NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

THE COURT*

In September 2008, appellant, Frank Anthony Martinez, pled no contest to assault by means of force likely to produce great bodily injury (Pen. Code,1 § 245, subd. (a)(1)). The court imposed a prison term of three years, suspended execution of sentence, placed appellant on three years' probation, and ordered that he served 365 days in county jail.

In December 2010, the court, after finding that appellant had violated his probation, imposed the previously suspended three-year prison term and awarded appellant 469 days of presentence credit, consisting of 313 days of actual time credit and 156 days of conduct credit.

On appeal, appellant contends the judgment should be modified to provide that he is awarded 634 days of presentence credit, rather than 469 days. We will find merit in this contention, modify the judgment accordingly, and otherwise affirm.

DISCUSSION

Under section 2900.5, a person sentenced to state prison for criminal conduct is entitled to what is commonly called actual time credit: credit against the term of imprisonment for all days, including partial days, spent in custody before sentencing. (§ 2900.5, subd. (a); People v. King (1992) 3 Cal.App.4th 882, 886.) In addition, under sections 2933, subdivision (e) and 4019, subdivisions (b) and (c), a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor and compliance with rules and regulations. These forms of presentence credit are called, collectively, conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)

Appellant first argues that the court incorrectly calculated his actual time credit. The People concede the point, and we agree.

We set forth the relevant factual background. Appellant served three periods of presentence custody. First, he was in custody from August 30, 2008, the date of his arrest, through at least part of April 22, 2009, a period of 236 days. Second, he was arrested and taken into custody for violating a restraining order on September 24, 2010, and released on September 27, 2010, thus serving four more days in local custody. Finally, he was in custody from September 29, 2010, when he was remanded into the custody of the Sheriff, through December 14, 2010, the date of sentencing, a period of 77 days.

Thus, appellant was in local custody prior to sentencing for a period of 317 days. However, the court awarded him actual time credit of 313 days. Apparently, as the parties agree, the court failed to include the four-day period from September 24, 2010, through September 27, 2010.2 Therefore, as the parties also agree, appellant was entitled to 317 days of actual time credit.

Appellant also challenges the court's award of conduct credit. He argues that the court erred in failing to calculate his conduct credit under a former version of section 2933 that was in effect at the time of sentencing, and which provided that qualifying defendants could earn one day of conduct credit for each day of actual time in custody. The People counter that section 2933 does not apply in the instant case, and that appellant's conduct credit must be calculated under the less generous provisions of section 4019. As set forth in footnote 3, section 4019 has been amended at various times, and the People assert that conduct credit for any given period of presentence custody must be calculated under the version of section 4019 in effect during such period.3

However, no version of section 4019 was applicable to appellant. As indicated above, appellant was sentenced in December. Section 2933 was amended effective September 28 (Stats. 2010, ch. 426, § 1) to provide as follows: "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), italics added.)4 Section 2933 also provides that a person shall not receive such credit "if it appears by the record that [he or she] has refused to satisfactorily perform labor ... or has not satisfactorily complied with the reasonable rules and regulations." (§ 2933, subd. (e)(2).) Lastly, section 2933, subdivision (e)(3) provides, "[s]ection 4019, and not this subdivision, shall apply" to persons required to comply with sex offender registration requirements, those committed for a serious felony (§ 1192.7, subd. (c)), and those with a prior conviction for a serious or violent felony (§ 667.5, subd. (c)). (§ 2933, subd. (e)(3).)

The People argue that section 2933, though it was in effect at the time appellant was sentenced, does not apply to the trial court's determination of presentence custody credit. Presentence custody credit under that statute, the People argue, is to be awarded only by the Department of Corrections and Rehabilitation (DCR), not the trial court. We disagree.

We recognize the following: "Once a person begins serving his prison sentence, he is governed by an entirely distinct and exclusive scheme for earning credits to shorten the period of incarceration" (People v. Buckhalter (2001) 26 Cal.4th 20, 31); the Director of DCR has the duty of determining postsentence custody credit (People v. Mendoza (1986) 187 Cal.App.3d 948, 954); and subdivisions (a) through (d) of section 2933 deal with the postsentence credit scheme. However, nothing in section 2933 compels the conclusion that presentence custody credit under subdivision (e) of section 2933 is also to be determined by the Director of DCR. Section 2933, subdivision (e) provides that qualifying defendants "shall have one day deducted" for every day from the date of arrest until the defendant is delivered to the custody of the DCR, but the statute is silent on the question of what entity performs the task of calculating such credits.

Section 2900.5, subdivision (d), on the other hand, requires a sentencing court "to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section." Section 2900.5, subdivision (a), states: "[W]hen the defendant has been in custody, 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, all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment." Section 2900.5, subdivision (e), states: "It shall be the duty of any agency to which a person is committed to apply the credit provided for in this section for the period between the date of sentencing and the date the person is delivered to the agency."

While section 2900.5 does not refer to section 2933, it also does not preclude a trial court's application of section 2933 pursuant to its duties under section 2900.5. Furthermore, the recently established local custody conduct credit of section 2933, subdivision (e) is the same kind of credit, and is in lieu of, the section 4019 conduct credit that is expressly referred to in section 2900.5. While section 2933 otherwise deals with postsentence credit awarded by the DCR, subdivision (e) of section 2933 applies in place of section 4019, which provides for presentence credit that must be determined by the trial court at sentencing. As indicated in subdivisions (d) and (e) of section 2900.5, execution of sentence is the appropriate dividing line between a trial court's responsibility for determining conduct credit and that of the prison authorities. Accordingly, we hold that a trial court's duties under section 2900.5 include calculating and awarding section 2933, subdivision (e) local custody conduct credit, when such credit is in lieu of section 4019 credit.

The People also argue that regardless of when a defendant is sentenced, the award of conduct credit is governed by the conduct-credit statute in effect at the time of the presentence custody for which such credit is to be awarded, and therefore, (1) because section 2933 is inapplicable here and section 4019 was the only conduct credit statute in effect at the time appellant was serving his presentence custody, his custody credit should be calculated under section 4019, and (2) alternatively, if section 2933 does apply in the instant case, it can apply only to appellant's presentence custody served on and after September 28, the effective date of section 2933. Conduct credit for time in local custody served prior to September 28, the People assert, must be calculated under section 4019. We disagree.

Section 4019 presentence conduct credit is neither earned per segment, e.g., per four- or two-day period, nor available "`"all or nothing."'" (People v. Johnson (1981) 120 Cal.App.3d 808, 813-814.) Instead, conduct credit is "credited to the defendant's term of imprisonment `in the discretion of the court imposing the sentence.' [Citation.] It is the duty of the sentencing court to determine `the total number of days to be credited ...' for presentence custody. [Citations.] [¶] Although the sheriff is authorized to deduct conduct credits for inmates jailed under a misdemeanor sentence or as a condition of probation, his role with respect to presentence custody credit is to provide the sentencing court with information, records and recommendations. [Citations.] The sheriff or the People have the burden to show that a defendant is not entitled to Penal Code section 4019 credits. [Citation.]" (People v. Duesler (1988) 203 Cal.App.3d 273, 276.) "If the record fails to show that defendant is not entitled to such credits ... he shall be granted them." (Johnson, supra, at p. 815.) Thus, section 4019 credit is either withheld or granted at sentencing. It follows then, that the calculation of such credit is based upon the law in effect at the time of sentencing. And, as indicated above, section 2933, which expressly applies "notwithstanding" section 4019, was in effect at the time of sentencing. (§ 2933, subd. (e)(1).) Moreover, the record contains no indication appellant failed to perform assigned labor or follow rules, or that any of the section 2933, subdivision (e)(3) disqualifying factors apply.5 Therefore, the trial court erred in failing to award appellant, in addition to actual time credit of 317 days, 317 days of section 2933, subdivision (e) conduct credit. (§ 2933, subd. (e)(1).)

DISPOSITION

The judgment is modified to provide that appellant is awarded a total of 634 days of presentence credit (317 days of actual time credit plus 317 days of Penal Code section 2933, subdivision (e) conduct credit). The trial court is directed to amend the abstract of judgment and to forward the amended abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.