THE PEOPLE, Plaintiff and Respondent,
v.
MARTIN ARIAGA BRAVO, Defendant and Appellant.
Court of Appeals of California, Second District, Division Seven.
*730 COUNSEL
Robert F. Howell, under appointment by the Court of Appeal, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, Edwart T. Fogel, Jr., Assistant Attorney General, Richard L. Walker and Noreen F. Berra, Deputy Attorneys General, for Plaintiff and Respondent.
*731 OPINION
JOHNSON, J.
Defendant Martin Ariaga Bravo appeals from his conviction for burglary. The sole issue on appeal is whether the trial court correctly calculated the number of presentence custody credits pursuant to Penal Code section 4019.[1]
The Courts of Appeal are presently in conflict on the calculation of presentence conduct credits. (Cf. In re Allen (1980)
Using this method of calculation, we conclude appellant is not entitled to additional conduct credits. However, appellant is entitled to an additional three days of actual custody credit. The judgment is therefore modified to reflect these additional credits.
FACTS AND PROCEEDINGS BELOW
Appellant was charged in an information with one count of burglary (§ 459). Appellant was offered bail, but did not make bail and remained in custody from the date of his arrest on October 20, 1987. A jury found appellant guilty and he was sentenced to the midterm of four years on March 25, 1988. The trial court awarded appellant 155 days actual custody credit and 78 days conduct credit.
DISCUSSION
I. THE RECORD IS SUFFICIENT TO DETERMINE APPELLANT WAS IN ACTUAL CUSTODY FROM THE TIME OF ARREST TO SENTENCING.
(1) Respondent does not address the merits of the case, asserting the record is insufficient to establish appellant was in actual custody from the time of his arrest, October 20, 1987, to the time of sentencing, March 25, 1988. We disagree.
*732 It is uncontroverted appellant was arrested on October 20, 1987, and was sentenced on March 25, 1988. The record on appeal contains all of the minute orders. None of these orders indicate posting or rescission of bail. In addition, the record affirmatively reflects appellant was remanded into custody after every court appearance. Further, appellant's probation report makes no reference to bail.
Finally, respondent concedes appellant was entitled to 155 days of actual custody credit, while appellant claims 158 days. Since the discrepancy consists of three days, it appears very unlikely appellant was admitted and revoked from bail in this short of a period. As previously noted, there is no indication of posting or rescinding of bail in the probation report. Therefore, we conclude the record is sufficient to establish appellant was incarcerated for the entire interim from October 20, 1987, to March 25, 1988. Since respondent failed to address the merits, we are independently required to research the issue.
II. PRESENTENCE CONDUCT CREDITS ARE CALCULATED ACCORDING TO THE FORMULA SET FORTH IN PEOPLE V. SMITH.
Appellant argues he is entitled to an additional four days of presentence custody credit pursuant to section 4019. We disagree.
(2) When an appeal involves the scope and application of a statute we are not bound by the trial court's determination. (Southern California Edison Co. v. State Board of Equalization (1972)
(3) When a statute is theoretically capable of more than one construction, we choose that construction which most comports with the Legislature's intent. (California Mfrs. Assn. v. Public Utilities Com. (1979)
(4a) Section 4019 sets forth the method of calculating presentence custody credit, inter alia, "[w]hen a prisoner is confined in a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp following arrest and prior to the imposition of sentence for a felony *733 conviction." (§ 4019, subd. (a) (4).)[2] Subdivision (b) provides: "for each six-day period in which a prisoner is confined in or committed ... one day shall be deducted from his or her period of confinement unless ... the prisoner has refused to satisfactorily perform labor...." (§ 4019, subd. (b).) Similarly, subdivision (c) provides: "For each six-day period in which a prisoner is confined in or committed ... one day shall be deducted from his or her period of confinement unless ... the prisoner has not satisfactorily complied with the reasonable rules and regulations...." (§ 4019, subd. (c).) Subdivision (f) provides: "It is the intent of the Legislature that if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody." (§ 4019, subd. (f).)
The method of calculation pursuant to subdivisions (b) and (c) was first addressed by the court in In re Allen, supra,
The Allen court held the defendant was entitled to additional credit "for every four days of actual confinement the prisoner is entitled to credit for six days...." (
In awarding the additional credits, the Allen court observed "[t]he number of days credited ... should be approximately one and one-half times the number of days spent in actual confinement, ..." when calculating presentence good time/work time credits. (
*734 Subsequent to Allen, the Legislature added subdivision (f) to section 4019 which provides: "It is the intent of the Legislature that if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody." (§ 4019, subd. (f).)
Recently in People v. Smith, supra, the court reconsidered the calculation of presentence custody credits.[3] In Smith, the trial court awarded the defendant 210 days of actual custody credit and 105 days of conduct credit. On appeal, defendant contended he was entitled to an extra day of conduct credit.
The Smith court rejected the cases following Allen. Relying in part on the language of subdivision (f), the court explained the mechanical interpretation of Allen "does not conform with the statute [§ 4019] and is unauthorized by law. It is proper [multiplying by one and one-half] only when the number of days actually served is divisible by four. [¶] Credits are given in increments of four days. No credit is awarded for anything less." (People v. Smith, supra,
The Smith interpretation of section 4019 is consistent with the plain language of the statute and the legislative intent as reflected in subdivision (f). Our review of the legislative history confirms "[the] [s]tate legislative intent that a person will be credited with six days confinement time in a local facility for every four days spent in actual custody."[4] (Assem. Office of Research Dig.; Legal Affairs Enrolled Bill Rep.) Thus, it is clear the Legislature incorporated subdivision (f) as evidence of their intent and not as a mere illustration of how subdivision (f) may be applied.
It is important to note those cases which have adopted the one and one-half rule offer no rationale for this method of calculation nor can we think of one. (See, e.g., People v. Moore, supra,
*735 In sum, we would violate the clear language of the statute and the Legislature's intent by mechanically multiplying the amount of actual days by one and one-half. Instead we adopt the method of calculation set forth in Smith. We must now determine the number of presentence credits to which appellant is entitled.
III. APPELLANT IS ENTITLED TO AN ADDITIONAL THREE CUSTODY CREDITS.
Appellant argues he is entitled to an additional three days for actual presentence custody credit and an additional one day for presentence good time/work time conduct credit. We agree appellant is entitled to three additional days of custody credit but he is not entitled to any additional good time/work time conduct credit.
(5) It is presumed the Legislature intended to treat any partial day as a whole day. (In re Jackson (1986)
Since appellant was arrested October 20, 1987, and sentenced March 25, 1988, he is entitled to 158 days of actual custody credit, accounting for all days in between and including the day of arrest and sentencing. Therefore, appellant merits three additional actual custody credits.
(4b) However, applying the Smith method of calculation for good time/work time credit, we conclude appellant is not entitled to any additional conduct credit. Taking appellant's 158 days of actual custody credit, and dividing it by 4, the sum equals 39 remainder 2. We then multiply 39 by 2, entitling the appellant to 78 custody credits which is what he was awarded by the trial court under the Allen method. Nothing should be awarded for the two remaining days since they have not met the minimum four-day multiple in order to qualify for conduct credits.
DISPOSITION
The judgment is modified to give appellant an additional three days of actual custody credit, for a total of one hundred fifty-eight days. The trial *736 court is directed to amend the abstract of judgment accordingly and to forward a copy to the Department of Corrections. As modified, the judgment is affirmed.
Lillie, P.J., and Woods (Fred), J., concurred.
NOTES
Notes
[1] All future statutory references are to the Penal Code unless we specify otherwise.
[2] In supplemental briefing, appellant erroneously argues section 4019 does not apply to a defendant awaiting sentencing on a felony matter. Appellant mistakenly relies upon the Supreme Court decision in People v. Sage (1980)
[3] We commend the appellant for noting People v. Smith is contrary to his position.
[4] We have taken judicial notice of section 4019's legislative history pursuant to Evidence Code sections 452 and 459.