Sentencing and Custody Credits

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In all felony and misdemeanor convictions, the court must credit the defendant’s sentence with all time spent in custody if the custody is attributable to proceedings related to the same conduct for with the defendant has been convicted. 

1. What is custody?

In order to receive credit, the defendant must be in custody. Custody is where he/she is subject to restraints not shared by the general public. Custody does not start with an arrest, instead it begins with being booked into jail or other custodial facility.

Generally, a defendant will earn credit for actual time spent in presentence confinement. To receive credit, however, the defendant must be “in custody.” (Pen. Code, § 2900.5, subd. (a).) A defendant is entitled to actual custody credit for “any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution . . . .”

The code also states that credits will only be provided where custody is attributed to proceedings related to the same conduct for which defendant is convicted. Simply said, a defendant will receive credit if he is in custody awaiting trial. If he is in custody on another crime, he will not receive the credits toward a new crime.

2. Term of Imprisonment Defined.

The court must credit any presence custody time against the defendant’s term of imprisonment

3. Computation of Credit.

A sentencing court has a duty to determine the dates of admission to and release from custody before sentencing, and the total number of days to be credited to defendant. 

If the defendant served presentence time in any of the above locations, calculate how many days he or she was in custody. The amount of actual credit will be used to determine how much, if any, conduct credit the defendant is entitled to receive, as explained in the next two steps.

For a defendant confined for a crime committed on or after October 1, 2011, if all credits are earned under PC 4019, for each two days the defendant serves in actual custody, the defendant receives four days of credit against the sentence. (Formula B)

Most current crimes fall under Formula B, but please make sure under the tabs below:

    Time served in local custody prior to January 25, 2010. 

    Time served in local custody for crimes committed on or after September 28, 2010 but prior to October 1, 2011.

    Notes:

    To date, courts have rejected the argument that Formula B applies when time was served in local custody after October 1, 2011 but the crime was committed prior to October 1, 2011. (See People v. Ellis(2012) 207 Cal.App.4th 1546 [Fifth Appellate District; applying Formula A for time in custody after October 1, 2011]; People v. Kennedy (2012) 209 Cal.App.4th 385, 395-400 [Sixth Appellate District; same]; People v. Rajanayagam (2012) 211 Cal.App.4th 42 (Fourth Appellate District, Division Three; same]; People v. Hollowell(June 5, 2013, C072075) [nonpub. opn.] [Third Appellate District; same]; People v. Deanda (May 31, 2013, C070057) [nonpub. opn.] [Third Appellate District; same]; see also People v. Verba (2012) 210 Cal.App.4th 991.)

    Sample briefing with arguments that the October 1, 2011 amendment to Penal Code section 4019 (Formula B) applies to a defendant who served time in local custody after October 1, 2011 for a crime committed prior to this date is available here as a PDF

    If the defendant was sentenced to prison on or after September 28, 2010, or if the defendant was sentenced to local custody under the Realignment Act for a felony, see below.

    Time served in custody for crimes committed on or after October 1, 2011 to present.

    Note: does NOT exclude defendants with a prior conviction for a serious or violent felony, defendants who are sentenced on a serious felony, and any person required to register as a sex offender.

    Time served in local custody on or after January 25, 2010 for crimes committed prior to September 28, 2010.

    Notes:

    Excludes defendants with a prior conviction for a serious or violent felony, defendants who are sentenced on a serious felony, and any person required to register as a sex offender; Formula A applies instead. However, if the time was served in custody after October 1, 2011, see note below.

    If the defendant was sentenced to prison on or after September 28, 2010, or if the defendant was sentenced to local custody under the Realignment Act for a felony, see below.

    Time served in custody on or after September 28, 2010 when sentenced to prison (or local custody under Realignment for a felony) on or after this date for crimes committed prior to October 1, 2011 (including crimes committed prior to September 28, 2010).

    Notes:

    Excludes defendants with a prior conviction for a serious or violent felony, defendants who are sentenced on a serious felony, and any person required to register as a sex offender; Formula A applies instead. However, if the time was served in custody after October 1, 2011, see note above.

    The trial court is responsible for calculating and awarding the presentence conduct credit provided under former Penal Code section 2933, subdivision (e). (People v. Tinker (2013) 212 Cal.App.4th 1502, 1506-1509.)

    Defendants sentenced to local custody under the Realignment Act for a felony: If the defendant committed a felony offense before October 1, 2011, but was sentenced to local custody under the Realignment Act for the felony offense after this date, the defendant may be entitled to have his or her conduct credit calculated under(People v. Hul (2013) 213 Cal.App.4th 182.)

    Now that you have determined the which formula applies in your case, review the formulas below:

      Formula A
      (Six days deemed served for four days actually confined in county jail)

      1. Actual days ÷ 4 = whole number quotient (Drop any remainder)
      2. Whole quotient x 2 = conduct credit
      3. Actual + conduct credit = Total credit

      Formula B
      (Four days deemed served for two days actually confined in county jail)

      1. Actual days ÷ 2 = whole number quotient (Drop any remainder)
      2. Whole quotient x 2 = conduct credit
      3. Actual + conduct credit = Total credit

      Formula C
      (Two days deemed served for one day actually confined in county jail)

      Actual days x 2 = Total credit

      A probation officer and/or sheriff must investigate the defendant’s right to credit and report the officer’s findings to the court. Any partial day spent in custody, including a day of sentencing, is counted as one day to be credited to defendant. The court must hear challenges to this report at the time of sentencing.

      *The information under the tabs is taken from a chart by Gary McCurdy, CCAP Asst. Director, Kate Dashiell, Cynthia Sorman, and Joanne Kirchner, CCAP Staff Attorneys. http://www.capcentral.org/criminal/conduct_credits/credits_calc.asp

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      If you have more questions regarding calculation of your custody credits, call us at 619-357-6677.