People v. Browning

[848]

Opinion

TIMLIN, J.

Defendant was charged with one count of discharging a firearm at an inhabited dwelling (Pen. Code, § 246),

1

with the added allegation that he had personally used a firearm within the meaning of section 1192.7, subdivision (c)(8), and one count of possession of a firearm by a felon (§ 12021). It was alleged that defendant had suffered one prior felony conviction within the meaning of section 667 and two prior felony convictions and service of separate prison terms within the meaning of section 667.5, subdivision (b). During the jury trial, defendant changed his plea to guilty as to counts 1 and 2 and admitted the three prior convictions. He was then sentenced to a term of 8 years and 8 months with credit for 146 days in actual presentence custody and 72 days presentence conduct credit. He contends that he is entitled to credit for one additional day in presentence custody as well as one additional day of presentence conduct credit.

Discussion

1.

Presentence Custody Credit:

Defendant was arrested on August 16, 1990, and sentenced on January 9,1991. The People concede pursuant to section 2900.5 that defendant should have been given credit for 147 days of presentence custody because the day of sentencing should have been counted even though it was necessarily a partial day.

(People

v.

Smith

(1989) 211 Cal.App.3d 523 [259 Cal.Rptr. 515].) We agree.

2.

Conduct Credit:

Defendant also contends that he is entitled to an extra day of conduct credit pursuant to section 4019. Under this section for each 6-day period of confinement, 1 day is deducted for work credit and 1 day is deducted for compliance with the facility’s rules and regulations. (§ 4019, subds. (b) & (c).)