Credits Revisited 2021:

An Update

by William M. Robinson, Senior Staff Attorney,

Sixth District Appellate Program

for the 2021 Virtual SDAP Seminar

TABLE OF CONTENTS

Introduction.	1

I.	BASICS: PRESENTENCE AND PRISON CREDITS	3

A.	Presentence Credits	3

1.	Basic Rules for Garden Variety Felonies and Custody	3

a.	Actual Credits	3

b.	Conduct Credits, Odds & Evens.	4

2.	Exceptions and Limitations on Presentence Credits	6

a.	When It Isn't Custody.	6

b.	When Behavior Credit is Unavailable or Restricted.	8

i.	Equal Protection Challenges to Restrictions Involving Home Detention and Competency Treatment.	9

ii.	Restrictions on Presentence and Postconviction Credits Based on the Nature of the Crime Committed.	11

(a)	Section 2933.1	12

(b)	Other Statutes Eliminating Behavior Credits

14

c.	The Minefield of "Mixed Conduct" Custody Situations	15

i.	Exceptions to the Bruner "Strict Causation" Rule

17

(a)	The Williams Exception: Transactionally Related Conduct.	17

(b)	The Marquez Exception: Dismissed Unrelated Charges	20

TABLE OF CONTENTS (cont.)

ii.	The Bruner Strict Causation Rule Applied: Strategies for Winning Credits	22

(a)	First, Get the Parole Records	23

(b)	Is There Really a Mixed Conduct Basis for the Revocation?	24

(c)	Was Prison Time Really Imposed Because of the Mixed Conduct?	24

(d)	Can You Demonstrate That Part of the Parole Revocation Sentence Imposed Was Strictly Caused by the New Criminal Conduct?	25

iii.	Rojas, "Term Serving Time," and a Couple of Arguable Exceptions	26

(a)	Jail Time in New Case Resulting in Prison Sentence Where There Was a Hold from the Current Case.	26

(b)	Prison Time Served After Scheduled Release Date Which Is Attributable to In-Prison Offense Leading to Current New Charges.	27

B.	Post-Conviction Credits	28

II.	PROCEDURAL NICETIES	32

A.	When an Issue Must be Raised First in Trial Court.	32

1.	Section 1237.1 and Case Law: If Credit Error Is the Only Issue Raised on Appeal, It Must First Be Presented to Trial Court by Motion.	33

2.	Requirement of Superior Court Motion Where You Need to Present Facts Beyond the Record on Appeal.	36

TABLE OF CONTENTS (cont.)

B.	Some Tips on the Nuts and Bolts of Bringing A Trial Court Credits Motion

.	37

1.	Obtaining Supporting Documents	37

2.	The Motion Itself	38

3.	Winning; and What to Do If You Lose: New Appeal Notice and Motion to Consolidate.	40

4.	Pre-Screening Credits Motion with SDAP Buddy.	41

III.	EX POST FACTO, ANYONE?	41

A.	Some Tricky 2933.1 Ex Post Facto Issues.	43

B.	Other Latent Ex Post Facto Issues?	45

C.	Don't Be Afraid to Go to Federal Court!	46

IV.	A WORD ON CREDIT WAIVERS: BAD NEWS, WITH A COUPLE POSSIBLE ISSUES.	47

V.	BANK ERROR IN YOUR FAVOR! TIME TO CONSIDER ABANDONING THE APPEAL.	50

CONCLUSION	52

Appendix: Prison Law Office Documents on Prison Credits and Parole Eligibility

TABLE OF AUTHORITIES

CASES

Apprendi v. New Jersey (2000) 530 U.S. 466	45

Calder v. Bull (1798) 3 Dall. 386	42

In re Atiles (1983) 33 Cal.3d 805	15,20

In re Cervera (2001) 24 Cal.4th 1073	30

In re Edwards (2018) 26 Cal.App.5th 1181	30,31

In re Huffman (1986) 42 Cal.3d 552	9

In re Joyner (1989) 48 Cal.3d 487	16,20

In re Lomax (1998) 66 Cal.App.4th 639	42

In re Marquez (2003) 30 Cal.4th 14	20,21,22,37

In re Martinez (2003) 30 Cal. 4th 29	31,32

In re Reeves (2005) 35 Cal.4th 765	13,14

In re Ricky H. (1981) 30 Cal. 3d 176.	9

In re Rojas (1979) 23 Cal.3d 152	26,27,28,41

In re Wolfenbarger (1977) 76 Cal.App.3d 201	7

Lynce v. Mathis (1997) 519 U.S. 433	42

McMillan v. Pennsylvania (1986) 477 U.S. 79	45

People v. Acosta (1996) 48 Cal.App.4th 411	34

People v. Adrian (1987) 191 Cal.App.3d 868	26

TABLE OF AUTHORITIES (CONTINUED)

People v. Ambrose (1992) 7 Cal.App.4th 1917	7

People v. Arnold (2004) 33 Cal.4th 294	48

People v. Baker (2002) 144 Cal.App.4th 1320	12,13,14

People v. Bruner (1995) 9 Cal.4th 1178

16,17,19,20,21,22,23,24,25,27,28

People v. Buckhalter (2001) 26 Cal.4th 20	31

People v. Busane (2019) 31 Cal.App.5th 327	15

People v. Callejas (2000) 85 Cal. App. 4th 667.	46

People v. Chew (1985) 172 Cal.App.3d 45	31

People v. Clavel (2002) 103 Cal.App.4th 516	36

People v. Culp (2002) 100 Cal.App.4th 1278.	6

People v. Dean (2009) 174 Cal.App.4th 186	11

People v. Donan (2004) 117 Cal.App. 4th 784	32

People v. Downey (2000) 82 Cal.App.4th 899	7,49,50

People v. Duesler (1988) 203 Cal.App.3d 273	6

People v. Duran (1998) 67 Cal.App.4th 267.	34

People v. Fares (1993) 16 Cal.App.4th 954	15,22,33,34,35,41

People v. Fugate (1990) 219 Cal.App.3d 1408	49

People v. Garcia (1987) 195 Cal.App.3d 191	9

People v. Gonzalez (2006) 138 Cal.App.4th 246	20,21,22

TABLE OF AUTHORITIES (CONTINUED)

People v. Hopkins (2010) 184 Cal.App.4th 615	27,28,41

People v. Howard (1997) 16 Cal. 4th 1081	50

People v. Hutchins (2001) 90 Cal.App.4th 1308	14

People v. Hyunh (1991) 229 Cal.App.3d 1067.	49

People v. Jacobs (1992) 6 Cal.App.4th 101	5,6

People v. Johnson (2002) 28 Cal.4th 1050	47

People v. Johnson (2004) 32 Cal. 4th 260.	31

People v. Landau (2016) 246 Cal.App.4th 850	11

People v. Lapaille (1993) 15 Cal.App.4th 1159.	9,10

People v. Lara (2012) 54 Cal.4th 896	1

People v. Lewis (1991) 229 Cal.App.3d 259	45

People v. Little (1993) 19 Cal.App.4th 449	34,38

People v. Lynn (1978) 87 Cal.App.3d 591	33

People v. McCary (1985) 166 Cal.App.3d 1	49

People v. Mobley (1983) 139 Cal.App. 3d 320	7

People v. Moore (1991) 226 Cal.App.3d 783	9

People v. Palacios (1997) 56 Cal.App.4th 252	45

People v. Pottorff (1996) 47 Cal.App.4th 1709	7

People v. Rajanayagam (2012) 211 Cal.App.4th 42	10

TABLE OF AUTHORITIES (CONTINUED)

People v. Ramos (1996) 50 Cal.App.4th 810	12,13,14,43,44

People v. Roa (2017) 11 Cal.App.5th 428	11

People v. Rodgers (1978) 79 Cal.App.3d 26	7

People v. Rodriguez (1999) 73 Cal.App.4th 1324	32

People v. Sage (1980) 26 Cal.3d 498	4,8,9,10,41

People v. Salazar (1994) 29 Cal.App.4th 1550	48

People v. Smith (1989) 211 Cal. App. 3d 523	4

People v. Thomas (1999) 21 Cal.4th 1122	30

People v. Thornburg (1998) 65 Cal.App.4th 1173	31

People v. Tran (2000) 78 Cal.App.4th 383	47

People v. Underwood (1984) 162 Cal.App.3d 420	33

People v. Waterman (1986) 42 Cal.3d 565	11

People v. Whitaker (2015) 238 Cal.App.4th 1354.	5

People v. Williams (1992) 10 Cal.App.4th 827	17,18,19,24,36

People v. Yanez (2019) 42 Cal.App.5th 91	9,10

Weaver v. Graham (1981) 450 U.S. 24	42,43

CONSTITUTIONS

California Constitution

Art. I, § 9	42

TABLE OF AUTHORITIES (CONTINUED)

United States Constitution

Art. I, §10	42

Fourteenth Amendment	45

STATUTES

Penal Code

§ 19.2	47

§ 288.5	45

§ 654	2

§ 667.5	12

§ 669	49

§ 1170	31,32

§ 1170.1	14

§ 1170.12	30

§ 1202.45	46

§ 1203.02	23

§ 1203.016	6,8

§ 1203.018	6

§ 1237	40

§ 1237.1	33,34,35,36,38

§ 1369.1	8

§ 2900.5.	3,6,8,15,26,47,51

§ 2930	28

§ 2933	29,32,44

§ 2933.1	passim

§ 2933.2	14,42

§ 2933.5	15

§ 3000.08	23

§ 4019	passim

§ 4024.2	8

MISCELLANEOUS

15 CCR § 2646.1	25

TABLE OF AUTHORITIES (CONTINUED)

California Rules of Court

Rule 4.420	45

Rule 8.1115	18

Mosk, "Nothing Succeeds Like Excess" (1993) 26 Loyola L.A. L.Rev. 981

12

CREDITS REVISITED 2021: AN UPDATE

William M. Robinson, SDAP Senior Staff Attorney, September 2021

Introduction

As Yogi Berra so aptly put it,"it's déjà vu all over again!" In 2003, I did an essay and presentation on credits for a SDAP seminar. Then I did a "Credits Redux" in 2009 with lots of updates, and even did a "Credits Quiz" contest at the SDAP seminar (the ringer Candace Hale, won the contest as I recall). In the next couple years, I took the credits show on the road and made presentations to various Public Defender offices.

Then, in 2010 and 2011 there were all kinds of changes in the law regarding presentence conduct credits, which I got very involved with in terms of litigating; but I stopped updating this article because it got too confusing, with the law seeming to change every six months; and then I lost People v. Lara (2012) 54 Cal.4th 896 in the California Supreme Court (which involved presentence conduct credits but was really about the "implied pleading and proof" requirement that I thought was in one version of amended section 4019 and the Supreme Court thought was not). So I took a break from credits to turn to lighter topics, like homicide and sex crimes.

Well, not really. I kept taking credits cases, and kept assisting panel attorneys with credits issues of all stripes. Of course, we lost most of these cases, but we won a few, unpublished, of course, some of which "proved the point" of various matters raised in my article. Which kind of gets me to a point I made in the Introduction to my second article, which still makes sense 12 years later. Now, like then, the credits landscape has changed. Since my last version of this article, it has altered in two big ways: doubling presentence conduct credits under section 4019, and improving post-convictions credits dramatically based on mandates from federal court supervision, Prop. 57, and more recently from COVID and CDCR-initiated changes. In addition, credits law has seen some other small but important reforms, such as the provision for credits for home detention periods, all of which will be discussed below.

However, it remains the case that with a subject, or set of issues like credits, it's not always the impact of published decisions or statutory changes, favorable or unfavorable, that makes for new and interesting credits issues. Credits are won (and lost) on the ground, often in trial courts, in no small part based on the ingenuity and chutzpah, on the one hand, or inattention and laziness, on the other, of trial and/or appellate counsel. A winning credits issues can sometimes emerge from less-than-obvious sources. It can start with a comment from the client or trial counsel – on the phone, in writing, or in an appeal notice – indicating that credits were, in his or her view, improperly denied. Many times, such complaints lead you only to an understanding of how the client or counsel didn't really understand the legitimate reason why credits were denied – e.g., the classic "mixed conduct" parole violation or "term-serving time." However, in plenty of situations, a winnable credits issue is there in waiting, provided that you figure out the factual predicates for such a claim, the legal arguments supporting it, and the correct, or most expeditious, means of seeking and obtaining credits.

Bear in mind that credits issues can provide your client with small, medium or large benefits in the form of actual reduction in confinement time. Here's two examples: One, which I presented in the rewrite 12 years ago, involved a successful credits claim involving two years of jail custody time, which definitely made a big difference to a client with a sentence in the range of ten years. Another, from just last year, involved a very complicated habeas claim challenging the propriety of a firearm enhancement, one of the upshots of which, when I astonishingly won the habeas in the Court of Appeal with the AG's office stipulating, was that the client's crime was no longer a violent felony, meaning that his recalculated presentence and postconviction credits led to his immediate release. When you compare this – or even a gain of several weeks of credits – to the pyrrhic victory of getting a concurrent sentence stayed under section 654, or a brilliant instructional issue where the court agrees with you on error but finds it harmless, or a reduction of 100 years from a 250 to life term, you will see that a credits win is well worth the effort.

What is more, credits claims aren't necessarily boring. In addition to sharpening up those dormant arithmetical skills, credits issues can sometimes involve dodgy, unsettled issues of statutory construction, and even constitutional questions such as equal protection and ex post facto. They can lead to published opinions, dissents, and maybe even a trip to the California Supreme Court or the Ninth Circuit.

The purpose of this second rewrite of my earlier credits article is to resummarize and update some basic and cutting edge issues involving presentence and postconviction credits, provide you with some tools and links to sample briefing for raising credits issues, and energize you, the appellate practitioner, on a set of issues we too often classify as drudgery.

I.	BASICS: PRESENTENCE AND PRISON CREDITS

A.	Presentence Credits

1.	Basic Rules for Garden Variety Felonies and Custody

a.	Actual Credits

A defendant is entitled to credits for each day of custody from the time of their arrest up to and including the date of their sentence, provided that the custody is "attributable to proceedings related to the same conduct for which the defendant has been convicted." (Pen. Code § 2900.5.)1 This latter phrase has been the source of confusion and judicial mischief for decades in those multi-faceted situations where custody can be said to be "attributable" to more than one cause, e.g., where a defendant has served time for more than one transactionally separate offense, or had his parole or probation revoked. More on this in a bit.

To start with, though, in the simple case of a single set of charges, a defendant gets credit for each day they were jailed pending trial in that offense prior to and including the date of sentence. Thus, for starters in every case, you should review the dates of custody as set forth in the probation report, and count them up carefully. You would be surprised how frequently there is – or at least was – an error in failing to count the first and last day, arithmetic miscalculations, especially of the number of days after the probation report is prepared, a failure to count that silly February 29th during leap years, etc. (Sometimes, as discussed below, there are errors in your client's favor, which can create a potential adverse consequence.)2

b.	Conduct Credits, Odds & Evens.

Since the landmark equal protection decision of the California Supreme Court in People v. Sage (1980) 26 Cal.3d 498, and the subsequent enactment of section 4019, a defendant, with some delimited exceptions, is also entitled to presentence conduct credits. Until around a decade ago, these credits were normally calculated on a "one for two" formula, or more precisely, two days credit for every four days served. This all changed around the time of Realignment, with the enactment, in a staggered series of amendments, of a more generous "one-for one" conduct credit scheme which allowed a person to serve out, for example, a 100 day sentence in 50 days.

For some foolish reason, starting with the old two-for-four statutory language, the courts interpreted these provisions literally, refusing to allow odd numbers of behavior credits to be awarded; thus, under the old scheme, if your client had 26 days of actual custody, he got only 12, and not 13, days of behavior credits under section 4019. (See, e.g., People v. Smith (1989) 211 Cal. App. 3d 523, 527.) You would think that with the switch to "one for one" credits, this bit of foolishness would go away. You'd be wrong. The good news is that the same client, with 26 days of actual credits, would get 26 days of conduct credits. But if they had served one more actual day, for a total of 27 days, they would still only get 26 days of conduct credits.

The mischief now comes from the extremely confusing statutory language of subdivisions (b) and (c) of section 4019, which, if you read them carefully, make it sound like you get one day of behavior credit, and one day of work credit for each four days you serve, which would mean, in any normal understanding, two days for each four days served; which, of course, is the old one-for-two system.3 However, you can disregard this confusing phraseology, which I can't even parse into meaning, because of the absolutely crystal clear provisions of subdivision (f), which states: "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." (§ 4019, subd. (f); see, e.g., People v. Whitaker (2015) 238 Cal.App.4th 1354.)

Unfortunately, (b), (c) & (f) still mean that we are stuck with the "even numbers conundrum," i.e., our poor fellow with 27 days of actual custody only gets 26 days of conduct credits. This makes no sense at all. I mean, I understand why if credits are one-
for-two, like in the old regime, you can't get a half days credit for 27 days, and you're stuck with 13 – I mean 12 [that part made no sense]. But how it is that the equal protection clause(s) don't require that a person get 27 days conduct credit for 27 days in custody is utterly befuddling. Prior equal protection challenges under the old order failed. See People v. Jacobs (1992) 6 Cal.App.4th 101, 103-104; and a challenge to this peculiar construction cased on "latent ambiguity" in the statute failed. (People v. Whitaker, supra, 238 Cal.App.4th 1354, passim.) The one unpublished decision I have found which rejected a one-for-one equal protection challenge did so on the basis that it agreed with Jacobs. (See People v. Loeza, 2015 Cal. App. Unpub. LEXIS 1373. But Loeza relies on the aforementioned indecipherable language of (b) & (c) that you get one day credit for each 4 days served, and on the assumption that odd-day credits would require awarding of half-days (for behavior and conduct). But that's really just an abstract construct. The way conduct credits have always worked is that the days are awarded unless the client really screws up. (See, e.g., People v. Duesler (1988) 203 Cal.App.3d 273, 275-277.) So, if you have no other issues in a case, talk to me, or your other project buddy, and maybe we can make our odd-days equal protection challenge, and get a published decision that's contrary to Loeza. I mean, fair is fair, right?

But for now, we still have the odd-number conundrum to deal with. On the bright side, though, behavior credits are calculated based on the aggregate total days of actual confinement, and not by compartmentalizing various discrete periods of jail time. (See, e.g., People v. Culp (2002) 100 Cal.App.4th 1278.) So, if the probation report indicates 3 days here, and 5 days there, your client will have 8 days, with 8 days of 4019 credits, not the 6 days of 4019 credits he would get if each time block were treated separately.

2.	Exceptions and Limitations on Presentence Credits

a.	When It Isn't Custody.

In order for presentence time to count towards a sentence, your client must be "in custody." (§ 2900.5, subd. (a).) Under the current version of the statute, "custody" entitling a defendant to actual days of credits is defined rather broadly as "including, but not limited to, any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution . . .", and as "including days served as a condition of probation in compliance with a court order, credited to the period of confinement pursuant to Section 4019, and [pursuant to a 2011 amendment in connection with Realignment] days served in home detention pursuant to Section 1203.016 or 1203.018. . . ."

Normally, when presentence jail time is involved, the question whether your client was "in custody" is a rather straightforward proposition. But there are some in-between situations where a defendant's liberty is restricted to some extent, but not quite enough, and a fair amount of case law, with sometimes confusing results, has come out of these situations. I will only give a few examples here.

Until the 2011 amendments, home detention or electronic monitoring was not considered "custodial" for purposes of earning presentence credits. (See People v. Pottorff (1996) 47 Cal.App.4th 1709, 1715-1717.) Participation in a live-in residential drug treatment program is subject to some confusing distinctions. It is considered "custodial" where a person is required to stay on the premises 24 hours a day, with restrictions on his or her liberty, even where the doors of the facility are not kept locked to prevent residents from leaving. (See, e.g., People v. Mobley (1983) 139 Cal.App. 3d 320, 323; People v. Rodgers (1978) 79 Cal.App.3d 26, 31-32 [describing Delancey Street as a halfway house]; In re Wolfenbarger (1977) 76 Cal.App.3d 201, 205-206; and People v. Downey (2000) 82 Cal.App.4th 899, 920-921.) However, residence in an alcohol treatment facility which functions mostly as a temporary home for recovering alcoholics, and which does not significantly restrict the freedom of the residents, is not considered custodial. (People v. Ambrose (1992) 7 Cal.App.4th 1917, 1922.)

Typically, drug treatment regimes involve two types of residential arrangements. Normally, during the first time period, the person resides full time in the program and receives direct treatment for a set number of days – 30, 60, or 90. In my experience, trial courts have no problem awarding credits for this time as "custodial" under cases like Mobley and Rodgers mentioned above. A more complicated question arises when, as often happens with drug treatment regimes spawned by the first Proposition 36, a defendant's probation requires them to reside in a "sober living" environment, where there are significant limits on the liberty of the resident, but not complete restrictions on the resident's ability to come and go. It is in this latter group where there is an unresolved legal question as to whether residency amounts to "custody." To be honest, we have lost this point in unpublished opinions by the Sixth District on the couple of occasions where it's been raised. I was counsel in one such case, Alosi, in which a strong argument was made that the restrictions on the resident's liberty were sufficiently severe that it should qualify as custody.

The key to making an argument that time in such a program is "custodial" is to emphasize the extent to which the restrictions on the defendant's liberty are substantial, i.e., where a resident is not permitted to leave except with permission, where he or she is required to participate in drug counseling and testing, and where the resident's contact with outsiders is significantly restricted. "Old but good" sample briefing is available from my Alosi case if this issue comes up.

b.	When Behavior Credit is Unavailable or Restricted.

For many years, there have been exceptions to the rule of Sage and section 4019 requiring credit for good behavior with respect to time that is considered "actual custody." On the obvious level of statutory language, the wording of section 4019 is much narrower than section 2900.5; however, on the bright side, the scope of section 4019 has expanded in two significant respects in recent years, as to home confinement and jail-based competency treatment. As presently worded, section 4019 allows a defendant to earn credits for time served while "confined in or committed to a county jail, industrial farm, or road camp, or any city jail, industrial farm, or road camp . . ." (§ 4019, subd. (a)(1)-(6), and also, pursuant to recent amendments, to a situation where a defendant "participates in a program pursuant to Section 1203.016 or Section 4024.2 [home detention] . . ." (§ 4019, subd. (a)(7)), and where a defendant "is confined in or committed to a county jail treatment facility, as defined in Section 1369.1 [for competency treatment] . . ." (§ 4019, subd. (a)(8).) We'll come back to these later two subjects in a moment for a couple of equal protection challenges, the first won already, and the second in the works.

But to start with, based on the limiting language of subdivision (a) (1)-(6), courts have rejected equal protection challenges and consistently held that 4019 behavior credits are not available for persons confined in most residential rehabilitation facilities (People v. Moore (1991) 226 Cal.App.3d 783), to mentally disordered sex offenders committed to a state hospital (In re Huffman (1986) 42 Cal.3d 552, 563), and, until the amendment under subdivision (a)(7) described above, to persons subject to restrictive forms of pretrial release. (People v. Lapaille (1993) 15 Cal.App.4th 1159.)

Likewise, similar credits are not awarded to juvenile offenders because the Legislature expressly excluded juvenile detainees from the language of section 4019, and did so in light of the rehabilitative purpose of the juvenile court law. (See In re Ricky H. (1981) 30 Cal. 3d 176.) However, there is an exception to this limitation where, after presentence conduct credit is initially denied because the initial commitment is to the former Youth Authority, defendant is is subsequently found unsuitable for YA (now, for the time being, DJF) treatment and the commitment is changed to state prison. (See People v. Garcia (1987) 195 Cal.App.3d 191 – which just happens to be my own first credits case and published win.) Not sure this will matter anymore, but I had to throw that in there.

i.	Equal Protection Challenges to Restrictions Involving Home Detention and Competency Treatment.

The equal protection clauses of the state and federal constitutions can sometimes be used to raise winning arguments about arbitrary restrictions on conduct credits. One recent example of this concerns the aforementioned amendment to section 4019 which permits persons serving presentence time in home detention, without making any provision for postconviction conduct credits for persons serving out their sentence on home detention.	The court in People v. Yanez (2019) 42 Cal.App.5th 91 began its favorable opinion on this subject by noting that the parties disagreed ". . . as to whether . . . the disparity in . . . their treatment must be evaluated under strict scrutiny or under the more deferential rational basis standard. (Compare, e.g., People v. Sage (1980) 26 Cal.3d 498, 506, 508, fn. 6 [applying strict scrutiny to decide whether denying conduct credit for pretrial jail time violated equal protection]; People v. Lapaille (1993) 15 Cal.App. 4th 1159, 1168 [applying strict scrutiny to decide whether denying pretrial custody credits for house arrest violated equal protection; 'When the equal protection issue involves fundamental interests, such as liberty, our courts have required that the state establish that it has a compelling interest in making such classifications"] with People v. Rajanayagam [(2012) 211 Cal.App.4th 42], 54-55 [rational basis review of equal protection challenge to denial of conduct credits under amendment to § 4019].)" (People v. Yanez, supra, 42 Cal.App.5th at p. 95.)

The Yanez court then does what we, as effective advocates must also do, given this split, which is to argue both positions and then to hold, ultimately, that "it is unnecessary to decide which level of scrutiny applies because pretrial and postsentence detainees who have served time under home detention are similarly situated for purposes of evaluating their eligibility to earn conduct credits, and the challenged disparity in their treatment does not survive even rational basis review." (Ibid.) Yanez found these two classes of persons to be similarly situated for the purposes of the conduct credit laws, with no rational basis for the distinction, and required a reward of conduct credit to pretrial detainees premised on this conclusion. (Id., at p. 98.) Notably, Yanez relied on the oft-
ignored Supreme Court holding in People v. Sage, supra, 26 Cal.3d 498, which found that pretrial felony detainees were similarly situated to both pretrial misdemeanor detainees and sentenced inmates for purposes of entitlement to conduct credits, concluding that although "pretrial and postjudgment sentencing credit schemes serve entirely different purposes . . .[,] [i]n either instance, conduct credit serves a similar purpose, presumably by encouraging those serving home detention to comply with the terms and conditions of that detention." (Id., at pp. 99-100.)

Using Yanez as my principal foil, I have recently raised a similar equal protection challenge to the limitations of the other recent amendment to section 4019, which permits pretrial detainees serving time in a county jail mental competency program to obtain section 4019 conduct credits, while excluding their counterparts who are serving presentence custody time in a State Hospital competency program. My briefing in People v. Orellana, H048315, is available on request. The principal contrary arguments advanced by respondent in Orellana to rebut my claim are (1) a prior pre-amendment denial of an equal protection challenge to the exclusion inmates serving competency in a State Hospital in People v. Waterman (1986) 42 Cal.3d 565 – an argument easily disposed of by showing that the basis for this denial was that competency program detainees with mental health problems were not similarly situated to jail inmates, whereas the distinction at issue now is between two classes of competency program detainees; and (2) a contention that there is a rational basis for the distinction drawn by the Legislature because jails keep track of inmate behavior, while State Hospitals do not – a point I could easily rebut by, first, showing countless situations in mental health related cases where courts have recounted carefully kept State Hospital records about inmates. (See, e.g., People v. Roa (2017) 11 Cal.App.5th 428, 446-447 [describing two prior mental health cases involving bad behavior and rules violations in a state hospital setting], People v. Landau (2016) 246 Cal.App.4th 850, 876–877 [hospital records documenting defendant's hoarding behavior, refusal to attend treatment sessions, altercations with other inmates, and use of racial slurs]; and People v. Dean (2009) 174 Cal.App.4th 186, [state hospital records documenting "hit" on defendant by drug-sniffing dog, derogatory comments about female staff members, sexual assaults while in custody].], and second, by showing how in the actual case on review, the parties agreed that defendant was entitled to section 4019 credits for the time period he was still at the State Hospital but had already been declared competent. The case is pending and the briefing is available.

ii.	Restrictions on Presentence and Postconviction Credits Based on the Nature of the Crime Committed.

In addition to the restrictions written into section 4019, during the 1990s and 2000s, politicians had a field day enacting laws limiting or precluding behavior credits for persons convicted of more serious crimes. Penologically this makes little sense, since there ought to be the greatest incentives for the most serious offenders to behave and program well while in custody. I mean, give 'em longer sentences (which they are doing anyway), but let 'em earn full credits! But no, as Justice Mosk once famously echoed, "Nothing succeeds like excess" (Mosk, "Nothing Succeeds Like Excess" (1993) 26 Loyola L.A. L.Rev. 981), it's just too easy for a politician to pad their "tough on crime" resume by limiting good time for people who commit awful crimes.

(a).	Section 2933.1.

One of the nastiest and most commonly applied of these credit-restricting laws is section 2933.1, which provides that any person convicted of a "violent felony" as defined in subdivision (b) of section 667.5 shall accrue no more than 15 percent credit on their actual time of confinement for behavior and worktime, a limitation which applies both as to presentence credits (subd. (c)) and postconviction credits (subd. (a)).

Although the statute expressly provides that its limitations apply only to violent felony offenses (§ 2933.1, subd. (d)), the court in People v. Ramos (1996) 50 Cal.App.4th 810 held that section 2933.1 applies to the offender, and not the offense. Thus, according to Ramos, if a defendant is convicted of any single qualifying violent felony, credits for his entire sentence, including consecutive terms on potentially unlimited numbers of non-
violent felonies, are subject to the 15 percent limitation on conduct credits. (Id., at p. 817.)

This holding was extended in a surprisingly bad way in People v. Baker (2002) 144 Cal.App.4th 1320, where the defendant was first in custody for a specified period of time for a non-violent offense, then later served additional presentence custody on a violent offense committed while charges on the first offense were still pending. Relying on Ramos, the court in Baker held that the restrictions of section 2933.1 applied to all of the presentence credits when consecutive sentences were imposed, including the time served prior to commission of the violent crime, based in large part on the fact that under California's determinate sentencing law, consecutive sentences imposed as to one or more determinate term in a different case "shall be combined as though they were all counts in the current case." (Id., at p. 1328.) The court in Baker specifically limited the holding in that case to situations involving consecutive sentences. "We do not address the effect of section 2933.1 on a situation in which the sentence for the nonviolent offense is run concurrently with the sentence for the violent offense." (Id., at p. 1327, fn. 12.) Baker had an odd procedural history, in that review was granted and held pending resolution of the Reeves case, discussed below; but publication was then restored by the Supreme Court after it decided Reeves. If you have a client in the same anomalous situation as the defendant in Baker, I would strongly urge you to argue that Baker was wrongly decided, and should not be followed, with presentence time served for the not-violent offense which preceded commission of the violent felony.

Fortunately, the scope of the questionable holding in Ramos was limited to presentence credits on consecutive terms by the Supreme Court in In re Reeves (2005) 35 Cal.4th 765, which that for purposes of postconviction credits, the restrictions only apply to time served for violent felonies, and have no application to separately served concurrent terms for non-violent felony crimes. Reeves, unlike Baker, involved concurrent sentences, and provides a strong indication that the holding in Baker should not apply where the presentence credits at issue pertained to crimes for which concurrent sentences were imposed.

Some years ago, I had a case with an interesting credits issue along these lines. Defendant had earned substantial credits in case number 1, a not-violent offense, for which he was on probation. While on probation, he committed crime No. 2, a violent felony, on which he served an even lengthier period of presentence custody. He got a three year sentence for the "violent" offense, and a two year concurrent term on the not-
violent offense. By the time of his sentence, he had nearly two years worth of credit on the violent offense, such that he was going to credit out on that offense fairly quickly. Thus, it was important to his "out date" whether he earned presentence behavior credit on the not-violent offense under section 4019, or under the restricted provisions of section 2933.1.

Reeves, not Baker, arguably controls in this situation, because, as the Supreme Court explains in Reeves, consecutive and concurrent sentences are very different creatures under California law. "A court that decides to run terms consecutively must create a new, 'aggregate term of imprisonment' (§ 1170.1, subd. (a)) into which all the consecutive terms merge, but no principle of California law merges concurrent terms into a single aggregate term." (Reeves, supra, at p. 773.) Because of this distinction, once a defendant has fully served out the time on his "violent felony" offense, any remaining time which must be served on a "not-violent" offense is not subject to the restrictions of section 2933.1, which "has no application to a prisoner who is not actually serving a sentence for a violent offense; such a prisoner may earn credit at a rate unaffected by the section." (Id., at p. 780.) I never did get to see if my argument would fly, as my client abandoned his appeal for other reasons related to a favorable credits award to which it did not appear that he was entitled. So, this would be an issue to watch for in your own cases. (I can probably dig out the briefing from this case on request.)

Finally, as discussed below, it is a still more open question whether the "offender not offense" interpretation of Ramos can be used to trump the constitutional prohibition against ex post facto laws where a defendant has a series of current violent felony convictions, some, but not all, of which were committed prior to the effective date of section 2933.1. (See Part III-A, below.) If you should happen to get a case like this (e.g., involving resentencing in an old case, or extended statutes of limitations in sex crimes), please let me know, and I can try to help.

(b)	Other Statutes Eliminating Behavior Credits.

For certain violent felonies, no behavior credits can be earned. Under section 2933.2, a person convicted of murder gets no presentence or postconviction conduct credits. However, in order for this credit restriction to apply, the murder in question must have been committed after the effective date of this law, which was June 3, 1998. (See, e.g., People v. Hutchins (2001) 90 Cal.App.4th 1308, 1315-1317.)

Another credits-precluding law, section 2933.5, applies only in the narrowly delimited situation of a person convicted of a current specified violent felony who has two prior specified violent felony convictions which were brought and tried separately, and for which he served a prison term. I recall one Santa Clara County case where the court, at the prompting of the probation officer, and without objection by defense counsel, applied this provision to deny credits when the defendant's two priors were brought and tried together. This error was corrected with a Fares letter. This case was probably a fluke, since I have not seen any cases in the Sixth District since then which involved section 2933.5, and the only subsequent published case discussing section 2933.5, which held that it did not apply but section 2933.1 did, was depublished by the court which issued the opinion following a grant of rehearing. (See People v. Busane (2019) 31 Cal.App.5th 327, reh. gtd., depubl. 2-6-2019.)

So we will leave section 2933.5 to its own obscure corner. But if it ever comes up in a case, please feel free to contact me.

c.	The Minefield of "Mixed Conduct" Custody Situations.

It is often the case that a defendant on probation or parole who is facing new criminal charges has his parole or probation revoked, and serves jail or prison time under such revocation, prior to the adjudication of the new felony charge. Such revocations are frequently based, either in whole or in part, on the new criminal conduct. A dodgy legal question then arises as to whether the defendant is entitled to credit for this time served on the parole or probation revocation when he is later sentenced on the new charges.

As noted above, a defendant is entitled to presentence credits for all time spent in custody "only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted." (§ 2900.5, subd. (d).) Over the years, gallons of ink have been spilled by California courts as to the correct interpretation of this confusing statutory language. The highlights: the Bird court opinion, In re Atiles (1983) 33 Cal.3d 805 held that a defendant gets dual credit where his parole revocation is based, at least in part, on the new charged crime; then the Lucas Court decision, in In re Joyner (1989) 48 Cal.3d 487 reached a contrary view, holding that a defendant whose probation is revoked in part, but not entirely, because of commission of a new crime is not entitled to credit in the new case for time he served for this type of "mixed conduct" probation revocation unless he can prove that the conduct underlying the new charged crime on which he is sentenced was the "but for" cause of time previously served on the probation revocation. (Warning: Don't read the preceding sentence, or the opinion in Joyner, more than once, as it's likely to lead to a state of helpless confusion and may cause you to question your decision to become a lawyer.)

The last word on the subject, and the only one we need to pay attention to most of the time, was People v. Bruner (1995) 9 Cal.4th 1178, which, in effect, codified the Joyner "but for" test as to all mixed conduct situations. Bruner held that "when presentence custody may be concurrently attributable to two or more unrelated acts, and where the defendant has already received credit for such custody in another proceeding, the strict causation rules of Joyner should apply."(Bruner, supra, at p. 1180.) Under this test, custody may not be credited against a term of confinement unless a defendant shows that the conduct that led to the confinement in the other proceeding (i.e., a revocation of parole or probation) was also the "'but for' cause of the earlier restraint." (Id., at pp. 1193-1194.) The defendant's burden to prove "but for" causation is not met simply by demonstrating that the conduct for which he seeks credit was "a" basis for the restraint. The defendant is only entitled to dual credits if he is able to show that he "could have been free during any period of presentence custody but for the same conduct that led to the instant conviction and sentence." (Bruner, supra, at p. 1195, emphasis added.)

In most cases, the holding in Bruner is interpreted by the probation officers, who always have the first word (but hopefully not the last word) on credit issues in the trial court, to mean one of the following: (a) if probation or parole was revoked solely because of the new offense your client committed, then he gets full credits when he's sentenced in the new case for any time served on revocation of parole or probation; but (b) if there was any other basis for parole or probation being revoked – e.g., failure to report, pay a fine, or a dirty drug test – your client get no credits for time served on such a revocation.

i.	Exceptions to the Bruner "Strict Causation" Rule.
There are two notable exceptions to the "You Lose" rule for mixed conduct cases recognized in case law.

(a)	The Williams Exception: Transactionally Related Conduct.

The earlier exception to the strict causation rule, recognized by the Supreme Court in Bruner, is described in People v. Williams (1992) 10 Cal.App.4th 827. In Williams, a defendant arrested on new charges of kidnaping and sexual assault had his probation in a prior case revoked for "new charges" which included multiple sex counts with which he was originally charged, and for a generic "failure to obey all laws." In the new case, he ultimately pled pursuant to a plea bargain to a single count. The trial court denied him credits on the new case for the time spent in custody on the probation violation, based on the "obey all laws" provision and on the fact that the charges on which probation was revoked included crimes in addition to those for which he pled guilty and was convicted. The Court of Appeal in Williams reversed, concluding to the contrary that his custody on the revocation arose from the identical conduct that led to the criminal sentence. First, there was nothing in the record suggesting that the violation of the "obey all laws" provision referred to anything but the criminal conduct resulting in the charges in the new case. And second, and most usefully, the Williams court held that the prosecutor's decision to dismiss numerous transactionally related counts in connection with a plea bargain did not change the case into one of mixed conduct.

[O]nce the People elect to define criminal conduct which generated a defendant's presentence custody by separately stated counts, the conduct described in dismissed counts is not thereby converted to conduct not attributable to the proceedings related to the same conduct for which defendant is convicted.

(Williams, supra, at pp. 832-834.)

In addition to the effect in the dismissed counts situation, the holding in Williams has proven useful in at least one unpublished Sixth District case involving transactionally related uncharged counts.4 In that case, the new charges were for drug possession, the defendant's parole was revoked for the new charge and for the uncharged conduct of possession of drug paraphernalia. The trial court, following the probation officer's recommendation, classified this as a "mixed conduct" situation because the uncharged paraphernalia possession was a basis for revocation, and denied credits for the entire period of the parole revocation. The court of appeal reversed, holding that Williams applied by analogy to this situation. Although prosecutorial discretion was exercised not in dismissing a charged count, but in the decision not to charge the transactionally related crimes in the first place, this was "a distinction without a difference," and the situation remained a "same conduct," and not a "mixed conduct" situation in which the defendant is entitled to dual credits. The same reasoning can be applied where related charges on which revocation was based were dismissed on other grounds – e.g., a 995 motion, hung jury, etc.

Some years ago, former SDAP panel attorney Tom Singman was successful in obtaining presentence credits from the trial court for a parole revocation period. In that case, defendant Green's new charges were for aiding and abetting two confederates in a bad check passing scheme, where it was alleged that he drove his confederates up to the Bay Area from Compton and ferried them from bank to bank to cash phony checks. Mr. Green's parole was revoked for the new offenses and for traveling beyond the fifty mile limit set for parolees. At sentencing, he got no credits for the one year parole revocation period on the grounds that the 50 mile violation – which probation erroneously described as "absconding" – turned this into a mixed conduct case. In the challenge to this limit brought in a post-appeal credits motion in the superior court, Mr. Green contended that this is really a same conduct case, and not a mixed conduct situation, because the act of traveling beyond the 50 mile range was the same conduct which underlay the aiding and abetting, i.e., driving his accomplices from Compton to the Bay Area. Thus, under Williams, the fifty mile violation is transactionally related conduct which can't be the basis for a finding of mixed conduct. Here, the issue does not, as in Williams, flow from an exercise of discretion by the prosecution, which could not have charged the fifty mile violation, since it is not criminal conduct, but is focused instead on the common theme of uncharged or dismissed conduct which is directly transactionally related. Assuming that this was, in fact, a mixed conduct situation, the defendant in Green alternatively contended that he had shown the strict causation required by Bruner in that the conduct leading to the new charges of aiding and abetting the check fraud scheme is the "but for" cause of the 50 mile violation. Fortunately, the trial court agreed with the first argument, and the issue was never tested on appeal. Thus while there is no precedent to cite, there is excellent sample briefing available on request.

I should point out that I lost a similar issue in the Court of Appeal in an unpublished decision in the Mark Cuellar case. In that case, parole was revoked for a new drug offense, and also for "Failure to Follow Instructions," which consisted of missing a scheduled appointment with the parole officer on the same day that defendant was found at his house strung out and drunk. I argued that the two matters were transactionally related as in Williams, and the conduct of the new offense was the "but for" cause of the other violation. But the Court of Appeal disagreed in not very well thought out unpublished opinion. Sample briefing is available in this case too.

I am happy to report a very recent unpublished win in the Sixth District in People v. Venegas, H047758, where panel attorney Jeff Kross got an Attorney General concession and a memorandum opinion holding that where mandatory supervision was revoked based on the same conduct as a new case, Bruner required that defendant receive dual credits for the same time on the old case where mandatory supervision had been revoked and the new case.

(b)	The Marquez Exception: Dismissed Unrelated Charges

The second exception to the Bruner strict causation rule is the one described in the California Supreme Court decision In re Marquez (2003) 30 Cal.4th 14, and elaborated upon by the Sixth District in People v. Gonzalez (2006) 138 Cal.App.4th 246. Marquez carves out a discrete exception to the "strict causation" rule of Bruner and Joyner in a situation where a defendant is held in custody on both newer and older charges and separate sentences are imposed. In this situation, under typical Bruner analysis, he would not have earned credits for the time on the older charges for the challenged period of time had the convictions and sentences in both cases been upheld. However, the conviction on the earlier case was reversed on appeal, and the charges were eventually dismissed. In this unique situation, the California Supreme Court held, credits can be awarded without a demonstration of "but for" causation to avoid a period of custody becoming "dead time" for which a defendant receives no credit. (Marquez, supra, 30 Cal.4th at pp. 23-24.) The upshot of Marquez is, in effect, a return to the good-old Atiles rule when charges relating to a second, unrelated basis for custody are dismissed. In these delimited circumstances, your client is entitled to credit if you can show, a la Atiles, that the custody time was related in some sense to the conduct giving rise to the current conviction.

This is what happened in Gonzalez, where the defendant was on probation for a domestic violence case when he committed new offenses of auto theft and possession of a firearm by a felon. While pending trial, he picked up a third case for a jail assault. After being convicted by jury trial on the weapon possession and vehicle theft cases, defendant pled guilty to the inmate assault case and admitted probation violation in the domestic violence case. He was then jointly sentenced on the three cases, remaining in custody during the entire period after his arrest on the gun and vehicle theft case. (Gonzalez, supra, 138 Cal.App.4th at pp. 248-250.) The disputed issue in Gonzalez concerned the 319 day period of custody served by the defendant between his arrest on the auto theft and gun case up until the day prior to the inmate assault, which the trial court allocated to the domestic violence case, for which defendant already had 361 days served solely on the domestic violence case. (Id., at p. 250-251.) Because the total credits awarded in the domestic violence case, 680 days, exceeded the one year consecutive sentence imposed in that case, the defendant in Gonzalez sought to reallocate the additional credits to the auto theft and gun case. The Sixth District upheld this claim for credits, finding that the "strict causation" rule of Bruner had no application because the time at issue was not one for which dual credits were sought, and thus did not involve a "windfall," but rather concerned custody which would otherwise become "dead time." i.e., "'time spent in custody for which he receives no benefit.'" (Id., at p. 253-254, quoting and citing In re Marquez, supra, 30 Cal.4th at p. 20.)

My own efforts to apply the holdings of Marquez and Gonzalez have had mixed results. The Stoll case was the bad news. In that case, Stoll was on probation for two separate cases when he committed a violation. The trial court, as a condition of reinstating probation, gave Stoll credit for time served of 60 days for the more serious attempted robbery case, but required him to serve a lengthy jail sentence on the less serious vehicle theft case. When he violated probation one more time, and a prison sentence was imposed, the court "cleverly" structured the sentence to cause Stoll to lose much of the time he'd served on the vehicle theft case, imposing a three year sentence on the attempted robbery, and an eight month consecutive term on the vehicle theft. Stoll had considerably more credits on the vehicle theft than the eight months he was required to serve, and the argument raised, both in the trial court and on appeal, was that under Marquez and Gonzalez, these leftover credits should be allocated to the attempted robbery case rather than becoming "dead time," because probation was jointly revoked on the two cases, and time served was really attributable to both cases. An unpublished Sixth District opinion rejected this claim, holding that the credits belonged in separate boxes and couldn't be moved around after the time had been served exclusively on the vehicle theft case.

On the bright side, in the Perkins case, I was able to obtain a substantial credits award from the trial court based on time Perkins served in Alameda County jail pending robbery charges which were ultimately dismissed by the prosecutor for lack of evidence. I was able to demonstrate that during this entire time, there was a hold from the Santa Clara County case on which Perkins was later sentenced; and while his custody during this time was attributable to both the Santa Clara County case and the Alameda robbery, under the Marquez exception to the "strict causation" test, Perkins was entitled to the credits for the long period of time in Alameda County which would otherwise have become "dead time" by virtue of the dismissal of the Alameda charges. (Sample briefing is available on both of these cases.)

Since the last version of this article came out, I also won an "only in Monterey County" case, People v. Leon, 2012 Cal.App.Unpub.LEXIS 2853. In that case, a very creative and very unfair-minded Monterey County judge attempted to allocate all of the defendant's credits to a subordinate count on which a consecutive sentence was imposed, where the total credits greatly exceeded the one-third term imposed; the court then zeroed out Leon's credits on the principal term. My efforts to get this jurist to correct his error by means of a Fares letter proved unsuccessful; however, the Court of Appeal's unpublished opinion agreed with me that this creative effort to create "dead time" was improper and reversed, holding that this improperly created "dead time" under Marquez and Gonzalez, and directed the superior court to allocate all the credits to the principal term. Presumably, this schooled the Monterey County judge because we have yet to see this nasty bit of credit theft again.

ii.	The Bruner Strict Causation Rule Applied: Strategies for Winning Credits.

Preamble. The prior versions of this article included a nifty section about how to fight against a determination denying credits on the basis of a "mixed conduct" parole violation. I am going to pretty much leave it intact, with fairly minor revisions, but am inserting a new preamble. This is because with Realignment, the process for parole violations has changed. Nowadays, parole authorities initiate violation proceedings, and can impose modest sanctions on their own, but actual revocation of parole and imposition of a term must be done by a Court. Thus, parole revocation proceedings are now judicial proceedings, with the attendant rights, including the right to appeal. (See Pen. Code § 1203.02 & § 3000.08 et seq.) How this change bears on the issues discussed below is beyond the scope of this article. But I daresay it may change things quite a bit. Thus far, I have not seen any Bruner-type issues arise in any post-Realignment parole revocation cases.

If your client's probation report recommended that credits be denied for "mixed conduct," and the trial court followed suit, don't assume that this is correct! Often it is not. And other times, there is still something to challenge. Here's what you should try to do:

(a)	First, Get the Parole Records.

If your client is in local custody, the local parole authorities (if the more modest "flash incarceration" is imposed for a parole violation), or the court (under the post-
Realignment procedures) will have these records. If the client has been returned to state prison, then the prison where he's housed will have the records. All you should need to obtain the records is a signed release from your client. Try to get all the records concerning the specific parole violation. The most important document to get is the "BPT 1104," known as the "Summary of Revocation Decision." I believe this document survives the Realignment changes, and could well reflect the fact that the "actual" imposition of sanctions by the parole authorities is arguably narrower than the revocation ordered by the trial judge. This document, if it still exists, lists the parole violation charges, describes which charges were found true, and which states the basis for any order of reconfinement in prison for the parole violations.

(b)	Is There Really a Mixed Conduct Basis for the Revocation?

Once you get the parole records, review them very carefully. First, make sure that there really was a mixed conduct basis for parole or probation revocation, and that it doesn't fit within the rubric of Williams (i.e., related conduct that was either never charged, dismissed, or couldn't have been charged because it wasn't criminal).

(c)	Was Prison Time Really Imposed Because of the Mixed Conduct?

Second, if there really are mixed conduct allegations which your client admitted or which were found true at a hearing, double check to make sure that the decision to impose a prison revocation sentence was based on the mixed conduct allegations.

I happily recall the Walton case, where we won a parole revocation credits issue in which where there were two grounds for revocation, the new crimes and absconding from parole. On the second page of the form, the parole hearing officer checked only one box under the heading "NEED FOR RECONFINEMENT BASED ON THE FOLLOWING FACTORS," the box labeled "Involved in Felonious Behavior that Mandates Substantial RTC [return to custody]"; and didn't check a different box entitled "Inability/Unwillingness to Conform to the Expectations and Requirements of Parole." Because of this, I was able to persuade the trial judge with my motion that we had shown "strict causation" under Bruner, i.e., that but for the conduct of the new offense, defendant would not have lost his liberty. Sample briefing is available on this issue.

A similar process can happen at a court-imposed probation revocation hearing, which can perhaps be a model for the new court-based parole revocation proceedings. A court may find one or more violations of probation, but announce in its ruling revoking parole that they would not have revoked for the minor administrative violations but only, in fact, revoked because of the new criminal conduct which forms the basis for the conviction in your case. (This actually happened in a case I worked on, which, alas, did not involve any credits issues.) Then you'd have the same argument that carried the day in Walton. Thus, in both parole and probation revocation "mixed conduct" situations, carefully review any statement by the court as to the reasons for revoking probation or parole and imposing a penal consequence. If the stated basis relies only on the new charges, even where there are other violations, you arguably have a winner under Bruner.

(d)	Can You Demonstrate That Part of the Parole Revocation Sentence Imposed Was Strictly Caused by the New Criminal Conduct?

Third, consider an alternative argument raised by me in the Cuellar case based on parole regulations, a contention that only part of the custody time for the parole violation is attributable to mixed conduct. The applicable Parole Board regulations set out guidelines for periods of imprisonment for violations of parole which represent "the suggested period of confinement when a return to custody is imposed as a disposition for a violation of parole." (15 CCR § 2646.1.) Frequently in mixed conduct cases, the total term imposed is greater than the maximum suggested amount under the guidelines for the "mixed conduct" part of the offense.

In Cuellar, for example, "Failure to follow . . . instructions" is listed under subdivision (a) of section 2646.1 among the "Technical Violations of Parole," for which the guideline range is "0 to 4 months." (15 CCR § 2646.1, subd. (a)(7).) By contrast, the crimes on which defendant was convicted, which were also bases for revocation, possession of a controlled substance and possession of ammunition, are more serious violations which have a punishment range of "5 to 9 months." (15 CCR § 2646.1, subds. (c)(14) & (g)(1).) Thus we argued that at most only half of Mr. Cuellar's eight month parole revocation sentence was attributable to the non-current offense conduct, and that he was entitled to credits for the other four months, which were proven to be attributable to the new offense. The argument was rejected based on a questionable reliance on the fact that the regulation guidelines were merely "suggestive." In my view, this is a winner which should continue to be raised, at least until there is published authority rejecting it. Sample briefing is available on this issue.

(This may not work under Realignment, but I left it in here because it was such a fun case.)

iii.	Rojas, "Term Serving Time," and a Couple of Arguable Exceptions

A longstanding rule precludes awarding double credits where the client is already serving time on an earlier case. (See In re Rojas (1979) 23 Cal.3d 152, 155-156.) This rule precludes credits in situations like Rojas, where a sentenced prisoner commits a new crime in prison. It has also been used to preclude credits where a defendant commits a new crime, but his period of custody after arrest includes a jail sentence on an unrelated misdemeanor offense for which he had already been convicted. (See, e.g., People v. Adrian (1987) 191 Cal.App.3d 868, 880.) The rationale for this limitation is explained by the Supreme Court in Rojas: "[T]he deprivation of liberty for which he seeks credit cannot be attributed to the second offense. Section 2900.5 does not authorize credit where the pending proceeding has no effect whatever upon a defendant's liberty." (Rojas, supra at p. 156.)

I have identified two arguable exceptions to the Rojas door-slamming rule to "term-serving time" as awardable credits.

(a)	Jail Time in New Case Resulting in Prison Sentence Where There Was a Hold from the Current Case.

I was able to obtain an unpublished win in the Ayala case, where the trial lawyer came up with a very creative credits argument around this rule. Ayala was arrested in Santa Clara County, jumped bail, committed a new crime in Merced County, and was unable to bail out in Merced because of the hold placed on him by Santa Clara County. After several months in the Merced County Jail, he was sentenced first in Merced, served out his time in prison, and then pled and was sentenced in Santa Clara County. The presentence credit period at issue was the time served in Merced County jail – for which Ayala received credits on his prison sentence in the Merced case – with the argument that credit for this time period should be allocated to the Santa Clara County case based on the fact that defendant would have been free on bail during this time but for the hold placed on him by Santa Clara County, which amounts to "but for" causation under Bruner. The unpublished Sixth District opinion agreed with the claim, rejecting the attorney general's claim that this was "term-serving time" on the Merced case to which Ayala was not entitled. Thus, on these unusual facts, Bruner trumped Rojas, and we prevailed.

(b)	Prison Time Served After Scheduled Release Date Which Is Attributable to In-Prison Offense Leading to Current New Charges.

In-prison offenses rarely give rise to credits issues, since typically the inmate who commits an in-prison offense is serving out another sentence during any period of presentence custody on the new charge, and credits are strictly precluded under Rojas.

However, there are some situations where credits issues arise, most commonly where the inmate's prison term ends prior to conviction and sentence for the in-prison offense. Monterey County, which handles prosecutions for the two Soledad prisons, the only CDCR institutions in the Sixth District, will typically award credits for time in custody after a defendant is released on parole. But there are some odd permutations where additional credits can be argued for under the rubric of Bruner. My own Hopkins case, in which I won a published-but-then-unpublished decision in the Sixth District, involved a meritorious claim for credits where Bruner trumped the Rojas rule excluding any credits for time served on a prison sentence.

Hopkins was serving time on a prison sentence, with a parole release date of May 12, 2008 when, in January of 2008, he was caught with a syringe and some heroin. CDCR initiated a CDCR 115 disciplinary proceeding, and also referred the case to Monterey County for prosecution. Because of the pending referral, the 115 hearing never took place. Meanwhile, Hopkins' parole release date came and went, with his prison records indicating that he was being held past this date based on the pending 115. About two months after the scheduled release date, the Monterey County district attorney's office filed a felony complaint for possession of drugs in prison, and about two weeks after this Hopkins was paroled to Monterey County jail. After he pled to the new charges, the sentencing court awarded credits beginning only with the date he was paroled to county jail.

After obtaining CDCR records in the case, I brought a motion for additional credits going back to the parole release date, arguing that we had demonstrated "but for" causation under Bruner, in that Hopkins clearly would have been free from custody on that date but for the unadjudicated 115 proceedings which were attributable to the same conduct underlying the criminal conduct. The prosecutor's reliance on Rojas was misplaced, I argued, because here, unlike Rojas we were able to show that the deprivation of credits was attributable to the conduct underlying the new case. We lost in the trial court, but won in the Sixth District in a case which, though originally published, ended up being depublished after review was granted on an unrelated ground, with the case held by the Supreme Court pending resolution of an unrelated credits issue concerning the retroactivity of one-for-one- credits under the amendments to section 4019.5 (See People v. Hopkins (2010) 184 Cal.App.4th 615, 620-623, rev. gtd., depublished [under old rules], and thus not citable.)

The message here is to look behind the label, even where the probation report indicates that credits are being excluded because defendant was serving a separate sentence. Carefully examine the basis for the credit limitation, and see if there is a way to argue for credit entitlement under Bruner or other applicable doctrines.

B.	Post-Conviction Credits

Post-conviction credits are awarded based on a different set of statutory rules, nominally located at section 2930 et. seq. Normally, issues concerning these credits are not going to be cognizable in appeals from conviction, as the awarding and deprival of these credits is up to the Department of Corrections.6 However, the application of the laws and restrictions about postconviction credits often overlaps with rules about presentence and postconviction credits, and thus there will be ways in which statutorily based restrictions on prison credits can be challenged on appeal.

For example, as noted above, the stringent 15 percent limit on behavior credits under section 2933.1 for persons convicted of current "violent felonies" applies to both presentence and postconviction custody. If there is an issue in your case as to whether the trial court correctly applied section 2933.1 to restrict your client's presentence credits, you can raise this issue on appeal and/or by a trial court motion. While the benefit to the client in terms of presentence credits will normally be fairly minimal, the long term benefit of a favorable ruling will be enormous as to the postconviction credit limits.

Prison credits laws have a long and complicated history. For our purposes, though, it suffices to say that, at least until recently, unless one of several enumerated exceptions apply, a sentenced prisoner is entitled under section 2933 to receive, upon good behavior and work participation, half-time credits of one day for every day served, meaning that a two year sentence is completed in one year.

I say "until recently" because in the past half-dozen years, things have altered dramatically with enhanced credit provisions agreed to as a result of prison overcrowding litigation, Proposition 57, and recent changes relating to the COVID emergency. Rather than try to spell these out here, I am including, as an Appendix to this article, four helpful informational documents from the Prison Law Office, supplied to me by SDAP panel attorney and Greening grad Heather MacKay, who doubles as a prison law expert working with the PLO. The covered topics are Elder Parole, Prop. 57 Parole, Time Credits in CDCR, and Youthful Offender Parole. Each of these includes very useful information as to how inmates can win released before what would otherwise be their minimum parole date under the standard operating procedures.

What follows is a short discuss of some of the enumerated exceptions to the entitlement to one-for-one credits on parole, followed by a short comment as to whether, with recent changes, they even matter anymore.

As noted above, a person sentenced as to at least one violent felony can earn only 15 percent limits on their sentence. The potential issues concerning challenges to this law are noted in Part I-A-2-a above. (Note: Under Prop. 57 credit procedures and more recent changes, persons with violent felony convictions can now earn up to 33.3 percent conduct credits! See Appendix, "Time Credits in CDCR, July 25, 2021" p. 3.)

Under the Three Strikes law, credits are limited by subdivision (a)(5) of section 1170.12 to no more than 20 percent of the sentence. (But note: Under the most recent changes, such persons can earn up to 50 percent of their sentence. (See Appendix, "Time Credits in CDCR, July 25, 2021", p. 3.) Fortunately, the Supreme Court has agreed with lower court interpretations of this provision as inapplicable to presentence credits, which are still controlled by section 4019. (See People v. Thomas (1999) 21 Cal.4th 1122, 1125.) This anomaly has created some odd situations. For example, in second strike plea bargained cases, there is a big incentive to drag out the period of presentence custody so as to maximize credits.

Unfortunately, the Supreme Court made a poor and unfavorable interpretation of the credit limitation provisions of the strikes law as applied to third strikers, holding in In re Cervera (2001) 24 Cal.4th 1073 that such persons earn zero behavior credits while imprisoned in terms of advancing the minimum date for parole eligibility. I have argued elsewhere that Cervera should be challenged as an erroneous decision. However, this limitation has essentially disappeared under Prop. 57 for third strikers whose "current offense" is not for a "violent" felony, as they become parole eligible after serving out the greatest term of their most serious conviction. (See In re Edwards (2018) 26 Cal.App.5th 1181 [CDCR regulations excluding Third Strikers from Prop. 57 parole eligibility contrary to plain language of initiative measure, and CDCR regulations enacted after Edwards was accepted as correct.) While I have not made a definitive study of this, I believe that other changes in the CDCR credit rules allow violent felony third strikers a chance to be parole eligible prior to their 25th year.

Back in the good old 1990s, there was a strong argument which could, and was, successfully made that a defendant's time spent in both jail and prison between his first, ultimately reversed sentence in a Strikes case, and his second, valid judgment should count as presentence time, entitling him to one-for-two credits, and exempting him from the 20 percent credit limits of the Three Strikes law, because the original judgment was void ab initio, and thus could not be used as a basis for reducing credits. (See, e.g., People v. Thornburg (1998) 65 Cal.App.4th 1173, 1176 and People v. Chew (1985) 172 Cal.App.3d 45, 51.)

Unfortunately, our state Supreme Court slammed the door on this argument. First, in People v. Buckhalter (2001) 26 Cal.4th 20 the court held that the twenty percent credit limits of the strikes law apply to a defendant whose sentence, but not underlying conviction, was reversed, on the grounds that this is not really a reversal of the entire judgment. Although the supreme court in Buckhalter reserved the question whether this reasoning applied when a defendant's entire conviction was reversed, In re Martinez (2003) 30 Cal. 4th 29 burst that bubble by holding that even when the entire judgment is reversed, time served in prison between the first invalid and second valid conviction counts as prison time subject to the credits limit of the strikes law by virtue of the subsequent guilty plea and "second strike" conviction. Justice Kennard's dissent in Martinez points out the absurdity of the majority's holding and rationale. However, Martinez means that this once promising credits issue, brimming with equal protection and statutory construction questions of great moment, is now utterly lost.7

There are two small pieces of good news from Martinez. First, it upheld, sub silento, the trial court's conclusion that time spent in local custody following reversal counts as presentence custody, entitling the second strike defendant to the one-for-two behavior credits of section 4019. (Martinez, supra, at p. 34, fn. 4.) Subsequent case law expressly holds that this "Phase III" period of custody is, in fact, presentence time for which the second strike defendant must receive section 4019 credits. (See People v. Donan (2004) 117 Cal.App. 4th 784, which contains the clearest and most precise statement of how things work in resentencing after a reversal.)

The other good news from Martinez comes when a defendant, otherwise in the same situation as petitioner Martinez, is sentenced after reversal to a non-Three Strike sentence under section 1170 et. seq. In that case, the rationale of Martinez will benefit the client, as all the "Phase II" time served in prison between the original sentencing and the remand to the trial court following reversal counts as in-prison custody time for which the one-for-one credits of section 2933, or even more favorable recent conduct credit provisions, are applicable. Well, at least that's what the majority in Martinez said was the case. (See Martinez, supra, at pp. 34-35.) I have found no case following this dicta, but you can cite it as authority under the accepted canon that " dicta of the California Supreme Court ordinarily carries persuasive weight and should be followed, especially where it demonstrates a thorough analysis of the issue or reflects compelling logic. . . ." (People v. Rodriguez (1999) 73 Cal.App.4th 1324, 1330.)

II.	PROCEDURAL NICETIES

A.	When an Issue Must be Raised First in Trial Court.

Generally speaking, we appellate lawyers hate to go to trial court to argue a motion. Only part of this is our regal sense of condescension. Mostly it's a major hassle to (1) figure out how to calendar a motion, especially in an unfamiliar county, (2) deal with the DA office's inevitable continuance request(s), (3) travel to remote places to argue the motion and (4) decide what the hell you're supposed to say when you're sitting in the trial judge's chambers with all the regulars, feeling like a fish wearing clogs.

But if a credits challenge is your only appellate issue, or if you need to introduce matters that are not part of the record to prove your client's entitlement to credits, you have no choice: a motion must be filed in the trial court in order to raise a credits issue on appeal. But don't fret! Many issues can be resolved informally by a Fares letter8 to the trial judge; and recent amendments to Penal Code section 1237.1 make this a lot simpler to do. (See discussion below.)

If a motion has to be filed, there are ways to avoid the difficulties. So, cheer up: it might turn out to be a more favorable experience than you expected, and you will get a chance to match some faces with the names of the Good, Bad, and Ugly among the trial counsel, prosecutors, and judges in the superior court.

Also, bear in mind that in many situations, a credits motion, as opposed to an appeal, is your client's only real chance of obtaining a just correction of their sentence. When, as often is the case, your client's prison sentence is relatively short, a credits win in the trial court is the only realistic chance of getting the client's sentence reduced before release from prison, since appeals invariably take much longer than a credits motion, even with the seemingly inevitable continuances.

1.	Section 1237.1 and Case Law: If Credit Error Is the Only Issue Raised on Appeal, It Must First Be Presented to Trial Court by Motion.

Apparently, appellate justices are not terribly fond of appeals where the only issue is an error in the computation of presentence credits. The courts in Fares, supra, 16 Cal.App.4th 954 and People v. Underwood (1984) 162 Cal.App.3d 420, held that credits issues are non-appealable without a prior attempt to obtain correction in the trial court. However, the court in People v. Lynn (1978) 87 Cal.App.3d 591, reached the opposite conclusion, finding that appeal was the only way to address such error, since a trial court no longer had jurisdiction once sentence was pronounced and an appeal went forward. The Sixth District reached a contrary view to Lynn, correctly pointing out that a trial court retains jurisdiction of a case to correct clerical errors or to remedy an unauthorized sentence. (People v. Little (1993) 19 Cal.App.4th 449, 451-452.)

The Legislature stepped into the fray in 1995 by codifying the Fares rule in section 1237.1. It was amended more recently to expand the category of subjects it covers, making it clear that trial courts have jurisdiction to consider credits issues raised to them under its rubric while an appeal is pending, and that a "motion" for credits can be made informally by a letter, and does not require a formal calendared motion.

No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court, which may be made informally in writing. The trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the calculation of presentence custody credits upon the defendant's request for correction.

(§ 1237.1.) Under this law, it is sufficient if a credits error was raised at the time of sentencing. For example, trial counsel may argue that a particular crime is not subject to the credit limits of section 2933.1, and have this argument rejected by the trial judge. There is no need for a motion in this situation.

But in the more typical situation, it is you, the appellate lawyer, who discovers the credits error or latent constitutional credits issue. In this situation, the issue must be first presented to the trial court before it can be raised as an issue on appeal. There is one exception, and one oft-available shortcut which can obviate the need for a full-blown motion in the trial court.

The exception applies when credits error appearing on the face of the record is not the only appellate issue – e.g., where there was a trial and there are other challenges to trial court error, or a guilty plea case with some other cognizable issue to be raised in the briefs. (See People v. Acosta (1996) 48 Cal.App.4th 411 and People v. Duran (1998) 67 Cal.App.4th 267.) In this situation, a credits issue which can be raised based on the record in the appeal may be raised in the opening brief without a trial court motion.

The "shortcut" – keeping in mind the old adage that shortcuts make long detours – is an informal request, typically in the form of a letter to the trial judge, to correct a credits error. Such a procedure, often referred to as a "Fares letter," can frequently be a prompt and effective way of fixing obvious errors of miscalculation or non-disputable mistakes about the applicability of credit restricting provisions such as 2933.1. When writing such an informal request, it makes the most sense to be as clear and specific as possible, and to attach copies of relevant portions of the record, including the abstract of judgment, probation report, and portions of the reporter's transcript of sentencing. You should "cc" a copy of the letter to trial counsel, the client, and to the trial deputy district attorney. (I note that in a couple non-controversial situations, a deputy DA actually helped finesse correction of the error.)

Also, be sure to include the following: (a) an explanation that under section 1237.1, the court has jurisdiction to consider this request while the appeal is pending, a letter is good enough, and that you are required to present this to the trial court before raising it on appeal; (b) a request that the court issue a minute order and amended abstract of judgment, and transmit these to the Department of Corrections, and (c) a request that a copy of the court's order be sent to you, as counsel for the client, an action frequently omitted, with the defense copy of any order sent instead to trial counsel. (Sample section 1237.1/Fares letters can be found on the SDAP website, and are available from me on request.)

Many trial judges respond promptly to such informal requests, issuing amended abstracts. But sometimes nothing happens for many weeks. Be prepared; calendar yourself to do a follow-up within two weeks, and phone the trial judge's clerk, an act which can sometimes gently prod a response. When this fails – "It's sitting on the judge's desk, that's all I can tell you" – a polite follow-up letter to the judge will sometimes do the trick.

If more time passes without a response, you must take the next step. We once assumed that an informal Fares request, if not acted upon by the court, was the equivalent of a motion, and would permit you to raise the issue on direct appeal. Then the court in People v. Clavel (2002) 103 Cal.App.4th 516 said "not so!" because section 1237.1 requires the defendant to "make[] a motion" in the trial court, an informal request is not a motion, and an appeal raising a credits issue without such a motion is subject to dismissal. But then section 1237.1 was amended to make it clear that an informal, written request is sufficient. So there, Clavel court!

Thus, if you get no response, you need to decide whether the more prudent course is to just raise the issue on appeal, or whether you should prepare, file, and calendar a more formal motion. Most times, where there is a simple request based on a clear record, you should make this decision based on the nature of your client's sentence. If they are doing 16 years in prison, just raise the issue on appeal. However, if it is a shorter term, and a more favorable credits award could lead to their release soon, you will probably want to do the formal motion in the trial court, as you are likely to get a remedy much sooner.

2.	Requirement of Superior Court Motion Where You Need to Present Facts Beyond the Record on Appeal.

Irrespective of whether you are raising non-credits issues on appeal, a trial court motion for credits will be required in those situations where there is a need to present facts in addition to what is in the record to prove your client's entitlement to credits.

A common example occurs in the supposed "mixed conduct" parole or probation revocation cases. Typically, all that you will have on the record is a couple sentences in the probation report that the probation officer spoke with your client's parole officer, who reported that it was a mixed conduct case; or simply concluded on their own that this was a mixed conduct probation violation situation. But when you obtain the actual parole records, or transcripts or documents from a probation revocation proceeding, and learn that in fact there was no actual revocation for anything other than the conduct in the new case, or that you have a Williams type argument about dismissed or uncharged offenses, you will need to put these documents forward as part of your showing in a credits motion. You will, naturally, need certified copies of these documents as part of your credits motion.

A second situation where you will want to raise a credits motion rather than present an issue on appeal involves a situation where trial counsel may have raised an argument about credits, but failed to properly cite either the factual basis for the claim or the correct legal authority giving rise to it. For example, in the Perkins case discussed above, involving application of the Marquez exception to strict causation, counsel argued that credit deprival was unfair, but never cited Marquez, or pointed out the fact that there had been a hold placed by Santa Clara County when the defendant was arrested in Alameda County. In that situation, I felt it imperative to have a record from the trial court which clearly laid out the factual and legal predicates to the argument.

In either of these situations, another factor noted above may be decisive. As noted above, even if you could raise the issue on direct appeal, a motion may be the only practical way for your client to get his or her credits before he or she is released from prison.

B.	Some Tips on the Nuts and Bolts of Bringing A Trial Court Credits Motion.

1.	Obtaining Supporting Documents.

In my view, based on what has now developed into considerable experience and luck defeating supposed "mixed conduct" credit denials, it is worth your time and trouble to obtain copies of prison, parole or probation documents in any case where your client loses a meaningful chunk of presentence credits because he was a sentenced prisoner, or had a parole or probation revocation. If you've ever tried to get documents from prison, parole or probation authorities, you know that it can be a daunting task. A couple of basic rules may help you. First, get a signed release from your client allowing you access to his prison, parole or probation records. Second, if your client is in local custody, or back on the streets, the parole records will be held by local parole authorities in charge of his case. Normally, you can track them down through your client's parole officer. However, if, as typically occurs, your client is back in state prison, his parole records will normally have been sent to the institution where he's imprisoned, where you must track them down (normally through the "Records" office, or the "Litigation Coordinator") and obtain copies. You may be asked to pay fairly exorbitant copying costs, which can then be reimbursed, thus transferring state money from the starving appellate counsel coffers into the overstuffed state prison coffers.

2.	The Motion Itself.

Don't do a bare bones trial court type motion; knock yourself out, as it were, and do a motion that is pretty much a template of the opening brief you are going to file. You would be surprised how many trial court judges are pleased to have clear, coherent, and well argued motions presented to them.9 Irrespective of whether you need material outside the appellate records, you should use extensive attachments to the motion which contain all the documentary evidence you need to prove your client's entitlement to credits.

Many trial judges believe that a pending appeal deprives them of jurisdiction to decide anything about your case. You should thus take pains to explain to the court in your motion that it has the authority to correct the error, citing amended section 1237.1, and Little, supra, and patiently explain to them that you're required, under section 1237.1, to bring the motion before raising it on appeal. Make sure your proof of service is to the district attorney's office, and not the attorney general.

Calendaring the motion can be difficult. The best trick is to get the trial lawyer to do it for you. He or she will tend to know the Ins and Outs of how to get motions calendared, can appear to argue it without you having to drive dozens or hundreds of miles, and probably has the schmoozing skills needed to survive those in-chambers conferences. If this fails, which it frequently will, you must do it yourself.

In many jurisdictions, calendaring the motion is relatively simple. Telephone the clerk of the trial judge, tell her or him that you have a credits motion you want to put on calendar, and she/he will give you a date some weeks off to calendar the motion.

(Please note that in these COVID/post-COVID times, most trial courts are still holding hearings through Zoom-type platforms, which makes much of what follows less significant; it should now be relatively easy to appear and argue motions remotely. And, to be honest with you, I have no idea how anything like motions get calendared in Santa Clara County these days. So, take what follows with a grain of salt or two.)

Unfortunately, many trial judges in Santa Clara County have, in recent times, been refusing to calendar motions in this manner, insisting that we simply file the motion and that the court will calendar it for us. I fell into this trap a couple times. The motion, after being filed, is sent to some Motions Research Clerk, who evaluates it to see if it has arguable merit, then contacts the trial judge or the "law and motion" judge to set a hearing date, who then (if you're lucky) passes that date on to you. This can take weeks or even months, and complicate your own task of promptly appealing your client's conviction. (You may be able to obtain extensions of time from the court of appeal for delays in this process.) A better method suggested to me by some local counsel is to simply set the case on the law and motion calendar for a Friday around three weeks after you file it. Anyway, be prepared for some delays. If you know trial counsel in the county where the motion is to be filed, ask him or her to help you get the lowdown on the motion procedures you're supposed to follow. This has proven to be extremely useful for me in cases from Monterey and Santa Cruz Counties.

The trial DA, or the deputy assigned to handle the motion, may call you and ask to have the hearing continued for various reasons. Be polite, and give them one continuance, but hardball them after that. If the DA does not concede, and files an opposition, review it carefully. I rarely file reply memos in the trial court, where they are not typically expected, and normally save my reply comments for argument of the motion. I also prepare for argument of the motion in much the same manner as I do in the Court of Appeal. Careful preparation also makes sense when, as too often happens, you are facing a trial or law and motion judge who has clearly not read over the materials all that well when you come to argue the motion.

3.	Winning; and What to Do If You Lose: New Appeal Notice and Motion to Consolidate.

If you win, congratulations! Do some follow-up to make sure that the judge's minute order and amended abstract actually gets to the Department of Corrections, and that a copy of these documents is included in an augmentation of the record on appeal, either by the actions of the clerk's office, or by your own motion to augment. These seemingly simple matters are both often screwed up, and will require your careful and persistent attention.

If you lose, in whole or in part, you will need to promptly file a new notice of appeal from an "order after judgment, affecting the substantial rights of any party." (§ 1237, subd. (b).)10 The Sixth District normally treats this as an entirely separate appeal, with its own case number. If this occurs, you will need to file the Sixth District's equivalent of a "motion to consolidate" (because they don't consolidate cases for some reasons shrouded in the history of that Court), which is a "motion to have the old and new appeal considered together for purposes of briefing, argument, and decision." (A sample motion is available on request.) Sometimes the Sixth District will incorporate any secondary appeal notice in the same superior court case into the same appeal, which would obviate the need for a consolidation motion. Sometimes you can even finesse this process by contacting the clerk's office in advance, though this has only occasionally worked for me.

In any case, you will now have generated your own credits issue on appeal; and since you have already briefed this to the max in the trial court, you won't have to spend too much time writing your opening brief in the Court of Appeal.

4.	Pre-Screening Credits Motion with SDAP Buddy.

A final word of caution. Many of you may be understandably concerned about getting paid for your work in the trial court trying to win credits. This time can be claimed under "Line 24" for "Other Services."

However, under SDAP protocols, you should always run your issue by your SDAP buddy before taking on a full-blown motion (as opposed to a Fares letter) in the superior court. This will give you a chance to discuss the matter with your SDAP buddy, and to maybe figure out whether there is an available less time-consuming way to preserve the issue; it may also allow the buddy to vet the issue in advance and, perhaps in some situations, explain to you why (a) the issue is non-meritorious, or (b) you can possibly raise it on appeal without running a motion.

Finally, running the issue by your buddy before filing a credits motion in superior court will give the buddy notice that you will be claiming significant time for the credits motion in Line 24, and reduce Claim Shock.

III.	EX POST FACTO, ANYONE?

Yes, Virginia, there are constitutional credits issues. Both the equal protection clause and the ex post facto prohibitions have come into play in the context of penal laws concerning jail or prison credits. As noted above, presentence jail-time behavior credits have their genesis in California in the state supreme court's equal protection analysis in Sage, supra, 26 Cal.3d 498, which held that pretrial detainees later sentenced to state prison are similarly situated to bailed out defendants and pretrial misdemeanants such that it was a violation of equal protection to deny them any behavior credits for their jail time. And, as mentioned above, I included an equal protection argument in my briefing on the Rojas credits denial in the Hopkins case, and have based my challenge to the exclusion of State Hospital competency treatment time from conduct credits on equal protection grounds in the Orellana case. But you all know about equal protection, so I'm going to leave that type of constitutional claim alone here, and instead riff on another of my favorite constitutional provisions.

The Ex Post Facto Clauses of the state and federal constitutions (U.S. Const. Art. I, §10; Cal. Const., Art. I, § 9) forbid the enactment of any law "that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." (Calder v. Bull (1798) 3 Dall. 386, 390 [1 L.Ed.648], emphasis in original.) Since the U.S. Supreme Court's landmark opinion in Weaver v. Graham (1981) 450 U.S. 24, it is settled that laws passed after a defendant committed his charged crime which alter to his detriment the defendant's entitlement to postconviction prison credits run afoul of the ex post facto prohibition. A law reducing credit entitlements "implicates the Ex Post Facto Clause because such credits are 'one determinant of petitioner's prison term . . . and [the defendant's] effective sentence is altered once this determinant is changed." (Lynce v. Mathis (1997) 519 U.S. 433, 445, quoting Weaver, supra, at p. 32 , emphasis added; see also In re Lomax (1998) 66 Cal.App.4th 639, 647.)

Retroactive changes in credits laws can affect your client's "effective sentence" in some less-than obvious ways. With the extension and revival of limitation statutes in sex crime cases (and with non-limited crimes such as murder), it sometimes occurs that your client is sentenced in a current case for crimes committed prior to the enactment of particular credit restriction statutes. For example, a client may stand convicted for eight "violent felony" sex crimes committed prior to the effective date of the credit restrictions of section 2933.1. Or, a murder defendant may incur a conviction for a crime committed prior to enactment of section 2933.2. Or, in a somewhat more subtle application of the principle, your client may stand convicted of a crime, such as robbery, which was reclassified as a "violent felony" after Proposition 21, but which was not a violent felony when he committed his current robbery back in January of 2000. Application of these laws against your client retroactively is a clear violation of ex post facto prohibition, because they unquestionably increase his "effective sentence" by requiring him to serve a much longer sentence on good behavior.

A.	Some Tricky 2933.1 Ex Post Facto Issues.

If, as in the first foregoing example, all your client's crimes were committed prior to the effective date of section 2933.1, the ex post facto issue is a no-brainer, and we win. The problem arises (1) where some, but not all crimes are committed prior to the effective date of the new law, and (2) where an accusatory pleading under which your client is charged and convicted specifies a range of dates which straddles the effective date of section 2933.1, e.g., where a crime was allegedly committed, "on or between January 1, 1994 and December 31, 1995."

In the former case, the answer seems obvious. If there are two violent felony convictions, one committed after the effective date of section 2933.1, and the other before, the 15 percent behavior credit limitations should apply only as to the post-
enactment crime, and not to the pre-enactment offense. For, as Weaver makes clear, in ex post facto analysis "the critical question is whether the law changes the legal consequence of acts completed before its effective date." (Weaver, supra, 450 U.S. at p. 31.) "Through [the ex post facto] prohibition the Framers sought to assure that legislative acts give fair warning of their effects and permit individuals to rely on their meaning until explicitly changed. . . ." (450 U.S. at pp. 28-29.) As to the crime committed before section 2933.1's enactment, a defendant could have had no "fair warning" of the extreme credit limiting consequences and reduction of his "effective sentence" which would follow from his criminal acts.

The mischief arises because of the non-constitutional statutory construction of section 2933.1 as applying "to the offender, not the offense" by the court in People v. Ramos, supra, 50 Cal.App.4th 810. According to Ramos, if a defendant is convicted of a single qualifying violent felony, his entire sentence, including consecutive terms on non-
violent felonies, is subject to the 15 percent credit limitations. (Id., at p. 817.) Small minds, such as those inside the heads of many trial and appellate judges, could and have concluded that the logic of Ramos means that if the limitations of section 2933.1 applies to one post-enactment violent felony, the defendant is thus a "person" covered by the credit limits of section 2933.1, which would then apply to the entirety of his sentence, violent or nonviolent, predating or postdating the effective date of the law.

However, the constitutional prohibition of ex post facto laws means that the reasoning of Ramos cannot be applied to consecutive sentences imposed for crimes, violent or not, committed prior to the effective date of section 2933.1. The new law "changes the legal consequences" of these pre-enactment acts by stringently increasing the number of years a defendant must effectively serve as punishment for such crimes. On an eight year sentence, for example, with half-time credits under section 2933, a defendant's "effective sentence" pre-2933.1 was 4 years; if 2933.1 is applied, his effective sentence is 6.8 years. Thus, the net affect of section 2933.1 is to increase the "effective sentence" in this example by more than fifty percent, a clear violation of the ex post facto prohibition as applied to the crime committed before the new law's effective date.

Back in the early 2000s, I pursued two cases involving this issue into federal court. In the end, I won one, and lost the other for reasons to complicated to go into now. The federal courts who have addressed these cases both agreed with my underlying contention that the Ex Post Facto Clause precludes credit limitations for crimes committed before the effective date of section 2933.1. But in both cases, bizarre "waiver" claims were upheld to preclude granting of habeas relief based on plea bargaining principles. I have quite a lot of sample briefing in these two cases, Villa and Martinez, which I would be happy to share with you.

One more twist on the same issue. What if, as suggested above, a crime for which your client was convicted after trial or on which he entered a plea was allegedly committed during a time period that straddles the effective date of section 2933.1? In that situation, you can still argue that the new law cannot be applied without violating ex post facto unless there is proof in the record of conviction, by at least a preponderance standard, that the criminal conduct actually took place after the effective date of the law. (See, e.g., People v. Lewis (1991) 229 Cal.App.3d 259 and Cal. Rules of Court, Rule 4.420(b), formerly Rule 420(b) [preponderance standard applies to proof of sentencing facts]; McMillan v. Pennsylvania (1986) 477 U.S. 79, 91-92 [preponderance standard for determination of sentencing facts satisfies Due Process Clause of 14th Amendment], disapproved on other grounds in Apprendi v. New Jersey (2000) 530 U.S. 466, 484-487.)

There is one published appellate case on this issue, People v. Palacios (1997) 56 Cal.App.4th 252, but it applies only to the unique situation of the "continuing crime" of resident child molestation under section 288.5. The question presented in Palacios was whether application of the credit reduction provisions of section 2933.1 violated the ex post facto prohibitions as to a 288.5 charge when at least one of the alleged underlying acts was committed before the operative date of September 21, 1994. It did not, according to the court in Palacios, because section 288.5

punishes a continuous course of conduct, not each of its three or more constituent acts . . ., [which] cannot logically be 'completed' until the last requisite act is performed. Where an offense is of a continuing nature, and the conduct continues after the enactment of a statute, that statute may be applied without violating the ex post facto prohibition.

(Id., at p. 257, citations omitted.)

By contrast, other sex crimes, such as rape or lewd conduct, involve specific allegations of individual criminal acts, and not courses of conduct, even when their commission is alleged to have occurred within a wide period of time. As such, in order for section 2933.1 to apply without running afoul of the ex post facto prohibitions, there must be proof in the record, by preponderance of evidence, that these crimes occurred on or after September 21, 1994. (Sample briefing on this point is also available.)

B.	Other Latent Ex Post Facto Issues?

Assume you are handling a case where your client stands convicted, after trial or plea, with crimes committed in the 1980s. It's important in this situation to check each component of the sentence imposed carefully to make sure that no portion of the sentence, fine, or order is based on a punishment provision enacted subsequent to your client's commission of his criminal act. One obvious example is the parole revocation fine imposed pursuant to section 1202.45 in all cases where a prison sentence is imposed. This fine is routinely imposed in cases where the crimes were committed prior to its effective date, August 3, 1995, in clear violation of the ex post facto prohibition. (See People v. Callejas (2000) 85 Cal. App. 4th 667.) Check the terms of the sentence and enhancements imposed against the terms in effect at the time the crime was committed, keeping in mind that old rules like the "double the base term" limit and no-more-than five year consecutive sentence limit may have still applied.

Please note that a combination of two factors, only one of which applied when I wrote the first two versions of this article, make this a somewhat common occurrence. First, as noted above, the expansion of the statutes of limitation, particularly in sex crimes, and the absence of such limitations for murder, mean that you will sometimes see crimes committed many years ago which are only being prosecuted and appealed now. This will require you to examine the nature of the statute in effect at the time the crime was committed. This can be a particularly difficult task in sex crimes, where the date the crime was committed, which is essential in ex post facto terms, is anything but certain. I note that in one unpublished Sixth District case I had some years ago, the Court of Appeal required that there be proof by a preponderance of evidence that the crime occurred after the date that section 2933.1 went into effect.

The second area where this ex post facto issue will arise comes in the many recent resentencing provisions under Propositions 36 and 47, and SB 1437. Again, the controlling date will be the date the offenses are committed, not the date of original sentencing or resentencing. This often overlooked provision also carries over to penal fines (e.g., restitution fines), which are covered by ex post facto, but beyond the scope of this article.

C.	Don't Be Afraid to Go to Federal Court!

Need I say more? You may lose these clearly meritorious issues in state court, based on questionable interpretations of statutory construction rules as trumping ex post facto. Have no fear. These issues should be clear winners in federal habeas cases. Push on and you will win. Maybe.

IV.	A WORD ON CREDIT WAIVERS: BAD NEWS, WITH A COUPLE POSSIBLE ISSUES.

As noted above, deprival of credits to which a defendant is entitled under the law normally results in an unauthorized sentence, which can be challenged at any time. However, a defendant can give up their right to presentence or other credits as part of a plea bargain in a multiplicity of situations. (See People v. Johnson (2002) 28 Cal.4th 1050, and discussion of case law therein.) Prior to Johnson, there was room for some creative arguments that credit waivers are proper only in limited situations, such as to allow probation to be granted on condition of serving of additional jail time, when the defendant would otherwise have served the maximum one year period for jail time under section 19.2. For example, the court in People v. Tran (2000) 78 Cal.App.4th 383, held that when the court imposed, then suspended, a maximum upper term prison sentence, a waiver of all credits as a condition of probation could not be upheld when it was not related to any proper rehabilitative probationary goal and where "[t]he only purpose served by the waiver condition [was] to lengthen appellant's prison sentence beyond the maximum allowed if he were to violate probation." (Id., at p. 390.)

Johnson rejected even the narrow limits in Tran, holding, in effect, that a waiver of credits to which a defendant is otherwise entitled under section 2900.5 is proper so long as it serves "any legitimate penological function." (Johnson, supra, at pp. 1056-1057.) In my view, Johnson leaves virtually no room for attacking a defendant's action of waiving his current and future entitlement to credits for a specified time period of custody so long as there was some valid rationale for this action and the waivers appear on the record to have been knowing and intelligent. Thus, it may be worth considering challenging the scope of this holding in Johnson as beyond the true scope of a "knowing and intelligent" waiver of credits.

Short of that, though, there are still some bases for challenging credit waivers in certain situations. Often there will be an absence of advisements about the waivers, such that it can be argued that they were not knowing and intelligent. This requirement means that it must be clear from the record that "the defendant understood he was relinquishing or giving up custody credits to which he was otherwise entitled." (People v. Arnold (2004) 33 Cal.4th 294, 308; see also People v. Salazar (1994) 29 Cal.App.4th 1550, 1553.) Although it is the "better practice" to give express advisements concerning the scope and consequences of a credit waiver, there is no requirement of express advisements of the consequences of the waivers, as in a Boykin-Tahl type waiver situation. (Salazar, supra, at pp. 1554-1556.)

Also, even if the waiver is presumptively valid, you may want to look behind the purported basis for the waiver and see if it is based on fallacious consideration. About a decade ago, former panel attorney David Martin came up with a clever strategy for attacking a credits waiver where the defendant agreed to waive a lengthy period of presentence credits as part of a plea bargain in exchange for dismissal of two first degree burglary charges, with the understanding that dismissal of these charges would mean that he would not be subject to the 15 percent credit limits of section 2933.1. Martin argued that the vast period of time excluded from presentence credit at the sentencing hearing exceeded the scope of the original understanding of credit waiver at the time of the plea. An even stronger argument was raised in a habeas petition, based on the fact the alleged consideration for the credit waiver – dismissal of the burglary charge to avoid the postconviction restrictions of section 2933.1 – was illusory because the burglaries in question were committed prior to the enactment of Proposition 21, which for the first time classified some residential burglaries as a violent felonies.11 Thus, it was argued, the failure of defendant's trial counsel to figure out that the agreement to waive credits was without meaningful consideration amounted to ineffectiveness requiring reversal of the credit waivers or withdrawal of the plea. (See, e.g., People v. McCary (1985) 166 Cal.App.3d 1 and People v. Hyunh (1991) 229 Cal.App.3d 1067.)

Trial courts will sometimes try to obtain the effect of a credits waiver without actually taking a waiver, doing this by what seems to them to be very cleverly structured allocation of credits to related or unrelated cases. The best example of this, and of the way to challenge it, comes from People v. Downey (2000) 82 Cal.App.4th 899, which involved the well-known actor, Robert Downey, Jr. Following a plea to one felony charge of possession of cocaine, and several misdemeanor drug, weapon, and driving offenses, Downey was placed on probation and required to participate in a number of inpatient and outpatient drug treatment programs. After several failures, the trial court ultimately revoked probation and imposed a prison sentence. (Id. at pp. 903-905.) The court imposed an upper term sentence of three years on the felony drug charge, and then purported to run the misdemeanor sentences consecutive based on a stated belief that it was required to do so by People v. Fugate (1990) 219 Cal.App.3d 1408. The court sentenced Downey separately on the misdemeanor offenses, imposing 180 days for the driving under the influence misdemeanor, 180 days on the firearm possession charge, and 90 days on the under-the-influence charge. (Downey, supra, at pp. 907-908.)

The Court of Appeal first held that the trial court erroneously concluded that it was required to run the misdemeanor sentences consecutive to the felony offense, rejecting the notion that this was required by Fugate, and remanding the matter based on the court's failure to exercise discretion. (Id, at pp. 911-912.) The court then turned to the question whether the misdemeanor counts were deemed to run consecutive or concurrent with respect to each other, concluding that because the trial court failed to state how the misdemeanor counts were to run with respect to each other, section 669 compelled a finding that they must be deemed to run concurrently. (Id., at pp. 912-915.) In analyzing this question, the court rejected the attorney general's contention that the court intended a consecutive sentence because it allocated separate periods of custody as to each misdemeanor count.

Respondent argues that the trial court did sentence appellant to consecutive terms on the misdemeanors because appellant had in fact already served "those terms" consecutively, having served separate periods of prior custody which were credited against the respective jail sentences. We reject this argument. Imposition of time in custody as a condition of probation is an act wholly independent of a later sentencing choice. As respondent observes, the concurrent grants of probation on counts 1, 3, and 4 did not amount to a judgment. (People v. Howard (1997) 16 Cal. 4th 1081, 1092.) Even if more than one period of custody was imposed as a condition of probation, and even if such periods were imposed and consequently served at successive times, this cannot possibly signify a determination by the trial court that terms on those counts should be served consecutively in the event sentence should later be imposed. . . . Moreover, there is no indication that, when the trial court imposed judgment in August 1999, it intended that the misdemeanor counts be deemed to have been served consecutively because of the prior history of custody.

(Id., at pp. 913-914.)

When a near-identical credit-robbing scheme was foisted on one of my clients in the May case, I was thrilled to find this opinion in Downey to complement the "it's not fair" argument raised by trial counsel. In Ms. May's case, the court had allocated a large chunk of the defendant's sentence, after a probation violation in which probation was reinstated, to misdemeanor counts, but did not actually pronounce judgment on these counts. When probation was again violated and Ms. May was sentenced to state prison, the court subtracted the time allocated to these counts from her credits. My motion, based largely on the holding in Downey, was granted by the trial court, and Ms. May ended up getting out of prison about two months before her scheduled release date, allowing her to spend Christmas with her family. Now ain't that nice? If you ever get a crazy case like this, let me know and I can share my briefing in May.

V.	BANK ERROR IN YOUR FAVOR! TIME TO CONSIDER ABANDONING THE APPEAL.

There is another variety of credits error which requires a very different application of your legal and "counselor" skills. Sometimes your client is awarded credits by the trial court to which he is not entitled under a proper understanding of the law. For example, courts will occasionally miss the fact that one of the current charges is a violent felony, and award conduct credits under section 4019. Or, as happened in one of my cases, a court might impose consecutive sentences, and then include the same period of custody as part of the credits for each of the sentences imposed, in violation of the clear rule that "Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed." (§ 2900.5, subd. (b).) Other times, you may catch a mathematical error which favors your client, such as double counting of a particular period of custody (which happens on occasion when there are prior probation revocation proceedings), or a failure to fully deduct time served on a misdemeanor sentence.

When this occurs, it's time to put on your "Adverse Consequence" hat. First, make sure there really is a favorable error, or at least an arguably unauthorized credit error; then talk to your buddy from SDAP or other appellate project, and try to get a good sense of (a) the likelihood that the AG and/or Court of Appeal will spot this error, balanced by (b) the likelihood that CDCR Legal unit, which reviews every sentence, will catch the error anyway even if you do abandon the appeal.

Whatever conclusion you reach, you must contact the client and explain the potential adverse consequence. One should be very careful not to make such communica
tions to the client in any manner which could be intercepted by prison authorities, properly or otherwise. Obviously, this includes any collect call from the client, which has no privilege. In certain situations – for example, my own case where a defendant had about a year and a half of double credits to which he wasn't entitled – this may mean you need to personally visit with the client to insure that any communication is as confidential as possible. I got a nice trip to the Yolo County jail out of that situation.

Bear in mind that the decision whether to proceed with the appeal, in spite of the potential adverse consequence of loss of credits, belongs to the client, not to you. Your advice about which way to go will depend on many factors, including the amount of custody time at issue, compared to the length of the sentence, the strength or weakness of other issues, and the likelihood of the favorable error being spotted by the AG, court, or CDCR.

CONCLUSION

Well, I've managed to expand my article into the 50 page bracket. Hopefully, this second redo of my credits opus has provided you with some of the basics of credits law in California, and with some ideas and tools for identifying and successfully raising credits issues on behalf of your clients. For those of you who previously read my one or both of my prior credits articles, I hope this review has been refreshing, and that the additions will be helpful. This is a work in progress, and I would be very happy to hear from any readers concerning other important credits issues which were omitted from this essay, or additional case law or ideas for successful credit challenges concerning subjects raised herein.

Finally, bear in mind that credits issues, like all of the work that we do, calls for creativity and imagination. There are new credits issues out there for the finding if you can look behind the often confusing rules and case law about credits and get to the heart of what's going on. I have frequently been surprised how often I am led to an arguable and sometimes winning issue because of either a client's complaint about denial or abridgment of credits, or my own sense that there is something wrong or unfair about the credits award.

Now go out there and get those credits!

Appendix: Prison Law Office Documents on Prison Credits and Parole Eligibility

1.	Elderly Parole, Nov. 2020

2.	Prop. 57 Parole, May 2021

3.	Time Credits in CDCR, July 25, 2021

4.	Youth Offender Parole, June 2021