Calculating Presentence Conduct Credit Under Penal Code Sections 4019 and 2933 in the Third and Fifth Districts
Updated as of: 8/6/2013
Heads-up note:
The California Supreme Court decided People v. Brown (2012) 54 Cal.4th 314, holding that former Penal Code section 4019 (Stats. 2009, 3d Ex. Sess., 2009-2010, ch. 28, § 50 (SB 18X3), eff. Jan. 25, 2010) applied prosectively and that equal protection does not require retroactive application.
Additionally, the California Supreme Court held that Penal Code section 1385 does not authorize a court to disregard historical facts that disqualify a local prisoner from earning conduct credits at an increased rate. (People v. Lara (2012) 54 Cal.4th 896.)
Equal Protection? This chart does not address potential constitutional issues that may be appropriate for the individual case and/or defendant.
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| Formula for conduct credit based on time in county jail | Formula A (Six days deemed served for four days actually confined in county jail) |
Formula B (Four days deemed served for two days actually confined in county jail) |
Formula C (Two days deemed served for one day actually confined in county jail) |
|---|---|---|---|
| Math: | 1. Actual days ÷ 4 = whole number quotient (Drop any remainder) 2. Whole quotient x 2 = conduct credit 3. Actual + conduct credit = Total credit |
1. Actual days ÷ 2 = whole number quotient (Drop any remainder) 2. Whole quotient x 2 = conduct credit 3. Actual + conduct credit = Total credit |
Actual days x 2 = Total credit |
| Authority: | Section 4019 prior to amendment eff. 1/25/10, then restored for the period from 9/28/10 through 9/30/11 |
A. Section 4019 from 1/25/10 through 9/27/10B. Section 4019 from 10/1/11 to present |
Section 2933 from 9/28/10 through 9/30/11, applicable only if state prison term was ordered executed |
| Qualifying Period | Formula to Apply |
|---|---|
| Time served in local custody prior to January 25, 2010 | Formula A (People v. Brown (2012) 54 Cal.4th 314.) |
| Time served in local custody on or after January 25, 2010 for crimes committed prior to September 28, 2010
|
Formula B (People v. Brown, supra, 54 Cal.4th 314; former Pen. Code, § 4019 [Stats. 2009, 3d Ex. Sess., 2009-2010, ch. 28, § 50 (SB 18X3), eff. Jan. 25, 2010, amended by Stats. 2010, ch. 426, § 1 (SB 76), eff. Sept. 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 local custody for crimes committed on or after September 28, 2010 but prior to October 1, 2011 | Formula A (Former Pen. Code, § 4019 [Stats. 2010, ch. 426, § 1 (SB 76), eff. Sept. 28, 2010, amended by Stats. 2011, ch. 15, § 466 (AB 109), operative Oct. 1, 2011]; see People v. Brown, supra, 54 Cal.4th 314.)
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 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) | Formula C (Former Penal Code section 2933, subdivision (e) [Stats. 2010 ch. 426, § 1 (SB 76), eff. Sept. 28, 2010, repealed by Stats. 2011, 1st Ex. Sess., 2011-2012, ch. 12, § 16 (ABX1 17), operative Oct. 1, 2011]; see People v. Brown, supra, 54 Cal.4th 314.)
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 Formula C. (People v. Hul (2013) 213 Cal.App.4th 182.) |
| Time served in custody for crimes committed on or after October 1, 2011 to present | Formula B (Pen. Code, § 4019 [Stats. 2011, ch. 15, § 466 (AB 109), operative Oct. 1, 2011].)
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. |
| Qualifier | Formula to Apply |
*Chart by Gary McCurdy, CCAP Asst. Director, Kate Dashiell, Cynthia Sorman, and Joanne Kirchner, CCAP Staff Attorneys. The authors wish to gratefully acknowledge the work of J. Richard Couzens, Judge (Ret.) and Tricia A. Bigelow, Presiding Justice, Court of Appeal, Second Appellate District, Div. 8, “Awarding Conduct Credits Following Enactment of 2011 Realignment,” which provided invaluable guidance in pulling this chart together.
