PEOPLE v. SHAW (1980)

In unrelated cases each of the above defendants was convicted of a felony committed after July 1, 1977, and sentenced to state prison. Each sought a superior court order granting him presentence jail conduct credits against his prison sentence, such as has been ordinarily allowed certain jail prisoners under Penal Code section 4019.

Defendants Foster (1 Crim.No. 20376) and Draper (1 Crim.No. 20696) were denied such conduct credits upon their sentencing, and each of them appeals. Defendant Shaw (1 Crim.No. 20036) was granted such conduct credits, and the People appeal. Following his sentencing, defendant Jordan (1 Crim.No. 20520) sought such credits by application for a writ of habeas corpus; the credits were allowed and the People appeal. We have consolidated the several appeals for our determination.

People v. Sage (1980) 26 Cal.3d 498, 165 Cal.Rptr. 280, 611 P.2d 874 (as mod. 1980, 27 Cal.3d 144a) holds that state prison inmates such as Foster, Draper, Shaw and Jordan, sentenced under the determinate sentence law after July 1, 1977, are entitled to such presentence jail conduct credits against their prison sentences as they may have earned under the criteria of section 4019.

Sage (see modification of Apr. 30, 1980, Official California Reports advance sheets, 27 Cal.3d 144a, 144b), among other things, states:

“Penal Code section 2900.5 imposes on the sentencing court the obligation to determine the number of days of custody and, in those cases to which it expressly applies, conduct credit to which the defendant is entitled, and to enter the credits on the abstract of judgment. It is therefore appropriate to have the trial court make that determination pursuant to section 2900.5 for all defendants in the future. Inasmuch as such computations are made routinely by the jail administrator for misdemeanants, probationers, and other prisoners to whom the section applies, that officer can readily provide the court with the necessary computation and/or records. Any dispute over the right to credit, the number of days of credit, or the judgment or judgments to which the credits are applicable can then be resolved at the probation and sentence hearing. It is unnecessary, however, to remand this defendant and others who have already been sentenced for new sentencing proceedings to determine the additional credit to which they may be entitled. The Department of Corrections should make available to such prisoners an administrative procedure by which to ascertain their entitlement to conduct credit. (Cf. In re Kapperman (1974) 11 Cal.3d 542, 550, fn. 10, 114 Cal.Rptr. 97, 522 P.2d 657.) As the department already has in its possession a copy of the abstract of judgment awarding custody credit, computation of the additional conduct credit should be a routine ministerial function.”

The appeals relating to defendants Foster, Shaw and Jordan were filed and briefed by the parties prior to Sage. On the appeal of defendant Draper, filed and briefed thereafter, the People now argue that the “logical approach” of allowing the Department of Corrections to determine presentence jail conduct credits “should be adopted in this case and, as in Sage, the judgment should be affirmed.”¹ No contention is made that the superior court otherwise erred in computing and allowing conduct credits to defendants Shaw and Jordan.

As we read Sage, the superior court, a court of general jurisdiction (see 1 Witkin, Cal.Procedure (2d ed. 1970) Courts, s 132, p. 403), is and has been an appropriate tribunal for such determinations. But it is unnecessary that the court be burdened with, and resolve, each of the enormous number of applications for relief triggered by Sage. Instead it is more convenient, and patently “logical,” that the presentence jail conduct credit entitlement of felons presently serving prison sentences be determined under routine administrative procedures to be set up by the Department of Corrections. No purpose appears that the superior court be deprived of jurisdiction over such matters in an otherwise proper case, or over preSage determination of conduct credits. And, of course, that court will always be the tribunal for resolution of disputes over the right to conduct credits or the amount of such credits earned.

Applying Sage ‘s clear rationale we hold that the superior court has had authority since July 1, 1977, under the determinate sentence law, to determine a convicted felon's entitlement to presentence jail conduct credits.

There are remaining issues.

We observe disagreement in the superior court among judges and counsel whether one entitled to full Penal Code section 4019 jail conduct credits shall receive one day such credits for each two days served, or for each three days served. Section 4019, subdivision (c), provides that for each “six-day period in which a prisoner is committed (emphasis added) to” (not “has served in”) a jail facility “one day shall be deducted from his period of confinement” for so-called “good time.” Subdivision (b) of the statute deducts another day for each six-day period of commitment for so-called “work time.” The statute will reasonably be construed in such situations as deducting, when earned, two days from each six days of the prisoner's “commitment ” or “sentence,”² and not as deducting two days after service of six days under the “commitment” or “sentence.” This construction, in effect, allows earned conduct credit of one day for each two days served. Such an interpretation is found consistent with Sage ‘s application of the equal protection of the law guaranty to presentence jail inmates; it equates substantially with the state prison “good behavior and participation credit” of “a four-month reduction for each eight months served . . . .” (Pen.Code, s 2931, subd. (b).)

The remaining issue before us concerns state prison inmates who, as apparent in some of the instant appeals, would now have served their sentences (or nearly so) under Sage ‘s holding but for the Department of Correction's understandable delay in making available Sage ‘s suggested “administrative procedure by which to ascertain their entitlement to conduct credit.” It appears to us that full section 4019 conduct credits are earned and allowed in nearly all jail sentences or commitments; they are withheld rarely. As suggested by Sage, computation of additional conduct credit should ordinarily be “a routine ministerial function.” And it is noted that it is current practice for trial courts to certify to the Department of Corrections the pretrial jail time served (since 1976), and the section 4019 pretrial jail time conduct credits earned (since 1978), of newly committed prison inmates. (See Pen.Code, s 2900.5, subds. (a), (d).)

It would we opine be in the interest of justice, where record or judicial certification of entitlement to section 4019 conduct credits is lacking, and pending full implementation of Sage by the Department of Corrections, that the far greater number of prison inmates presently eligible for release under Sage ‘s holding be given their due, even at the possible cost of earlier freedom for an occasional prisoner not so entitled. This will reasonably be accomplished by granting section 4019's conduct credits to each such inmate, on the basis of two days for each four days of custody credits as such custody credits have been certified by the superior court on the inmate's abstract of judgment or prison commitment.

For the reasons stated, we dispose of the several appeals before us as follows:

In People v. Shaw (1 Crim.No. 20036) the “order, granting Penal Code Section 4019 credits,” is affirmed.

In People v. Foster (1 Crim.No. 20376) the “judgment and sentence” are affirmed, with the proviso that defendant's Penal Code section 4019 presentence jail conduct credits will be determined in accordance with the views expressed by People v. Sage, as modified, and by this opinion.

In In re Jordan (1 Crim.No. 20520) the order “granting the petition for additional credit for pre-sentence confinement” (treated as a petition for a writ of habeas corpus) is affirmed.

In People v. Draper (1 Crim.No. 20696) the “judgment” is affirmed, with the proviso that defendant's Penal Code section 4019 presentence jail conduct credits will be determined in accordance with the views expressed by People v. Sage, as modified, and by this opinion.

FOOTNOTES

1.  It is noted that the subject of Sage was a “mentally disordered sex offender,” while defendant Draper must be characterized only as a “criminal offender.” The high court in Sage, affirming the superior court by a closely divided vote, held a mentally disordered sex offender unentitled to Penal Code section 4019's conduct credits. Were we, as suggested, simply to “affirm ” the judgment against defendant Draper, we would be finally denying him relief to which Sage holds him entitled.

2.  “Commitment . . .: . . . the consignment or sentencing to confinement . . . .” (Webster's New Internat. Dict. (3d ed. 1965) p. 457.)

ELKINGTON, Associate Justice.

RACANELLI, P. J., and NEWSOM, J., concur.