PEOPLE v. SAGE (1979)

OPINION

For sometime the trial judges of this state have been troubled with the problem of good time/work time credit for presentence confinement. In this case, we hold that under Penal Code s 2900.5 and Penal Code s 4019, credit for good time and work time may be earned during periods of presentence confinement. We do so on principles of statutory interpretation and fidelity to legislative intent, secure in the knowledge that if we guess wrong, the Legislature can by a stroke of the legislative pen correct our misapprehensions.

Defendant pleaded guilty to one count of false imprisonment with violence or menace (Penal Code s 236). Criminal proceedings were suspended and he was committed to a state hospital for treatment as a mentally disordered sex offender (MDSO) pursuant to Welfare & Institutions Code s 6316. When he had spent approximately one year at the hospital, he was found to be not amenable to further treatment (Welfare & Inst.Code s 6325) and was returned to the committing court. Criminal proceedings were reinstated and he was sentenced to state prison. He received credit against the sentence for 327 days of actual confinement in either the state hospital or the county jail. He appeals from the judgment (i. e., the sentence), contending that his credits for presentence confinement should include good time and work time credits pursuant to Penal Code s 4019.^[FN1]

As here relevant, Penal Code s 4019 provides: “(a) The provisions of this section shall apply in all of the following cases:

“(1) When a prisoner is confined in . . . a county jail . . . 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 . . . in a criminal action or proceeding.

“(2) When a prisoner is confined in . . . the county jail . . . as a condition of probation . . . .

“(3) When a prisoner is confined in . . . the county jail . . . for contempt . . . .

“(b) . . . for each six-day period in which a prisoner is committed to a facility as specified in this section, one day shall be deducted from his period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned . . . .

“(c) For each six-day period in which a prisoner is committed to a facility as specified in this section, one day shall be deducted from his period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations . . . .

“(d) . . .

“(e) . . . ”

The relevant provision of Penal Code section 2900.5 reads: “In all felony and misdemeanor convictions . . . all days of custody of the defendant . . . including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his term of imprisonment . . . .”

Defendant argues, as a matter of statutory construction, that these two statutes entitle him to good time and work time credits for the entire period of presentence confinement. In the event this argument is unavailing, defendant maintains that constitutional guarantees of equal protection require that good time and work time credits be given for presentence confinement.

The questions raised will be answered in the following order: (1) pursuant to Penal Code ss 2900.5 and 4019, sentence credits for good time and work time may be earned during periods of presentence detainment; (2) such credits may be applied against felony as well as misdemeanor sentences; and (3) such credits may be earned for behavior during periods of confinement as an MDSO.^[FN2]

I

We begin discussion of the first issue with a brief historical review.

Before 1972, it is quite clear that no good time or work time credits could be earned for the period of presentence detainment. An accused detained pending trial and sentence could not have the period of presentence detainment reduced by any credits. This is so obvious that little elaboration is required. First, presentence detainment is not for a definite term and therefore there is no term from which to subtract the credits. Second, the purpose of presentence detainment is to assure the continued availability of the accused and this purpose would be frustrated by early release.

Not only was the accused not entitled to have his period of presentence detainment reduced by behavior credits, if he or she was convicted and sentenced to imprisonment, the prisoner could not have the sentence reduced by credits based on behavior during the period of presentence detainment. The reason for this is that before 1972 there were no provisions for crediting any presentence detainment against the sentence imposed, although the fact of presentence detainment could be taken into consideration by the sentencing court. (People v. Rose, 41 Cal.App.2d 445, 446, 106 P.2d 930.) Presentence detainment acquired the popular name of “dead time” precisely because of this lack of any credit system. Since a prisoner received no sentence credit for days of actual confinement before sentence, there naturally was no right to sentence credits based on the prisoner's behavior during those days of actual confinement.

In the early 1970's a number of sentenced prisoners, relying on analogous decisions by the United States Supreme Court (i. e., Tate v. Short (1971) 401 U.S. 395, 398-399, 91 S.Ct. 668, 28 L.Ed.2d 130, and Williams v. Illinois (1970) 399 U.S. 235, 241-242, 90 S.Ct. 2018, 26 L.Ed.2d 586), successfully argued that the denial of credit for presentence detainment resulted in invidious discrimination against indigents unable to post bail. (E. g., King v. Wyrick (8th Cir. 1975) 516 F.2d 321, 323; Hart v. Henderson (5th Cir. 1971) 449 F.2d 183, 185; White v. Gilligan (S.D.Ohio 1972) 351 F.Supp. 1012, 1013; State v. Sutton (1974) 21 Ariz.App. 550, 521 P.2d 1008, 1009; In re Young (1973) 32 Cal.App.3d 68, 75, 107 Cal.Rptr. 915. See generally, Schornhorst, Presentence Confinement and the Constitution: The Burial of Dead Time, 23 Hast.L.J. 1041.)

In 1971, our Legislature enacted two statutes, Penal Code sections 2900.5 and 2900.6, mandating sentence credit for presentence detainment of felons and misdemeanants, respectively, effective in March 1972. (Stats.1971, chs. 1678, 1732.) Later, these statutes were revised and the provisions of section 2900.6 were incorporated into section 2900.5. (Stats.1976, ch. 1045.) However, neither section, prior to 1978, made any mention of good time or work time credits.

In 1971, when sections 2900.5 and 2900.6 were enacted, Penal Code section 4019 provided: “For each month in which a prisoner is confined in or committed to a county jail . . . under a judgment of imprisonment . . . or in which a prisoner is confined in or committed to the county jail . . . as a condition of probation . . . in a criminal action or proceeding, and when it appears, by the record, that he has satisfactorily complied with the reasonable rules and regulations established by the sheriff . . . five days may . . . be deducted from his period of confinement.” (Stats.1971, ch. 438.) A parallel provision, section 4018.1, provided for work time credits.

In 1974, the Office of the Attorney General issued an opinion concluding that “a county jail prisoner may not have his period of confinement reduced under Penal Code sections 4018.1 and 4019 based upon time in custody prior to commencement of sentence.” (57 Ops.Cal.Atty.Gen. 276, 277.) It was argued that a presentence detainee was not within the purview of these statutes because such a person was not confined “under a judgment of imprisonment” or “as a condition of probation.”

The following year, sections 4018.1 and 4019 were amended by an urgency ordinance (Stats.1975, ch. 309) to include the following italicized words: “For each one-fifth of a month in which a prisoner is confined in or committed to a county jail . . . Including all days of custody from the date of arrest to the date on which the serving of sentence commences, under a judgment of imprisonment, . . . one day shall be deducted . . . .”

Finally, in 1978, Penal Code section 2900.5 was amended to include the provision that credit for presentence custody should include any behavior credits earned pursuant to Penal Code section 4019. (Stats.1978, ch. 304.)

As now written, section 4019 is at least ambiguous and perhaps even self-contradictory. The phrase “all days of custody from the date of arrest to the date on which the serving of the sentence commences” clearly refers to presentence detainment. Yet presentence detainment, by definition, is not “under a judgment of imprisonment.”

When ambiguity is found in a statute, the statute is to be interpreted in light of the objective sought to be achieved by it, as well as the evil sought to be averted. (In re Andrews, 18 Cal.3d 208, 212, 133 Cal.Rptr. 365, 555 P.2d 97.) Specific provisions should be construed with reference to the entire statutory system of which they are a part, in such a way that the various elements of the overall scheme are harmonized. (Bowland v. Municipal Court, 18 Cal.3d 479, 489, 134 Cal.Rptr. 630, 556 P.2d 1081.)

The legislative objective underlying the enactment of Penal Code sections 2900.5 and 2900.6 in 1971 is well known. The Legislature intended “to eliminate the unequal treatment suffered by indigent defendants who, because of their inability to post bail, served a longer overall confinement than their wealthier counterparts.” (In re Rojas, 23 Cal.3d 152, 156, 151 Cal.Rptr. 649, 651, 588 P.2d 789, 791.)

After the enactment of Penal Code sections 2900.5 and 2900.6, which failed to mention good time or work time, there was understandably some uncertainty concerning the effect of the new legislation on these credits. In 1974, the Attorney General's opinion was issued stating that a county jail prisoner was not entitled to sentence credits for behavior during presentence detainment. A fortiori, the same would be true of state prison inmates.

The following year, legislation was enacted amending Penal Code sections 4019 and 4018.1 by adding the phrase referring to presentence detainment.^[FN3] The purpose of the amendment is obvious in light of the historical context. In response to the Attorney General's opinion, the Legislature was indicating that it intended to eliminate All unequal treatment suffered by indigent defendants unable to post bail and to this end was providing that sentence credits would be allowed for acceptable behavior during presentence detainment.

In 1978, Penal Code section 2900.5, which applies to both felons and misdemeanants, was amended to explicitly state that sentence credits for presentence confinement were to include good time and work time credits earned pursuant to Penal Code section 4019.

Returning once again to the difficult language of Penal Code section 4019, subdivision (a)(1), its meaning is a little more clear. Use of the phrase “under a judgment of imprisonment” we take to mean that unless and until a judgment is entered, this subdivision does not authorize any credits. In other words, the subdivision is concerned with sentence credits, credits which will reduce the time to be served under an existing sentence. However, the phrase “including all days of custody from the date of arrest to the date on which the serving of the sentence commences” we take to mean that the subdivision operates retrospectively. When a sentence is imposed, behavior credits spring into being for the previous period of presentence detainment. This is only logical since, by virtue of Penal Code section 2900.5, presentence detainment is now treated as part of the sentence.

As we construe it, the true meaning of section 4019 is indicated by the following paraphrase:

“(a) The provisions of this section shall apply in all of the following cases:

“(1) When a prisoner is under a judgment of imprisonment and is or has been confined in a county jail, including all days of custody from the date of arrest to the date on which the serving of the sentence commences, in the same criminal action . . . .”

II

Although the Attorney General originally took the position in his respondent's brief that section 4019 “simply does not apply to pretrial detainees,” at oral argument it was conceded that under the 1975 amendment of section 4019 the Legislature clearly intended to permit at least some convicted criminals to receive sentence credits for behavior during presentence detainment. However, the Attorney General now insists that the Legislature intended to grant this benefit only to misdemeanants and not to felons.

Reliance is placed primarily on the language of the statute. The Attorney General cites the language of section 4019 stating that the statute applies “(w)hen a prisoner is confined in . . . a county jail . . . under a judgment of imprisonment . . . .” The Attorney General construes this language to mean that the judgment must sentence the prisoner to the county jail or, at least, the prisoner must be confined in the jail during or after the imposition of sentence.^[FN4]

The statute clearly requires both county jail confinement and a judgment of imprisonment, but it is not at all clear that the statute requires that both conditions occur simultaneously. If it did, then presentence confinement would be excluded. But presentence confinement is not excluded; in fact, presentence confinement is explicitly included by the words “including all days from the date of arrest.” Looking at the wording of section 4019, subdivision (a)(1), we cannot discern any plain meaning restricting its benefits to misdemeanants who have been sentenced to a county jail or other local facility. We think a construction of the statute which extends its benefits to felons who are “under a judgment of imprisonment” (i. e., a state prison sentence) after being “confined in . . . a county jail” before sentence is equally plausible.

The remaining question is whether there is any evidence of legislative intent to restrict the benefit of the 1975 amendment of section 4019 to sentenced misdemeanants. At our request, both parties have examined committee reports and other contemporaneous sources of legislative history without finding anything helpful in regard to the question under consideration.

Before 1948, good time and work time credits could be earned by inmates of state prison as well as county jail prisoners. Behavior credits for state prison inmates were provided for, at various times, by Penal Code sections 1588 (Stats.1907, ch. 317), 1168 (Stats.1929, ch. 872), and 2920 (Stats.1941, ch. 106). (See generally, 2 Witkin, Cal.Crimes, s 993, pp. 946-947.) Behavior credits for county jail prisoners were provided for originally by Penal Code section 1614a (Stats.1929, ch. 114) and later by Penal Code sections 4019 (Stats.1941, ch. 106), 4019.2 (Stats.1955, ch. 912), and 4018.1 (Stats.1969, ch. 380). (See generally, 2 Witkin, Cal.Crimes, s 914, p. 868.)

In 1947 the Legislature decided that the behavior credit system was inconsistent with the theory of indeterminate sentencing and the behavior credit system for state prison inmates was abolished, effective January 1, 1948. (Stats.1947, ch. 1381. See 2 Witkin, Cal.Crimes, s 994, p. 947.)

In 1976, in connection with the enactment of the Determinate Sentencing Law, a new system of behavior credits for state prison inmates was established by Penal Code section 2931. (Stats.1976, ch. 1139.) This new scheme provides total possible credits of four months for each eight months served. (Pen.Code, s 2931, subd. (b).)

We have already decided that the Legislature intended by the 1975 urgency amendment of section 4019 to provide sentence credits for behavior during presentence detainment and that its purpose in doing so was to eliminate the unequal treatment of indigents who, unable to post bail, served longer overall periods of confinement than their wealthier counterparts. The 1975 amendment was necessary to eliminate unequal treatment of indigent misdemeanants because misdemeanants serving county jail sentences could earn behavior credits under Penal Code section 4019. Unless such credits were also available for presentence detainment, indigents who were detained for substantial periods before sentence would still serve longer terms of actual confinement than their wealthier counterparts who were not detained before sentence and thus were able to earn behavior credits during their entire confinement period.

For convicted felons serving state prison sentences, however, the situation was otherwise. Between 1948 and 1976, state prison inmates did not earn behavior credits. Therefore a credit for presentence time served, without allowance for good time or work time, was sufficient to eliminate unequal treatment. For this reason, if the 1975 urgency amendment of Penal Code section 4019 had come before an appellate court in 1975, it is likely the court would have construed it as applying to presentence detainment of misdemeanants only and not to presentence detainment of felons.

However, the effect of the 1975 amendment of Penal Code section 4019 has never been considered in a published opinion before today.^[FN5] In 1976 the Determinate Sentencing Law was enacted, which included a system of good time and work time credits for state prison inmates. After this legislation, the situation of indigent felons detained before sentence was the same as that of indigent misdemeanants detained before sentence. In both cases, allowing sentence credits for acceptable behavior during presentence detainment was necessary to prevent indigents from serving longer overall periods of confinement than nonindigents. Yet the Legislature did not make any changes in section 4019 or otherwise indicate whether behavior credits could be earned against a state prison sentence for presentence detainment.

As we have already pointed out, the language of the 1975 amendment of section 4019 may be construed as providing behavior credits for presentence detainment against a state prison sentence. Possibly this was deliberate and indicates that the Legislature in 1975 anticipated the enactment of the Determinate Sentencing Law the following year. In any event, as we have also seen, the 1975 amendment had not yet been given a judicial construction in 1976 when the Determinate Sentencing Law was enacted. Consequently, it appears to us that the failure of the Legislature to amend section 4019 after enactment of the Determinate Sentencing Law is easily explained by the fact that the language of section 4019 already applied to felony defendants. This conclusion is more reasonable and more consistent with what we know of the Legislature's intent than the only alternative, which is that the Legislature chose not to give felons behavior credits for presentence detainment. Although it is true, as the Attorney General points out, that there are reasons for treating felons and misdemeanants differently in some instances (see In re Podesto, 15 Cal.3d 921, 932-933, 127 Cal.Rptr. 97, 544 P.2d 1297), none of these considerations has any bearing on the matter at issue. We can think of no legitimate reason, and the Attorney General has suggested none, for granting this particular benefit to misdemeanants while denying it to felons.^[FN6]

We have determined, accordingly, that a felon is entitled to have deducted from a state prison sentence good time and work time credits for appropriate behavior during presentence detainment in a county jail.

III

The remaining issue is whether such sentence credits also can be earned for behavior during presentence confinement in a state hospital as an MDSO.

In 1974, Penal Code section 2900.5 provided for sentence credits for all time spent by a defendant “in custody in any city, county, or city and county jail.” In People v. Cowsar, 40 Cal.App.3d 578, 115 Cal.Rptr. 160, the defendant contended that he was entitled to credit against a state prison sentence for presentence confinement in a state hospital pursuant to an incompetency commitment. Although section 2900.5 by its terms applied only to jail confinement and not hospital confinement, the reviewing court “concluded that section 2900.5 of the Penal Code should be interpreted to avoid an unconstitutional disparity in treatment between those confined in jail and in a state hospital prior to trial.” (People v. Cowsar, supra, 40 Cal.App.3d 578, 581, 115 Cal.Rptr. 160, 161.)

Following the Cowsar decision, Penal Code section 2900.5 was amended to provide that credit be given for presentence confinement in a “rehabilitation facility, hospital, prison, or similar institution.” (Stats.1976, ch. 1045.) In the case of an MDSO who has been returned to the committing court and sentenced, the Legislature has provided, in Welfare and Institutions Code section 6325, that “the time the person spent under indeterminate commitment as a mentally disordered sex offender shall be credited . . . against such sentence.” This provision antedates the Cowsar decision, and it now appears to be redundant in light of that decision's interpretation of Penal Code section 2900.5 and the subsequent conforming amendment of section 2900.5.

The question we now decide is similar to the one decided in Cowsar. Penal Code section 4019 provides good time and work time credits for confinement in “a county jail, industrial farm, or road camp, or any city jail, industrial farm, or road camp.” We have already concluded that this section applies to presentence detainment. We now must decide whether it should be interpreted to avoid a disparity in treatment between those confined in jail and in a state hospital prior to sentence.

If we read section 4019 literally, as excluding MDSO confinement, then we will be forced to accept a statutory scheme which is inconsistent and discordant rather than uniform and harmonious. For example, if a person is convicted of a sex crime and sentenced to state prison and is thereafter transferred to a state hospital for treatment pursuant to Penal Code section 2684, not only will the time spent in the hospital count as part of the sentence (Pen.Code, s 2685), but the person will be eligible for good time and work time credits during the hospital confinement. (24 Ops.Cal.Atty.Gen. 3.) Undoubtedly the same result would occur in the case of a county jail prisoner transferred to a state hospital pursuant to Penal Code section 4011.6. Since behavior credits may be earned by a prisoner being treated for mental illness under these circumstances, we fail to see any rational ground for denying sentence credit for behavior during a MDSO commitment when the prisoner has been returned from commitment and sentenced pursuant to Penal Code section 6325.^[FN7]

To achieve harmony in the statutory scheme and to avoid disparate treatment based on arbitrary distinctions, we interpret Penal Code section 4019 as providing good and work time credits against a state prison sentence for behavior during the period of involuntary confinement as a mentally disordered sex offender.

Once again, the meaning of section 4019 may best be illustrated by paraphrase:

“(a) The provisions of this section shall apply in all of the following cases:

“(1) When a prisoner is under a judgment of imprisonment and is or has been confined in a county jail, hospital, or similar institution, provided that such confinement is part of or is to be credited against the sentence imposed. . . .”

IV

The conclusions we have reached are based on our reading of the statutes and not on any constitutional compulsions, although we have been guided by the rule of statutory construction according to which interpretations which avoid serious constitutional difficulties are to be preferred. (See Associated Home Builders etc., Inc., v. City of Livermore, 18 Cal.3d 582, 598, 135 Cal.Rptr. 41, 557 P.2d 473.) Our decision has not been consciously influenced by our personal preferences, but represents our best effort to achieve harmony and consistency in the legislative scheme and to carry out what we discern to be the legislative intent. The method we have followed and the result we have reached are far better, in our view, than the approach urged by the Attorney General (see fn. 5, Ante ) which would have resulted in the nullification of an important statutory provision. The Attorney General has characterized the 1975 amendment of Penal Code section 4019 as “eccentric” and “aberrant” but these charges, if true, are not a sufficient ground for disregarding that amendment.

If our efforts to ascertain legislative intent have been faulty, it will be a simple task for the Legislature to strike from Penal Code section 4019 the words “including all days of custody from the date of arrest to the date on which the serving of the sentence commences” and then, consistent with the Attorney General's position, no good time/work time for presentence detainment will be permissible for anyone.

The judgment sentencing defendant to state prison is affirmed and the matter is remanded to the trial court with directions to determine good time and work time credits pursuant to Penal Code section 4019 for defendant's presentence confinement in county jail and state hospital.

Both the State Public Defender and the Attorney General have that we asked that we clarify certain aspects of our holding in this case as an aid to trial courts. Therefore, we modify this opinion by the addition of the following:

(1) Eligibility to earn credit for presentence local custody good time/work time arose when the 1975 amendment to section 4019 took effect, i.e., August 22,1975. That time is the effective date felons were eligible to earn this type of credit.

(2)In computing presentence local custody good time/work time credits, the present provisions of section 4019 shall apply, i.e., the prisoner is entitled to one day's credit for each two days served unless the record reflects that he has refused to satisfactorily perform assigned labor or has not satisfactorily complied with the reasonable rules and regulations of the institution.

FOOTNOTES

1.  The record does not indicate that the question of good time and work time credits was ever raised in the court below. Ordinarily an appellate court will not consider procedural defects or erroneous rulings where an objection could have been but was not presented to the lower court. (Banerian v. O'Malley, 42 Cal.App.3d 604, 610, 116 Cal.Rptr. 919; Witkin, Cal.Crim.Proc., s 747, p. 721.) However, errors in sentencing may be raised for the first time on appeal. (See People v. Serrato, 9 Cal.3d 753, 763, 109 Cal.Rptr. 65, 512 P.2d 289; People v. Doganiere, 86 Cal.App.3d 237, 239, 150 Cal.Rptr. 61.) Accordingly, defendant's contention is properly before us for determination.

2.  As used in this opinion, (1) the phrase “presentence detainment” does not include confinement as a condition of probation, (2) good time and work time credits are sometimes referred to collectively as “behavior credits,” and (3) references to county jail are understood as including the other local facilities mentioned in Penal Code section 4019.

3.  Significantly, a virtually identical phrase appeared in the 1971 version of Penal Code section 2900.5, i. e.: “. . . all days of custody of the defendant from the date of arrest to the date on which the serving of the sentence imposed commences . . . shall be credited upon his sentence . . . .”

4.  This latter construction would result in granting behavior credits to felons who spend a night in jail after sentence before transit to state prison while denying credits to other felons who go directly to prison from the sentencing hearing without stopping at county jail. A more arbitrary and irrational distinction would be difficult to imagine.

5.  In People v. Doganiere, supra, 86 Cal.App.3d 237, 150 Cal.Rptr. 61, our attention was not called to the 1975 urgency amendment of Penal Code section 4019. We decided that case under the assumption, shared by the parties, that sentence credits for behavior during presentence confinement did not receive legislative authorization until the 1978 amendment of Penal Code section 2900.5. Needless to say, the views expressed in this opinion supersede anything to the contrary in Doganiere.

6.  The Attorney General's position, based on the “plain meaning rule,” is that section 4019 grants behavior credits for presentence detainment only to misdemeanants. Recognizing that this might be an invidious discrimination against felons, the Attorney General urges us to strike the “offending language” from section 4019, with the result that neither felons nor misdemeanants would earn sentence credits for behavior during presentence detainment.

7.  We emphasize that we are concerned here only with Sentence credits and not with credits that reduce the length of the MDSO commitment. (See Welf. & Inst.Code, s 6316.1.)

GARDNER, Presiding Justice.

MORRIS and KNEELAND (Assigned by the Chairperson of the Judicial Council), JJ., concur.