Pre-Sentence Custody Credits for Various Situations
Defendants in custody while waiting either trial or a plea bargain to be reached should receive time credits for all actual days spent in custody. Most people in custody are also entitled to additional credits for good conduct and being available to work while awaiting a conviction and sentencing. Penal Code § 2931(a).
Presentence conduct credits are usually referred to as “Section 4019” credits in reference to the provisions of Penal Code § 4019 that provides for such credits. Conduct credits can be awarded for any type of pre-sentence time that counts as being “in custody,” including time in jail, in a residential program, or on monitored home detention. People v. Mobley (1983) 139 Cal. App. 3d 320, 323-324, 188 Cal. Rptr. 583.
There is an exception for probation revocation cases wherein pre-sentence conduct credits will not be awarded for time spent in a residential treatment or detention program as a condition of a prior grant of probation, even though such time will count in pre-sentence custody. People v. Silva (2003) 114 Cal. App. 4th 122, 124-125., 7 Cal. Rptr. 3d 473.
A defendant can waive the right to pre-sentence credits for actual time and /or good conduct as part of a plea agreement. People v. Arnold (2004) 33 Cal. 4th 294, 302, 14 Cal. Rptr. 3d 840.
It is the sentencing judge’s duty to calculate pre-sentence credits for both actual time and “good time / work time” credits. During the sentencing hearing, the judge should state how many days of credit are being awarded and then those credits should be entered on the Abstract of judgment. Penal Code § 2900.5(d). If a defendant has earned more credit than the length of the sentence, the excess credits should be applied to the period of parole or PRCS. Penal Code § 1170(a)(3); In re Sosa (1980) 102 Cal. App. 3d 1002, 1005 – 1006, 162 Cal. Rptr. 646.
A defendant normally must receive credit for every actual day served “in custody” awaiting conviction and sentencing. The definition of “in custody” is broad. Credit must be awarded for defendant’s time spent in jail or, if as a consequence of the criminal case, in a hospital, rehabilitation center, work furlough facility or half-way house. Penal Code § 2900.5(a); 85 Ops. Cal. Atty. Gen. 106 (2002) (home detention programs); People v. Davenport (2007) 148 Cal. App. 4th 240, 247, 55 Cal. Rptr. 3d 473 (credit for time in residential drug treatment program).
A person who is placed by the judge on home detention is entitled to pre-sentence credit if the detention imposes significant restrictions on that person’s movement. Penal Code § 2500.5(a); People v. Raygoza (2016) 2 Cal. App. 5th 593, 206 Cal. Rptr. 3d 347 (home confinement with electronic monitoring); but see People v. Anaya (2007) 158 Cal. App. 4th 608, 610, 613, 70 Cal. Rptr. 3d 47 (not in custody where only requirement was to stay in county and be home to make call once daily).
Credit must be granted even if the time was spent in an out-of-state jail or other facility and the defendant was resisting extradition to bring him or her back to California. In re Watson (1977) 19 Cal. 3d 646, 648, 139 Cal. Rptr. 609.
A defendant is also entitled to credit for time spent in a CDCR facility undergoing a pre-sentence mental evaluation under Penal Code § 1203.03. Penal Code § 1203.03(g). However, a defendant does not earn any presentence credit for time spent in a state hospital under a civil insanity commitment that suspends the criminal case proceedings. People v. Mendez (2007) 151 Cal. App. 4th 861, 863-864, 60 Cal. Rptr. 3d 182.
However, the judge may award no credit for time in non-residential placements such as work release programs or outpatient drug rehabilitation programs. People v. Richter (2005) 128 Cal. App. 4th 575, 580, 27 Cal. Rptr. 3d 198; People v. Schnaible (1985) 165 Cal. App. 3d 275, 276, 211 Cal. Rptr. 530.
In short, a person is entitled to presentence credits “only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted.” Penal Code § 2900.5(b); People v. Bruner (1995) 9 Cal. 4th 1178, 1180 – 1181, 40 Cal. Rptr. 2d 534; In re Joyner (1989) 48 Cal. 3d 487, 489, 256 Cal. Rptr. 785.
This article would not be possible without reference to the excellent treatise, California Prison and Parole Law Handbook, authored by the Prison Law Group in Folsom, California.
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