IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S158076
v.
Ct.App. 3 Crim. C052606
ROLAND WILLIAM DIECK,
Trinity County
Defendant and Appellant.
Super. Ct. No. 05F169
We consider here whether a defendant must spend at least six days in
custody prior to being sentenced to be entitled to ―conduct credit‖ pursuant to
Penal Code section 4019. We conclude that the statute does not require that a
defendant spend six days in presentence confinement in order to be entitled to
receive conduct credit pursuant to section 4019. Rather, the statute entitles a
defendant to conduct credit if he or she is sentenced to, or otherwise committed
for, a period of at least six days, without regard to the duration of presentence
confinement.
Background
Defendant was arrested on December 15, 2005, and spent five days in
county jail before being released on his own recognizance on December 19, 2005.
On December 19, 2005, a complaint was filed against defendant alleging that he
received stolen property in violation of Penal Code1 section 496, subdivision (a),
cultivated marijuana in violation of Health and Safety Code section 11358, and
was a felon in possession of a firearm in violation of section 12021, subdivision
(a)(1).
On February 8, 2006, defendant pled nolo contendere to felony receipt of
stolen property in violation of section 496, subdivision (a), and possession of
concentrated cannabis in violation of Health and Safety Code section 11357,
subdivision (a), which is a lesser included offense of the charged offense of
marijuana cultivation. On April 5, 2006, defendant was sentenced to state prison
for the midterm of two years for receiving stolen property in violation of section
496, subdivision (a), and to a consecutive term of one-third of the midterm, or
eight months, for possession of concentrated cannabis in violation of Health and
Safety Code section 11357, subdivision (a). Execution of defendant‘s two year
and eight month sentence was suspended, and defendant was placed on probation
for five years, on condition that he serve 365 days in county jail, ―with credit for
time served of five days, based on actual time of five days, and no conduct
credits.‖
Defendant appealed, arguing that under section 4019, subdivision (f), he
should have received a credit of seven days — two days of conduct credit in
addition to the five days he actually served. In an unpublished decision, the Court
of Appeal disagreed with defendant, concluding that section 4019, subdivision (e)
precluded defendant from receiving conduct credit for the five days he had served
1
All further statutory references are to the Penal Code unless otherwise
indicated.
2
because he had not spent six days in presentence2 custody. The Court of Appeal
concluded that the language of section 4019, subdivision (e) unambiguously
requires that a defendant serve six days in presentence custody in order to receive
conduct credit under section 4019.
We granted review to determine whether defendant was entitled to conduct
credit under section 4019 based upon the five days he spent in custody prior to
being committed to county jail for 365 days as a condition of probation.
Discussion
― ‗The presentence credit scheme, section 4019, focuses primarily on
encouraging minimal cooperation and good behavior by persons temporarily
detained in local custody before they are convicted, sentenced, and
committed . . . .‘ ‖ (People v. Brown (2004) 33 Cal.4th 382, 405, quoting People
v. Buckhalter (2001) 26 Cal.4th 20, 36.) Section 4019 describes the two types of
conduct credit available to prisoners ―confined in or committed to‖ county or city
jails, industrial farms, or road camps.3 Section 4019, subdivision (b) describes
credit for worktime and provides that, ―for each six-day period in which a prisoner
is confined in or committed to a facility as specified in this section, one day shall
be deducted from his or her period of confinement unless . . . the prisoner has
2
For ease of reference, the term ―presentence‖ is used throughout this
opinion to refer to a period of incarceration that occurs prior to sentencing, an
order of probation, a judgment of imprisonment, or any other form of commitment
to a custodial facility.
3
―Conduct credit‖ collectively refers to worktime credit pursuant to section
4019, subdivision (b), and to good behavior credit pursuant to section 4019,
subdivision (c). (See People v. Cooper (2002) 27 Cal.4th 38, 40.) We note that
―[o]nce a person begins serving his prison sentence, he is governed by an entirely
distinct and exclusive scheme for earning credits to shorten the period of
incarceration.‖ (People v. Buckhalter, supra, 26 Cal.4th at p. 31.)
3
refused to satisfactorily perform labor as assigned . . . .‖ Section 4019,
subdivision (c), the good behavior provision, similarly provides that, ―[f]or each
six-day period in which a prisoner is confined in or committed to a facility as
specified in this section, one day shall be deducted‖ from each six-day period of
confinement unless the prisoner fails to comply with applicable rules and
regulations.4
Section 4019, subdivision (f) clarifies that subdivisions (b) and (c) are to be
read together to provide a total of two days of conduct credit for every four-day
period of incarceration: ―It is the intent of the Legislature that if all days are
earned under this section, a term of six days will be deemed to have been served
for every four days spent in actual custody.‖ Section 4019, subdivision (e) sets
forth the minimum length of commitment for the statute to apply: ―No deduction
may be made under this section unless the person is committed for a period of six
days or longer.‖
The Court of Appeal concluded that section 4019, subdivision (e)
unambiguously provided that a defendant must spend a minimum of six days in
presentence custody in order to be entitled to conduct credit. When construing a
statute, our primary task is to ascertain the Legislature‘s intent. (Olson v.
Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1147.) We begin
our task by determining whether the language of the statute is ambiguous. (Ibid.)
A statutory provision is ambiguous if it is susceptible of two reasonable
interpretations. (Hoechst Celanese Corp. v. Franchise Tax Bd. (2001) 25 Cal.4th
4
For purposes of this analysis, we assume without deciding that defendant
was eligible for good behavior and worktime credits, and address only whether
defendant was entitled to conduct credit based upon the duration of his pre-
commitment confinement.
4
508, 519.) ― ‗If there is no ambiguity in the language, we presume the Legislature
meant what it said and the plain meaning of the statute governs.‘ (People v. Snook
(1997) 16 Cal.4th 1210, 1215.)‖ (Diamond Multimedia Systems, Inc. v. Superior
Court (1999) 19 Cal.4th 1036, 1047.) While we agree that section 4019 is
susceptible of only one reasonable interpretation, we conclude, contrary to the
Court of Appeal‘s construction, that section 4019, subdivision (e) sets forth a
minimum duration of ordered commitment, not a minimum term of presentence
incarceration. A defendant who spends at least four days in presentence custody is
entitled to conduct credit under section 4019 if that defendant is sentenced or
otherwise ―committed‖ (as described below) for a period of at least six days,
assuming he or she satisfies the eligibility criteria set forth in the statute.
Proper interpretation of section 4019 rests on the difference between the
terms ―committed‖ and ―confined.‖ A defendant is not entitled to conduct credit
unless he or she ―is committed for a period of six days or longer.‖ (§ 4019, subd.
(e).) ―Committed,‖ as relevant here, means a judicial officer‘s order sending a
defendant to jail, prison, or other form of qualifying confinement. (See, e.g.,
Black‘s Law Dict. (8th ed. 2004) p. 288 [―commit‖ defined as ―[t]o send (a
person) to prison‖ or jail]; see also § 859a, subd. (a) [―the magistrate . . . shall
immediately commit the defendant‖]; §§ 862, 873, 881, subds. (a), (b).) Thus, a
defendant is not entitled to conduct credit unless his or her total commitment (be it
a sentence, probation condition, judgment of imprisonment, or other enumerated
form of commitment set forth in section 4019 subdivision (a)(1)-(4)) is at least six
days. In contrast, the term ―confinement‖ is defined as ―the state of being
imprisoned or restrained.‖ (Black‘s Law Dict., supra, at p. 318.) Subdivision (e),
which uses the word ―committed‖ but not the word ―confined,‖ requires only that
a person be ordered to spend at least six days in custody before the statute is
5
applicable, not that a person must actually spend a full six days in custody prior to
sentencing.
The plain language of the statute demonstrates that the Legislature was
mindful of the distinction between the terms ―confined‖ and ―committed.‖ In each
subdivision of section 4019 that contains the word ―committed‖ — other than
subdivision (e) — the word ―confined‖ appears alongside the word ―committed.‖
(§ 4019, subds. (a)(1)-(3), (b), (c) [―a prisoner is confined in or committed
to . . .‖].) Each of these subdivisions refers to the order imposed upon a defendant
to spend a period of time in custody (―committed to‖) and to the actual period of
incarceration (―confined in‖). Section 4019, subdivision (e), by contrast,
addresses only a prisoner‘s commitment, establishing a minimum eligibility for
application of the statute such that conduct credit is unavailable unless a prisoner
is ordered to spend at least six days in custody. Section 4019, subdivision (e)
cannot be understood to require that a prisoner spend six days in presentence
confinement before he or she is entitled to receive conduct credit; if that were the
case, the Legislature could have so indicated by using the word ―confined‖ rather
than the word ―committed.‖
The People agree that defendant was ultimately entitled to conduct credit
because he was committed for a period of more than six days, but argue that
defendant was not entitled to conduct credit at the time of his sentencing because
he had not yet spent six days in confinement.5 The People argue that a prisoner
5
Defendant argues that the People‘s position here marks a departure from
what was argued before the Court of Appeal. Additionally, the parties now agree
that defendant received all of the conduct credit to which he was entitled, and that
his five days of precommitment incarceration eventually were included in the
calculation of his conduct credit. However, the fact that defendant received the
conduct credit to which he was ultimately entitled does not resolve the question of
whether defendant was entitled to that credit at the time of his commitment. We
(footnote continued on next page)
6
cannot earn conduct credit pursuant to section 4019 until his or her sixth day of
confinement. The People place emphasis on the word ―deducted‖ in subdivisions
(b) and (c), arguing that because the statute indicates that one day ―shall be
deducted‖ for good behavior and work time, conduct credit accrues during the first
five days of confinement but is not earned and available until the sixth day, when a
deduction can occur. Thus, the People argue that the Court of Appeal was correct
in concluding that defendant was not entitled to conduct credit because, at the time
of sentencing, he had spent only five, not six, days in custody.
The People‘s argument is flawed in several respects. A plain reading of
the statute demonstrates that section 4019 does not require that a person spend a
full six days in custody before being entitled to conduct credit; the statute
expressly provides that a person will be deemed to have served six days for every
four spent in actual custody. (§ 4019, subd. (f).) Section 4019, subdivisions (b)
and (c) provide that conduct credit is calculated based upon ―each six-day period
in which a prisoner is confined in or committed to a facility . . . .‖ As addressed
above, confinement refers to actual incarceration, while commitment refers to an
order of confinement for a certain duration. Because subdivisions (b) and (c)
contemplate that conduct credit deductions may be made from a six-day period of
commitment (and commitment refers to a period of future confinement), it cannot
follow that a six-day period of confinement is a necessary precondition to
receiving conduct credit.
(footnote continued from previous page)
conclude that he was, and accordingly address herein both whether defendant was
entitled to credit, which is not disputed by the parties, and when defendant was
entitled to receive that credit.
7
Moreover, as defendant argues, section 4019, subdivisions (b) and (c)
cannot be read as limiting conduct credit entitlement only to those who have
served a six-day period of confinement, because such an interpretation would alter
the conduct credit ratio set forth in the statute, leading to the result of requiring
certain defendants to spend an additional day or two in custody. If, as the People
suggest, conduct credit could not be computed until six days of confinement had
passed, an individual committed for six days (and eligible for conduct credit)
would spend the same amount of time confined as an individual committed for
eight days. As defendant points out, the People‘s interpretation means that an
individual ―would have to serve six days out of every eight, or 75% (three-fourths)
of his [or her] time in actual custody. Under subdivision (f), a prisoner need only
serve four days out of every six, or 66.67% (i.e., two-thirds) of his [or her] time in
actual custody.‖6
Put another way, if conduct credit could not be awarded until the
conclusion of a six-day period, an individual serving an eight-day sentence would
be eligible for release on the sixth day of confinement (having served six days, and
having earned two days of conduct credit for a total of eight days credited). If that
same individual was instead committed for six days, conduct credit would not be
calculated until he or she had served all six days of the term. Although he or she
6
We note that the statute‘s legislative history supports our construction of
the statute. ―It was always the legislative intent that a county prisoner serve 2/3 of
his sentence rather than more.‖ (Assem. Comm. on Criminal Justice, mem.
summarizing Assem. Bill No. 3693 (1978-1979 Reg. Sess.) as amended May 11,
1978, p. 2.) Assembly Bill No. 3693, as enacted, amended section 4019,
subdivisions (b) and (c) to provide that conduct credit would be calculated based
on a six-day period rather than one fifth of a month, and changed the basis for
calculating conduct credit ―from period of confinement to period of commitment.‖
(Assem. Off. of Research, third reading analysis of Assem. Bill No. 3693 (1978-
1979 Reg. Sess.) as amended May 11, 1978, p. 1.)
8
would have been entitled to two days of conduct credit, the individual would never
have been given the opportunity to reap the benefit of his or her good behavior and
worktime. Such a result is inconsistent with the stated intent of the Legislature
that ―a term of six days will be deemed to have been served for every four days
spent in actual custody.‖ (§ 4019, subd. (f).)
The People contend that section 4019, subdivision (e) — which states that
no conduct credit is available unless an individual is committed for a period of at
least six days — constitutes a practical recognition that an individual would not
have time to earn credit under subdivisions (b) and (c) before spending six days in
confinement. The People also argue that the term ―earned‖ in subdivision (f)
constitutes a recognition that conduct credit is unavailable until six days in
confinement have passed. Not so. Subdivision (e), as addressed above, simply
establishes a minimum threshold of commitment duration before the statute is
applicable. Subdivisions (b) and (c) do not establish a threshold; rather, as
defendant suggests, those subdivisions explain how conduct credits may be earned
and at what rate. Subdivision (f) clarifies that conduct credit, if earned, is to be
awarded based upon four days of confinement, not six days (otherwise the
subdivision would have provided that ―a term of [eight] days will be deemed to
have been served for every [six] days spent in actual custody‖).
The People‘s proposed interpretation of section 4019, subdivisions (b) and
(c), is also inconsistent with our prior construction of the statute. In People v.
Cooper, supra, we noted that ―[d]efendants detained in a county jail, or other
equivalent specified facility, ‗prior to the imposition of sentence,‘ may also be
eligible for presentence [conduct] credits . . . of up to two days for every four days
of actual custody.‖ (People v. Cooper, supra, 27 Cal.4th at p. 40; see also In re
Martinez (2003) 30 Cal.4th 29, 34 [―A nonviolent offender may receive a credit up
to 50 percent of her actual presentence confinement. (§ 4019.)‖].) In People v.
9
Smith (1989) 211 Cal.App.3d 523, 527, the Court of Appeal held that under
section 4019, ―[c]redits are given in increments of four days. No credit is awarded
for anything less.‖ In In re Marquez (2003) 30 Cal.4th 14, 26, we noted that
― ‗[o]ther courts have adopted the [People v.] Smith approach to the calculation of
credits.‘ (People v. Fabela (1993) 12 Cal.App.4th 1661, 1664 [citations].) We do
as well.‖ We see no reason to depart from our prior interpretation of section 4019.
We conclude that defendant was entitled to conduct credit based upon the
five days he spent in presentence custody, and that the trial court erred when it
awarded credit only for actual time served, but did not award conduct credit.
When a defendant is committed for six or more days, he or she is entitled to
presentence conduct credit for every four days spent in confinement. Here,
because defendant had served five days of actual custody and was committed for a
period of six or more days, the trial court should have awarded defendant five days
actual custody credit, plus two days of conduct credit.
Conclusion
The judgment of the Court of Appeal is reversed.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
10
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Dieck
__________________________________________________________________________________
Unpublished Opinion
XXX NP opn. filed 10/4/07 – 3d Dist.Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S158076Date Filed: June 25, 2009
__________________________________________________________________________________
Court:
SuperiorCounty: Trinity
Judge: James P. Woodward
__________________________________________________________________________________
Attorneys for Appellant:
Gary E. McCurdy, under appointment by the Supreme Court, and William Davies, under appointment bythe Court of Appeal, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, ChiefAssistant Attorneys General, Donald E. de Nicola, Deputy State Solicitor General, Michael P. Farrell,
Assistant Attorney General, Janis Shank McLean, Jane N. Kirkland, David A. Rhodes, Janet E. Neeley and
Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
11
Counsel who argued in Supreme Court (not intended for publication with opinion):
Gary E. McCurdyCentral California Appellate Program
2407 J Street, Suite 301
Sacramento, CA 95816
(916) 441-3792
Paul A. Bernardino
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 323-1977
12
Petition for review after the Court of Appeal affirmed a judgment of conviction of criminal offenses. This case presents the following issue: Was defendant entitled to seven days of presentence credits for the five days he spent in jail prior to sentencing (see Pen. Code, section 4019, subd. (f) ["a term of six days will be deemed to have been served for every four days spent in actual custody"]) or only five days (see Pen. Code, ? 4019, subd. (e) ["No deduction may be made under this section unless the person is committed for a period of six days or longer"])?
| Date: | Citation: | Docket Number: | Category: | Status: |
| Thu, 06/25/2009 | 46 Cal. 4th 934, 209 P.3d 623, 95 Cal. Rptr. 3d 408 | S158076 | Review - Criminal Appeal | closed; remittitur issued |
| 1 | The People (Plaintiff and Respondent) Represented by Paul Arvin Bernardino Office of the Attorney General 1300 "I" Street Sacramento, CA |
| 2 | Dieck, Ronald William (Defendant and Appellant) P. O. Box 622 Hayfork, CA 96041 Represented by William A. Davies Central California Appellate Program 2407 "J" Street, Suite 301 Sacramento, CA |
| 3 | Dieck, Ronald William (Defendant and Appellant) P. O. Box 622 Hayfork, CA 96041 Represented by Gary E. McCurdy Central California Appellate Program 2407 "J" Street, Suite 301 Sacramento, CA |
| Opinion Authors | |
| Opinion | Justice Carlos R. Moreno |
| Disposition | |
| Jun 25 2009 | Opinion: Reversed |
| Dockets | |
| Nov 7 2007 | Petition for review filed Roland W. Dieck, appellant William Davies, counsel |
| Nov 9 2007 | Received Court of Appeal record one doghouse |
| Jan 3 2008 | Petition for review granted (criminal case) Votes: George, C.J., Kennard, Moreno and Corrigan, JJ. Werdegar, J., was absent and did not participate. |
| Jan 17 2008 | Change of contact information filed for: Roland W. Dieck, appellant William Davies, counsel |
| Feb 5 2008 | Counsel appointment order filed Upon request of appellant for appointment of counsel, the Central California Appellate Program is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order. |
| Mar 6 2008 | Opening brief on the merits filed Roland W. Dieck, appellant Gary E. McCurdy, counsel |
| Mar 6 2008 | Request for judicial notice filed (granted case) Roland W. Dieck, appellant Gary E. McCurdy, counsel |
| Apr 3 2008 | Request for extension of time filed 30-days until May 6, 2008, to serve and file respondent's answer brief on the merits The People, respondent Paul A. Bernardino, Deputy Attorney General |
| Apr 7 2008 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file the respondent's answer brief on the merits is extended to and including May 6, 2008. |
| Apr 22 2008 | Motion to dismiss filed (non-AA) The People, respondent Paul A. Bernardino, Deputy Attorney General |
| Apr 25 2008 | Opposition filed to respondent's motion for dismissal Roland W. Dieck, appellant Gary E. McCurdy, counsel |
| Apr 30 2008 | Motion denied Respondent's Motion to Dismiss is denied. On application of respondent and good cause appearing, it is ordered that the time to serve and file the respondent's answer brief on the merits is extended to and including May 30, 2008. |
| May 30 2008 | Answer brief on the merits filed The People, respondent Paul A. Bernardino, Deputy Attorney General |
| May 30 2008 | Request for judicial notice filed (granted case) The People, respondent Paul A. Bernardino, Deputy Attorney General |
| Jun 17 2008 | Received: Appellant's oversized reply brief on the merits. |
| Jun 17 2008 | Application to file over-length brief filed Roland William Dieck, Appellant by Gary E. McCurdy, counsel |
| Jun 18 2008 | Compensation awarded counsel Atty McCurdy - Central California Appellate Program |
| Jun 25 2008 | Application to file over-length brief granted The application of appellant for permission to file the reply brief on the merits in excess of the 4,200 word limitation is hereby granted. |
| Jun 25 2008 | Reply brief filed (case fully briefed) Ronald William Dieck, Appellant by Gary E. McCurdy, counsel |
| Sep 4 2008 | Received: letter from counsel for appellant dated September 3, 2008, to inform the court that counsel will be unavailable from October 24, 2008 - October 31, 2008. |
| Apr 1 2009 | Case ordered on calendar to be argued Wednesday, May 6, 2009, at 1:30 p.m., in San Francisco |
| May 5 2009 | Request for judicial notice granted Appellant's request for judicial notice, filed on March 6, 2008, is granted. Respondents request for judicial notice, filed on May 30, 2008, is granted. |
| May 6 2009 | Cause argued and submitted |
| Jun 24 2009 | Notice of forthcoming opinion posted |
| Jun 25 2009 | Opinion filed: Judgment reversed Majority Opinion by Moreno, J. ----- Joined by George, C. J., Kennard, Baxter, Werdegar, Chin and Corrigan, JJ. |
| Aug 6 2009 | Remittitur issued |
| Aug 13 2009 | Compensation awarded counsel Atty McCurdy - Central California Appellate Program |
| Aug 14 2009 | Received: Receipt for remittitur |
| Briefs | |
| Mar 6 2008 | Opening brief on the merits filed Roland W. Dieck, appellant Gary E. McCurdy, counsel |
| May 30 2008 | Answer brief on the merits filed The People, respondent Paul A. Bernardino, Deputy Attorney General |
| Jun 25 2008 | Reply brief filed (case fully briefed) Ronald William Dieck, Appellant by Gary E. McCurdy, counsel |
| May 28, 2011 Annotated by elaheh | Opinion written by Justice Moreno Issue: Conclusion: Background: Analysis: |
| May 29, 2010 Annotated by lconniff | Justice Moreno authored the opinion. Chief Justice George and Justices Kennard, Baxter, Werdeger, Chin, and Corrigan concurred. The defendant pled nolo contendere to felony receipt of stolen property and possession of concentrated cannabis. He was sentenced to state prison for two years and eight months, but his sentence was suspended, and he was placed on probation for five years on condition that he serve 365 days in county jail, with credit for the five days he had already spent in presentence confinement. Defendant appealed, arguing that he should have received credit for seven days, including two days of conduct credit. The Court of Appeal rejected his argument, holding that six days of presentence custody were required in order to receive conduct credit. The California Supreme Court agreed. It concluded that defendant was entitled to two days of conduct credit conduct credit based on the five days he spent in presentence custody. Section 4019 of the Penal Code describes two types of conduct credit available to prisoners “confined in or committed to” county or city jails. Subdivision (b) provides that “for each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless . . . the prisoner has refused to satisfactorily perform labor as assigned . . . .” Subdivision (c) requires that, “[f]or each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted” from each six-day period of confinement. Finally, subdivision (f) provides that subdivisions (b) and (c) should be read together to provide a total of two days of conduct credit for every four days of incarceration. The court determined that “[p]roper interpretation of section 4019 rests on the difference between the terms ‘committed’ and ‘confined.’” The defendant isn’t entitled to conduct credit unless he or she is committed for a period of six days or longer, which means time in jail, prison, or another type of confinement for a sentence, probation condition, or judgment of imprisonment. The provision thus does not require that a person spend six days in custody prior to sentencing. Given that interpretation, the court determined that defendant deserved conduct credit based on the five days he spend in presentence custody, and his commitment of more than six days. |
