Opinion
THE COURT.
Defendant pleaded guilty to false imprisonment with violence or menace. (Pen. Code, §§ 236, 237.)1 Criminal proceedings were suspended and he was committed to a state hospital for treatment as a mentally disordered sex offender (MDSO) pursuant to Welfare and Institutions Code section 6316. Nine months later, defendant was found to be not amenable to further treatment (Welf. & Inst. Code, § 6325) and was returned to the committing court. Criminal proceedings were resuriied and defendant was sentenced to state prison. He received credit against the sentence for 327 days spent in actual confinement in either the state hospital or the county jail.2 (§ 2900.5.) He appeals from the judgment, i.e., the sentence, contending that the deductions from his term for presentence confinement should have included credits for both work performance and good behavior, which we shall refer to collectively as “conduct” credit.
In asserting a right to presentence conduct credit, defendant relies primarily upon section 4019. His reliance is misplaced. Defendant is not entitled to conduct credit under section 4019 for the period of his treat[502]*502ment as an MDSO because the section does not authorize credit for time in such nonpenal institutions as state hospitals. Nor does the section entitle defendant to credit for his presentence jail time. Such credit is authorized under the section only for misdemeanants.
In the alternative, defendant bases his claim for presentence conduct credit upon section 2931. Again his reliance is misplaced. Section 2931 applies only to conduct credit earned while in prison. Finally, assuming arguendo that his claim is not supported by any statutory authority, defendant contends he is thereby denied equal protection of the laws.
While we uphold the Legislature’s refusal to allow presentence conduct credit for time served under an MDSO commitment, we conclude defendant’s equal protection claim is meritorious as it relates to presentence jail time.
Sections 2900.5 and 4019
Under section 2900.5 a defendant receives credit toward his term of imprisonment for time in custody prior to commencement of sentence. Subdivision (a) of that section provides in pertinent part; “In all felony and misdemeanor convictions. .. when the defendant has been in custody ... all days of custody... 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 term of imprisonment....” (Italics added.)
Section 4019 authorizes good behavior and work performance credit for certain prisoners confined in city or county jails, industrial farms or road camps.3 It does not authorize conduct credit for time in [503]*503nonpenal institutions such as state hospitals or the California Rehabilitation Center. Therefore, defendant is clearly not entitled to such credit under section 4019 for the period of his confinement as an MDSO.4 The question remains whether the section authorizes conduct credit for precommitment jail time in the circumstances of this case.
The credit provisions of section 4019 apply to three types of commitments. Subsection (1) of subdivision (a) deals with a term Under a judgment of imprisonment, while subsection (2) concerns a term served as a condition of probation, and subsection (3) applies to a “definite” term of confinement for contempt.
Defendant does not contend that either subsection (2) or subsection (3) of subdivision (a) is applicable here.
[504]*504Our focus, therefore, is on subsection (1) of subdivision (a) which states: “The provisions of this section shall apply in all of the following cases: [1Í] (1) When a prisoner is confined in or committed to a county jail, industrial farm, or road camp, or any city jail, industrial farm, or road camp, including all days of custody from the date of arrest to the date on which the serving of the sentence commences, under a judgment of imprisonment, or a fine and imprisonment until the fine is paid in a criminal action or proceeding.”
The last clause of subsection (1) “under a judgment of imprisonment ...” modifies the introductory clause “When a prisoner is confined or committed...” This parallels the structure of subsections (2) and (3), both of which begin with the same introductory clause as subsection (1) but close with the qualifiers “as a condition of probation.. .” and “for a definite period of time for contempt...” respectively.
With exceptions not applicable here, a prisoner is confined in jail “under a judgment of imprisonment” only when sentenced in a misdemeanor proceeding. (See In re Haines (1925) 195 Cal. 605, 617 [234 P. 883].) A felon confined in jail awaiting trial, as was defendant, does not, therefore, come within the language of the statute.
Section 2931
In the alternative, defendant relies on section 2931.5 In contending section 2931 authorizes the Department of Corrections to reduce a prisoner’s term by applying presentence conduct credits, defendant focuses on the following language in subdivision (a) of that section: “.. .the Department of Corrections shall have the authority to reduce the term prescribed under such section by one-third for good behavior and participation consistent with subdivision (d) of Section 1170.2....” Defendant argues there is no indication in section 2931 that “term” as used therein excludes the period of presentence detention.
[505]*505While “term” is not expressly so limited in section 2931, section 2900 provides: “The term of imprisonment fixed by the judgment in a criminal action commences to run only upon actual delivery of the defendant [506]*506into the custody of the Director of Corrections at the place designated by the Director of Corrections as a place for the reception of persons convicted of felonies....” In light of section 2900, it is readily apparent that “term” as used in section 2931 refers to time in prison subsequent to conviction.
Moreover, defendant overlooks language in sections 2930, 2931 and 2932 clearly indicating that the Legislature contemplated the credits governed by these sections would be earned in prison. Section 2930 requires that an inmate be advised within 14 days of his reception in prison of the possibility of receiving credits, and be advised within 14 days of his arrival at the prison to which he is ultimately assigned of the programs offered there. Section 2931 provides in subdivision (a) that the inmate be given a document signed by a prison official at the time of compliance with section 2930 “outlining the conditions which the inmate shall meet to receive the credit,” and provides in subdivision (c) that one-fourth of the possible credit “shall be based solely upon participation in work, educational, vocational, therapeutic or other prison activities.” Subdivision (b) of section 2931 limits credit to four months for each eight months served “in prison.” Section 2932, subdivision (a), sets forth the procedure to be followed whenever the Department of Corrections seeks to deny credit because of misbehavior or failure to participate.
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Opinion
THE COURT.
Defendant pleaded guilty to false imprisonment with violence or menace. (Pen. Code, §§ 236, 237.)1 Criminal proceedings were suspended and he was committed to a state hospital for treatment as a mentally disordered sex offender (MDSO) pursuant to Welfare and Institutions Code section 6316. Nine months later, defendant was found to be not amenable to further treatment (Welf. & Inst. Code, § 6325) and was returned to the committing court. Criminal proceedings were resuriied and defendant was sentenced to state prison. He received credit against the sentence for 327 days spent in actual confinement in either the state hospital or the county jail.2 (§ 2900.5.) He appeals from the judgment, i.e., the sentence, contending that the deductions from his term for presentence confinement should have included credits for both work performance and good behavior, which we shall refer to collectively as “conduct” credit.
In asserting a right to presentence conduct credit, defendant relies primarily upon section 4019. His reliance is misplaced. Defendant is not entitled to conduct credit under section 4019 for the period of his treat[502]*502ment as an MDSO because the section does not authorize credit for time in such nonpenal institutions as state hospitals. Nor does the section entitle defendant to credit for his presentence jail time. Such credit is authorized under the section only for misdemeanants.
In the alternative, defendant bases his claim for presentence conduct credit upon section 2931. Again his reliance is misplaced. Section 2931 applies only to conduct credit earned while in prison. Finally, assuming arguendo that his claim is not supported by any statutory authority, defendant contends he is thereby denied equal protection of the laws.
While we uphold the Legislature’s refusal to allow presentence conduct credit for time served under an MDSO commitment, we conclude defendant’s equal protection claim is meritorious as it relates to presentence jail time.
Sections 2900.5 and 4019
Under section 2900.5 a defendant receives credit toward his term of imprisonment for time in custody prior to commencement of sentence. Subdivision (a) of that section provides in pertinent part; “In all felony and misdemeanor convictions. .. when the defendant has been in custody ... all days of custody... 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 term of imprisonment....” (Italics added.)
Section 4019 authorizes good behavior and work performance credit for certain prisoners confined in city or county jails, industrial farms or road camps.3 It does not authorize conduct credit for time in [503]*503nonpenal institutions such as state hospitals or the California Rehabilitation Center. Therefore, defendant is clearly not entitled to such credit under section 4019 for the period of his confinement as an MDSO.4 The question remains whether the section authorizes conduct credit for precommitment jail time in the circumstances of this case.
The credit provisions of section 4019 apply to three types of commitments. Subsection (1) of subdivision (a) deals with a term Under a judgment of imprisonment, while subsection (2) concerns a term served as a condition of probation, and subsection (3) applies to a “definite” term of confinement for contempt.
Defendant does not contend that either subsection (2) or subsection (3) of subdivision (a) is applicable here.
[504]*504Our focus, therefore, is on subsection (1) of subdivision (a) which states: “The provisions of this section shall apply in all of the following cases: [1Í] (1) When a prisoner is confined in or committed to a county jail, industrial farm, or road camp, or any city jail, industrial farm, or road camp, including all days of custody from the date of arrest to the date on which the serving of the sentence commences, under a judgment of imprisonment, or a fine and imprisonment until the fine is paid in a criminal action or proceeding.”
The last clause of subsection (1) “under a judgment of imprisonment ...” modifies the introductory clause “When a prisoner is confined or committed...” This parallels the structure of subsections (2) and (3), both of which begin with the same introductory clause as subsection (1) but close with the qualifiers “as a condition of probation.. .” and “for a definite period of time for contempt...” respectively.
With exceptions not applicable here, a prisoner is confined in jail “under a judgment of imprisonment” only when sentenced in a misdemeanor proceeding. (See In re Haines (1925) 195 Cal. 605, 617 [234 P. 883].) A felon confined in jail awaiting trial, as was defendant, does not, therefore, come within the language of the statute.
Section 2931
In the alternative, defendant relies on section 2931.5 In contending section 2931 authorizes the Department of Corrections to reduce a prisoner’s term by applying presentence conduct credits, defendant focuses on the following language in subdivision (a) of that section: “.. .the Department of Corrections shall have the authority to reduce the term prescribed under such section by one-third for good behavior and participation consistent with subdivision (d) of Section 1170.2....” Defendant argues there is no indication in section 2931 that “term” as used therein excludes the period of presentence detention.
[505]*505While “term” is not expressly so limited in section 2931, section 2900 provides: “The term of imprisonment fixed by the judgment in a criminal action commences to run only upon actual delivery of the defendant [506]*506into the custody of the Director of Corrections at the place designated by the Director of Corrections as a place for the reception of persons convicted of felonies....” In light of section 2900, it is readily apparent that “term” as used in section 2931 refers to time in prison subsequent to conviction.
Moreover, defendant overlooks language in sections 2930, 2931 and 2932 clearly indicating that the Legislature contemplated the credits governed by these sections would be earned in prison. Section 2930 requires that an inmate be advised within 14 days of his reception in prison of the possibility of receiving credits, and be advised within 14 days of his arrival at the prison to which he is ultimately assigned of the programs offered there. Section 2931 provides in subdivision (a) that the inmate be given a document signed by a prison official at the time of compliance with section 2930 “outlining the conditions which the inmate shall meet to receive the credit,” and provides in subdivision (c) that one-fourth of the possible credit “shall be based solely upon participation in work, educational, vocational, therapeutic or other prison activities.” Subdivision (b) of section 2931 limits credit to four months for each eight months served “in prison.” Section 2932, subdivision (a), sets forth the procedure to be followed whenever the Department of Corrections seeks to deny credit because of misbehavior or failure to participate. That the department could not follow this procedure with regard to incidents occurring during presentence confinement in county jail is another indication that section 2931 does not grant credit for such periods.
Equal Protection
Regarding the period of his treatment as an MDSO, defendant’s equal protection claim is foreclosed by our recent decision in People v. Saffell (1979) 25 Cal.3d 223, 233-235 [157 Cal.Rptr. 897, 599 P.2d 92], in which, applying the compelling state interest test, we held that an MDSO is not denied equal protection of the laws because he cannot earn the conduct credit available to inmates of correctional [507]*507facilities. The question remains whether defendant is denied equal protection of the laws insofar as he is denied conduct credit for presentence jail time.
Under section 4019, a pretrial detainee eventually convicted of a misdemeanor and sentenced to county jail, hereinafter referred to-as a “detainee/misdemeanant, ” receives conduct credit against that sentence for his presentence jail time. Under section 2931, a defendant who makes bail or is released on his own recognizance, then is tried, convicted of a felony and sentenced to state prison receives conduct credit against his full sentence. Only the presentence detainee eventually sentenced to prison, the “detainee/felon,” does not receive, conduct credit against his full sentence, because he is denied conduct credit for his presentence confinement. It is the distinction between the detainee/felon and the felon who serves no presentence time that raises equal protection problems.
In their petition for hearing the People seek to justify this distinction on three grounds: “First, pretrial detainees are presumed innocent, and as this Court observed, ‘[T]he state [cannot] presume to rehabilitate persons clothed in the presumption of innocence.’ [Citing People v. Olivas (1976) 17 Cal.3d 236, 247, fn. 15 (131 Cal.Rptr. 55, 551 P.2d 375).] [11] Second, pretrial detainees have matters to occupy head and hand which convicted offenders do not. Detainees are necessarily occupied with personally preparing for trial [citation] or assisting counsel and in actually attending proceedings in court. Convicted prisoners, who have passed through the system and have a fixed period to serve, literally have little better to do than chalk the passing days off the wall. [11] Finally, and most importantly, detainees, facing trial, conviction and sentence, are obviously motivated to conduct themselves properly while in custody since this conduct will most likely be considered by the court in fashioning and imposing sentence.... ”
Each of the grounds advanced by the People for denying presentence conduct credit to detainee/felons might also be given for denying such [508]*508credit to detainee/misdemeanants as well. Yet detainee/misdemeanants are clearly entitled to such credit under section 4019. The inescapable conclusion is that the challenged distinction—between detainee/felons and felons who serve no presentence time—was not based on the grounds proposed. Accordingly, we will not further analyze these grounds.
In conclusion, the People have not suggested, nor has our independent research revealed, a rational basis for, much less a compelling state interest in, denying presentence conduct credit to detainee/felons.6 Defendant is therefore entitled to conduct credit, if earned, in addition to the custody credit he has already received for the 52 or 57 days during which he was detained in the county jail prior to his commitment to prison.
Penal Code section 2900.5 imposes on the sentencing court the obligation to determine the number of days of custody and, in those cases [509]*509to which it expressly applies, conduct credit to which the defendant is entitled, and to enter the credits on the abstract of judgment. It is therefore appropriate to have the trial court make that determination pursuant to section 2900.5 for all defendants in the future. Inasmuch as such computations are made routinely by the jail administrator for misdemeanants, probationers, and other prisoners to whom the section applies, that officer can readily provide the court with the necessary computation and/or records. Any dispute over the right to credit, the number of days of credit, or the judgment or judgments to which the credits are applicable can then be resolved at the probation, and sentence hearing. It is unnecessary, however, to remand this defendant and others who have already been sentenced for new sentencing proceedings to determine the additional credit to which they may be entitled. The Department of Corrections should make available to such prisoners an administrative procedure by which to ascertain their entitlement to conduct credit. (Cf. In re Kapperman (1974) 11 Cal.3d 542, 550, fn. 10 [114 Cal.Rptr. 97, 522 P.2d 657].) As the department already has in its possession a copy of the abstract of judgment awarding custody credit, computation of the additional conduct credit should be a routine ministerial function.7
The judgment is affirmed.