Filed 11/17/15 P. v. Shumate CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067600

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN332730)

BENJAMIN THOMAS SHUMATE,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, Carlos O.

Armour, Judge. Affirmed.



         Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Michael

Pulos, Deputy Attorneys General, for Plaintiff and Respondent.

         Defendant and appellant Benjamin Thomas Shumate was charged with attending
an arranged illicit meeting with a minor (Pen. Code,1 § 288.4, subd. (b); counts 1, 2 & 6);

false imprisonment (§§ 236 & 237, subd. (a); count 3); child molestation (§ 647.6,

subd. (a)(1); count 4); and misdemeanor sexual battery (§ 243.4, subd. (e)(1); count 5). It

was further alleged that Shumate committed count 2 while released from custody on bail.

(§ 12022.1, subd. (b).)

       Shumate pleaded guilty to counts 1 and 6, and the court dismissed the remaining

counts on the People's motion. The court sentenced Shumate to four years in state prison.

The court also granted Shumate a total of 505 days of credit for time served, as reflected

in the probation report, calculated as 253 actual days served plus 252 conduct-credit days

as provided under section 4019.

       Shumate's sole contention on appeal is that the trial court erred when it awarded

him only 252 conduct credit days instead of 253, the number of actual days he served in

custody. As we explain, we conclude Shumate is not entitled to an additional day of

conduct credit. Affirmed.

                                        DISCUSSION

       As Shumate recognizes, this court in People v. Whitaker (2015) 238 Cal.App.4th

1354, 1356 (Whitaker) recently analyzed the identical issue he now raises. In Whitaker,

we held the defendant was only entitled to 326 custody credits although the defendant

was in custody for 327 days. We agree with the holding and reasoning of Whitaker and,

thus, it informs our decision in this case.

1      All further statutory references are to the Penal Code.

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       Briefly, section 4019 governs the rate at which prisoners confined in or committed

to a county jail earn credit against their sentences for work performance and good

behavior. As relevant here, subdivision (f) of section 4019 provides: "It is the intent of

the Legislature that if all days are earned under this section, a term of four days will be

deemed to have been served for every two days spent in actual custody." (Italics added.)

       As we noted in Whitaker, the two days of presentence conduct credit authorized by

subdivision (f) are the "sum" of the one day of credits set forth in subdivisions (b) and (c)

of section 4019.2 (Whitaker, supra, 238 Cal.App.4th at p. 1358, fn. 3.) As we also noted

in Whitaker, section 4019 "thus requires that a defendant actually serve two days in

custody before he or she will be entitled to two additional days of conduct credit. A

defendant who serves an odd number of days is not entitled to an additional single day of

conduct credit for his or her final day of actual custody." (Ibid.)

       We recognized in Whitaker that courts "for a number of years" (Whitaker, supra,

238 Cal.App.4th at p. 1359) have been consistent in calculating conduct credits under

section 4019, subdivision (f), including prior versions of this statute that were "drafted in

substantially the same grammatical format" as the current version. (Id. at pp. 1359-1360,

citing in order People v. King (1992) 3 Cal.App.4th 882, 885 (King) [rejecting the

2      Section 4019, subdivision (b) provides in part that "for each four-day period in
which a prisoner is confined in or committed to a facility," one day will be deducted from
the term of confinement unless the prisoner has refused to perform satisfactorily assigned
"labor." Subdivision (c) of this same statute provides in part that "[f]or each four-day
period in which a prisoner is confined in or committed to a facility," one day will be
deducted from the term of confinement unless the prisoner has not satisfactorily complied
with "rules and regulations."

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formulas proffered by the defendant as inconsistent with the plain language of former

section 4019, subdivision (f), which provided that " 'a term of six days will be deemed to

have been served for every four days spent in actual custody,' " and noting under former

subdivision (f) "[c]redits are given for increments of four days" and "[n]o credit is

awarded for anything less [than an increment of four days]"]; People v. Smith (1989) 211

Cal.App.3d 523, 527 (Smith) [interpreting former subdivision (f) of section 4019—which

also had a six-days-for-four days formula—to require conduct credits to be given in

increments of four days and concluding the defendant was not entitled to additional

conduct credit for the extra three days he served in actual custody because under the

"statutory scheme, 'rounding up' is not permitted"]; and In re Marquez (2003) 30 Cal.4th

14, 25-26 (Marquez) [relying on Smith and its approach to calculating credits in

concluding the defendant was entitled to a total of 344 days of credit, determined by

taking the "number of actual custody days," or 230, dividing that number "by 4

(discarding any remainder), which leaves 57," which is then multiplied "by 2 . . .

resulting in a total of 114 days of conduct credit" (italics added)].)3

       Here, using the method of calculation set out in Whitaker and the cases on which it


3       Indeed, we noted in Whitaker the "current version of subdivision (f) of section
4019 is drafted in substantially the same grammatical format as former subdivision (f) of
section 4019. The only substantive difference between the current version and the
version that the Marquez, Smith, and King courts interpreted is that 'four days' replaces
'six days,' and 'two days' replaces 'four days.' Because current section 4019, subdivision
(f) is drafted in the same format as former section 4019, subdivision (f), we conclude that
it should be interpreted and applied in [the] same manner." (Whitaker, supra, 238
Cal.App.4th at p. 1360, fn. omitted.)

                                              4
relies, we conclude the trial court properly found Shumate was entitled to 252 days of

conduct credit as a result of his actually serving 253 days in custody. That is, because

conduct credits under current section 4019, subdivision (f) are given in two-day

increments, Shumate was not entitled to conduct credit for the extra day.4

                                      DISPOSITION

       The judgment of conviction is affirmed.


                                                                                BENKE, J.
WE CONCUR:


McCONNELL, P. J.


O'ROURKE, J.




4      We decline Shumate's request that we take judicial notice of various former and/or
proposed versions of section 4019 and related legislative analyses. Like the defendant in
Whitaker, Shumate made this request in connection with his contention that the
Legislature intended a one-for-one formula to be used rather than a two-for-two formula
based on its amendment of former section 2933, subdivision (e). However, as we noted
in Whitaker, section 2933, subdivision (e) was repealed in October 2011, at the same time
section 4019 was again amended to provide unambiguously for the current two-for-two
conduct credit formula. (Whitaker, supra, 238 Cal.App.4th at pp. 1360-1361.) "Thus,
although section 2933, subdivision (e) temporarily provided for true one-to-one conduct
credits for time served in local custody . . . during its effective dates, those conduct
credits applied only to defendants who committed their offenses during the time period
that section 2933, subdivision (e) was in effect." (Id. at p. 1361.) Here, the record shows
Shumate committed all of the charged offenses in 2014, more than two years after
section 2933, subdivision (e) was repealed.
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