How Much Custody Credit Do I Get? What Factors Matter?
However, since 2009, there have been no less than five legislative changes to the way presentence conduct credits are calculated, leaving even the most informed judges, district attorney and defense attorneys confused when dealing with certain types of offenses and the pre-sentence credit earned.The Point of This Article: After AB109 came into effect, there was frequent confusion on how to calculate pre-sentence credits, taking into account Senate Bills 18 and 76 – and furthermore, as in the case summarized below, whether Assembly Bills 17 and 117 applied as well.
The recent case of People v. Paul Garcia (2012 DJDAR 13257 (Sept. 24, 2012)) serves to clarify the law on this important issue.
Due to the defendant’s prior conviction for a serious felony, but not a violent felony, the Second Appellate District ruled that Mr. Garcia would only be eligible for two days of conduct credit for every four days served in presentence custody. This is less than the two-for-two credit that often does apply.
The appellate court was deliberate in stressing that its ruling was strictly limited to the facts of Garcia’s case and specifically, the offenses he was charged with and the dates of the offenses. However, the appellate court offered a comprehensive review of the history of presentence conduct credit and the last five legislative enactments and their applicability (Senate Bill 18, Senate Bill 76, Assembly Bill 109, Assembly Bill 117 and Assembly Bill 17).
Moreover, by the time Garcia was sentenced, Senate Bill 76 had become effective, repealing the two-for-two credit scheme applicable earlier.
The appellate court commented that nothing in the AB109 criminal justice realignment act affected pre-custody credits for Garcia. In other words, while AB109 did change prison sentences to county jail sentences for, with certain exceptions, non-violent and non-sex offenders with sentences of five years or less, it did not change how presentence credits are calculated for Garcia.
The court also clarified that Assembly Bill 117, enacted on June 30, 2011, only applied prospectively, not retroactively to change Garcia’s credits. Likewise, the court commented that Assembly Bill 17, signed into law on September 17, 2011 only applied prospectively, so it was also unavailing to Garcia.
The appellate court thus granted Garcia 122 days of conduct credit in addition to his 244 days of actual credit for a total of 366 days.
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