Tag Archives: Credit for time served

Probation Parole PRCS, Sentencing

Case 000907

Posted on by Gary McCurdy

Error and/or relief

The trial court is directed to prepare and send a certified copy of an amended abstract of judgment to the Department of Corrections and Rehabilitation, noting that the defendant’s [more than 500] days of excess presentence custody credit are to be applied to his parole period.

First Holding:

Any excess presentence custody credits that a defendant accrues must be applied to his parole period.

Authority:

PEN 2900.5(a) and (c)

People v. Morales (2016) 63 Cal.4th 399, 405

Second Holding:

The Department of Corrections and Rehabilitation and the Board of Parole Hearings determine when a defendant is discharged from parole, and any excess credits are taken into account. In an abundance of caution, we will direct the trial court to amend the abstract of judgment to note that the defendant’s excess credits shall be applied to his parole period.

Authority:

PEN 3000(b)

PEN 3001

Cal. Code Regs., tit. 15, secs. 2515, 2345, 2535–2537

Duty of the court, Sentencing

Case 000902

Posted on by Gary McCurdy

Error and/or relief

On resentencing, the trial court erred in not awarding custody credits.

Holding:

At the resentencing hearing following remand in the defendant’s prior appeal, the court did not award any custody credits, but instead stated that the Department of Corrections and Rehabilitation would determine them. The trial court erred and that defendant should be awarded actual custody credits, calculated from his initial arrest date to the date of the resentencing hearing.

The court should also consider whether the defendant, in light of our vacating of his conviction for attempted murder in his first appeal and the People declining to retry him, is entitled to presentence conduct credits pursuant to section 4019 and, if so, to calculate those credits.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Abstracts and Minutes, Sentencing, Standard of review, Statutory interpretation

Case 000900

Posted on by Gary McCurdy

Error and/or relief

The court erred in failing to award pretrial credit for time served on several of the counts for which a determinate sentence was imposed. The abstract of judgment must be corrected as it incorrectly describes findings by the jury as enhancements.

First Holding:

We review de novo the application of section 2900.5 to the defendant’s sentence. We first examine the statutory language, giving it a plain and commonsense meaning. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.

Authority:

People v. Cofer (2026) 20 Cal.5th 1, 12

Second Holding:

Under section 2900.5, defendants who serve time in custody prior to their sentencing “receive credit against their prison terms for all of those days spent in custody prior to sentencing, so long as the presentence custody is attributable to the conduct that led to the conviction.

Section 2900.5(b) states in relevant part, that for the purposes of this section credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.

That language does no more than clarify that when consecutive terms are imposed for multiple offenses in a single proceeding, only one of the terms shall receive credit for presentence custody. Thus, if sentences are imposed consecutively in a single proceeding, dual credits are expressly prohibited by statute.

Authority:

PEN 2900.5

People v. Duff (2010) 50 Cal.4th 787, 793

People v. Bruner (1995) 9 Cal.4th 1178, 1192, fn. 9

Third Holding:

Section 669(a) provides that whenever a person is committed to prison on a life sentence that is ordered to run consecutive to any determinate term of imprisonment, the determinate term of imprisonment shall be served first.

Authority:

PEN 669(a)

Fourth Holding:

Three separate sentencing schemes governed the defendant’s sentencing. For his conviction for murder (count 1), his indeterminate sentence was dictated by sections 190 and 190.2(a).

For his convictions for rape in concert (count 3) and oral copulation in concert (count 4), his indeterminate sentences were supplied by the One Strike law.

His determinate sentences for counts 2, 5, 6, 7, 8, 9, and 10 were governed by sections 1170 and 1170.1. As the determinate sentences must be served first, the credit for time served should have been applied against the total term imposed for all seven of the determinate components of the sentence, and the court erred in failing to award credits against that part of the determinate sentence that applied to three of the counts.

He is entitled to no presentence custody against the remaining indeterminate sentences, as they were imposed consecutively.

Authority:

PEN 190

PEN 190.2

PEN 667.61(c)

PEN 669(a)

PEN 1170.1

PEN 2900.5

In re Vaquera (2024) 15 Cal.5th 706, 724 [The trial court must impose a One Strike sentence when a One Strike allegation is properly pled and proved.]

Fifth Holding:

The abstract of judgment is in error in describing the jury’s true findings under sections 190.2(d) and 667.61 as sentencing “enhancements.” The jury’s true findings pursuant to sections 190.2(d) and 667.61 are penalty provisions that exposed the defendant to greater punishment than would be authorized by a verdict on the underlying offense alone; they were not sentencing enhancements. They should not be so described in the abstract of judgment.

We will direct the trial court to delete the entries under “enhancements” in part 2 of the defendant’s indeterminate abstract of judgment.

(Gary note: The court did not cite authority for its directive that the abstract of judgment be corrected. I have listed several below (beginning with Mitchell) on which the court could have relied.)

Authority:

People v. Boswell (2016) 4 Cal.App.5th 55, 60


People v. Acosta (2002) 29 Cal.4th 105, 117
.

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Sentencing

Case 000889

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to one additional day of credit for time served.

Holding:

A defendant is entitled to actual custody credit for ‘all days of custody’ in county jail and residential treatment facilities, including partial days. He is also entitled to conduct credits at a rate of 50 percent of actual time served.

But, if the defendant’s offense is statutorily defined as violent, section 2933.1(c) limits the presentence conduct credit to 15 percent of actual time served before sentencing.

The defendant was convicted of rape, a violent felony under section 667.5(c)(3). He is therefore entitled to a 15 percent presentence conduct credit. The trial court correctly awarded him 101 days of actual custody credit but only awarded him 14 days, rather than 15 days, of presentence conduct credit Accordingly, the abstract of judgment should be corrected to reflect one additional day of conduct credit.

Authority:

PEN 2900.5

PEN 4019

PEN 2933.1

People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48

People v. Nunez (2008) 167 Cal.App.4th 761, 764

Duty of the court, Fines and fees, Juveniles, Retroactivity

Case 000861

Posted on by Gary McCurdy

Error and/or relief

The juvenile court did not declare on the record that either of the minor’s two aggravated assault offenses was a felony or a misdemeanor, as required by Welfare and Institutions Code section 702

Section 730.6 requires that the restitution fines imposed must be stricken.

The precommitment credits must be corrected.

First Holding:

Section 702 provides, in part, that when a minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.

Section 702 requires the juvenile court to declare on the record at a hearing ‘before or at the time of disposition its choice whether to treat an alleged wobbler as a misdemeanor or as a felony. Neither the pleading, the minute order, nor the setting of a felony-level period of confinement may substitute for the required declaration.

Authority:

WIC 702

In re F.M. (2023) 14 Cal.5th 701, 712

Second Holding:

A section 702 error is not harmless unless the record shows that the juvenile court was aware of, and exercised its discretion as to each wobbler alleged against the minor. The key issue under this standard is whether the juvenile court was aware of its discretion under section 702.

Authority:

In re F.M. (2023) 14 Cal.5th 701, 712, 717

Third Holding:

This section 702 error was not harmless. Signed minute orders in the two assault cases stated, “Pursuant to Juvenile Court Rule 5.795(a), the court finds the offense to be a Felony as to count 1.”

This language tracks recommendations in a memorandum probation filed for disposition. However, rule 5.795(a) states that for any wobbler, the court must consider which description applies and expressly declare on the record that it has made such consideration and must state its determination as to whether the offense is a misdemeanor or a felony.

The court’s failure to comply with the very rule cited undermines any inference that it was aware of its discretion.

Authority:

Cal. Rules of Court, rule 5.795(a)

Fourth Holding:

The juvenile court imposed three $200 restitution fines. Effective January 1, 2025, AB 1186 (2023-2024 Reg. Sess.) amended section 730.6 to remove the requirement that a minor pay a restitution fine.  The relevant portion of the statute now provides: “The court shall not impose a separate and additional restitution fine against a minor found to be a person described in section 602.”

Appellant is entitled to the ameliorative benefit of this amendment.

Authority:

WIC 730.6(a)(2)

In re Estrada (1965) 63 Cal.2d 740, 745-746

Fifth Holding:

The court erred in calculating the credit for time served, awarding the minor less than half the more than 450 days the minor was entitled to. A minor is entitled to credit against his or her maximum term of confinement for the time spent in custody before the disposition hearing.

When a juvenile court elects to aggregate a minor’s period of physical confinement on multiple petitions the court must also aggregate the predisposition custody credits attributable to those multiple petitions.

Authority:

In re A.M. (2014) 225 Cal.App.4th 1075, 1085-1086

Sixth Holding:

Section 628.2(c) provides that a minor shall be entitled to have one day credited against the minor’s maximum term of confinement for each day, or fraction thereof, that the minor serves on electronic monitoring. The provision of custody credits pursuant to this subdivision shall apply to custody credits earned beginning January 1, 2023.

Because the minor was on electronic monitoring after January 1, 2023, he is entitled to credits for that time.

Authority:

WIC 628.2(c)