People v. Wills

Opinion

(Pen. Code, § 4019) for time served in a work release program (Pen. Code, § 4024.2) while committed to county jail as a condition of probation?

1

We conclude the probationer may not receive conduct and work credit for time served in a work release program because the time is not served “in actual custody.” (§ 4019, subd. (f).)

Defendant Kenneth Martin Wills pled no contest to possession for sale of cocaine base (Health & Saf. Code, § 11351.5), was granted probation, and later admitted violating the terms of his probation. The court declined to reinstate him on probation and sent him to prison.

[1812]

Before his probation was revoked and he was sentenced to prison, the defendant was committed to county jail for 270 days as a condition of probation. He served 83 days in custody at the Butte County jail and spent 105 days in the Sheriff’s Work Alternative Program (SWAP) prior to revocation of probation. In committing him to state prison following his violation of probation, the trial court gave the defendant 40 days conduct and work credit for time he served in actual custody in county jail as a condition of probation (§ 4019;

People

v.

Bobb

(1989) 207 Cal.App.3d 88, 97 [254 Cal.Rptr. 707]), but concluded he was not entitled to conduct and work credit for the time he spent in SWAP.

On appeal, the defendant contends he should have received conduct and work credit for his entire probation commitment, including the 105 days in SWAP. The People argue the defendant is not entitled to conduct credits for the time he was enrolled in SWAP because he “was

not

being confined in any sort of ‘a county jail, industrial farm, or road camp, or any city jail, industrial farm, or road camp’ . . . .” (Citing § 4019.)

2

The supplemental probation report recommended the defendant receive no section 4019 conduct and work credit for his time in SWAP. At sentencing, the defendant did not contest this recommendation.