PEOPLE v. GALLOWAY (1979)

This is an appeal from a state prison sentence imposed May 9, 1978, in case A 320004 for lewd conduct in violation of Penal Code section 288. The issues involve only the amount of credit to which defendant was entitled by reason of his prior confinement attributable to this offense.

On May 10, 1976, following defendant's plea of guilty to this offense, he was placed on probation for five years upon the condition, among others, that he served eight months in the county jail. Since he had already been in custody 267 days he was credited with time served pursuant to Penal Code section 2900.5 and released.

On December 11, 1977, he was arrested in connection with new offenses, for which an information was filed under No. A 613148. The probation in A 320004 was preliminarily revoked. He was eventually convicted in case No. A 613148, of discharging a firearm at an inhabited dwelling (Pen.Code, s 246).

On May 9, 1978, probation in No. A 320004 was formally revoked and he was sentenced to state prison. Pursuant to section 2900.5,¹ he was credited with nine months for time served prior to the order granting probation, but he was not given credit on this sentence for the 155 days he had spent in custody after his December 11, 1977, arrest on the new charges. In A 613148 he was sentenced to one year in the county jail for having violated Penal Code section 246 and given credit for the 155 days served prior to sentencing. The two sentences were ordered to be served concurrently in state prison.

He has appealed in A 320004 contending (1) that the trial court failed to include the 155 days in the credit allowed under section 2900.5, and (2) he is also entitled to work time/good time credit of 140 days on his prison term for the 422 days he spent in presentence custody.

I Time in custody after arrest for new offense.

The record establishes that the defendant's conduct which brought about his arrest for the firearm offense also constituted a violation of the probation granted for the earlier offense, and was relied upon as a reason for revoking that probation. Thus defendant's incarceration on and after December 11, 1977, had some connection with both offenses.

Section 2900.5, subdivision (b), provides: “For the purposes of this section, credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted. Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.” The issue is whether the custody on and after December 11, 1977, is “attributable to proceedings related to the same conduct for which the defendant has been convicted,” i. e., the 1976 conviction. Under similar circumstances People v. Washington (1978) 80 Cal.App.3d 568, 572, 145 Cal.Rptr. 654, held that the confinement following the arrest for the second offense was so attributable, and ordered that credit against the sentence on the first offense be given for time in jail following the arrest for the second offense.

There is one procedural difference between the present case and Washington. In Washington, the second charge was dismissed after the defendant had been sentenced to prison for the earlier offense. Here defendant was convicted of the second offense and sentenced to a term of one year less credit for time in custody starting December 11, 1977. Inasmuch as this term was made concurrent with the prison term for the earlier offense, the effect on defendant's actual time in custody will be the same as though the second charge had been dismissed, as in Washington. Under these circumstances we see no reason not to apply the rationale of the Washington decision.

This decision is consistent with In re Rojas (1979) 23 Cal.3d 152, 151 Cal.Rptr. 649, 588 P.2d 789, holding that a defendant who had spent time in a county jail awaiting trial on a second offense was not entitled to credit for that time against his term on the second offense because during those proceedings he was serving a term for an earlier offense. In the present case the defendant was not serving a term for any offense during the period of December 11, 1977, to May 9, 1978, for which he is claiming credit. Therefore Rojas does not preclude an allowance of credit for that period.

The purpose of section 2900.5 is to equalize the total time in custody as between a person who goes free on bail prior to sentence and one who is confined while awaiting trial and sentence. The only way that purpose can be accomplished in this case is to credit the presentence time against the sentence for the 1976 offense. Defendant is entitled to an additional 155 days credit for his incarceration starting December 11, 1977.

II Work time/good time credit on the prison term.

As a general proposition the colloquial expressions “good time” and “work time” refer to reductions in a prisoner's period of confinement as a reward for good behavior and for participation in work programs during confinement. As we shall explain below, our Penal Code provides for the award of such credits for prisoners who are serving specified terms. But when a person is confined solely for the purpose of keeping him available for trial, the period of confinement is determined only by the amount of time which must elapse before the pending charges are disposed of. Thus there is no way of shortening that period of confinement as a reward for behavior. The contention of defendant is that when he was sentenced to prison, the trial court should have computed the amount of work time/good time he would have earned if his presentence confinement had been a part of his sentence, and credit this amount of time against the term imposed by the sentence.²

Defendant's argument is based upon his interpretation of subdivision (a) of section 2900.5:

“In all felony and misdemeanor convictions, . . . when the defendant has been in custody . . . all days of custody . . . including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his term of imprisonment. . . .”

The language “including days credited to the period of confinement pursuant to Section 4019” was added by an amendment which took effect June 28, 1978. Defendant argues that even though this amendment was not in effect at the time he was sentenced, he should have the benefit of it, citing People v. Doganiere (1978) 86 Cal.App.3d 237, 240, 150 Cal.Rptr. 61. But we do not reach that retroactivity question because the record shows that defendant has not qualified for or received any “days credited to the period of confinement pursuant to Section 4019.”

That section, which is in the chapter headed “County jails,” authorizes credit for work performance and good behavior for prisoners confined for specified terms in county jails and other local facilities.³ Subdivision (a) lists three categories of local prisoners who are entitled to such credits. Subdivision (a)(1) relates to a prisoner under a judgment of imprisonment; subdivision (a)(2) relates to a prisoner confined or committed as a condition of probation; subdivision (a)(3) relates to a prisoner confined for a specified period for contempt.

Subdivision (a)(1) defines the credit as “including all days of custody from the date of arrest to the date on which the serving of the sentence commences,” but this is the only reference to preconviction confinement in the entire section. The text of the section and its location in the Penal Code indicate that it prescribes credit to be applied to a specific term to be served in a local facility. Section 4019 does not purport to indicate how credit is to be computed for a person committed to a state institution.

Sections 2931 and 2932 provide for good behavior and participation credits which may be earned in a state prison.

Section 2900.5 provides credit for time in custody prior to commencement of sentence. The cross-reference to section 4019 requires that “ days credited” to the local confinement shall be included in the section 2900.5 computation. Thus, for example, if a defendant had been confined in the county jail for a fixed period as a condition of probation, he could have earned work time/good time credits there which would have reduced the number of days of actual confinement there. And when he was subsequently committed to state prison after a probation violation, his credits calculated under section 2900.5 would include both the number of days actually served as a condition of probation and the days credited to the probationary term for work time/good time. He would also be entitled to additional credit for the actual number of days in custody prior to his probationary term. But section 2900.5 does not authorize the further credit which defendant here seeks which is a credit equal to that which he would have received in his presentence custody if that amount of time had been served as a condition of probation or a sentence.

Defendant's appellate counsel seems to take the position that subdivision (a) (1) of section 4019 authorizes a computation of work time/good time credit for anyone who is confined in the county jail. We find that interpretation untenable for several reasons.

First: The literal reading of the section indicates that the last clause of subdivision (a)(1), “under a judgment of imprisonment . . .” modifies the introductory clause “When a prisoner is confined in or committed . . . .” This parallels the language of subdivisions (a)(2) and (a)(3) both of which start out like (a)(1) but close with other qualifiers “as a condition of probation . . .” and “for contempt” respectively.

Second: The structure of section 4019 as a whole indicates that it applies only to confinement for a specified period. Subdivision (a)(3) relating to contempt commitments, is expressly limited to those which are “for a definite period of time.” The mechanism for granting credits appears to contemplate an actual reduction of a specified term. Such a mechanism is incongruous as applied to a prisoner who is being held pending trial.

Third: Sections 2931 and 2932 contain comprehensive and constitutionally adequate provisions for applying work time/good time credits to reduce a state prison term. Those sections properly construed and applied, operate to equalize the work time/good time reduction of defendant's total time in custody with that which he would have received if he had been on bail prior to sentence.

Subdivision (a) of section 2931⁴ provides that the term prescribed by section 1170 may be reduced by one-third. The term prescribed by section 1170 is made up of the time periods selected by the sentencing court; or, in the case of a defendant whose offense was committed prior to July 1, 1977, the time period selected by the Community Release Board under section 1170.2 to convert an indeterminate sentence to a determinate equivalent. In construing section 2931 it is necessary to distinguish between the term and the amount of time which the defendant will be required to serve in prison.

The time to be served is the term prescribed under section 1170 or 1170.2 minus credits.

A simple example illustrates the equalizing effect of section 2931: Assume a defendant is sentenced to a term of 36 months. He would be eligible for work time/good time credits up to one-third of the term, i. e., 12 months. If he had not been incarcerated prior to sentence he could qualify for release after 24 months. If he had spent 4 months in jail prior to sentence he would receive 4 months credit under section 2900.5. He could also qualify for work time/good time credits up to one-third of the term, i. e., 12 months, leaving 20 months to be served in prison. The 20 months in prison plus the 4 months in presentence custody would equal the 24 months served by the person who had been on bail prior to sentence.

The procedural provisions of sections 2931 and 2932 are such that an inmate who has credits under section 2900.5 may qualify for work time/good time credits based upon his full term. Sections 2931 and 2932, read together, indicate that the inmate will receive the total possible credit (i. e., one-third of the term) except to the extent that the credit is reduced for good cause after notice and hearing. Thus sections 2931 and 2932 do not provide for any loss of work time/good time credits for that portion of the term for which the inmate has received presentence time credit under section 2900.5.

We are informed that the Department of Corrections has not in the past recognized work time/good time credit for that portion of the term which is covered by a 2900.5 credit. However, once the case law on this subject is settled, we may assume that the Department will follow the decision of the courts.

The judgment is hereby modified to provide that defendant is given credit for 422 days in custody prior to sentence. As so modified, the judgment is affirmed.

FOOTNOTES

1.  All section numbers will refer to the Penal Code.

2.  Three Court of Appeal cases which discussed this subject are now pending before the California Supreme Court. They are People v. Sage, 90 Cal.App.3d 722, 153 Cal.Rptr. 533; People v. Brown, 90 Cal.App.3d 1018, 153 Cal.Rptr. 762; In re Davis, 91 Cal.App.3d 640, 154 Cal.Rptr. 330.

3.  Penal Code section 4019, subdivision (a) provides:“The provisions of this section shall apply in all of the following cases:“(1) When a prisoner is confined in or committed to a county jail, industrial farm, or road camp, or any city jail, industrial farm, or road camp, including all days of custody from the date of arrest to the date on which the serving of the sentence commences, under a judgment of imprisonment, or a fine and imprisonment until the fine is paid in a criminal action or proceeding.“(2) When a prisoner is confined in or committed to the county jail, industrial farm, or road camp or any city jail, industrial farm, or road camp as a condition of probation after suspension of imposition of a sentence or suspension of execution of sentence, in a criminal action or proceeding.“(3) When a prisoner is confined in or committed to the county jail, industrial farm, or road camp or any city jail, industrial farm, or road camp for a definite period of time for contempt pursuant to a proceeding, other than a criminal action or proceeding.”

4.  Section 2931, subdivision (a): “In any case in which an inmate was sentenced to the state prison pursuant to Section 1170, or if he committed a felony before July 1, 1977, and he would have been sentenced under Section 1170 if the felony had been committed after July 1, 1977, the Department of Corrections shall have the authority to reduce the term prescribed under such section by one-third for good behavior and participation consistent with subdivision (d) of Section 1170.2.”

FILES, Presiding Justice.

KINGSLEY and ALARCON, JJ., concur.