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Filed 1/9/14 P. v. Hunt CA1/4 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION FOUR 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

NICHOLES MURRAY HUNT, 

 Defendant and Appellant. 

 A136645 

 (San Francisco City & County 

 Super. Ct. No. CR212747) 

I. 

INTRODUCTION

 Appellant Nicholes Murray Hunt appeals from a four-year state prison term 

imposed after his probation was revoked. He contends the trial court erred in failing to 

correct his sentence because the presentence conduct credits were miscalculated for the 

period he was in custody between his November 13, 2010 arrest on the probation 

violation and his March 15, 2011 sentencing. For this time period, the court awarded 

appellant two days of conduct credits for every four days in the county jail, resulting in 

appellant receiving credit for 123 actual days in custody and 60 conduct credits. 

Appellant claims that under the law in effect at the time he was in presentence custody, 

he is entitled to full, day-for-day presentence conduct credit for an additional 63 days of 

credit. (Former Pen. Code, §§ 2933, 4019.)1

 We agree with appellant that applicable 

prior law provided for day-for-day presentence conduct credit; and we therefore correct 

 1

 All statutory references are to the Penal Code. 
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the judgment (§ 1260) to award appellant his requested additional 63 days of presentence 

conduct credit. In all other respects, the judgment is affirmed. 

II.

FACTUAL AND PROCEDURAL HISTORY

 Appellant was arrested on June 14, 2010, and subsequently entered into a 

negotiated plea with the prosecution. As part of that agreement, on June 30, 2010, 

appellant entered a plea of guilty to corporal injury on a spouse, former spouse, 

cohabitant, former cohabitant, or a parent of his or her child. (§ 273.5, subd. (a).) In 

return for his plea, other charges pending against him were dismissed by the prosecution, 

sentencing was suspended, and appellant was placed on three years’ probation with 

conditions, including that he spend six months in county jail, that he participate in a 

domestic violence program, and that he stay away from the victim. It was understood 

that appellant could receive a maximum four-year prison term if probation was violated. 

Appellant served 90 days of his county jail term before being released. 

 On October 19, 2010, probation was revoked when appellant failed to appear at a 

hearing, and a bench warrant was issued for his arrest. The warrant was recalled on 

October 22, 2010, and probation was reinstated. A new bench warrant was issued on 

November 5, 2010, after appellant failed to appear at another hearing. He was found at 

the victim’s home on November 13, 2010, and was taken into custody. 

 At a contested hearing held on February 14, 2011, appellant was found to have 

violated the terms of his probation. On March 15, 2011, appellant’s probation was 

formally revoked; and he was ordered to serve four years in state prison. At sentencing, 

the court awarded appellant a total of 363 days of credit for time served in the county jail, 

consisting of 213 actual days in custody and 150 days of presentence conduct credit. 

More precisely, appellant was awarded (1) 90 actual days and 90 days of conduct credits 

for the time served in the county jail after his first arrest, on June 14, 2010, until 

September 9, 2010, a computation he does not challenge; plus (2) 123 actual days and 60 

days of conduct credits for the time served in jail after his arrest on the probation 
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violation on November 13, 2010, until March 15, 2011, a computation which is 

challenged in this appeal. 

 Appellant’s first notice of appeal was filed on April 6, 2011. On October 25, 

2011, this court dismissed appellant’s appeal in a nonpublished opinion, concluding that 

the alleged error in calculating presentence conduct credit should be brought to the 

attention of the superior court in the first instance rather than to the appellate court.2

 

(People v. Hunt (Oct. 25, 2011, A131727).) 

 Subsequently, a hearing was held in the superior court on August 15, 2012, on 

appellant’s motion to correct presentence credits. The trial court indicated that “[a]s far 

as I’m concerned, the Court properly sentenced Mr. Hunt.” Appellant’s notice of appeal 

was filed on September 13, 2012. 

III. 

DISCUSSION

A. Statutory Overview 

 On appeal, appellant challenges only the presentence custody credit award for the 

time he served in the county jail after his November 13, 2010, arrest on the probation 

violation until his March 15, 2011 sentencing, arguing he should have received conduct 

credit in an amount equal to the actual days he served in custody prior to his sentence to 

state prison. A defendant sentenced to state prison is entitled to credit against his or her 

sentence for all actual days spent in custody before sentencing, and for all appropriate 

conduct credits. (§ 2900.5, subd. (a).) This entitlement survives the defendant’s release 

from prison, since additional custody credits may serve to reduce the defendant’s period 

of parole. (In re Reina (1985) 171 Cal.App.3d 638, 642.) 

 The statutory scheme governing the calculation of presentence conduct credits was 

undergoing repeated revision within the relatively short period of time appellant’s case 

was winding its way through the criminal justice system, leading to confusion as to the 

 2

 On April 8, 2013, this court granted appellant’s request to take judicial notice of 

the record on appeal in the prior case, A131727 (Ruvolo, P. J.). 
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applicable law and the correct formula to use in the calculation of presentence custody 

credits. The court in People v. Garcia (2012) 209 Cal.App.4th 530 (Garcia) observed 

that the frequency of these legislative changes “ha[s] made calculating presentence 

conduct credits a potentially complex undertaking. And, trial courts throughout 

California have been deluged with motions, habeas corpus petitions and hand scrawled or 

typewritten (on actual typewriters) letters from inmates seeking additional presentence 

conduct credits.” (Id. at p. 533.) 

 This legislative history was set out in great detail in Garcia, supra, 209 

Cal.App.4th 530, and we will summarize it here, focusing on the revisions that have the 

greatest applicability to the resolution of the case before us. The Garcia court prefaces 

its legislative review by recognizing “[f]rom 1982 through 2009, former section 4019 

authorized two days’ conduct credit for every four days spent in presentence custody. 

(Former § 4019, subds. (b) & (c), as amended by Stats. 1982, ch. 1234, § 7, pp. 4553-

4554 . . . .)” (Id. at p. 534.) Consequently, before 2010, a defendant who earned all 

available conduct credits during his or her presentence incarceration would be deemed to 

have served six days in custody for every four days actually served––the so-called sixfor-four formula. (People v. Dieck (2009) 46 Cal.4th 934, 939.) 

In December 2008, former Governor Arnold Schwarzenegger declared a fiscal 

emergency. (See Garcia, supra, 209 Cal.App.4th at p. 535.) In response, the Legislature 

passed a series of bills aimed at reducing costs and prison overcrowding. (Id. at pp. 535-

540.) It did so, in part, by passing legislation effective January 25, 2010, increasing the 

amount of conduct credits earned by persons in presentence custody who had not 

committed serious or violent felonies or sex offenses. (Stats. 2009, 3d Ex. Sess. 2009-

2010, ch. 28, § 50; Garcia, supra, 209 Cal.App.4th at pp. 535-536.) “With exceptions, 

Senate Bill No. 18 provided presentence conduct credits of two days for every two days 

served in a county jail for persons committed to prison. (Former § 4019, subds. (b)(1) 

and (c)(1).” (Garcia, supra, 209 Cal.App.4th at pp. 535-536.) 

 Our Supreme Court has held the January 25, 2010 amendment to section 4019 

applies prospectively only to time spent in presentence custody on or after January 25, 
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2010, though it does not matter when the crime was committed. (People v. Brown (2012) 

54 Cal.4th 314, 318 (Brown).) As a result, defendants are to receive custody credit based 

on the law in effect when their time is being served. (Id. at p. 322.) 

 Appellant was given 90 days of conduct credit pursuant to section 4019, as 

amended effective January 25, 2010. The 90 days of conduct credit was based on a dayfor-day calculation of time appellant spent in custody after his original arrest from 

June 14, 2010, to September 9, 2010. As noted, this computation has not been challenged 

on appeal. 

 However, when appellant was arrested for violating his probation on 

November 13, 2010, and placed in presentence custody before he was sentenced to prison 

on March 15, 2011, a new law had gone into effect. “Effective September 28, 2010, in 

Senate Bill No. 76, the Legislature restored conduct credit accrual for all local prisoners 

to the prior existing rates. . . . (Former § 4019, subds. (b) & (c), as amended by Stats. 

2010, ch. 426, § 2 . . . .) . . . The Legislature declared, ‘It is the intent of the Legislature 

that if all days are earned under this section, a term of six days will be deemed to have 

been served for every four days spent in actual custody.’ (Former § 4019, subd. (f), as 

amended by Senate Bill No. 76.)” (Garcia, supra, 209 Cal.App.4th at p. 537, italics 

omitted.) Senate Bill No. 76 also added section 4019, subdivision (g), which made the 

new decreased credits applicable only to defendants who committed crimes on or after 

the statute’s effective date, September 28, 2010. (Stats. 2010, ch. 426, § 2); § 4019, 

subd. (g).) Thus, Senate Bill No. 76’s amendment of section 4019 was explicitly 

prospective. 

 “At the same time, Senate Bill No. 76 amended former section 2933 to award dayfor-day conduct credit to certain prisoners in local presentence custody who were 

sentenced to prison. (Former § 2933, subd. (e)(1), as amended by Stats. 2010, ch. 426, 

. . . § 1, eff. Sept. 28, 2010.)” (Garcia, supra, 209 Cal.App.4th at p. 538.) Former 

section 2933, subdivision (e)(1), stated: “Notwithstanding Section 4019 and subject to 

the limitations of this subdivision, a prisoner sentenced to the state prison under Section 

1170 for whom the sentence is executed shall have one day deducted from his or her 
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period of confinement for every day he or she served in a county jail, city jail, industrial 

farm, or road camp from the date of arrest until state prison credits pursuant to this article 

are applicable to the prisoner.” Those with disqualifying prior convictions were not 

eligible for the additional credits under former section 2933, subdivision (e)(1). (See 

former § 2933, subd. (e)(3).) Unlike former section 4019, subdivision (g), as amended by 

Senate Bill No. 76, there was no specification that the amended section 2933 applied only 

to crimes committed after September 28, 2010, the effective date of the amendment. 

 The court in People v. Hul (2013) 213 Cal.App.4th 182, summarized the 

September 28, 2010, legislative changes as follows: “Thus, defendants sentenced to a 

local jail received maximum presentence conduct credit only at a half-time rate under 

section 4019, while those sentenced to state prison could receive full, day-for-day 

conduct credit under section 2933 for presentence custody.” (Id. at p. 186.) 

 The presentence conduct credit laws changed yet again with the October 1, 2011 

Criminal Justice Realignment Act of 2011. “[S]ection 2933, subdivision (e), with its 

impact on presentence conduct credits [for those sentenced to prison], was short-lived. 

Effective October 1, 2011, as part of the realignment legislation, the section 2933, 

subdivision (e) presentence conduct credits provision was repealed. Section 4019 

returned as the standard for awarding presentence conduct credits. (Stats. 2011, 1st 

Ex. Sess. 2011-2012, ch. 12, § 16.)” (Garcia, supra, 209 Cal.App.4th at p. 539.) 

Effective October 1, 2011, section 4019, subdivision (f), provides that all defendants 

receive four days of presentence credit for every two days served. (See Garcia, supra, 

209 Cal.App.4th at pp. 539-540.) The statute expressly states that it is to apply 

prospectively. (§ 4019, subd. (h).) All parties agree the operation of this 2011 legislative 

action is irrelevant to the resolution of the case before us. 

B. Calculating Appellant’s Conduct Credits 

 The September 28, 2010 statutory scheme was in effect at the time appellant was 

arrested for violating his probation, returned to custody in the local jail, and sentenced to 

state prison. Consequently, the September 28, 2010 version of the presentence custody 

credit law is the one that should be used in determining the correct formula to use in 
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calculating his presentence credits. (Brown, supra, 54 Cal.4th at p. 318 [unless otherwise 

specified, defendants are to receive custody credit based on the law effective when the 

time is served]; Payton v. Superior Court (2011) 202 Cal.App.4th 1187, 1191 (Payton) 

[“[I]nmates are entitled to the conduct credits which are in effect at the time their custody 

is served”].) 

 Appellant first contends he is entitled to the enhanced one-for-one credits for the 

time he spent in custody from his November 13, 2010 arrest until he was sentenced to 

prison on March 15, 2011, pursuant to the September 28, 2010 version of former section 

2993, subdivision (e), rather than the six-for-four presentence custody credits used by the 

trial court under former section 4019, subdivision (f). Appellant claims “that for 

defendants like [appellant] who are sentenced to state prison, section 2933’s day-for-day 

provision governs the pre-sentence credit rate.” 

 Appellant’s argument is supported by the statutory language. After the 

September 28, 2010 amendment, former section 2933 provided: “Notwithstanding 

Section 4019 . . . a prisoner sentenced to the state prison . . . for whom the sentence is 

executed shall have one day deducted from his or her period of confinement for every 

day he or she served in a county jail, city jail, industrial farm, or road camp from the date 

of arrest until state prison credits . . . are applicable to the prisoner.” (§ 2933, subd. 

(e)(1).) It also provides that such credit may not be received “if it appears by the record 

that the prisoner has refused to satisfactorily perform labor . . . or has not satisfactorily 

complied with the reasonable rules and regulations.” (§ 2933, subd. (e)(2).) Lastly, 

“[s]ection 4019, and not this subdivision, shall apply” to sex offenders, those committed 

for a serious felony, and those with a prior conviction for a serious or violent felony. 

(§ 2933, subd. (e)(3).) 

 There is nothing in the record to suggest that any of the exceptions to section 2933 

applied to render its provisions inapplicable to appellant. Accordingly, we find the 

sentencing court erred when it granted appellant 60 conduct credits for 123 actual days in 

custody. Under the September 28, 2010 amendment to former section 2933, subdivision 

(e)(1), those sentenced to state prison should receive one day of presentence credit for 
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every day served. This made the final calculation 63 days short according to governing 

statute. 

 Furthermore, even though the trial court believed otherwise, the presentence 

conduct credit computation for the time appellant served in custody after September 28, 

2010, could not be based on the six-for-four formula set out in section 4019, effective on 

that date. As explained in Payton, supra, 202 Cal.App.4th at page 1190, footnote 3: 

“The September 2010 amendment restored the presentence conduct credit calculation set 

forth in the version of section 4019 in effect before the January 25, 2010 amendment 

[providing one-for-one credit]. By its express terms newly created subdivision (g) of 

section 4019 declared the September 2010 amendment applied only to prisoners confined 

for a crime committed on or after the effective date of that amendment.” (Italics added.) 

 Because appellant was serving time for a probation violation based on an 

underlying crime committed before September 28, 2010, this version of section 4019 

clearly did not apply. Consequently, appellant’s conduct credits should have been 

computed using the one-for-one formula set out in the January 25, 2010 version of 

section 4019, providing an alternative ground for granting appellant the relief he requests. 

(See Couzens, Bigelow & Prickett, Sentencing Cal. Crimes (The Rutter Group 2013) 

Credit for Time Served, § 15:4 [for violations of probation with underlying crimes 

committed prior to September 28, 2010, “even if the custody on the probation violation is 

served after September 28, 2010, the credits will be calculated under the [one-for-one] 

formula effective January 25, 2010”].) 

IV. 

DISPOSITION 

 The matter is remanded with directions to the trial court to modify the judgment to 

award appellant 63 days of presentence conduct credit, in addition to the 123 days of 

actual time served. The trial court is directed to prepare an amended abstract of judgment 

and forward a certified copy of it to the Department of Corrections and Rehabilitation. In 

all other respects, the judgment is affirmed. 
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 _________________________ 

 RUVOLO, P. J. 

We concur: 

_________________________ 

RIVERA, J. 

_________________________ 

HUMES, J.