `it is clearly provided that credit is to be given "only where" custody is related to the "same conduct for which the defendant has been convicted."'" As the appellant, Durand has the "burden of showing error by an adequate record." (People v. Mack (1986) 178 Cal.App.3d 1026, 1032.) However, Durand has not shown that the one day he spent in custody in case No. 2063113 was related to the same conduct for which he was convicted in case No. 4001228, or the converse. Therefore, Durand was not entitled to actual custody credit in case No. 4001228 for the one day he was in custody in case No. 2063113, or vice versa.

Further, since presentence conduct credit is calculated based on the actual days a defendant served in presentence custody, it follows that in a particular case such credit may only be awarded based on custody time that is related to the same conduct for which the defendant was convicted in that case. Thus, the court could not combine the one day of actual custody Durand earned in each of these cases to award him conduct credit in either one of these cases.

Moreover, section 4019 subdivision (f), provides: "[I]f all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody." (Italics added.) Durand was in custody only one day in each of the cases under discussion. Therefore, he was not entitled to any presentence conduct credit in either case.

In Culp, this court held that the trial court erred by its failure to aggregate two noncontiguous periods that the defendant spent in presentence custody when calculating his presentence custody credit. (Culp, supra, 100 Cal.App.4th at p. 1284.) Culp, however, is inapposite because it involved only one case and the two periods of custody that were aggregated in Culp, were attributable to the same criminal conduct that the defendant was convicted of in that case. (Id. at pp. 1280, 1284.) Accordingly, we reject Durand's contention that the court erred in its award of presentence custody credits.

DISPOSITION

The judgment is affirmed.