In Re Thomas

California Court of Appeal Jun 15, 1982 No. Crim. 23617Published

Before: Goff

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Holding. The court held that the Department of Corrections must grant the petitioner specific predelivery conduct credits because such credits are distinct from in-prison conduct credits and are not subject to forfeiture for subsequent misconduct.

Issues

Whether the Department of Corrections may substitute in-prison conduct credits for mandatory predelivery conduct credits under Penal Code sections 4019 and 2900.5.
Whether a prisoner may seek habeas corpus relief to correct an erroneous computation of predelivery credits even if the total release date remains unchanged.

Disposition. Granted in part and denied in part.

Quotations verified verbatim against the opinion

“In-prison “good behavior and participation credit” bestowed by Penal Code section 2931 is subject to loss by poor behavior (Pen. Code, § 2932), but predelivery credits are not subject to such loss.”

“They are not the same things and therefore are not interchangeable.”

Opinion

GOFF, J.

Fred L. Thomas’ petition for habeas corpus asserts that the superior court incorrectly computed the number of days to be credited against his sentence for time he was in custody prior to being sentenced.

Thomas was arrested June 27, 1978. He has been in custody since that date. On March 13, 1979, 259 days later, he was sentenced to 8 years and 4 months in state prison. Fifteen days later, on March 28, he was delivered to the Department of Corrections to serve his sentence. The sentencing court is required to compute the number of days served prior to sentence and to enter it in the abstract of judgment. (Pen. Code, § 2900.5, subd. (d).) The agency to which the prisoner is committed shall apply the credit for the period between sentence and delivery. (Pen. Code, § 2900.5, subd. (e).) In Mr. Thomas’ case, the Department of Corrections has indicated 273 days from the time of Thomas’ arrest till delivery. This appropriately gives retroactive effect to section 2900.5 subdivision (e), enacted in 1980.

(In re Kapperman

(1974) 11 Cal.3d 542, 544-550 [114 Cal.Rptr. 97, 522 P.2d 657].)

Penal Code section 4019, as interpreted by us in

People

McMillan

(1980) 110 Cal.App.3d 682 [167 Cal.Rptr. 924], requires that one day of conduct credit be given for each two days served prior to delivery to the department. In Mr. Thomas’ case, this would be 137 days. Instead, the department credited him with only 88 days.

In his return, the Attorney General acknowledges the predelivery computation is wrong but argues that Thomas has not been

[782]

harmed, because the department has recalculated Thomas’ release date pursuant to the rule in

People

In Re Thomas

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GOFF, J.

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