People v. Heard

Opinion

NEWSOM, Acting P. J. Upon revocation of appellant’s probation, he was sentenced to the middle term of three years for aggravated assault (Pen. Code, § 245, subd. (a)(1)).1 He was awarded 217 days of presentence custody credits and 108 days of conduct credits. On appeal, he challenges only the award of credits.

First, he contends that the trial court miscalculated his presentence custody credits, due primarily to an inaccurate listing of the arrest date as October 26, 1992, in the supplemental probation report. Documentary evidence reveals that appellant was actually arrested and placed in custody on October 22, 1992, and sentenced on December 3, 1992. Appellant is entitled to credit for both the date of his arrest and date of sentencing, so he must be awarded 43 days presentence custody credit rather than 38 days, as the Attorney General concedes. (People v. Fugate (1990) 219 Cal.App.3d 1408, 1414 [269 Cal.Rptr. 37]; People v. Bravo (1990) 219 Cal.App.3d 729, 735 [268 Cal.Rptr. 486]; In re Jackson (1986) 182 Cal.App.3d 439, 442-443 [227 Cal.Rptr. 303].) Thus, including prior presentence days in custody—of 179 days before appellant was granted probation—appellant must be awarded a total of 222 days of actual custody credits. A commensurate correction must [1028]be made in appellant’s conduct credits from 108 days to 110 days pursuant to section 4019. (See People v. King (1992) 3 Cal.App.4th 882, 886 [4 Cal.Rptr.2d 723]; People v. Gutierrez (1991) 232 Cal.App.3d 1571, 1573 [284 Cal.Rptr. 211].)

Appellant also argues that the “two-for-four” method used for calculation of presentence conduct credits under section 4019 denied him equal protection of the law. Section 4019, subdivision (f) specifies that unless a prisoner fails to perform labor as assigned or comply with reasonable rules and regulations “. . . a term of six days will be deemed to have been served for every four days spent in actual custody.”2 Section 4019 has been construed as awarding conduct credits calculated on the basis of multiples of four days only, with no partial credit for less than four-day increments. (People v. Fabela (1993) 12 Cal.App.4th 1661, 1664 [16 Cal.Rptr.2d 447]; People v. Gutierrez, supra, 232 Cal.App.3d at p. 1573; People v. Bravo, supra, 219 Cal.App.3d at p. 735; People v. Smith (1989) 211 Cal.App.3d 523, 527 [259 Cal.Rptr. 515]; People v. Bobb (1989) 207 Cal.App.3d 88, 97 [254 Cal.Rptr. 707].) “Only four-day increments are cognizable under the statute.” (People v. Jacobs (1992) 6 Cal.App.4th 101, 104 [7 Cal.Rptr.2d 781].) Credits to sentenced prisoners for “good behavior” are awarded under section 2931 according to a “2-for-l” ratio. Appellant maintains that the denial of conduct credits to presentence detainees for days of custody “not evenly divisible by [the] four[-day time period]” stated in section 4019, denies equal protection of the law to those who are without the financial resources to post bail by treating them differently than “prisoners who post bond” and obtain “2-for-l” conduct credits after sentencing under “section 2931.”3 The disparate statutory treatment of conduct credits, submits appellant, “results in longer prison sentences for poor prisoners unable