Opinion
I. Introduction
Rаul Fabela and Teddy Lapina appeal from the judgments entered following a jury trial in wMch they were convicted of second degree robbery in wMch Mr. Lapina used a firearm. (Pen. Code, §§ 211, 12022.5,12022, subd. (a)(1).) Mr. Fabela admitted that he had suffered a prior felony conviction fоr wMch he served a separate prison term. (Pen. Code, § 667.5, subd. (b).) Mr. Fabela contends: “The trial court prejudicially erred in failing to instruct the jury sua sponte upon the lesser included offense of petty theft as defined by Penal Code sections 484, 485, 487, and 488." 1 The parties dispute the amount of presentence credits to wMch Mr. Fabela and Mr. Lapina are *1663 entitled. In the published portion of this opinion, we сonclude that Mr. Fabela has received an excessive amount of presentence credits.
II. Factual Matters *
III. Discussion
A. Unpublished Issues *
B. Published Issues
Prior to sentencing, Mr. Fabela served 223 days in custody. He was given credit for 223 of actual custody plus 112 of conduct credits for total credits of 335 days. In
People
v.
Dailey
(1992)
First, when the number of days is equally divisible by four, as it was in
Dailey,
the formula utilized in thаt case is correct, intelligent, and useful in
*1664
quickly and accurately determining the amount of credits. Second, Mr. Fabela is correсt that the
Dailey
formula of dividing by four and multiplying by six may not be used when the number of actual days in custody is not equally divisible by four. The method of calculating сonduct credits was described by the Court of Appeal in
People
v.
Smith
(1989)
Applying the Smith analysis to the prеsent case, Mr. Fabela was in custody for 55 sets of 4 days. For these 55 sets, Mr. Fabela is entitled to 110 days of conduct credits—55 for labor and 55 fоr compliance with rules and regulations. He is entitled to no additional conduct credits. The trial court erred in awarding 112 days of conduct credit rather than the 110 that he was entitled to under the Smith formulation. Mr. Fabela is entitled only to 223 days of credits for time spent in custody рlus 110 days of conduct credits for total credits of 333 days rather than the 335 days he received.
Further, because the 223 days of actual presentence time was not equally divisible by 4, the Dailey formula is not applicable. The manner in which the Dailey formulation is inconsistent with the provisions of law when the actual number of days is not equally divisible by 4 is illustrated by the case of a hypothetical defendant who has served 101 days of actual presentence *1665 confinement. That defendant under Dailey would have the 101 days divided by 4 which equals 25 and multiplied by 6 for total credits of 150 days. Under Smith, that hypothetical defendant would be awarded 2 sets of 25 days of conduct credits for a total of 50 days. This 50 days would be added to the 101 days of actual credit for a total of 151 days rather than the 150 days the defendant would have reviewed under Dailey. Stated differently, under Dailey, the defendant received one day less. This was because the defendant did not receive the full аward of credits for time actually served; the one day was lost in the division by the number four. Penal Code section 2900.5, subdivision (a) requires a defendant receive credit for “all days of custody . . . and including days credited to the period of confinement pursuant to Section 4019 . . . .” (Italics added.) Under Smith, a defendant receives credit for all days of actual custody. It bears emphasis, however, when the number of days of actual presentence incarceration is equally divisible by four, the Dailey custody computation calculus is an accurate and quick schema for computing credits in accord with the law.
IV. Disposition
The judgments of conviction and sentences to state prison are affirmed as to each defendant. As to Mr. Lapina, the award of presentence credits is reversed, and the case is remanded to the superior court for redetermination of those credits consistent with the views expressed in this opinion. As to Mr. Fabela, the award of presentence credits is reversed and he is to be given total credits of 333 days which includes 110 days of conduct credits with аctual presentence credits of 223 days.
Grignon, J., and Boren, J., * concurred.
Notes
We appointed counsel to represent Mr. Lapina on this appeal. After examination of the record, Lapina’s counsel filed an “Opening Brief’ in which no issues were raised. On June 24, *1663 1992, we advised Mr. Lapina that hе had 30 days within which to personally submit any contentions or issues which he wished us to consider.
On July 22, 1992, Mr. Lapina submitted a letter in response claiming thаt his motion to dismiss for an untimely arraignment was not granted; no mistrial was declared when it came to light that some jury members had discussed the case among themselves before deliberations commenced; the evidence did not support the finding of a firearm use; and he was entitled to have his sentence reduced by striking the term imposed for the firearm use. There is no merit to any of these claims. We havе examined the entire record and are satisfied that Mr. Lapina’s attorney has fully complied with her responsibilities and that no arguable issues exist.
(People
v.
Coleman
(1991)
See footnote, ante, page 1661.
Presiding Justice of the Court of Appeal, Second District, Division Two, sitting under assignment by the Chairperson of the Judicial Council.