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Please Get Credit Where Credit Is Due:
At Least Rodney Gets Credit For No Respect!

by Gary McCurdy, CCAP Assistant Director
(This article originally appeared in The CACJ Forum, Volume 30, No. 4.)

Ah, remember when figuring out credit for time served was easy? Let's see, now. That would have been, oh, March 3, 1972. Through that date, there was no such thing as credit for time served. At least, not for defendants committed to state prison. How facile was that! Fair? No. But simple, indeed. Once Penal Code section 2900.5 became law the next day, though, the gauntlet had been thrown. When I did a search on 2900.5, 4019, 2931, 2932, 2933, 2933.1, 2933.2, and 2933.5, my CD-based third and fourth series of cases yielded almost 3,000 "records" (a record is essentially a paragraph within a case).

 

How Very Big Of Them

Let's look at it from another perspective. The previous paragraph contains approximately 105 words, according to my word processor's counting scheme, and represents probably a small record. If we were to assign 100 words per paragraph to the 3,000 records, we would have a book of approximately 300,000 words devoted to the topic of credit for time served. How big is that, you ask? In very rough terms, that is about half the size of the Old Testament, or about one and two-thirds the size of the New Testament. There is a remnant of school learning stuck in my brain setting 50,000 words as the approximate point where a fiction book becomes a short novel. So the equivalent of six short novels has been written about credit for time served in the past 31 years. Maybe not all of the "hits" reported controversy over the calculation, but I think it is fair to say that a large percentage did.

 

Or Would You Prefer A Root Canal?

Does this mean that I'm sitting down to write the Great American Novel (Parts I through VI) on credit? Nope. Not today, anyway. I just wanted to demonstrate that there has been a lot of press on the subject. Big deal, you may say. And I say, yes, it IS a big deal, to the defendant. Picture yourself at the Bigcity Airport in Texas, to catch a connecting flight to Chicago at 6 a.m. Are you having fun, yet? After all, you have gone through all the security (again, since you had to leave the secured area when you disembarked from the first leg of your journey), not to mention the anxiety of wondering whether your checked luggage will be successfully transferred. Suddenly a pleasant voice interrupts the talk-show or news broadcast you have been glued to for the past 90 minutes. "Ladies and Gentlemen, thank you for choosing Best Darned Planes as your preferred transportation today. There will be a slight delay of two hours. Please rest assured that we are doing everything we can to get you on your way. In the meantime, continue to enjoy our blaring television, and feel free to pay exorbitant prices at the food service stations conveniently located throughout the terminal."

 

Have A Nice Day!

Well, two hours' delay. You can live with that, right? They will just have to wait for you in Chicago. Too bad, so sad, but you're not mad. Wait, what is that new announcement? An update? Ah, now the delay is extended to noon. Getting antsy yet? Wait a minute, it's half past eleven and now the airline crew is telling you that the flight has been cancelled, come back tomorrow. Come back? From where? You don't live there. You have no luggage, because it DID make some flight to Chicago via Miami. I bet you are really happy at this point. After all, those bench chairs they provide in the gate areas of the terminal are really comfy, aren't they? And didn't you use to love to sleep in your clothing as a child? After all, it is just one day. If you live to be 75, you'll have experienced just under 27,400 of them, so what's one day?

 

Hey, Gimme A Little Credit Here!

Now imagine a defendant serving time. Forget the spacious waiting area at the airport. How large are cells these days? Maybe the meals are better, although they may have to be consumed in 15 minutes or less. How about the companionship? I am sure there are some people in custody who do not make friends easily. What are the odds that your client might be sharing a cell with one or more of them? Maybe that one day is, indeed, important to the defendant. When I was in trial practice I had very few defendants tell me, "No, Gary, don't worry about my credits. I don't mind staying in a few extra days or weeks or months."

 

It Ain't Over Till It's Over

So why am I going on and on about this? It is because I think a significant number of attorneys seem to think that representation concludes with the pronouncement of the term to be served, and fail to make sure that proper credits are awarded.

As one might conclude from the six novels' worth of discussion, credit for time served is a very common problem noted during appellate review. (Keep in mind, too, that appellate decisions deal with cases where a notice of appeal was filed. The majority of convictions are not appealed. Who knows how many credit errors have been made in those cases not appealed?) In fact, to reduce the burden at the appellate level, in 1995 the Legislature enacted Penal Code section 1237.1, which states, "No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court."

With all of that as a backdrop plea for counsel to please pay attention to that last detail, let's take a look at some recent developments.

 

Fifteen Percent Is Not Much Of A Tip, Cheapskate

Penal Code section 2933.1 imposes a 15 percent limitation on the accrual of presentence and worktime credits for those convicted of a crime that is defined as a violent felony in section 667.5. Section 667.5, subdivision (c)(8) defines as a violent felony "[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7 . . . ." People v. Hawkins (2003) 108 Cal.App.4th 527 held that battery with serious bodily injury (section 243, subdivision (d)) cannot qualify as a violent felony under subdivision (c)(8) of section 667.5, unless the crime was committed under circumstances involving domestic violence (the only circumstances under which the enhancement can be imposed on a conviction of section 243, subdivision (d)).

 

Put'em In The Briggs, Matey

Under the Briggs initiative in 1978, defendants convicted of murder were entitled to credit for time served, including conduct credits. There have been various curtailments since then, including section 2933.1 described above. In People v. Cooper (2002) 27 Cal.4th 38, the defendant argued that he was entitled to the greater credit established in the Briggs scheme because that initiative overrides the Legislature's enactment of section 2933.1's 15 percent limitation. The Supreme Court disagreed. It concluded that the Briggs language (the relevant portion of which reads, "The provisions of Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 of the Penal Code shall apply to reduce any minimum term ....") applied only to how conduct credit was to be calculated post-sentence, and did not apply to conduct credit that might be available prior to sentencing. It thus concluded that section 2933.1 did not contravene the Briggs amendment's language by limiting pre-sentence conduct credit to 15%. This case has limited application, however, because Proposition 222 eliminated all conduct credit for murders committed after June 1, 1998.

 

Take It Personally

In People v. Wheeler (2003) 105 Cal.App.4th 1423, the defendant was convicted of murder, attempted voluntary manslaughter, and discharge of a firearm at an inhabited dwelling. Penal Code section 2932 applied to prohibit conduct credit from being applied against the murder term, but the trial court granted the defendant conduct credit against the 10 years imposed for the two other offenses. The People appealed. Wheeler concluded that section 2932 applies to the person, not to the offense. Thus, if the defendant is convicted of one count described in section 2932, then no conduct credits will be applied against any part of the sentence imposed for any of the counts. (People v. McNamee (2002) 96 Cal.App.4th 66 reached a similar conclusion as it denied conduct credit against the 10-year determinate term imposed for the firearm enhancement.)

 

Easy Come, Easy Go

Section 2933.1 applies only to defendants who have been sentenced to state prison. It does not preclude a grant of probation, and a probationer is entitled to earn conduct credit as described in section 4019. (In re Carr (1998) 65 Cal.App.4th 1525.) Suppose a defendant, convicted of a violent felony, serves eight months of a one-year probationary term, having been given four months off as good behavior, per section 4019. Note that the four months is equal to 50% of the time in actual custody (eight months). But then suppose he or she violates probation and is sent to prison. Does the person get one year credit against the prison term? Nope. Had the conviction been solely for nonviolent offenses, the answer would be Yep. But the violent nature of the crime invokes section 2933.1 when the prison term is imposed, and the defendant "loses" a substantial chunk of the four months previously earned for good behavior. His or her conduct credit is limited to no more than 15% of the time in actual custody. Instead of four months (roughly 120 days) earned conduct credit, the limit is 0.6 months (roughly 18 days). See People v. Daniels (2003) 106 Cal.App.4th 736.

 

Be Specific, General

Incidentally, section 2933.1 makes a general reference to "any person who is convicted of a felony offense listed in section 667.5." There is a special rule of statutory interpretation has been developed for statutes that incorporate other statutes. Where a statute adopts by specific reference the provisions of another statute, those provisions are incorporated in the form in which they exist at the time of the reference and not as subsequently modified. (See, for example, In re Oluwa (1989) 207 Cal.App.3d 439, concluding that the Briggs amendment referred to the specific post-sentence conduct credit scheme mentioned above, and subsequent amendments to that scheme did not apply.) On the other hand, if the incorporation is general instead of specific, such as a reference to a system or body of laws, or to the general law relating to the subject in hand, the referring statute takes the law or laws referred to not only in their form as of the date of incorporation, but also as they may be changed from time to time. (Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 58-59.) People v. Van Buren (2001) 93 Cal.App.4th 875 makes it clear that section 2933.1 applies to any crimes added to the list in section 667.5, subdivision (c) after the enactment of section 2933.1.

 

I Gather You'd Like More Credit

When a defendant IS entitled to presentence conduct credits, the calculation should be based on the aggregate of any segmented time. Since no conduct credit can be earned for periods in actual custody shorter than four days, one could see how no conduct credit at all could be earned by a person serving weekends, if the law were otherwise. In People v. Culp (2002) 100 Cal.App.4th 1278, the defendant spent 108 days in custody before sentencing, but in two parts. He was arrested March 26, 2001, and released the next day. Then he was taken into custody again on April 18, 2001, and remained in custody until he was sentenced August 1, 2001. The probation department and the trial court concluded that he was not entitled to conduct credit against the first two days, because they did not comprise the minimum four days for conduct credits. As a result, the trial court awarded him 160 days (consisting of 108 days actually served, plus 52 days conduct credit). The Court of Appeal confirmed that the trial court should have added up all the pieces of actual days before applying the "divide by four, drop the remainder, then double" rule. Calculated correctly, the court should have divided 108 actual days by 4, resulting in 27 days, which yields 54 days conduct credit when doubled. The total credit should have been 162 days rather than 160 days. And that two extra days was undoubtedly at least as important to Mr. Culp as avoiding a two-day layover at a strange airport would be to any business traveler. There is nothing de minimis about extra days in jail to the person who has to survive them.

 

You Can Call Me Jay, Or You Can Call Me Ray ….

Remember the Johnson case? (People v. Johnson (1978) 82 Cal.App.3d 183.) From it we get the so-called "Johnson waiver" of the one-year maximum a person can be confined in the county jail as a condition of probation. If a defendant has violated probation, and the judge would like to impose more jail time than would be allowed under Penal Code section 19.2, the defendant can waive the section 19.2 provisions in order to avoid leaving the judge no choice but to commit the defendant to prison. Well, the Supreme Court has weighed in, placing its imprimatur on the device. What I think is especially nice is that the Court chose to do it in another Johnson case, so we don't even have to change what we call it! In People v. Johnson (2002) 28 Cal.4th 1050, the court held that it was proper (and binding on the defendant) to secure a waiver of all credits earned in the county jail (and in a drug treatment program) even though the trial judge imposed the maximum six-year prison term and suspended execution of it (placing Johnson on probation). The Supreme Court had no problem with the concern that the defendant might wind up serving more time in custody than the statutory maximum of six years for the offenses.

 

Longer Than Always Is A Long, Long Time

The Supreme Court does have before it at least three cases on how to determine whether the waiver was intelligent and knowing and whether it applies to future prison terms. That is, did the defendant believe that he or she was simply giving up the right to not serve more than a year in the county jail, but would get credit for all that time if committed to prison? Or did the defendant know that any waived credit would be waived forever, and would not be credited in the event he or she is sent to prison? See People v. Burroughs (decided May 13, 2003, previously reported at 108 Cal.App.4th 728, but cannot be cited now that review has been granted), where the court concluded that the defendant did not understand that the waiver applied against a future prison commitment. Two other cases granted review are People v. Arnold (S106444, Court of Appeal C037898, not published) and People v. Jeffrey (S0105978, Court of Appeal A095147, not published).

 

The New Meaning Of Joint Custody

In People v. Shabazz (2003) 107 Cal.App.4th 1255, the Court of Appeal concluded that the defendant was not entitled to credit for time served because he was confined on a parole hold that was not solely related to the offense of which he was convicted. The parole violation warrant had been issued in 2001. He was arrested on that warrant in 2002. While in custody on the parole warrant, he was later also arrested for a new offense (committed a month before he was arrested on the parole violation warrant). He was then released on his own recognizance on the new offense, but remained confined on the parole violation warrant. Later still, the judge revoked the O.R. status. The Court of Appeal concluded it was error to award him any credit, based on People v. Bruner (1995) 9 Cal.4th 1178, which held, at page 1191, "[A] prisoner is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period." And the burden is on the defendant to show entitlement to credit.

But what happens when there are multiple holds, some of which go away? Mr. Marquez was serving a term on a Santa Cruz County case when he was convicted in Monterey County of another offense. The Monterey County court sentenced him and gave him some credit. Eventually, the Santa Cruz conviction was reversed, and Mr. Marquez filed a petition for writ of habeas corpus to get an increase in the Monterey County computation of credit for time served. He was seeking credit for time spent serving the sentence on the later-reversed Santa Cruz County case while he also had a hold against him for the Monterey County case. The Supreme Court agreed that he was entitled to it. (In re Marquez (2003) 30 Cal.4th 14.) Once the Santa Cruz County matter dismissed its charges (following a successful appeal that concluded after the Monterey County appeal), then all custody from the date Monterey placed its hold was attributable solely to the Monterey case.

 

Sui Notso Generis

The Supreme Court was not so generous to defendants in two other cases, however. People v. Buckhalter (2001) 26 Cal.4th 20 and In re Martinez (2003) 30 Cal.4th 29 discussed what conduct credit scheme should be applied when a defendant has been convicted and committed to state prison, but is successful in getting a reversal on appeal. In Buckhalter, the defendant's case was remanded to the trial court for resentencing only. Having been convicted under the Strikes scheme, his conduct credits in state prison were limited to 20%. He argued that the reversal returned him to "presentence" status, and he should have been entitled to the more favorable conduct credits scheme of section 4019. The Supreme Court said ix-nay. Although the sentence was vacated, the defendant was still considered imprisoned, and in the custody of the Department of Corrections, even while physically housed in a county jail for a period of time awaiting the fixing of a new term. The Buckhalter Court specifically left open the question of what to do if the appeal results in a full reversal (i.e., reversal not just of the sentence, but of the conviction, too).

Martinez found an answer to the open question: If the convictions themselves are reversed, is the defendant entitled to treatment as a presentence detainee for all the time spent in jail and prison prior to the new conviction and resentencing? Several answers, actually, though they all have a common spelling: Nope. The Court concluded that a defendant's time in custody subsequent to the original sentencing is to be treated as postsentence time. The Court recognized that there are some minor disparities in the results of various scenarios. For example, if a defendant has no strikes, he or she normally would be better off to serve most of the time as a postsentence prisoner, earning up to day-for-day worktime credits. If the defendant has a strike, however, the 20% limitation is just one of those disadvantages attached to recidivism. Oh well, sometimes that happens.

 

Closing Credits

There's an old saying (well, not really, I just now made it up): A horse that stops a nose short of the finish line has not done all he could to win the race. Contrary to the belief of many people who have never been incarcerated, jails and prisons are not country clubs with long lists of people waiting to get in. Know what credit the defendant is entitled to, so you can convince the judge to grant every single day.

 

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