California Court of Appeal Reiterates ‘Three Strikes’ Law Does Not Limit ‘Presentence’ Custody Credits, Defendant Entitled to Credits Calculated Under Penal Code § 4019
by Douglas Ankney
The Court of Appeal of California, Second Appellate District, ruled that assault with a firearm is not a violent felony for purposes of the state’s Three Strikes Law (Penal Code § 667); consequently, Rasheed Malcolm Jones was entitled to the amount of custody credits calculated under the default provision in §4019. (Note: All statutory references are to the California Penal Code.)
Jones pleaded no contest to one count of assault with a firearm and admitted having suffered a prior conviction for assault with a firearm in 2012. Jones was sentenced to four years in prison. At sentencing, defense counsel expressly requested the court to order “day-for-day” custody credits pursuant to § 4019 because while the charge of assault with a firearm qualifies as a serious felony, it is not a disqualifying violent felony. The sentencing court rejected the request, ruling Jones was not entitled to day-for-day credits because he had admitted the prior strike. The court awarded Jones presentence custody credits in the amount of 596 days (497 actual, plus 99 conduct). Jones timely appealed.
The Court of Appeal observed “[o]rdinarily, presentence custody credits are calculated according to Penal Code section 4019.” People v. Thomas, 988 P.2d 563 (Cal. 1999). Pursuant to the relevant parts of § 2900.5(a), defendants “[i]n all felony and misdemeanor convictions, either by plea or by verdict” shall be given presentence credits “pursuant to Section 4019.” However, § 2933.1(c) creates an exception to the general rule for a defendant convicted of a “violent felony” within the meaning of the Three Strikes Law, providing in relevant part that “[n]otwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement ... following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a).” And § 2933.1(a) provides that “any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit as defined in Section 2933.”
Jones’ current and prior convictions for assault with a firearm were not violent felonies as defined by § 667.5(c). Therefore, the limitation on presentence credits in § 2933.1 did not apply to him. But because his assault charge and prior strike qualified as a serious felony under § 1192.7(c)(31), the People contended Jones’ prior strike meant his presentence credits were limited by §§ 667 and 1170.12.
The Court flatly rejected that argument, declaring “the Three Strikes law has no effect on the calculation of presentence conduct credits.” It stated that the California Supreme Court explained in People v. Buckhalter, 25 P.3d 1103 (Cal. 2001), that “restrictions on the rights of Three Strikes prisoners to earn term-shortening credits do not apply to confinement in a local facility prior to sentencing.” The Three Strikes law, §§ 667(c)(5) and 1170.12(a)(5), expressly refer only to “postsentence … credits,” not presentence credits. Id. Thus, the Court held that Jones’ presentence credits should have been calculated according to §4019.
Accordingly, the Court modified the judgment of conviction to reflect 993 days of presentence custody credits (497 actual, 496 conduct), affirmed the judgment as modified, and instructed that on issuance of the remittitur, the superior court is to prepare and transmit a modified abstract of judgment to the Department of Corrections and Rehabilitation. See: People v. Jones, 2023 Cal. App. LEXIS 131 (2023).
