San Francisco Criminal Lawyer BlogPre-sentence Conduct Credits Earned in County Jail
People v. Brown (2020) 52 Cal.App.5th 899, 904–910 [267 Cal.Rptr.3d 79, 84–89, 52 Cal.App.5th 899, 904–910], review filed (Sept. 8, 2020)
Brown was convicted by jury of murder and at his sentencing, the trial court resentenced him for a cocaine possession case. He was sentenced to consecutive terms and the court and applied Penal Code section 2933.21 (which prohibits defendants convicted of murder from earning presentence conduct credits) and Brown received no presentence conduct credits. It then awarded 923 days of actual custody credits.
Brown challenges the application of section 2933.2 to the period of custody following his cocaine possession charge and preceding his murder charge. He also challenges the award of actual custody credits. The Court of Appeal addressed these issues.
Pre-sentence Conduct Credits
Presentence and postsentence credit are distinct schemes and this case involves the presentence credit system. Detainees in local jails receive credit for actual days served and are able to earn credit against their eventual sentence for good behavior and work performed. These “ ‘conduct credits’ ” are authorized by section 4019. (See People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3, 95 Cal.Rptr.3d 408, 209 P.3d 623.) However, presentence conduct credits cannot be earned if there is a conviction for certain offenses.
Restriction on credit earning for violent felony convictions
Section 2933.1 restricts presentence conduct credits to no more than 15 percent of the overall time spent in local custody for defendants convicted of a violent felony. Subdivision (c) states, “Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail … following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a).” Reference to subdivision (a) makes it clear that this limitation applies to “any person who is convicted of a [violent] felony offense listed in subdivision (c) of Section 667.5.”
Section 2933.2 totally eliminate presentence conduct credit for defendants convicted of murder. Its subdivision (c) says, “Notwithstanding Section 4019 or any other provision of law, no credit pursuant to Section 4019 may be earned against a period of confinement in, or commitment to, a county jail … following arrest for any person specified in subdivision (a).” Subdivision (a), in turn, specifies those restricted under subdivision (c) as “any person who is convicted of murder, as defined in Section 187.” Subdivision (a) of both code sections—2933.1 and 2933.2—restricts postsentence conduct credit accrual for those convicted of violent felonies or murders.
Here, Brown argues the court erred by applying section 2933.2 to the period between the date of his arrest on the cocaine possession charge and the date he was charged with murder). In People v. Baker (2002) 144 Cal.App.4th 1320, 53 Cal.Rptr.3d 56, the appellate court upheld the blanket application of section 2933.1, subdivision (c) to a defendant’s presentence custody period for an earlier nonviolent offense. (Id. at p. 1324, 53 Cal.Rptr.3d 56.)
In Baker, the defendant spent several months in presentence custody on a nonviolent offense before being charged with a violent felony. He was eventually sentenced and the trial court applied the 15 percent limitation to the five months of time Baker spent in jail due to his first felony. The appellate court approved of applying section 2933.1 uniformly to all his presentence custody based on the reasoning that “section 2933.1 applies to the offender not to the offense.” (Baker, at p. 1328, 53 Cal.Rptr.3d 56.) It concluded that, at least with respect to consecutive sentences, the section applies to all presentence custody periods served by a defendant who is eventually convicted of a violent felony without regard to “the timing of each conviction” “even if the presentence custody time on the nonviolent offense was served prior to the commission of the violent offense.”
The California Supreme Court in Reeves, 35 Cal.4th 765, 28 Cal.Rptr.3d 4, 110 P.3d 1218 focused its analysis on the phrase, “any person who is convicted of a [violent] felony offense” in subdivision (a). (Reeves, supra, 35 Cal.4th at p. 770, 28 Cal.Rptr.3d 4, 110 P.3d 1218.)
The Court applied the statute’s 15 percent limitation to Reeves’s first five years, when he was serving his violent felony sentence, but not to his subsequent prison term because after the shorter sentence ended, he was no longer presently convicted of a violent felony.
The Court of Appeal followed precedent as reflected in Baker, supra, 144 Cal.App.4th 1320, 53 Cal.Rptr.3d 56 and Marichalar, supra, 144 Cal.App.4th 1331, 53 Cal.Rptr.3d 61, and affirmed the trial court’s application of section 2933.2 to all of Brown’s presentence custody, including the period attributable solely to his cocaine possession charge.