Justia Lawyer Rating
Best Attorneys of America
Super Lawyers
Superior DUI Attorney 2017
10 Best Law Firms
Top One Percent 2017
The National Trial Lawyers
Best of Thervo 2017
10 Best Law Firms
Criminal Defense Attorneys

Preconviction Custody Credit for Home Detention Time?

Brief Synopsis: If someone is ordered to wear an electronic monitoring device as a condition of own recognizance release or bail, that person is entitled to preconviction custody credit as well as preconviction conduct credit (“good time, work time).         
Hayden Abraham Gerson attacked two San Diego police officers attempting to detain him after he refused to comply with their orders.  The attack led to a SWAT standoff and gun battle between Gerson and two SWAT officers.  After Gerson choked and bit a police K-9, multiple officers were able to subdue and arrest him.

A San Diego County Superior Court jury found Gerson guilty of two counts of attempted voluntary manslaughter (Penal Code §§ 664, 192(a), a lesser included offense of attempted murder (§§ 664, 187(a)) charged in counts 1 and 2; two counts of assaulting a peace officer with a semiautomatic firearm (§ 245(d)(2)); shooting at an inhabited house (§ 246); assault on a peace officer with force likely to produce great bodily injury (§ 245(c)); making a criminal threat (§ 422); exhibiting a firearm to a peace officer to resist arrest (§ 417.8); two counts of resisting an executive officer (§ 69) and harming or interfering with a police animal (§ 600(a)).

A jury also found true various sentencing enhancements.  The jury also found Gerson sane during the commission of the offenses.  The trial court judge sentenced Gerson to 33 years and eight months in state prison.

Gerson appealed the verdict and sentencing on many grounds, but this article will narrow its scope to just his argument that he was entitled to 608 days of preconviction custody credit under Penal Code § 2900.5(a) and 91 days of preconviction conduct credit under Penal Code § 4019 for the time he spent subject to electronic monitoring on home detention.

A bit of background to the underlying facts is helpful to understanding this case and, consequently, the preconviction custody credit issue.
Hayden Abraham Gerson and Alisha F. dated for eight years before breaking up in May 2016 because Gerson’s “drug use was out of control.”
While Gerson and Alisha dated, Gerson was fascinated with solar energy.  Gerson testified that he and a childhood friend, Matthew M., started their own solar installation company and that both ran the business. 

On the night of December 12, 2016, Alisha contacted Gerson and he invited her to come over to his residence.  When Alisha arrived, she knew Gerson was intoxicated based on his large eyes, rapid movements and the tone of his voice.  She had never seen Gerson this intoxicated before.  Gerson told Alisha that “he was eating mushrooms for breakfast, lunch and dinner.”  Gerson admitted at trial that he was under the influence of psilocybin and nitrous oxide at the time and had also used cannabis that day. 

Alisha subsequently recorded Gerson with her cell phone.  Gerson made delusional statements about causing it to snow in Hawaii and having control because he was Lord Shiva.  Gerson then inhaled about fourteen canisters of nitrous oxide in front of Alisha.

Alisha left and called police that she had a “5150” with her ex-boyfriend and she needed someone to come over immediately.  Police ascertained that Gerson had not harmed her, so they instructed her to call a non-emergency number.  Alisha then texted her girlfriend and asked her to call the police.  A police dispatcher then called Alisha and asked if Gerson was being violent and Alisha falsely answered that Gerson was violent so the police would respond.

Officers came to the house and instructed Gerson to walk towards them.  Gerson refused and the officers attempted to Taser him, but it had no effect on Gerson.  Gerson then punched one of the officers in the face and a fight ensured, leading to a SWAT team coming to the scene and Gerson biting the K-9 police dog before finally being arrested.

After spending time in county jail, he was transferred to get drug treatment at Alvarado Parkway Institute as a condition of bail.  The trial court later modified his bail conditions to allow him to reside at Casa Palmera for further treatment.  He was then discharged to home detention with a GPS device and subject to other conditions.

He later went to trial, lost and the appeal followed.

The Fourth Appellate District, in ruling on Gerson’s motion for preconviction custody credit, agreed with him that an individual out on bail and subject to electronic monitoring on home detention is similarly situated to persons participating in an electronic monitoring program pursuant to Penal Code § 1203.018 and that a rational basis does not exist for treating these categories of people differently.
Accordingly, Gerson was entitled to preconviction custody credits under Penal Code § 2900.5(a) and preconviction conduct credit under Penal Code § 4019 under the state and federal equal protection clauses.

We bring this article to the reader’s attention because preconviction electronic monitoring of folks on bail and house confinement is increasingly common to allow people to continue working and caring for family members.  Preconviction custody and conduct credits for this time is allowed.

The citation for the Fourth Appellate District Court ruling discussed above is People v. Hayden Abraham Gerson (4th App. Dist., 2022) 74 Cal. App. 5th 561, 290 Cal. Rptr. 3d 18.

For more information about home detention or house arrest, please click on the following articles:
Client Reviews
"Thank you so much for putting so much effort in this case. We really appreciate it and we are happy that all turned out well." S.A., Torrance
"Greg Hill did an outstanding job on every level. He was efficient, thorough, knowledgeable, courteous, responsive & brilliant. He welcomed my input and my concerns. . . from the first conversation to the last - I always felt 'it mattered' to him." S.C., Rolling Hills Estates
"Thanks again for your hard work. We want you to know that we are very appreciative of all that you have done [on our son's] behalf. With warmest regards." L.H., Torrance
"Dear Greg, Thank you again for all your help. Your professionalism and thoroughness is greatly admired. I will definitely recommend you to my friends if they ever need legal help." V.L., Carson
"Thanks for investing in my case. I talked to other attorneys out there and they had an arms-length of attitude, but not you. Your intensity and interest helped a lot." C.R., Pomona