People v. Hunter

Opinion

THOMPSON, J.

Found guilty of robbery, defendant was, on April 20, 1976, placed on probation conditioned upon his serving one year in the county jail. The trial court denied defendant’s petition seeking credit against the one-year period for 85 days spent by defendant in jail awaiting trial and judgment.

[391]

In this appeal, defendant contends: (1) Penal Code section 2900.5, as it existed prior to January 1, 1977, was unconstitutional to the extent that it denied credit for “back time” against a sentence imposed as a condition of probation; and (2) a 1976 amendment to section 2900.5 effective January 1, 1977, which allows such credit, is retroactive in the sense that it is applicable to probationary sentences imposed prior to that date.

Noting that defendant’s period of county jail incarceration will have been served prior to the date this opinion becomes final but aware of a number of other matters pending in this court which raise the identical issue, we treat the matter on its merits. We conclude that the statutory history of the amendment to section 2900.5 and the rule of construction of sentencing statutes declared by our Supreme Court in

In re Estrada

(1965) 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948] require that the 1976 amendment to section 2900.5 be construed as effective to sentences imposed prior to the effective date by judgments not yet final on January 1, 1977. Because of the result dictated by statutory construction, we do not reach the constitutional issues raised by defendant.

History of Penal Code Section 2900.5

Prior to 1972, persons convicted of a felony were not entitled to credit against their state prison sentences for “back time,” i.e., periods of incarceration in county jail awaiting trial and judgment. In 1971, Penal Code section 2900.5 was enacted to’ grant credit for back time. Subdivision (c) of the statute provided that it was applicable “only to those persons who are delivered into the custody of the Director of Corrections on or after the effective date of this section.”

Thus, by its terms, the 1971 version of section 2900.5 was inapplicable to grant “back time” credit: (1) to persons sentenced to county jail as a condition of felony probation