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Presentence Conduct Credits in Sex Offense Case?

In some horrific cases, when defendant is sentenced to well over 100 years in prison, it seems pointless for defendant to appeal on grounds that his pre-sentence custody or conduct credits were miscalculated.  After all, even if the pre-sentence credits are doubled or tripled, it seems this would not allow defendant’s release while alive.  Judges often appreciate this absurdity and make errors in pre-sentence custody and conduct credits.

Moreover, Assembly Bill 109 did change pre-sentence custody credits on dozens of crimes, creating confusion that has persisted to this day.
Summary in 40 Words or Less: The Department of Corrections and Rehabilitation, not the judge, decides how many days of pre-sentence custody credit a sex offender earned.  In the following case, the judge awarded no pre-sentence credit and the appellate court faulted his premature decision.
As is common in a case involving a long sentence after a long trial, defendant appeals the verdict and sentence on multiple grounds.

This was true in the case of People v. Manual Busane, originally a Van Nuys Superior Court case.  A jury convicted him of two counts of forcible lewd acts on a child (Penal Code § 288(b)(1)) and two counts of nonforcible lewd acts on a child (Penal Code § 288(a)).  The jury further found that Busane had committed his crimes against multiple victims (Penal Code § 667.51(b), (c)(4) & (8), (e)(4)) and that he had two prior strike convictions (Penal Code §§ 667(b)-(i), 1170.12(a)-(d)) and two prior serious felony convictions (Penal Code § 667.5(b))) and that he had served prior prison terms. 

Judge Michael V. Jesic sentenced Busane to 116 years to life in prison.  At sentencing, he denied Busane’s motion to strike his two prior strike convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497.  The judge commented that he considered it “unbelievable that [Busane] was [previously] sentenced to life in prison under the three strikes law and basically got a second chance of life outside prison . . . he was able to get another chance, and he just couldn’t do it.” 

Van Nuys CourthouseVan Nuys Courthouse

The judge awarded 1,040 actual custody credits and no presentence conduct credits.  The judge ruled that Busane was not entitled to conduct credits under Penal Code §§ 667.61 and 2933.5.

Busane appealed the verdict and sentence on multiple grounds, but the scope of this article is just the Second Appellate District Court of Appeal’s ruling that Busane was to receive no presentence conduct credits (People v Manuel Busane (2019 DJDAR 364)).

The Second Appellate began its analysis by noting that defendants sentenced to prison are entitled to credits against their terms of imprisonment for all actual days spent in custody prior to sentencing.  Penal Code § 2900.5(a).  Absent statutory authority to the contrary, defendants are also entitled to presentence conduct credits if they perform assigned labor and comply with jailhouse rules and regulations.  Penal Code § 4019(a)(4), (b) and (c); see People v. Thomas (1999) 21 Cal.4th 1122, 1125. 

Conduct credits are even awarded to those, like Busane, who received indeterminate life sentences, although presentence conduct credits are limited to 15 percent of the time spent in custody for defendants convicted of violent offenses.  Penal Code § 2933.1(c).

The appellate court then looked to the trial court judge’s ruling that Penal Code §§ 667.61 and 2933.5 barred Busane from presentence conduct credits.  It found that Penal Code § 667.61 does not even refer to presentence conduct credits.  It thus could not and does not render Busane ineligible for presentence conduct credits.

Turning to Penal Code § 2933.5 as the further basis for denying presentence conduct credits, the appellate court found this section a closer call.  It acknowledged that 2933.5 provides that defendants convicted of certain violent felonies, including forcible lewd acts on a child (as Busane was convicted), are ineligible for presentence conduct credits if they have two or more prior convictions and have served two or more prior prison terms for violations of listed felonies. 

However, it is the Department of Corrections and Rehabilitation, not the trial court, that makes the initial determination of whether a defendant is eligible for conduct credits pursuant to Penal Code § 2933.5.  People v. Goodloe (1995) 37 Cal.App.4th 485, 492-494.  The trial court’s invocation of that section at sentencing was premature.  More importantly, the appellate court commented that while the jury convicted Busane of a listed felony, none of his prior conviction allegations that the court found true was a felony listed under 2933.5.

We present this case summary to the reader because presentence custody and conduct credits are often discussed and we hope this article will help clarify the law on this subject.

The citation for the Second Appellate District Court ruling discussed above is People v. Manuel Busane (2d App. Dist., 2019) 242 Cal. Rptr. 3d 497.

For more information about conduct credits, custody credits and Proposition 57, please click on the following articles:

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