People v. Gutierrez

Opinion

KING, J.

—In this case we hold that presentence conduct credits are to be given at the rate of six days’ total credit for every four days spent in actual custody, not one and one-half days for each day spent in custody.

Jose D. Gutierrez appeals from a judgment of imprisonment for sale of cocaine (Health & Saf. Code, § 11352) and possession of cocaine for sale (Health & Saf. Code, § 11351). The court imposed a three-year prison term. Gutierrez received 30 days of credit for time served and 15 days of conduct credit.

Gutierrez contends he should have received two more days of sentencing credit. First, he correctly points out that he was entitled to receive two days of custody credit, instead of the one he received, for his initial period of custody on April 5-6, 1989. The Attorney General concedes the point. Gutierrez should have received 31 days of custody credit instead of 30 days.

Second, Gutierrez contends he should have received one more day of conduct credit—i.e., 16 days—for the 31 days he spent in custody. He relies on the past practice of calculating total credits by granting one and one-half

[1573]

the number of days spent in custody (e.g.,

In re Allen

(1980) 105 Cal.App.3d 310, 315 [164 Cal.Rptr. 319]), and “rounding up” where the actual time served is an odd number (e.g.,

People

v.

Perez

(1989) 216 Cal.App.3d 1346, 1348 [265 Cal.Rptr. 400]).

The governing statute, however, states that “a term of

six

days will be deemed to have been served for every

four

days spent in actual custody.” (Pen. Code, § 4019, subd. (f), italics added.) Recent decisions have concluded that, consistent with the plain language of the statute and evident legislative intent, conduct credits are to be given for sets of four days’ actual time served, with no credit for anything less. A residual set of fewer than four days may not be “rounded up.” Thus, the