CUSTODY CREDITS & Fares/Clavel MOTIONS
Materials & Presentation by Deborah Prucha, CCAP Staff Attorney
**originally posted 2008 and updated July 2010**
A. Time Credit Error --When Appealable
If a review of the record indicates that an error has been made in the determination
of credits, the matter cannot be raised on direct appeal until it has been presented to the
trial court, either at the sentencing hearing, or in a subsequently filed Fares motion.
Some superior courts may require an actual formal motion whereas others will accept a
nonappearance letter motion. (Pen. Code, sec. 1237.1; People v. Fares (1993) 16
Cal.App.4th 954 People v. Clavel (2002) 102 Cal.App.4th 973.)
1. Exceptions: There are some situations where a credits issue can be raised on
direct appeal without first raising it in the trial court.
a.
When there already is an issue raised on appeal, other than the
credits issue, the credits issue may also be raised without first
seeking correction in the trial court. (People v. Acosta (1996) 48
Cal.App.4th 411; also see People v. Mendez (1999) 19 Cal.4th 1084,
1093 [Economical to raise the credits issue on appeal, since the
appellate court will have to issue an opinion on the merits anyway.]);
b.
Where the error is a matter of law rather than an erroneous
calculation. If the trial court has imposed the wrong law in denying
custody credits, then the issue is not a matter of calculation and may
be brought to the attention of the appellate court without going to the
trial court first. For example, when the trial court refused to grant
appellant, convicted of a murder committed on or before June 2,
1998, any custody credits. But because Penal Code section 2933.2,
prohibiting credits to a defendant convicted of murder, did not take
effect until June 3, 1998, when the voters passed Proposition 222
modifying the credit provisions of Penal Code section 190, also
enacted by voter initiative, defendant is entitled to presentence
credits. (See People v. Cooper (2001) 27 Cal.4th 38, 41, fn. 3 citing
with approval People v. Aguirre (1997) 56 Cal.App.4th 1135,
1139.);
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c.
Where the error occurred in a juvenile wardship adjudication. (In re
Antwon R. (2001) 87 Cal.App.4th 348, 350.)
However, even when it is not necessary to first raise the error in the trial court,
frequently, it is to appellant’s benefit to do so. This is true especially in the situation
where the client’s sentence is relatively short and he/she would have served the time
before the appellate court hears the issue.
B. Burden of Proof
Defendant has burden of proof on entitlement to credits. (In re Nickles (1991) 231
Cal.App.3d 415, 419, 423-424.)
C. Common Errors
1. At sentencing: It is the duty of the sentencing judge to calculate both actual
time and any conduct time to which defendant is entitled. (Pen. Code, secs. 2900.5, subd.
(a), 4019, 2933.1, and 2933.2; In re Allen (1980) 105 Cal.App.3d 310.) This duty applies
regardless whether defendant is granted probation or sentenced to prison. (Pen. Code,
sec. 2900.5, subd. (c).) Where a prison sentence is imposed, the time credit calculation
must be recorded on the abstract of judgment. (Pen. Code, sec. 2900.5, subd. (d).)
2. Remand for re-sentencing: When an appellate remand results in modification of
a felony sentence during imprisonment, the trial court must calculate actual time
defendant has already served and credit that time against new sentence (plus, the original
presentence 4019 conducts calculation, if applicable). The conduct credits for time spent
in local jail during remand is calculated by CDC as defendant remains in CDC custody.
(People v. Buckhalter (2001) 26 Cal.4th 20.)
3. Remand for retrial: When the conviction is reversed on appeal and the matter
remanded for retrial, the conduct time before the first sentence is calculated pursuant to
Penal Code section 4019. The conduct time between the original sentence and the
subsequent reversal is calculated pursuant to Penal Code section 2930 (prison credits).
Time post reversal is calculated pursuant to section 4019. Time in prison upon
sentencing after retrial is pursuant to section 2930. (In re Martinez (2003) 30 Cal.4th 29.)
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4. Sentence recall: If the sentence has been recalled pursuant to Penal Code
section 1170, subdivision (d), the time appellant spends in local custody during the recall
proceedings is calculated by the Department of Corrections. (People v. Johnson (2004)
32 Cal.4th 260.)
D. Dual Credit Situations
A defendant is entitled to credit for all time in custody before sentencing if the
custody is attributable to proceedings related to the same conduct for which appellant has
been convicted. Credit is given only once for a single period of custody attributable to
multiple offenses where a consecutive sentence is imposed. (Pen. Code, sec. 2900.5,
subds. (a) & (b); In re Rojas (1979) 23 Cal.3d 152, 156 [equal protection].)
1. Already serving sentence: If defendant is in custody serving a prison sentence
on case A, he is not entitled to time he is held in custody on pending case B. The custody
time is attributable to the sentenced time only. (People v. Bruner (1995) 9 Cal.4th 1178.)
2. Parole hold: A frequently-encountered problem is where defendant is in
custody on a parole hold/revocation based on a new offense. If the sole reason for the
parole violation is the new offense, defendant is entitled to custody on both cases.
However, if the parole violation is based on the new offense plus any other unrelated
factor, defendant is not entitled to dual credits. (People v. Bruner, supra, 9 Cal.4th
1178.)
3. Consecutive or concurrent? Duplicate credits against separately imposed
concurrent sentences for unrelated offenses will be granted only on a showing of strict
causation. (In re Joyner (1989) 48 Cal.3d 487.) If defendant is in custody on case A in
county A and then bails and goes into custody in county B for new case B and A puts a
hold on him, the latter custody then becomes attributable to both cases and he receives it
for both if a concurrent sentence is imposed. If a consecutive sentence is imposed and
then one of the cases is reversed and dismissed, credits go to remaining case. (In re
Marquez (2003) 30 Cal.4th 14.)
4. Probation case: If defendant, on probation, is held without bail on a probation
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violation based on a new offense and the new case is then dismissed, the time in custody
is allocated to the probation case. (People v. Cooksey (2002) 95 Cal.App.4th 1407.)
5. Dead time: The requirement of “strict causation”’is applicable in cases
involving the possibility of duplicate credit that might create a windfall for the defendant.
Where there is no possibility of a windfall (in the form of double credit), the rule of strict
causation does not apply. (People v. Gonzalez (2006) 138 Cal.App.4th 246.)
E. What Type of Custody Can Be Applied Against the Sentence
In addition to custody in the traditional jail setting, a defendant may be entitled to
receive credit for custody in a setting other than a jail if he/she is subject to restraints not
shared by the general public. The non-jail facility must be custodial and cannot be a
voluntary placement by defendant. (In re Wolfenberger (1977) 76 Cal.App.3d 201, 203205.)
1. Examples:
a. Rehabilitation facility. (People v. Rodgers (1978) 79 Cal.App.3d, 26;
People v. Darnell (1990) 224 Cal.App.3d 806 809-811.)
b. Hospital. (People v. Cowsar (1974) 40 Cal.App.3d 578, 579-581.)
c. Diagnostic facility. (People v. Goodson (1990) 226 Cal.App.3d 277,
280.)
d. Juvenile detention facility. (In re Eric J. (1979) 25 Cal.3d 522, 534536.)
e. Custody before booking. (People v. Ravaux (2006) 142 Cal.App.4th
914 [custody credits are not to be given for merely being in the custody of
police].)
f. House arrest. Whether or not house arrest constitutes detention has not
been definitively determined. (People v. Pottorff (1996) 47 Cal.App.4th
1709.)
g. Work release program. If defendant has been released to participate in a
work program in lieu of jail, time in the work program is not considered
custody. But if he was released for program participation because of jail
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overcrowding, he is entitled to credit for the time pursuant to Penal Code
sections 2900.5 and 4024.3. (People v. Richter (2005) 128 Cal.App.4th
575.)
F. Actual and Conduct Credits Comprise the Award
Presentence credits are composed of actual time in custody plus any applicable
worktime/good behavior time. (Pen. Code, sec. 2900.5)
1. Actual time runs: Calculate from the date of arrest to, and including, the date of
sentencing. A partial day, including the day of the sentencing hearing, is counted as a
full day. (People v. Smith (1989) 211 Cal.App.3d 523, 526.)
2. Penal Code § 4019 credit determination:
a.
Former section 4019: A defendant is entitled to one day of work
participation + one day of good behavior for every six days. (Pen. Code,
sec. 4019, subd. (b); People v. Bravo (1990) 219 Cal.App.3d 729, 733;
People v. Smith (1979) 98 Cal.App.3d 793, 799; People v. Bobb (1989)
207 Cal.App.3d 88, 97.) The actual calculation is determined by dividing
the number of actual days by four, rounding down to nearest whole number,
and then multiplying by two and the result is the conduct credits. (In re
Marquez (2003) 30 Cal.4th 14.) To determine the actual number of
credits, all periods of noncontinuous custody are aggregated and the sum is
the figure used to determine work/good behavior credits. (People v. Dailey
(1992) 8 Cal.App.4th 1182, 1183-1184; People v. Culp (2002) 100
Cal.App.4th 1278.)
b.
4019 Amendment effective January 25, 2010: Under the new
version of the statute, “2 days served shall be deemed to be 4" and a person
need only be committed for 4 days for the statute to apply. But, if a person
is convicted of a crime requiring sex offender registration, or a serious
felony (Pen. Code, sec. 1192.7), or has a prior strike (Pen. Code, sec. 667.5)
or serious felony (Pen. Code, sec. 1192.7) conviction, then the formula
described in (a) above (i.e., 4 days gets you 6) still applies.
c.
As of this update here is a split of authority on whether the
amendment to section 4019 applies retroactively. (Compare People v.
Brown (2010) 182 Cal.App.4th 1354, People v. House (2010) 183
Cal.App.4th 1049, People v. Landon (2010) 183 Cal.App.4th 1096, People
v. Delgado (2010) 184 Cal. App. 4th 271, People v. Norton (2010) 184
Cal.App.4th 408, People v. Pelayo (2010) 184 Cal.App.4th 481, People v.
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Keating (2010) 185 Cal.App.4th 364 , and People v. Bacon (2010)
[retroactive application] with People v. Rodriguez (2010) 182 Cal.App.4th
535 , People v. Otubuah (2010) 184 Cal.App.4th, People v. Hopkins (2010)
184 Cal.App.4th 615, and People v. Eusebio (2010) 185 Cal.App.4th 990
[prospective application].)
On June 9, 2010, the California Supreme Court granted review in two cases
involving the retroactivity of revised Penal Code section 4019. The lead
case on the issue is People v. Brown, supra, 182 Cal.App.4th 1354,
(S181963). The Court also granted review in People v. Rodriguez,
supra,182 Cal.App.4th 535 (S181808) on a grant and hold basis. On June
23, 2010, there were two more grant and holds: People v. House (2010) 183
Cal.App.4th 1049 (S182808) and People v. Landon (2010) 183 Cal.App.4th
1096 (S182808).
d.
People v. Rodriguez, supra, 182 Cal.App.4th 535, and People v.
Hopkins, supra, 184 Cal.App.4th 615 also rejected equal protection
arguments.
3. Presentence credit exceeds imposed term: At sentencing, if the total number of
presentence credits exceeded the sentence, the trial court can deem the term served and
defendant need not be delivered to the Department of Corrections. (People v. Wallace
(1979) 97 Cal.App.3d 26, 28.) Although he will not have served a prison term actually in
prison, the sentence is still considered a prison term for future sentence enhancement
purposes. (Pen. Code, sec. 667.5, subd. (b).)
4. Erroneous presentence credit: When errors result in appellant serving time in
excess of imposed prison term, excess time may apply against a parole term. (In re
Ballard (1981) 115 Cal.App.3d 647, 648-650.)
5. Fines: If defendant’s presentence custody time is greater than the time ordered,
the excess should be applied against any ordered fine. (People v. McGarry (2002) 96
Cal.App.4th 644.) This is calculated at a rate of not less than $30 per day. (Pen. Code,
sec. 2900.5, subd. (a).)
G.
Conduct Credits
Whether or not a defendant is entitled to Penal Code section 4019 conduct credits,
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will depend on the particulars of the case.
1. Entitled: Unless otherwise prohibited, a defendant is entitled to earn
worktime/good conduct presentence credits when confined in a facility specified by 4019
and in the following circumstances:
a. When committed to a diagnostic facility for diagnostic
evaluation. (Pen. Code sec. 1203.03, subd. (g); People v. Engquist (1990)
218 Cal.App.3d 228, 231.)
b. When referred to California Rehabilitation Center (CRC) for
evaluation but found not to amenable. Appellant is entitled to conduct time
from the date he is determined to be not amenable, as opposed to the date
he is returned to the county for resentencing. (People v. Miller (1991) 233
Cal.App.3d 1551; In re Jiminez (1985) 166 Cal.App.3d 686, 691.)
c. When committed to CRC but before commitment is terminated
defendant is subsequently sentenced to state prison. (People v. Guzman
(1995) 40 Cal.App.4th 691; People v. Mitchell (2004) 118 Cal.App.4th
1145.)
d. Where defendant is sent to California Youth Authority for
amenability evaluation or for commitment if he is a juvenile who is
ultimately sentenced to prison. (People v. Engquist (1990) 218 Cal.App.3d
228; People v. Garcia (1987) 195 Cal.App.3d 191, 196-197, People v.
Saldivar (1984) 154 Cal.App.3d 111, 114-115, People v. Duran (1983) 147
Cal.App.3d 1186, 1189-1193.)
e. If the offense is not a violent felony, presentence conduct time on
a “strike” case is computed pursuant to section 4019, even if defendant
receives a 25-to-life sentence, although in that instance credits cannot be
used to reduce the minimum mandatory time to be served. (People v.
Philpot (2004) 122 Cal.App.4th 893.)
f. Defendant serving term for a violent felony and a fully,
consecutive term for a nonviolent felony in-prison offense, 2933.1 does not
apply to the nonviolent felony term. (In re Tate (2006) 135 Cal.App.4th
756.)
2. Not entitled:
a. Committed to hospital as a Mentally Disordered Sex Offender.
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(In re Hufman (1986) 42 Cal.3d 552, 560-563.)
b. Committed as incompetent to stand trial (Pen. Code, sec. 1368) or
after acquittal by insanity (Pen. Code, sec. 1026.5, subd. (a)(1); People v.
Waterman (1986) 42 Cal.3d 565, 571; People v. Mord (1988) 197
Cal.App.3d 1090, 1103-1105 [insanity commitment]; People v. Jennings
(1983) 143 Cal.App.3d 148, 150 [no credit for time in state mental hospital
before proceedings reinstated].) Defendant will receive no conduct credit
for either the case he was committed on or for an offense committed while
at the hospital. (People v. Callahan (2006) 144 Cal.App.4th 678.) But
once defendant is determined to be competent, he is entitled to conduct
credits regardless where he is in custody. (People v. Bryant (2009) 174
Cal.App.4th 175.)
c. House arrest while on own recognizance release. (People v.
Lapaille (1993) 15 Cal.App.4th 1159, 1173.) No Penal Code section 4019
credit for time in electronic monitoring home detention per Penal Code
section 1203.016 if probation is revoked and sent to prison. (People v.
Silva (2003) 114 Cal.App.4th 122.)
d. A defendant convicted of a violent felony and sentenced to
prison is entitled to conduct credits in the amount of only 15% of actual
time. (People v. Sylvester (1997) 58 Cal.App.4th 1493; People v. Aguirre
(1997) 56 Cal.App.4th 1135; People v. Palacios (1997) 56 Cal.App.4th
252; People v. Ramos (1996) 50 Cal.App.4th 810.) Penal Code section
2933.1 applies to the offender and not the offense and if one component of
the consecutive sentence is a violent felony, the entire sentence being
served is governed by the 15% limitation. (In re Reeves (2005) 35 Cal.4th
765.)
If the term for the violent felony is stayed pursuant to Penal Code section
654, the restriction does not apply to the nonviolent felony term being
served. (In re Phelon (2005) 132 Cal.App.4th 1214; In re Gomez (2009)
179 Cal.App.4th 1272; but see In re Pope (2008) 158 Cal.App.4th 860,
review granted 4/9/08 (S160930).)
If defendant is granted probation following conviction for a violent felony,
conduct credits on any jail time ordered as a condition of probation are
computed by section 4019. However, if probation is subsequently revoked
and a prison sentence imposed, the conduct credits are recomputed on the
15% basis. (People v. Daniels (2003) 106 Cal.App.4th 736.)
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If defendant is sentenced in separate proceedings to a consecutive term for
a nonviolent felony and then on the violent offense, even if presentence
custody time on the nonviolent offense was served before the commission
of the violent felony, section 2933.1 applies to the aggregate sentence.
(People v. Baker (2002) 144 Cal.App.4th 1320.) The section 2933.1
limitation applies only when the current felony is a violent felony as listed
in Penal Code section 667.5, subdivision (c) at the time of commission of
current felony. (People v. VanBuren (2001) 93 Cal.App.4th 875,
disapproved other grounds People v. Mosby (2004) 33 Cal.4th 353.)
e. Defendant is not entitled to Penal Code section 4019 conduct time
if he has been committed for less than 6 actual days. (Pen. Code, sec. 4019,
subd. (e); People v. Dieck (2009) 46 Cal.4th 934, 940.) Effective January
1, 2010, this will change to a minimum 4-day commitment unless the
defendant is convicted of a serious felony (Pen. Code, sec. 1192.7), a sex
offense requiring registration, or has a prior strike (Pen. Code, sec. 667.5)
or serious felony (Pen. Code, sec. 1192.7) conviction.
f. Penal Code section 2933.3 bars a prisoner sentenced to an indeterminate
life term for murder from earning post-sentence conduct credits against a
consecutive determinate term imposed on a different offense. (In re Maes
(2010) 185 Cal.App.4th 1094.)
H. Time Credits Waiver
A defendant can waive his entitlement to presentence credits; however, the waiver
must be knowing and intelligent [“Johnson waiver.”] (People v. Johnson (2002) 28
Cal.4th 1050.) Frequently, an appellant will waive his accrued credits in exchange for
reinstatement on probation following a violation of probation.
1. A Johnson waiver applies to any future use of the credits if probation is later
terminated and prison imposed, even if appellant was not specifically so advised, and
even if appellant will have already served the equivalent amount of time in jail for the
prison sentence. (People v. Arnold (2004) 33 Cal.4th 294.)
2. The waiver rule also applies to future credits to be earned in alcohol or drug
rehabilitation. (People v. Jeffrey (2004) 33 Cal.4th 312; People v. Black (2009) 176
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Cal.App.4th 145.)
3. The trial court must exercise discretion in each case for waiver rather than
having a standard practice. (People v. Juarez (2004) 114 Cal.App.4th 1095; but see
People v. Torres (1997) 52 Cal.App.4th 771.)
4. If it is determined that there was no adequate waiver, the remedy is to remand
for resentencing to calculate credits. The appellate court will not independently award
them. (People v. Harris (1991) 227 Cal.App.3d 1223, 1227-1229.)
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