IN RE: Kenneth Russell DAVIS on Habeas Corpus. (1979)

INTRODUCTION

Defendant Kenneth Russell Davis (hereinafter defendant), a state prison inmate in his petition for a writ of habeas corpus, seeks additional days of credit for pre-sentence incarceration in the Los Angeles County Jail against his state prison term of imprisonment by reason of the 1978 amendment to Penal Code section 2900.5¹ which allows a credit against a term of imprisonment for days of custody “including days credited to the period of confinement pursuant to Section 4019.”

CHRONOLOGY

On March 1, 1978, Davis was charged in a two-count information filed in the Los Angeles County Superior Court with violation of Penal Code sections 459 (burglary-count I) and 496 (receiving stolen property-count II) to which he pleaded not guilty. The information was later amended to allege five prior felony burglary convictions, each of which was denied by defendant Davis.

On June 19, 1978, following the denial of a motion to suppress evidence pursuant to Penal Code section 1538.5, defendant withdrew his previous plea and entered a plea of guilty to count I (burglary).

On July 25, 1978, the trial court denied probation and sentenced defendant to the middle term of 2 years in state prison² and ordered that he receive credit for 152 days in custody.³ The trial court dismissed count II on the motion of the People and later also struck the five priors alleged in the amended information.

On October 12, 1978, defendant filed a motion in the trial court for good time and work participation credits pursuant to section 2900.5 as amended effective June 28, 1978. The trial court denied this motion and subsequently defendant filed the within petition with this court.

ISSUE

As hereinafter set forth for the time period Davis was incarcerated in the county jail pending his trial and prior to being sentenced to state prison, he was given credit for the time he actually spent in jail prior to sentencing. He was also given credit for post-sentence time prior to being delivered to the state prison. He was not given any work performance or good time credits for time spent in county jail.

The sole question to be determined is whether or not he is entitled to additional credits for the time he spent in local custody prior to being sentenced to state prison under the 1978 amendment to section 2900.5. (Stats. 1978, ch. 304, s 1, p. 800.)

DISCUSSION

SECTION 2900.5 as amended as an urgency measure on June 28, 1978 (Stats. 1978, ch. 304, s 1, p. 800), provided, in pertinent part, as follows: “In all felony and misdemeanor convictions . . . when the defendant has been in custody . . . all days of custody of the defendant, 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 reference to “days credited to the period of confinement pursuant to Section 4019” was added by the 1978 amendment to section 2900.5.⁴

SECTION 4019⁵ allows for work performance and good behavior credits (hereinafter behavior credits) against three terms. Subsection (1) of subdivision (a) deals with a term under a judgment of imprisonment, while subsection (2) of subdivision (a) applies to a term served as a condition of probation, and subsection (3) of subdivision (a) applies to a term of confinement for contempt.

Defendant herein does not contend that either subsection (2) or (3) of subdivision (a) is applicable.

Our focus, therefore, is upon subsection (1) of subdivision (a) of section 4019 which states: “The provisions of this section shall apply in all of the following cases: (P) (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, . . .”

Defendant herein urges that he is entitled to behavior credits under the 1978 amendment to section 2900.5 when sections 2900.5 and 4019, subdivision (a)(1), are read together. Specifically, he contends that section 2900.5 directs the trial court to credit a sentence which can be done only after the oral pronouncement of sentence; that after the section 2900.5 credits are awarded, a defendant is remanded to the county jail pending delivery to the Department of Corrections; that upon such remand the defendant is confined in the county jail “under a judgment of imprisonment”; and that therefore the 1978 amendment to section 2900.5 by incorporating the provisions of section 4019, subdivision (a) (1), operates to entitle him to section 4019 behavior credits for the period of his pre-sentence incarceration in county jail.

We disagree. We are not unaware of the recent Court of Appeal decision of People v. Sage (1979) 90 Cal.App.3d 722, 153 Cal.Rptr. 533, in the Fourth District which held that a felon in the position of defendant herein is entitled to have deducted from a state prison sentence good time and work time credits for appropriate behavior during pre-sentence detainment in a county jail. However, applying well established rules of statutory construction following an independent exhaustive analysis of the legislative history of sections 2900.5 and 4019, we have reached an opposite conclusion. We conclude that the Legislature never intended that defendant herein should be entitled to such credit as claimed. Our reasoning follows.

THE RULES OF STATUTORY CONSTRUCTION require “ ‘(t)hat the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. (Citations.) Moreover, ”every statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect.“ (Citation.) If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose. (Citation.) Such purpose will not be sacrificed to a literal construction of any part of the act. . . .’ (Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645, 335 P.2d 672, 675; see also, Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224; Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 732-733, 114 Cal.Rptr. 460, 523 P.2d 260; Eckl v. Davis (1975) 51 Cal.App.3d 831, 848-849, 124 Cal.Rptr. 685; People v. Taylor (1975) 46 Cal.App.3d 513, 531, 120 Cal.Rptr. 762; Anaheim Union Water Co. v. Franchise Tax Bd. (1972) 26 Cal.App.3d 95, 105-106, 102 Cal.Rptr. 692; Beirut Universal Bank v. Superior Court (1969) 268 Cal.App.2d 832, 841-842, 74 Cal.Rptr. 333.)

“ In addition, ‘Statutes must be construed in a reasonable and common-sense manner, not in a manner that would lead to absurd consequences. The rule is well established that ” ‘where the language of a statute is reasonably susceptible of two constructions, one of which in application will render it reasonable, fair and harmonious with its manifest purpose, and another which will be productive of absurd consequences, the former construction will be adopted.’ “ (City of L.A. v. Pac. Tel. & Tel. Co. (1958) 164 Cal.App.2d 253, 256-257, 330 P.2d 888, 890; see also, DeCelle v. City of Alameda (1960) 186 Cal.App.2d 574, 582, 9 Cal.Rptr. 549.) . . .

“ ‘ ” ‘ Statutes must be given a reasonable and common sense construction in accordance with the apparent purpose and intention of the lawmakers one that is practical rather than technical, and that will lead to a wise policy rather than to mischief or absurdity.’ (45 Cal.Jur.2d 625-626.) ‘(I)n construing a statute the courts may consider the consequences that might flow from a particular interpretation. They will construe the statute with a view to promoting rather than to defeating its general purpose and the policy behind it.’ (Id., p. 631.) . . .“ ‘ (Anaheim Union Water Co. v. Franchise Tax Bd., supra, 26 Cal.App.3d at p. 105, 102 Cal.Rptr. (692) at p. 698.)” (Civil Service Commission v. Superior Court (1976) 63 Cal.App.3d 627, 634-635, 133 Cal.Rptr. 825, 829.)

THE STATUTORY HISTORY OF SECTION 4019 reflects that the concept of behavior credits for prisoners in local facilities first appeared in California law in 1893 when the Legislature amended then section 1614 dealing with labor by county jail prisoners to provide for a five-day per month deduction from a prisoner's term of sentence. (Stats.1893, ch. 214, s 1, p. 298.) Former section 1614 appeared in the Penal Code under the chapter title “County Jails.”

Immediately preceding former section 1614 was section 1613 enacted in 1872 which provided that “(P)ersons confined in the county jail under a judgment of imprisonment rendered in a criminal action or proceeding, may be required by an order of the board of supervisors to perform labor on the public works or ways in the county.”

In discussing then section 1613, the Supreme Court in In re Haines (1925) 195 Cal. 605, 617, 234 P. 883, 887, stated: “Section 1613 of the Penal Code, however, authorizes boards of supervisors of counties to require prisoners confined in the county jail under a judgment of imprisonment to perform labor on the public works or ways in the county. This clearly refers to misdemeanants, for none other would be confined in a county jail ‘Under a judgment of imprisonment.’ ” (Original italics.)

In 1929 section 1614a was added to the Penal Code. (Stats. 1929, ch. 114, s 1, p. 199.) That section provided that if certain conditions were satisfied, good behavior credits could be awarded “(f)or each month in which a prisoner (is) confined in a county jail or any city jail under a judgment of imprisonment.” It is reasonable to presume that the Legislature's use of the phrase “confined in a county jail . . . under a judgment of imprisonment” in section 1614a demonstrated that the Legislature was aware of the decision in Haines and employed that phrase so that there could be no question as to the class included in section 1614a. In the same year (1929) section 1613 was also amended to require a “final” judgment of imprisonment before a county jail prisoner could be required to perform labor. (Stats. 1929, ch. 125, s 1, p. 210.)

In 1941 former sections 1613, 1614 and 1614a were repealed and reenacted without change as sections 4017, 4018 and 4019, respectively. (Stats. 1941, ch. 106, s 15, p. 1122.) The three new sections were placed under the chapter of the Penal Code entitled “County Jails.”

In a 1943 opinion, the Office of the Attorney General concluded that a person confined in an industrial road camp as a condition of probation was not entitled to receive any credit under then sections 4018 and 4019 because in order to receive “the time reduction specified in Sections 4018 or 4019, a prisoner must be confined either under a ‘final judgment’ or a ‘judgment’ of imprisonment, as the case may be.” (1 Ops.Cal.Atty.Gen. 544, 545 (1943).)

In 1955 sections 4017 and 4019 were amended to provide that the sections applied to prisoners confined in a county jail, industrial farm or road camp under a judgment of imprisonment and all prisoners confined in the county jail, industrial farm or road camp as a condition of probation. (Stats. 1955, ch. 912, ss 1, 3, p. 1538.) At the same time section 4018 was amended to allow an officer in charge of an industrial farm or road camp as well as an officer in charge of the county jail to report on a prisoner's conduct, and the credit allowable was to be deducted from the “period of confinement” rather than the “term of sentence.” (Stats. 1955, ch. 912, s 2, p. 1538.)

In addition, section 4019.2, giving behavior credits for work performance, was added to the Penal Code. That section provided: “For each month in which a prisoner confined in or committed to a county jail, industrial farm or road camp has satisfactorily performed his assigned work, as reported and recorded by the officer in charge, five days shall, with the consent of the board of supervisors or the county board of parole commissioners, be deducted from his period of confinement. The deduction allowed pursuant to this section shall be granted regardless of whether or not a deduction is made pursuant to Sections 4018 or 4019, but no prisoner shall be granted a total deduction under these sections in excess of 10 days for any single month.” (Stats. 1955, ch. 912, s 4, p. 1539.)

As is apparent, former section 4019.2 differed from section 4019 in that credit was not expressly given to probationers and the reference to a judgment of imprisonment was not included. Section 4019.2 also allowed credit to one “committed to” rather than just “confined in” a local facility as did then section 4019.

In 1968, section 4019 was amended to include prisoners “committed to” the enumerated local facilities as well as those “confined in.” (Stats. 1968, ch. 1033, s 1, p. 1998.)

By way of amendment in 1969, section 4019.2 was renumbered section 4018.1 and both the new section 4018.1 and section 4019 were rewritten so as to be mirror statutes, except for the type of behavior credit allowed. Then section 4018.1 provided: “For each month in which 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 under a judgment of imprisonment, or a fine and imprisonment until the fine is paid, or in which a prisoner 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, and when it appears by the record that he has satisfactorily performed labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp, five days may be deducted from his period of confinement by order of such sheriff, chief of police, or superintendent.” (Stats. 1969, ch. 380, s 2, p. 914.) The 1969 amendment also removed the provisions for behavior credit from section 4018. (Stats. 1969, ch. 380, s 1, p. 914.)

In 1974 the Office of the Attorney General issued an opinion (57 Ops.Cal.Atty.Gen. 276, 281-283 (1974)) concluding that pre-sentence credits for misdemeanants under former section 2900.6 did not embrace section 4018.1 or section 4019 credits as behavior credits could be awarded only to prisoners “under a judgment of imprisonment” or “serving a term” as a condition of probation.

In 1975 the Legislature responded by amending both sections 4018.1 and 4019. The phrase “all days of custody from the date of arrest to the date on which the serving of the sentence commences” was inserted prior to the phrase “under a judgment of conviction” in both sections. (Stats. 1975, ch. 309, ss 1, 2, p. 756.)⁶

In 1976 both former sections 4018.1 and 4019 were replaced with a new section 4019 which embraces both work performance and good behavior credit in one statute. (Stats. 1976, ch. 286, s 4, p. 595.)⁷

By reason of the foregoing, we conclude (1) that there is absolutely no indication that the Legislature intended that section 4019 should apply to state prison inmates; and (2) that it was the purpose of the Legislature in drafting section 4019, subdivision (a), in its present form to apply behavior credits in a liberal manner to all persons serving a specific term in a local facility as distinguished from a state prison.

In order to understand why the Legislature included a reference to section 4019 in its 1978 amendment to section 2900.5, it is also necessary to briefly consider the history of section 2900.5.

THE STATUTORY HISTORY OF SECTION 2900.5 shows that in 1971 the Legislature enacted sections 2900.5 and 2900.6 (Stats. 1971, ch. 1678, 1732, ss 1, 2, pp. 3605, 3686) which provided for the first time in California for credit for time spent in pre-sentence detainment. Section 2900.5 applied only to felony convictions and section 2900.6 only to misdemeanor convictions. Credit was allowed only for days actually in custody.

After the provisions in section 2900.5 regarding limited retroactivity were declared unconstitutional in In re Kapperman (1974) 11 Cal.3d 542, 114 Cal.Rptr. 97, 522 P.2d 657, and the court in People v. Williams (1975) 53 Cal.App.3d 720, 125 Cal.Rptr. 901, found sections 2900.5 and 2900.6 to encompass identical credit despite the difference in wording in the two statutes, section 2900.6 was repealed and section 2900.5 amended to encompass misdemeanants as well as felons in a single statute. In that 1976 amendment pre-sentence incarceration credit was expressly allowed against a county jail term imposed as a condition of probation. (See People v. Hunter (1977) 68 Cal.App.3d 389, 137 Cal.Rptr. 299.) Other changes not in point here were also made. (Stats. 1976, ch. 1045, ss 2, 3, pp. 4665, 4666.)

In 1978 section 2900.5 was amended as an urgency measure effective June 28, 1978. (Stats. 1978, ch. 304, s 1, p. 800.) That amendment, in point here and as previously noted, inserted the phrase “and including days credited to the period of confinement pursuant to Section 4019,” states that the credit should be applied to the “term of imprisonment” rather than against the “sentence,” and requires the court imposing the sentence to determine the “date of admission to custody, the date of release from custody,” in addition to “the total number of days to be credited” previously required by section 2900.5. It is significant to note that the reference to section 4019 credits was inserted immediately after the phrase which defined days in custody as “including days served as a condition of probation in compliance with a court order.” Thus considered, it becomes obvious to us that the Legislature by its 1978 amendment intended that Probationers who are subsequently sentenced to state prison should now receive credit not only for the days actually served as a condition of probation but also credit for the days by which their term in county jail was reduced by reason of section 4019 credits. Former section 2900.5 by allowing credit only for days of custody had previously denied the probationer any such section 4019 credit against a subsequent state prison sentence.

Our conclusion that defendant herein is not within the class described in section 4019 is further supported by the fact that California has historically provided for state prison behavior credits by separate statutes. Until the 1947 enactment of the indeterminate sentencing law, state prison inmates were accorded behavior credits by former sections 1588 (Stats. 1907, ch. 317, s 1, pp. 590-592), 1168 (Stats. 1929, ch. 872, s 1, p. 1930), and 2920 (Stats. 1941, ch. 106, s 15, p. 1105). In 1947 the Legislature in former section 2926 denied behavior credits for state prisoners sentenced under the 1947 version of the indeterminate sentencing law (Stats. 1941, ch. 106, s 15, p. 1107) apparently on the theory that such credits were inconsistent with the concept of a true indeterminate sentencing law. Behavior credits for state prison inmates were reintroduced with the 1976 enactment of section 2931 as part of the Determinate Sentencing Act. (Stats. 1976, ch. 1139, s 276, p. 5146.)

We take particular note of the fact that the varying statutes dealing with behavior credits for state prison inmates have Never purported to duplicate the provisions for behavior credits under section 4019 and its predecessor statutes pertaining to defendants in local custody either in allocation of credits between work performance and good behavior credits nor in the total amount of behavior credit permitted. Those differences still exist under section 2931 and section 4019.

Indeed, the 1978 amendment to section 2900.5 contains an allowance for section 4019 behavior credits for probationers because their term in county jail as a condition of probation was Served in a local facility and not in state prison.

THE EQUAL PROTECTION argument by defendant herein is without merit for the following reasons:

First, defendant is not denied behavior credits for pre-sentence detainment because of our conclusion that he is not within the class defined by section 4019. He is entitled to behavior credits under section 2931 if he can establish entitlement. The Legislature by section 2931 vested the Department of Corrections with the authority to reduce a prisoner's term by the application of behavior credits. Moreover, there is no language in section 2931 which purports to define that term as anything less than the entire term to which a defendant is sentenced, and hence in defendant's case herein would include the period of pre-sentence detainment.

The Legislature by electing in section 2931 to place the determination of pre-sentence behavior credits to which a state prison inmate may be entitled, if any, with the Department of Corrections rather than with the sentencing courts obviously considered factors affecting the economical and efficient administration of justice. The wisdom of such an election from a practical viewpoint becomes apparent when one balances the administrative resources and the more leisurely time frames available to the Department of Corrections as compared to the administrative problems which would be imposed on the over-burdened sentencing courts in determining such credits operating under more stringent time requirements. This comports with the rules of statutory construction which require that statutes be given a reasonable and common sense construction that is Practical rather than technical and will lead to wise policy rather than to mischief. (Civil Service Commission v. Superior Court, supra, 63 Cal.App.3d 627, 133 Cal.Rptr. 825.)

Second, although defendant is correct in his contention that California does not treat state prison and local facilities inmates in identical fashion for the purpose of awarding behavior credits (compare s 2932 with s 4019), there is no constitutionality requirement that the two groups be treated with precise uniformity for the purposes of allocating potential behavior credits. (McGinnis v. Royster (1973) 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282.)⁸ Moreover, even if we concluded that either section 2900.5 or subsection (1) of subdivision (a) of section 4019 is unconstitutional, that would not result in the award of any behavior credit to defendant herein since we have neither the authority to invade the legislative function nor the inclination to undertake a wholesale rewriting of sections 2900.5 and 4019.

In view of the above conclusions, we need not address the Attorney General's contention regarding the retroactive effect of the 1978 amendment to section 2900.5.

DISPOSITION

The petition for writ of habeas corpus is denied and the order to show cause is discharged.⁹

FOOTNOTES

1.  Unless otherwise indicated, all statutory references are to the Penal Code.

2.  While the trial court did not expressly state the degree of burglary, it is presumed that defendant pled guilty to burglary in the second degree (see Pen. Code, s 1157). That this conclusion coincides with the court's intent is confirmed by the fact that the middle term imposed on defendant coincides with the middle term for burglary in the second degree. (See Pen. Code, ss 18, 461, subd. (2).)

3.  The State Public Defender does question whether the 152 days of credit reflects the true amount due defendant because it merely restates the amount listed on the probation report, but the superior court file indicates that defendant was released on bail at least as of the date the plea was entered. At the sentencing hearing, the deputy district attorney pointed out to the court that defendant had been out on bail but could not tell the court when defendant was released. Inasmuch as the probation report was not prepared until after the plea was entered, it is presumed that the 152 days does reflect the actual time in custody especially in the absence of any factual showing to the contrary.

4.  Section 2900.5 now provides:“(a) In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including but not limited to any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant, 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, or credited to any fine which may be imposed, at the rate of not less than thirty dollars ($30) per day, or more, in the discretion of the court imposing the sentence. If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served. In any case where the court has imposed both a prison or jail term of imprisonment and a fine, any days to be credited to the defendant shall first be applied to the term of imprisonment imposed, and thereafter such remaining days, if any, shall be applied to the fine.“(b) For the purpose 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.“(c) For the purposes of this section, ‘term of imprisonment’ includes any period of imprisonment imposed as a condition of probation or otherwise ordered by a court in imposing or suspending the imposition of any sentence, and also includes any term of imprisonment, including any period of imprisonment prior to release on parole and any period of imprisonment and parole, prior to discharge, whether established or fixed by statute, by any court, or by any duly authorized administrative agency.“(d) It shall be the duty of the court imposing the sentence to determine the date of admission to custody, the date of release from custody, and the total number of days to be credited pursuant to the provisions of this section. The total number of days to be credited shall be contained in the abstract of judgment provided for in Section 1213.”

5.  At the date of defendant's sentencing, section 4019 in its entirety provided:“(a) 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.“(b) For each one-fifth of a month in which a prisoner is confined in any of the foregoing cases, one day shall be deducted from his period of confinement for each of the following:“(1) When it appears by the record that he has satisfactorily performed labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp, one day shall be deducted from his period of confinement by order of such sheriff, chief of police, or superintendent.“(2) When it appears, by the record, that he has satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent for the conduct of such prisoners, and that his conduct is reported by the officer in change (Sic ) of the jail, industrial farm or road camp to have been satisfactory, one day shall be deducted from his period of confinement.“(3) No deduction shall be made for any period of confinement within any calendar month which period is less than one-fifth of such month.”(Stats. 1976, ch. 286, s 4, p. 595.)

6.  The Sage court (90 Cal.App.3d 722, 732-733, 153 Cal.Rptr. 533, 538-539) suggests that the 1975 amendment to section 4019 might have been in anticipation by the Legislature of the 1976 enactment of the Determinate Sentencing Act. Such an anticipatory theory requires the conclusion that the Legislature in 1975 seriously intended to award behavior credits for pre-sentence incarceration for state prison inmates sentenced under an indeterminative sentencing law but at the same time declined to extend such credits to probationers and that in 1976 when the Legislature enacted the Determinate Sentencing Act it “forgot” its 1975 anticipation amendment to section 4019 and created a plan for duplicate behavior credit under section 2931 thus engaging in a useless act in 1978 when it amended section 2900.5.In light of our duty to construe statutes in a common-sense manner, we are of the view that it is more reasonable to conclude that the 1975 amendment to section 4019 by the Legislature was merely prompted by and in reaction to the 1974 opinion of the Attorney General's office.

7.  In 1978 section 4019 was further amended but the 1978 amendment did not alter the wording of subdivision (a).

8.  In McGinnis v. Royster, supra, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282, the United States Supreme Court in rejecting a contention that the failure to award credit as claimed to defendant herein would permit an arbitrary discrimination between misdemeanants and felons who are denied probation and after determining that the proper test to be applied to a challenged New York statute restricting good time credits for felony was whether the classification furthers some legitimate, articulated state purpose stated at page 274, 93 S.Ct. at page 1061: “The legislature could have concluded rationally that county penitentiary inmates, who are nonfelons with less than one-year sentences, required quantitatively and qualitatively less rehabilitation with fewer risks of misevaluation than in the case of inmates confined to state prison for more serious crimes.”

9.  We refrain from ordering in this proceeding that the Department of Corrections award specific behavior credits to defendant herein. Upon issuance of the opinion herein, defendant may request the Department of Corrections to recompute his section 2931 credits in accordance with the views expressed in this opinion. If a dispute remains over the award of behavior credits, he may seek judicial relief only after establishing that he has exhausted his administrative remedies. (In re Muszalski (1975) 52 Cal.App.3d 500, 125 Cal.Rptr. 286.)

HANSON, Associate Justice.

LILLIE, Acting P. J., and THOMPSON, J., concur.