Since 2009, there have been no less than five legislative changes to the way presentence conduct credits are calculated, leaving even the most informed judges, district attorney and defense attorneys confused.

The recent case of People v. Paul Garcia (2012 DJDAR 13257 (Sept. 24, 2012)) serves to clarify the law on this important issue.

On May 28, 2010, Paul Garcia allegedly made criminal threats, a violation of Penal Code § 422. Section 422 is considered a “Strike Offense,” or a serious and violent felony requiring the convicted individual to serve a minimum of 85% of the sentence. Garcia also had a prior serious felony conviction, although the opinion did not describe what this was.

On January 26, 2010, Garcia was found guilty and sentenced to six years and four months in prison. Garcia had been in custody for 244 days prior to being sentenced. The question was how much presentence credit beyond 244 days should be applied to his sentence for good conduct and agreeing to perform labor as directed by the sheriff.

Due to the defendant’s prior conviction for a serious felony, but not a violent felony, the Second Appellate District ruled that Mr. Garcia would only be eligible for two days of conduct credit for every four days served in presentence custody. This is less than the one-for-one credit that often does apply.