Presentence Custody Credits for Assault with Firearm?

In most cases, presentence custody credits are determined by Penal Code § 4019.  Penal Code § 2900.5(a) provides that “[i]n all felony and misdemeanor convictions, either by plea or by verdict” where defendant has been in custody prior to sentencing, the defendant shall be given presentence credits “pursuant to Section 4019.”

Penal Code § 4019, in turn, provides that a defendant, except a specified below, shall receive four days of custody credit for each two days served.  Some people call this “one for one” conduct (“good time, work time”) credit, but this is not exactly true, because if someone has an odd number of pre-sentence credits, the total credits is based on doubling the last even number days of credit.

For example, someone with 37 days of actual days in custody presentence would be entitled to 36 days of 4019 credit, for a total of 73 (not 74) days of total credit.  

Penal Code § 2933.1 creates an exception to the general rule for defendants convicted of a violent felony within the meaning of the Three Strikes law.  Section 2933.1 provides in relevant part that “[n]otwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement . . . following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a).” 

Subdivision (a) provides that “any person who is convicted of a felony offense listed in subdivision (c) of Penal Code § 667.5 [violent felonies under the Three Strikes law] shall accrue no more than 15 percent of worktime credit as defined in Section 2933.”

In January 2022, in the Compton Superior Court, Rasheed Malcolm Jones pled no contest to one count of assault with a firearm (Penal Code § 245(a)(2)) and admitted a prior 2012 conviction for the same offense in exchange for a four-year prison sentence. 

Prior to being sentenced, he had 497 days of actual custody credits.  Judge Connie R. Quinones awarded him 99 days of conduct credit, or 20 percent, based on her understanding of how conduct credits are awarded for someone with a prior “strike” under the Three Strikes Law, giving Mr. Jones a total of 596 days of credit toward the four year sentence.

Defense counsel objected to this credit calculation at sentencing to preserve the issue on appeal.  Defense counsel acknowledged that assault with a firearm (Penal Code § 245(a)(2)) is a serious crime under the Three Strikes law, but it is not a violent felony under the Three Strikes law, so presentence credits under Penal Code § 4019 apply. 

Mr. Jones then appealed the custody credits awarded, filing an appeal with the Second Appellate District Court of Appeal in downtown Los Angeles.

The People contended that Jones’ admission of the prior strike expressly limited his custody credits to no more than one-fifth, or 20 percent of his total prison sentence, and therefore his pre-sentence custody credits were limited to the same amount.

The Second Appellate District disagreed, finding that since Penal Code § 245(a)(2) is not a violent offense as listed under Penal Code § 667.5(c), Mr. Jones was entitled to custody credits under Penal Code § 4019, notwithstanding how his post-sentencing credits may be calculated once in prison.

Therefore, the Second Appellate District found that Mr. Jones was entitled to 497 days of actual presentence credit, plus 496 days of conduct credit, or a total of 993 days of presentence credit.

This meant that Mr. Jones received 397 more days of custody credit than Judge Quinones calculated, or about an year and a month.  This is significant insofar as it reduced his sentence by a full year and a month (397 days), and was about 300 days more credit than was originally calculated.

We present this article for the reader’s attention because calculating conduct credits is an often overlooked area of knowledge that even judges do not know well, as this article exemplifies.

For more information about pre-sentence custody credits issues, please click on the following articles: