People v. Lister CA4/1

California Court of Appeal · D068196 · 2016-05-04 · Unpublished

Proceeding: appeal from a judgments and an order
Trial court: Superior Court of San Diego County · No. SCD256756
Trial judge: Joseph P. Brannigan
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Patricia D. Benke (author), Alex C. McDonald, Cynthia Aaron

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:50Z · confidence high

The trial court denied the defendant's motion to correct presentence custody credits, determining that 39 days of custody served in a separate case prior to the commission of the current offenses could not be credited toward the current sentence. The Court of Appeal affirmed, holding that under Penal Code section 2900.5, credit is only attributable to proceedings related to the same conduct for which the defendant was convicted.

Ruling reviewed	Standard	The court	The model
Denial of defendant's motion to correct presentence custody credits in Case No. SCD257936 “In review, the 39 days in question in the instant Motion to Correct Calculation of Presentence Custody Credits were properly applied to Case SCD256756. The request to apply these custody credits to Case SCD257936, which pre-date the offenses charged in that case, is not permitted.”	de novo	correct	agree with court The appellate court correctly applied the statutory requirement that custody credits must be attributable to the same conduct as the conviction. The trial court's factual finding that the 39 days predated the offenses in the current case was supported by the record, and the legal conclusion that such credits cannot be applied to a different case is consistent with Penal Code section 2900.5, subdivision (b).

Authorities

relied: People v. Smith (1989) 211 Cal.App.3d 523 — Penal Code section 2900.5 presumes the Legislature intended to treat any partial day as a whole day for credit purposes.
relied: People v. Whitaker (2015) 238 Cal.App.4th 1354 — Under Penal Code section 4019, a defendant must actually serve two days in custody to be entitled to two additional days of conduct credit; an odd number of days does not yield an additional single day of conduct credit.

The appellate opinion: sound — The opinion is sound because it correctly identifies the controlling statutory provision (Penal Code section 2900.5, subd. (b)) that limits credit to custody attributable to the same conduct as the conviction. The court properly distinguishes the custody periods based on the dates of the offenses, resolving the defendant's argument that the credits were miscalculated.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence medium

The trial court sentenced defendant in two cases on May 22, 2015, awarding 301 days of presentence credit in case No. SCD256756 and 224 days in case No. SCD257936, and on December 28, 2015 denied his motion to add 39 days of custody (May 18–June 27, 2014) to case No. 936 because that custody predated the offenses in that case. The Court of Appeal reviewed the December 28 order, held the credits were correctly calculated under Penal Code sections 2900.5 and 4019, and affirmed the judgments and the order.

Ruling reviewed	Standard	The court	The model
Denial of defendant's motion to correct presentence custody credits in case No. SCD257936 (refusal to credit 39 days of custody served May 18–June 27, 2014, which predated the August 11, 2014 offenses in that case), leaving the award at 112 actual days plus 112 conduct days (224 total). “we conclude the trial court in case No. 936 properly awarded defendant 112 actual days of custody credit under section 2900.5 and 112 days of custody credit under section 4019, for a total of 224 days of credit.”	unclear	correct	agree with court Section 2900.5, subdivision (b) limits credit to custody attributable to proceedings related to the same conduct for which the defendant was convicted. Custody served in May–June 2014 on case No. 756 cannot be attributable to offenses committed on August 11, 2014, so the 39 days were properly allocated only to case No. 756, where they were in fact credited. The 112 actual days in case No. 936 (4+79+29) is an even number, so 112 conduct days under section 4019's two-for-two formula as explained in Whitaker is correct. The opinion does not state a standard of review, but the question is one of statutory application on undisputed dates and the result follows from the statute.

Authorities

relied: People v. Smith (1989) 211 Cal.App.3d 523 — Because section 2900.5 speaks in days rather than hours, any partial day in custody is treated as a whole day of credit.
relied: People v. Whitaker (2015) 238 Cal.App.4th 1354 — Under section 4019, a defendant must actually serve two days in custody to earn two days of conduct credit; a defendant serving an odd number of days gets no additional single day of conduct credit for the final day.
missed: People v. Bruner (1995) 9 Cal.4th 1178 — Under section 2900.5, subdivision (b), a defendant seeking credit against a sentence for presentence custody must show that the custody was attributable to the proceedings on the same conduct; the leading Supreme Court authority on attribution and dual-credit limits, not cited though directly supportive of the result.

The appellate opinion: sound with gaps — The opinion correctly applies section 2900.5(b) to hold that custody predating the charged offenses cannot be credited against the sentence in that case, and confirms the arithmetic of the actual and conduct credits with the statute and Whitaker. It omits a stated standard of review and does not cite the controlling Supreme Court authority on attribution under section 2900.5(b) (Bruner), but the result does not depend on either gap.

How this analysis was made · dispute it

Opinion

Filed 5/4/16 P. v. Lister CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D068196

Plaintiff and Respondent, v. (Super. Ct. No. SCD256756)

ABNER HAYNES LISTER,

Defendant and Appellant.

APPEAL from a judgments and an order of the Superior Court of San Diego County, Joseph P. Brannigan, Judge. Affirmed.

Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G.

McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent. OVERVIEW After filing notices of appeal and amended notices of appeal in case Nos.

SCD256756 (hereafter 756) and SCD257936 (hereafter 936), defendant and appellant Abner Haynes Lister on September 21, 2015 moved in the trial court to correct his award of presentence custody credits. Defendant in his November 16, 2015 opening brief to this court addressed this issue, and only this issue, in connection with both of his appeals.

On December 28, 2015, the trial court issued a detailed three-page order denying defendant additional custody credits. (The December 28 order is included as a supplement in the appellate record.) The People in its February 22, 2016 respondent's brief relied on the court's December 28 order in arguing the trial court properly determined defendant's presentence custody credits in case Nos. 756 and 936. Defendant did not file a reply brief in response to the People's respondent's brief or otherwise seek to file a supplemental brief addressing that order. We nonetheless reviewed the December 28 order and now conclude the court properly calculated defendant's presentence custody credits.

DISCUSSION

A. Additional Background In its December 28 order, the court reviewed the procedural history of case Nos.

756 and 936 and addressed the issue of presentence credits as follows:

"On May 22, 2015, in Case No. SCD257936, Petitioner [i.e., defendant] was committed to the custody of the San Diego County Sheriff for the term of 5 years, with execution of the concluding 2 years suspended and deemed a period of mandatory 2 supervision per Penal Code section 1170(h). Petitioner was further awarded 112 actual days and 112 days local conduct credit, for a total of 224 days pre-sentence credit.

"That same date, in Case No. SCD256756, the court terminated Petitioner's probation, reduced the charge to a misdemeanor pursuant to Prop 47, committed Petitioner to the Sheriff for 301 days, and awarded Petitioner 151 actual days and 150 days local conduct credit, for a total of 301 days pre-sentence credit.

"On June 2, 2015, in case SCD256756, Petitioner filed a motion for appeal.

Petitioner filed an amended Notice of Appeal in case SCD256756 on June 9, 2015. On June 12, 2015, Petitioner filed a Notice of Appeal in case SCD257936. Petitioner's appeal[s] [are] currently pending in [this court] (Case No. D068196[]).

"Petitioner has now filed the instant request in this court, for correction of his presentence credit. Specifically, Petitioner claims he is entitled to 151 actual days of credit and 150 days of local conduct credit, for a total of 301 days pre-sentence credit in Case No. SCD257936. Petitioner contends the court failed to credit him for 39 actual days of credit between May 18, 2014 and June 27, 2014, and, thus, that he should receive 151 actual days and 150 days of local conduct credit, as opposed to the 112 actual days and 112 days of local conduct credit awarded by the court.

"Petitioner's request is denied.

"In reviewing the minutes of the court and the probation reports related thereto, the court reiterates the calculation of custody credits as follows:

"SCD256756 Custody Data:

"Date Confined Date Released Custody Days "5/18/2014 6/27/2014 41 3 "8/14/2014 8/15/2014 2 "11/27/2014 2/13/2015 79 "4/24/2015 5/22/2015 29 "Actual Days 151 "PC4019 (2:2) 150 "Total Credit 301 "Per the sentencing After Revocation Hearing minutes of May 22, 2015, Petitioner was credited with 151 days local time and 150 days conduct credit per Penal Code section 4019 (2:2), for a total of 301 days.

"SCD257936 Custody Data:

"Date Confined Date Released Custody Days "8/12/2014 8/15/2014 4 "11/27/2014 2/13/2015 79 "4/24/2015 5/22/2015 29 "Actual Days 112 "PC4019 (2:2) 112 "Total Credit 224 "Per the Probation Hearing and Sentencing minutes of May 22, 2015, Petitioner was credited with 112 days local time and 112 days conduct credit per Penal Code section 4019 (2:2), for a total of 224 days.

"In review, the 39 days in question in the instant Motion to Correct Calculation of Presentence Custody Credits were properly applied to Case SCD256756. The request to 4 apply these custody credits to Case SCD257936, which pre-date the offenses charged in that case, is not permitted.

"The Court finds the allocation of credits to be accurate as ordered at the time of sentencing. Therefore, Petitioner's request is denied."

B. Analysis Under Penal Code1 section 2900.5, a criminal defendant is entitled to credit for each day he or she spends in custody, including partial days. (See People v. Smith (1989)

211 Cal.App.3d 523, 526 [noting that "[s]ince section 2900.5 speaks in terms of 'days' instead of 'hours,' it is presumed the Legislature intended to treat any partial day as a whole day"].) A criminal defendant also may earn additional presentence credit, otherwise known as "conduct credits," against his or her sentence under section 4019.

Subdivision (f) of section 40192 provides: "It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody."

As we noted in People v. Whitaker (2015) 238 Cal.App.4th 1354, 1356 (Whitaker), the two days of presentence conduct credit authorized by subdivision (f) of section 4019 are the "sum" of the one day of credits set forth in subdivisions (b) and (c)

of section 4019. (Whitaker, at p. 1358, fn. 3.) As we also noted in Whitaker, section 4019 "thus requires that a defendant actually serve two days in custody before he or she will be entitled to two additional days of conduct credit. A defendant who serves an odd 1 All further statutory references are to the Penal Code.

2 Section 4019 was amended effective January 1, 2015 (stats. 2014, ch. 612, § 6); the amendment has no bearing on this analysis. 5 number of days is not entitled to an additional single day of conduct credit for his or her final day of actual custody." (Whitaker, at p. 1358.)

Here, the record shows defendant committed the offenses in case No. 936 on August 11, 2014. As the trial court properly recognized, defendant therefore was not entitled to receive credit for the time he served in custody in case No. 756 between May 18, 2014 and June 27, 2014, which predated the offenses in case No. 936. (See § 2900.5, subd. (b) [providing that "credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted"].) As such, we conclude the trial court in case No. 936 properly awarded defendant 112 actual days of custody credit under section 2900.5 and 112 days of custody credit under section 4019, for a total of 224 days of credit.

DISPOSITION

The judgments of conviction and the court's December 28, 2015 order are affirmed.

BENKE, Acting P. J.

WE CONCUR:

McDONALD, J.

AARON, J.

Cites, in this corpus

People v. Whitaker D065729 · 2015-07-29
People v. Smith C004293 · 1989-06-13