Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 51011451
Richman, J.
Defendant Emilio Torres appeals solely on the basis that he was improperly denied presentence conduct credits under Penal Code section 4019. The parties appear to agree he was entitled to such credits and merely quibble about whether the court’s “order clarifying credits” in fact clarified his entitlement to and awarded such credits. We conclude that it did, and thus affirm the judgment.
On February 14, 2011, pursuant to a no contest plea, defendant was convicted of violating Health and Safety Code section 11350, subdivision (a), possession of heroin, based on conduct occurring on March 5, 2010. The court suspended imposition of sentence and placed defendant on probation conditioned on service of 60 days in county jail and granted him 17 days of actual presentence custody credit. (Pen. Code, § 2900.5.) He filed a notice of appeal the next day.
On September 14, 2011, the trial court issued an order clarifying the presentence credits to which he was entitled: “Defendant has requested a ‘corrected’ minute order reflecting the good time credit and work time custody credits awarded to defendant under Penal Code sections 4019 and 2933 at the time of sentencing on February 14, 2011, and anticipated to be awarded after the time of sentencing. At the time of sentencing defendant was awarded 17 days of actual credit. He was entitled at that time to an additional 17 days of Penal Code section 4019 and 2933 [credit], which would be calculated, along with any credits accrued thereafter, by the Detention Facility in determining his release date. In clarifying the process for applying these credits, this Court does not opine on the propriety of, or award, concurrent time for any other offense for which the defendant may be serving time on other cases or in other counties.”
Defendant concedes the court thereby “acknowledged that [defendant] is entitled to conduct credits in addition to the 17 days of actual credits it awarded at [defendant’s] sentencing.” However, he contends “the sentencing court has indicated that it is not its responsibility to calculate and award such credits. Rather, the court is leaving the determination of [defendant’s] pre-sentence conduct credit to the ‘Detention Facility.’ ”
The Attorney General argues defendant was actually entitled to only 16 days of conduct credit under the version of Penal Code section 4019 in effect at the time of defendant’s offense, but simply requests that the judgment be affirmed. He argues the “order clarifying credits” did effectively award defendant credits under Penal Code section 4019.
A criminal defendant is entitled to accrue both actual presentence custody credits under Penal Code section 2900.5 and conduct credits under Penal Code section 4019 for the period of incarceration prior to sentencing. The court is charged with awarding such credits at the time of sentencing. (Pen. Code, § 2900.5, subd. (a).)
Up to January 25, 2010, conduct credits under Penal Code section 4019 could be accrued at the rate of six days for every four days of actual time served in presentence custody. Effective January 25, 2010, defendants could accrue custody credits at the rate of four days for every two days actually served. (Stats. 2009-2010, 3d Ex.Sess., ch. 28, § 50 [former Penal Code § 4019, subd. (f)].) There seems to be no dispute that the court’s clarifying order calculated credits at the more generous rate, and in fact granted defendant one more day of conduct credit than he had earned.
We agree with the Attorney General that the court’s statement that defendant was “entitled” “to an additional 17 days of Penal Code section 4019 and 2933 [credit]” at the time of sentencing constituted a calculation and retroactive award of conduct credits under Penal Code section 4019. The court’s additional observation that such credits “would be calculated, along with any credits accrued thereafter, by the Detention Facility” does not appear to be an attempt to shift to the jail responsibility for calculating the credits, but rather an expression of confidence that the error would have been caught by the officials where defendant was detained.
Whether defendant actually received these credits in the calculation of his release date from jail cannot be determined from the record on appeal. In any case, as the Attorney General notes, that issue is probably moot because defendant most likely has already served his entire 60-day jail sentence. In the event his probation is later revoked and he is committed to additional time in custody, we believe the “order clarifying credits” will sufficiently inform the court for the purpose of calculating the credits to which he would―upon that hypothetical occurrence―be entitled. We see no reason to intervene further.
The judgment is affirmed.
We concur: Kline, P.J. Haerle, J.