Credits and Early Parole

Question 1

When are credits against a sentence available?

Answer 1

Presentence credits are available for time in custody before conviction and for good conduct. Post-sentence credits are available for good conduct in a variety of circumstances.

Question 2

What Penal Code section entitles a defendant to pre-sentence credits?

Answer 2

Pen. Code, § 2900.5(a)

A defendant convicted of a felony is entitled to credit against a term of imprisonment, or against any fine imposed, for actual time spent in custody before commencement of the prison sentence.

Question 3

If a person is in presentence custody for more than one reason, can they get credits on both?

Answer 3

No.

Presentence time must be “attributable to the proceedings related to the same conduct for which the defendant has been convicted.” (Pen. Code, § 2900.5(b); In re Joyner (1989) 48 Cal.3d 487.)

Question 4

Do state prison inmates get presentence custody credits?

Answer 4

No.

When a defendant is serving a term for either a misdemeanor or a felony and is arrested for a second offense, presentence custody is not attributable to the second case and the defendant receives no credit against any term imposed for the second case. (People v. Adrian (1987) 191 Cal.App.3d, 868, 878; People v. Esparza (1986) 185 Cal.App.3d 458, 468.)

Question 5

Do hospital inmates get presentence custody credits?

Answer 5

No.

In People v Callahan (2006) 144 Cal.App.4th 678, the defendant assaulted a hospital guard. The court awarded no credits for the period defendant was in jail awaiting trial on the assault, because he otherwise remained confined on his NGI commitment.

Question 6

Can a defendant receive pre-sentence credits for good conduct in custody?

Answer 6

Yes.

In addition to the credit for each day actually spent in presentence custody available under Penal Code §2900.5(a), credits are available, with exceptions, for good conduct during presentence confinement. (Pen. Code, § 4019; People v. Sage (1980) 26 Cal.3d 498.)

Question 7

How does a conviction for a violent felony affect pre-sentence credits?

Answer 7

A defendant convicted of any violent felony and sentenced to prison may not receive presentence credits in excess of 15 percent. (Pen. Code, § 2933.1(c).) The underlying conviction must be for a violent felony listed as such in Pen. Code, § 667.5(c).

Question 8

What are 5 kinds of post-sentence good conduct credits?

Answer 8

1. Good Conduct Credits;
2. Rehabilitative Achievement Credits;
3. Milestone Completion Credits;
4. Educational Merit Credits; and
5. Extraordinary Conduct Credits.

Question 9

What are good conduct credits?

Answer 9

They are credits for individuals that comply with all the rules within a prison and perform their duties as assigned on a regular basis.

Question 10

What are Rehabilitative Achievement Credits?

Answer 10

Rehabilitative Achievement Credits are awarded to those who complete specified hours of approved self-help and volunteer public service activities.

Question 11

What are Milestone Completion Credits?

Answer 11

Credits may be awarded for the completion of “milestones” in academic and vocational training programs, anger management, and substance abuse and life skills classes. (Pen. Code § 2933.05(c); 15 Cal. Code Regs. § 3043(b).

Question 12

What are Educational Merit Credits?

Answer 12

Educational Merit Credits are awarded for completion of high school diploma or equivalency programs, higher education degrees, or the Offender Mentor Certification Program.

Question 13

What are Extraordinary Conduct Credits?

Answer 13

Any inmate may be granted a sentence reduction of up to 12 months for performing a heroic act in a life-threatening situation, or by providing “exceptional assistance in maintaining the safety and security of a prison.” (Pen. Code § 2935; see also 15 Cal. Code Regs § 3043.6(a).)

Question 14

Are there limits on post-sentence credits?

Answer 14

Yes.

Generally, murderers don’t get credits. There are lots of credit restrictions on violent felons as well.

Question 15

How did prison overcrowding affect credit earning for violent felons?

Answer 15

By consent decree in connection with the prison overcrowding lawsuit, violent inmates now earn 33.3 percent credits and may be eligible for parole after serving half their sentence.

Question 16

Other than credits, are there any other ways for inmates to get early release?

Answer 16

Yes. They may be paroled early.

Question 17

What are the different types of early parole?

Answer 17

1. Non-violent Offender Parole for Determinately-Sentenced Prisoners;
2. Youth Offender Parole;
3. Elderly Offender Parole;
4. Non-violent Second-Striker Parole

Question 18

What is Non-violent Offender Parole for Determinately-Sentenced Prisoners?

Answer 18

It allows parole consideration for persons committed for “nonviolent offenses” who complete their “primary term.” The primary term is defined as the “longest term of imprisonment imposed by the court for any offense,” excluding enhancements, consecutive sentences, and alternative sentences.

Question 19

Which proposition created Nonviolent Offender Parole for Determinately-Sentenced Prisoners?

Answer 19

Proposition 57.

Question 20

What is the net effect of Nonviolent Offender Parole for Determinately-Sentenced Prisoners?

Answer 20

The net effect is to make a person eligible for parole irrespective of the number of crimes committed or enhancements imposed.

Question 21

Imagine two defendants. The first is convicted of one count of assault with a deadly weapon on a police officer and sentenced to state prison for 5 years. The second is convicted of assaulting four officers may be sentenced to state prison for 9 years. Who will get out first?

Answer 21

They will both get out after five years. The second defendant will serve the base term, the same as the first defendant, and CDCR will then ignore the subordinate terms.

Question 22

What is a “determinately-sentenced nonviolent offender”?

Answer 22

The regulations define a “determinately-sentenced nonviolent offender” as an inmate who is not, among other things, “currently serving a term of life with the possibility of parole for a ‘violent felony’ ” (id., § 3495, subd. (a)(3)).

Question 23

What is the definition of a “violent felony”?

Answer 23

The regulations define a “violent felony” for purposes of early parole consideration as “a crime or enhancement” listed in Penal Code section 667.5, subdivision (c). (Id., § 3490, subd. (c).)

Question 24

Imagine a defendant is convicted of a mixture of violent and nonviolent offenses. When will he be paroled?

Answer 24

The defendant will be required to serve the full term for any violent offenses, then be eligible for early release on parole as to any time remaining on nonviolent offenses.

Question 25

What is the definition of “primary offense” for the purposes of Nonviolent Offender Parole?

Answer 25

“The longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence.” (Id., art. I, § 32, subd. (a)(1)(A).)

Question 26

Can the “primary offense” for the purposes of Nonviolent Offender parole be itself nonviolent?

Answer 26

Yes.

Prop. 57 requires service of “the longest term of imprisonment imposed by the court for any offense ….” (Cal. Const., art. I, § 32, subd. (a)(1)(A); italics added.) The reference to “any” offense means that the “primary” offense can be either a violent or nonviolent crime, depending on which term is the longest.

Question 27

What is the effect of Nonviolent Offender Parole on the Three Strikes Law?

Answer 27

A person sentenced as a third strike offender for a “serious felony” such as burglary will be entitled to parole under Prop. 57 regardless of their life sentence. Prop 57 specifically excludes consideration of alternative sentencing schemes such as the Three Strikes Law.

Question 28

When would a person sentenced as a non-violent second strike offender, who received a doubled term, be eligible for parole under the Nonviolent Offender Parole law?

Answer 28

The defendant would be eligible for parole after service of the term imposed by the court without the multiplier of the Three Strikes law.

Question 29

What is a “Youth Offender Parole Hearing”?

Answer 29

It is a hearing for any person who
1. Was 25 years of age or younger at the time of his controlling offense; or
2. Was sentenced to life without the possibility of parole for an offense committed while under 18 years of age.

Question 30

How much time must a youthful offender serving a determinate sentence actually serve?

Answer 30

15 years.

A person who was 25 years old or younger when sentenced to a determinate sentence must be eligible to be considered for release on parole by the BPH at a youth offender parole hearing during his or her 15th year of incarceration. (See Pen. Code, § 3051(b)(1).)

Question 31

How much time must a youthful offender serving a sentence of life with the possibility of parole in less than 25 years actually serve?

Answer 31

20 years.

A person who was 25 years old or younger when convicted of a life sentence of less than 25 years to life must be eligible to be considered for release on parole by the BPH at a youth offender parole hearing during his or her 20th year of incarceration. (See Pen. Code, § 3051.)

Question 32

How much time must a youthful offender serving a sentence of life with the possibility of parole in more than 25 years actually serve?

Answer 32

25 years.

A person who was 25 years old or younger when convicted of a life sentence of 25 years to life must be eligible to be considered for release on parole by the BPH at a youth offender parole hearing during his or her 25th year of incarceration. (See Pen. Code, § 3051.)

Question 33

How much time must a youthful offender, convicted as a juvenile, serving life without the possibility of parole actually serve?

Answer 33

25 years.

A person who committed a controlling offense before the age of 18 and got LWOP is eligible for release on parole during his 25th year of incarceration. (See Pen. Code, § 3051.)

Question 34

What can disqualify an inmate from Youth Offender Parole?

Answer 34

If he or she:
1. Received sentence enhancements under Penal Code sections 1170.2, 667, or 667.61 for serious or violent felonies under the Three Strikes law;
2. Was sentenced to LWOP for an offense committed after reaching age 18; or
3. Commits an additional crime after reaching age 26 for which malice aforethought is a necessary element, or for which the individual is sentenced to life in prison.
(Pen. Code, § 3051(h).)

Question 35

What is “the big open door”?

Answer 35

Youth offenders are entitled to immediate release once the inmate is found suitable for parole, regardless of the order in which the inmate’s terms are served, and regardless of any remaining terms to be served. (Pen. Code, § 3046(c).)

Question 36

Does a youthful offender who is granted parole have to serve any additional terms for in-prison offenses?

Answer 36

No.

Question 37

What is Elderly Offender Parole?

Answer 37

Inmates may be eligible for elderly parole after being incarcerated at least 20 years and reaching 50 years of age, or being incarcerated at least 25 years and reaching 60 years of age.
(Pen. Code, § 3055.)

Question 38

What Penal Code section governs Elderly Offender Parole?

Answer 38

Penal Code section 3055.

Question 39

Does an Elderly Offender who is granted parole have to serve time for in-prison offenses?

Answer 39

No, unless one of those in-prison offenses includes a strike enhancement.

Question 40

Are there any exceptions to Elderly Offender Parole?

Answer 40

Yes.

It doesn’t apply to:
1. Persons sentenced to death;
2. Persons sentenced to life without the possibility of parole; and
3. Persons convicted of first-degree murder of a peace officer or former peace officer due to performance of their official duties.
(Cal. Code Regs., tit. 15, § 3499.)

It also does not apply when a prisoner picks up a new in-prison offense with a strike enhancement.

Question 41

What is Nonviolent Second Striker Parole?

Answer 41

The BPH has jurisdiction to release nonviolent second strikers who have served 50% of their sentence.

Question 42

Are there exceptions to Nonviolent Second Striker Parole?

Answer 42

Yes.