Filed 10/30/14 P. v. Super. Ct. CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


PEOPLE OF THE STATE OF
CALIFORNIA,
         Petitioner,
v.                                                                   A142973
THE SUPERIOR COURT OF SAN
FRANCISCO COUNTY,                                                    (City and County of San Francisco
                                                                     Super. Ct. No. 14008742)
         Respondent;
CHRISTOPHER HEY,
         Real Party in Interest.

         The People petition for a writ of prohibition or mandamus directing the trial court
to declare that real party in interest, Christopher Hey, is ineligible for presentence
reduction credits awarded pursuant to Penal Code section 40191 for the time he is to serve
in a Sheriff’s Work Alternative Program. Because the law clearly establishes that service
in an alternative work release program does not qualify for section 4019 credits, and the
record in these proceedings reflects that the trial court left the award of such credits to the
discretion of the county sheriff, we grant the writ.
                                                  BACKGROUND
          A jury convicted Christopher Hey of driving a motor vehicle with a blood alcohol
level in excess of .08 percent in violation of Vehicle Code section 23152, subdivision (b).


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          Further statutory references are to the Penal Code unless otherwise designated.

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The trial court suspended imposition of sentence, placed Hey on probation with the
condition, among others, that he serve a county jail term of 18 days through the Sheriff’s
Work Alternative Program (SWAP).
       The trial court awarded Hey two days of credit pursuant to section 4019 for time
spent in custody following his arrest. When a question arose regarding whether Hey
would receive section 4019 credit for time spent in the SWAP program, the court stated:
“I’m going to leave that to the sheriff’s office. If there is a disagreement as to whether
4019 is applicable to SWAP, the intention of the [court] is that the defendant has credit
for time served of two days. I’ll give you that, but that he spend the remaining time in
SWAP. I will leave it to the sheriff’s office to apply that as they will.”
       After an unsuccessful attempt to secure a writ of mandate or prohibition from the
superior court, the People filed the petition now before us. On September 18, 2014, we
invited the parties to file an opposition and reply, and notified them that the court was
contemplating issuance of a peremptory writ in the first instance as authorized by Code of
Civil Procedure section 1088 and Palma v. Industrial Fasteners, Inc. (1984) 36 Cal.3d
171, 180.
                                       DISCUSSION
       The trial court awarded Hey two days of credit under section 4019 for time served,
and its remarks indicate it had no intention of granting additional credit under section
4019. But it left the actual award of credit for Hey’s participation in the SWAP program
up to the discretion of the sheriff. This was error for two reasons.
       Section 4019 credits are not allowable for time served in work release programs
because such time is not considered served in custody for credit calculation purposes.
(People v. Wills (1994) 22 Cal.App.4th 1810, 1812–1813; People v. Richter (2005) 128
Cal.App.4th 575, 579–580.) Moreover, “ ‘[t]he court imposing a sentence’ has
responsibility to calculate the exact number of days the defendant has been in custody
‘prior to sentencing,’ add applicable good behavior credits earned pursuant to section

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4019, and reflect the total in the abstract of judgment. (§ 2900.5, subd. (d); see also id.,
subd. (a).)” (People v. Buckhalter (2001) 26 Cal.4th 20, 30.) The court had no authority
to grant the sheriff discretion to award section 4019 credits for Hey’s participation in the
SWAP program.
       “[I]t appears that the petition and opposing papers on file adequately address the
issues raised by the petition, that no factual dispute exists, and that the additional briefing
that would follow issuance of an alternative writ is unnecessary to disposition of the
petition.” (Palma v. Industrial Fasteners, Inc., supra, 36 Cal.3d at p. 178.) Let a
peremptory writ of mandate issue in the first instance.
                                       DISPOSITION
       The respondent superior court is directed to declare real party in interest,
Christopher Hey, ineligible to earn sentence reduction credits under Penal Code section
4019 for his participation in the Sheriff’s Work Alternative Program.




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                                _________________________
                                Siggins, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Jenkins, J.




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