To receive credit the defendant must be “in custody.” (Pen. Code, § 2900.5, subd. (a).) Thus, a defendant can receive pre-sentence credits for time that he or she was on probation so long as they were in custody during the period of time for which credits are sought. If a jail term were imposed as a condition of probation and the timer were served, then the time served in jail as a condition of probation would be eligible for pre-sentence credits. However, if the time was not served, the defendant was subsequently arrested and the sentence executed, then, even though the jail term was a condition of probation, there would be no credit for it, because no time was spent in custody.
Jail is not the only form of being “in custody.” Penal Code 2900.5 states that time “in custody” can include time in “a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution . . . .” The non-jail facility must be custodial and cannot be a voluntary placement by the defendant. (In re Wolfenberger (1977) 76 Cal.App.3d 201, 203-205.) Examples in which a defendant may receive presentence credit for time in custody include:
• Rehabilitation facility. (People v. Rodgers (1978) 79 Cal.App.3d 26; People v. Darnell (1990) 224 Cal.App.3d 806, 809-811.)
• Time spent in a residential drug treatment program as part of a Proposition 36 sentence. (People v. Davenport (2007) 148 Cal.App.4th 240.) Exception: A person does not receive any actual custody credit for time spent as an outpatient in a drug rehabilitation program. (People v. Schnaible (1985) 165 Cal.App.3d 275, 277-278.) Similarly, a mentally disordered sex offender, defendants found not guilty by reason of insanity, and mentally disordered offenders do not receive actual custody credit for time in an unlocked outpatient facility. (Pen. Code, §§ 1600.5, 2972, subd. (c).)
• Time in a hospital upon a finding of incompetency pursuant to Penal Code section 1368. (People v. Cowsar (1974) 40 Cal.App.3d 578, 579-581.)
• Diagnostic facility. (Pen. Code, § 1203.03 subd. (g); People v. Goodson (1990) 226 Cal.App.3d 277, 280.)
• Juvenile detention facility. (In re Eric J. (1979) 25 Cal.3d 522, 534-536.)
• Home Detention. Due to various statutory amendments, whether a defendant receives actual credit for home detention will depend on when the defendant was in home detention.
Pursuant to Penal Code §2900.5, whether a defendant receives pre-sentence credits hinges on whether the defendant was “in custody” for the applicable period of time. Being released on probation does place restrictions on an individual, such as the waiving of Fourth Amendment Rights or may place some restriction on travel. However, to be considered “in custody” requires a greater restraint on one’s freedom than merely being on probation. It requires being in jail or in some involuntary residential program.