P v. Hutton (5th Dist.) Release on "Sheriff's Parole" and Prior Prison Terms

Since I had no idea of the existence of "Sheriff's Parole", this opinion was an informative read.

In 2013, Mr. Hutton was convicted of felony possession of methylamphetamine.  The trial court sentenced Hutton to four years in county jail consisting of three years on the meth charge and an additional one year for a prior prison term enhancement, PC 667.5(b).  The sentence was "split" pursuant to PC 1170, meaning Hutton was to serve the first two years in the county jail and the remaining two years on the outs under mandatory supervision.

Just a couple of months after sentencing, well before completing the two year jail portion of his sentence, Hutton was released on "sheriff's parole", a form of county parole (distinct from mandatory supervision and AB 109 parole) authorized under PC 3074 et. seq.

While on sheriff's parole, Hutton was arrested for possession of a stolen car, PC 496d(a).  A jury convicted Hutton and the trial court sentenced Hutton to five years, consisting of three years on the 496d(a) with two one-year prison priors, one of which was the meth sentence for which Hutton was on sheriff's parole at the time of his arrest. The sentence was ordered to run concurrent with the remainder of the meth sentence.  The trial court denied Hutton any custody credits from the time of his 496d arrest until the time of sentencing on the theory that, even though Hutton has been released on sheriff's probation, he was still serving the custodial portion of his meth sentence and thus was ineligible to receive custody credits under PC 2900.5.  Hutton appealed.

The panel confronts two interrelated issues; one, whether Hutton should have received custody credits beginning with his 496d arrest, and two, whether it was error for the trial court to count Hutton's meth sentence as a prison prior.  The panel answers "yes" to the former and "no" to the latter.

The issue as to the former is whether sheriff's parole is a form of custody.  The panel equates sheriff's parole to traditional parole, which is not considered custody.  Therefore the prohibition of 2900.5 does not apply to Hutton.  The answer to the latter issue hinges on whether Hutton had completed his meth sentence, as only completed sentences can be used to enhance a sentence under 667.5(b) as it read at relevant time.  The panel again equates release on sheriff's parole to release on traditional parole, which has been held to constitute completion of a sentence for purposes of 667.5(b).

The practical result for Hutton is that he gets 265 additional custody credits.