Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV037061, Katrina West, Judge.
Beatrice C. Tillman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King J.
The court below found defendant in violation of several conditions of his probation and sentenced him to two years’ imprisonment. The court awarded defendant a total of 398 days of presentence custody credits, composed of 266 days actual and 132 days conduct. Defendant contends the court failed to award him an additional three days actual and two days conduct credits to which he was entitled. The People concede the issue. We disagree. While the court did fail to award defendant the entirety of the custody credits to which he was entitled for his confinement upon arrest for his probation violation, the court awarded defendant the proper amount of credits based on his postsentencing, preprobation violation confinement. Thus, as calculated below, we direct the court to correct the minute order and abstract of judgment to reflect the award of an additional two days actual and two days conduct credits.
I. FACTS AND PROCEDURAL BACKGROUND
The victim of an automobile theft called the police when a friend located his stolen vehicle. An officer arrived and found the vehicle with the help of the victim. The driver of the vehicle drove off. The officer followed the vehicle, pulled in behind it as it parked, and held the driver at gunpoint. The driver was identified as defendant.
The People charged defendant with unlawful driving or taking of a vehicle (count 1—Veh. Code, § 10851, subd. (a)) and alleged a corresponding gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(A)). Defendant pled guilty to count 1 and the attached enhancement was dismissed. In return, defendant received probation with various terms and conditions, including 365 days in jail and a gang registration requirement.
Defendant was released from jail on October 18, 2006, and had an initial contact meeting with his probation officer on October 23, 2006. During that meeting, the probation officer reviewed all the terms of defendant’s probation with him, including the gang registration requirement. Defendant failed thereafter to provide his probation officer with proof that he had registered as a gang member. Defendant kept several appointments with his probation officer, but missed two. On April 26, 2007, officers conducted a probation search of defendant’s last known address because defendant had not been heard from for several months. Defendant’s mother informed the officer that she had evicted defendant due to finding drugs amongst his possessions.
On May 23, 2007, defendant’s mother flagged down a probation officer’s vehicle to inform the officer that defendant was asleep on her couch. Defendant was arrested and found to lack a copy of the terms and conditions of his probation on his person as required by term 22. In a subsequent interview with defendant, he admitted to living on the streets and using methamphetamine on a daily basis.
At the contested probation revocation hearing on June 15, 2007, defendant took the stand and admitted to using methamphetamine on a daily basis. Defendant testified that he did register as a gang member with the Ontario Police Department. Defendant admitted he did not have a copy of the terms and conditions of his probation on him when he was arrested. Defendant testified that he left several messages with his probation officer, but did not receive a return call. He also testified he appeared at the probation office on April 30, 2007, but was told his probation officer was not in.
The court found defendant in violation of four terms of his probation: term 3 requiring that he report to probation every 14 days or as directed; term 10 requiring that he neither use nor possess controlled substances; term 22 requiring that he carry a copy of the terms and conditions of his probation on his person at all times; and term 25 requiring that he register as a gang member. The court revoked defendant’s probation and imposed the midterm of two years’ incarceration for the underlying offense.
The court awarded defendant an aggregate of 398 days custody credits, consisting of 266 days actual and 132 days conduct. The court’s award of credits was based, in part, upon the supplemental probation officer’s report which reflects that defendant was initially arrested on February 17, 2006, and remained in custody until October 18, 2006, for a total of 244 days of actual custody. In addition, defendant’s subsequent arrest occurred on May 23, 2007, and defendant remained in custody on June 5, 2007, the date the supplemental probation officer’s report was prepared, for an additional 14 days of actual custody credits. Thus, the probation officer recommended the award of an aggregate of 386 days of credits, consisting of 258 days actual and 128 days conduct. The court reiterated this determination; however, defense counsel noted that “at this point it’s 266 plus 132 for 398.” The People concurred. The court awarded defendant custody credits commensurate with defense counsel’s calculation. Defendant later requested correction of the court’s award of presentence custody credits to include the additional days he asserts entitlement to on appeal. That request was denied.
II. DISCUSSION
“It is presumed the Legislature intended to treat any partial day as a whole day. [Citation.] Conduct credits shall be computed on the full period of custody commencing with the day of arrest. [Citation.] Therefore, a sentencing court must award credits for all days in custody up to and including the day of sentencing. [Citation.]” (People v. Bravo (1990) 219 Cal.App.3d 729, 735; see also People v. Smith (1989) 211 Cal.App.3d 523, 525-527; Pen. Code, § 4019, subd. (a)(1).)
Defendant contends the court erred in awarding defendant 244 days of actual custody credits for his period of confinement between his original arrest date of February 17, 2006, and his release date of October 18, 2006. He maintains the award of actual conduct credits for this period of confinement should have been 245 days. The People concur. We believe both parties are incorrect. Including the date of defendant’s initial arrest and the date of his release, the total number of days defendant originally spent confined was 244. Thus, the court correctly awarded defendant 244 days of actual credits for the time he initially served.
Nevertheless, defendant also avers that the court failed to award him an additional two days actual and two days conduct credits for his period of confinement between his arrest on May 23, 2007, on his probation violation, and June 15, 2007, the date of his sentencing. The People concede this matter as well. Defendant is correct. The supplemental probation officer’s report, prepared on June 5, 2007, noted that defendant was, as of that date, entitled to an additional 14 days of actual custody credits due to his confinement on the probation violation. Thus, it added those 14 days to the 244 days previously earned, for a recommended total award of 258 days actual custody credits. However, defendant was not sentenced until June 15, 2007; thus, he was entitled to an additional 10 days of actual custody credits. This would be an aggregate award of 268 days of actual custody credits. Thus, defendant is entitled to an additional two days of actual custody credits than that awarded by the court. There is simply no accounting for defense counsel’s assertion that defendant was only entitled to 266 days of actual credits.
“‘Penal Code section 4019, specifies how prisoners may obtain certain credits. Subdivisions (b) and (c) of that section provide: “for each six-day period in which a prisoner is confined in or committed to a specified facility” one day shall be deducted from his period of confinement for performing labors, and one day shall be deducted for compliance with the rules and regulations of the facility. Subdivision (f) of that section provides “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.” (Italics added.)’ [Citation.] [¶] The correct amount of credit is calculated by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody. [Citation.]” (People v. Fry (1993) 19 Cal.App.4th 1334, 1340-1341; see also People v. Philpot (2004) 122 Cal.App.4th 893, 908.)
Here, whether defendant’s conduct credits are computed separately based on his separate periods of confinement or in the aggregate, the result is the same: defendant is entitled to 134 days of conduct credits based on his periods of confinement prior to being sentenced to prison. As computed separately, defendant’s initial period of confinement was 244 days of actual custody, divided by four equals 61, multiplied by two equals 122 days. Defendant’s subsequent period of confinement was 24 days of actual custody, divided by four equals six, multiplied by two equals 12. Twelve plus 122 equals 134. As computed in the aggregate, defendant’s total number of actual days of custody prior to sentencing amounted to 268, divided by four equals 67, multiplied by two equals 134. Thus, defendant is entitled to 134 days of conduct credits. This is two more days of conduct credits than that awarded by the court below. Again, there is simply no accounting for defense counsel’s claim below that defendant was entitled to only 132 days of conduct credits.
III. DISPOSTION
The judgment is affirmed. The trial court is directed to correct the minute order dated June 15, 2007, and the abstract of judgment to reflect an aggregate award of 402 days of presentence custody credits, consisting of 268 days actual and 134 days conduct. The trial court is directed to deliver a certified copy of the corrected minute order and abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: McKinster Acting P.J., Miller J.