Opinion
A129845
08-31-2011
THE PEOPLE, Plaintiff and Respondent, v. GARY LYNN BARKER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC068887A)
Defendant Gary Barker was required to attend a residential drug treatment program as a condition of probation for a felony drug possession conviction. He failed to complete the program. His probation was later revoked and he was sentenced to state prison. The trial court denied him presentence custody credit for the time he spent in required treatment because he did not complete the program. We reverse.
I. BACKGROUND
On June 23, 2009, Barker was charged with felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 1) and misdemeanor methamphetamine use (Health & Saf. Code, § 11550, subd. (a); count 2). He pled no contest to possession and the use charge was dismissed. On June 24, the court suspended imposition of sentence and placed Barker on three years of supervised probation pursuant to Proposition 36. (See Pen. Code, §§ 1210, 1210.1.) One condition of probation was participation in drug treatment as directed by his probation officer.
All statutory references are to the Penal Code unless otherwise indicated.
On about September 3, 2009, Barker was charged with violating the terms of his probation by possessing a controlled substance in July. (Health & Saf. Code, § 11550, subd. (a).) At a September 21 hearing, Barker denied the alleged violation and his probation was revoked. However, he was released on his own recognizance with supervision. He failed to appear for two subsequent hearings and a bench warrant was issued for his arrest.
The appellate record includes only the record for the case on appeal, San Mateo Superior Court case no. SC068887, and not the records for separate cases filed against Barker based on the conduct that led to the alleged probation violations. As explained further post, the record indicates that two additional cases were filed against Barker no later than March 22, 2010, for the July 2009 drug possession and for a November 2009 attempted theft.
On November 23, 2009, Barker was charged with a new probation violation for attempting to steal five gallons of gasoline from a parked vehicle. (§§ 484, 664.) He was arrested in that incident and appeared at a December 2 hearing in this case, at which time he was again released on his own recognizance with supervision. At a December 7 hearing, he was reincarcerated after testing positive for drugs. While in custody, he apparently was assessed for suitability for drug court. On December 14, he was "released on this case only." He failed to appear at his next hearing and a bench warrant was once again issued for his arrest. On January 21, 2010, he appeared in custody and remained in custody as he was again apparently assessed for drug court.
The minute order states, "Continued to [time, date and place], D- DC for DC decision on suitability for DC Diver."
The minute order for a January 25, 2010 hearing states, "In custody assessment needs to be done," and a minute order for a February 1 hearing states, "continued to . . . D- DC for DC decision on suitability for DC Diver."
The record suggests that Barker was released to a Latino Commission residential treatment program on February 2, 2010. On March 8, he was sanctioned with a three- day jail term for unspecified reasons and was ordered released to the treatment facility on March 11. On March 22, he was placed on formal probation and was formally admitted to the drug court program. Probation was again conditioned on his participation in treatment as directed by his probation officer. The court expressly stated that probation was being imposed for Barker's felony conviction, not his pending misdemeanor cases.
The minute order for a February 1, 2010 hearing states, "Defendant may be released on 2/2/10 at 1:00 p.m. to . . . Latino Commission . . . ." On March 8, the court sanctioned Barker with a three-day jail stay and the minute order states, "Defendant is to be released on 3/11/10, to be picked up by . . . Latino Commission to be transported to RTP." An affidavit of probation violation filed April 2 states that on or about March 27 Barker "left Latino Commission residential without permission . . . ." At sentencing, defense counsel asked the court to award Barker presentence custody credit for the time he spent in a residential drug treatment facility, which defense counsel estimated at about 50 days. Fifty days before March 27, 2010, was February 5. To account for the three-day jail sanction imposed on March 8, 50 days in residential treatment would have commenced February 2.
On April 2, 2010, Barker was charged with violating probation by leaving his residential treatment program without permission on or about March 27. He did not appear at a scheduled court date on April 5 and a bench warrant was issued for his arrest. Barker attended court in custody on July 14 and denied the alleged violation. The court revoked his probation. On July 19 and 26, the court authorized Barker's "open release" from custody as soon as a bed became available for him at the Latino Commission residential treatment program. The record does not indicate whether Barker was ever actually released for treatment and, if so, how he performed in treatment.
At an August 30, 2010 court hearing, Barker admitted the alleged April 2010 probation violation (absconding from the residential treatment program) and the court terminated his probation. In this case (hereafter, the felony case), Barker was sentenced to 16 months in prison and awarded 81 actual days of time served plus 80 days of good conduct and work credit for a total of 161 days of credit. On a separate misdemeanor charge of attempted theft (presumably the November 2009 attempt to steal gasoline), Barker was sentenced to 156 days in custody with 156 days of custody credit. Another misdemeanor case charging drug possession (apparently the July 2009 drug possession allegation that Barker denied in September 2009) was dismissed.
The court initially sentenced Barker to 156 days in jail with 156 days of credit for time served in the misdemeanor drug possession case, but the prosecutor noted that it was "an open case" in which there had been no finding of a violation and agreed to dismiss the charges.
Defense counsel argued that Barker was entitled to additional presentence custody credit in his felony case for the time he spent in the residential treatment program, which defense counsel claimed was 50 days or more. The court denied the credit, explaining, "[T]he court will, of course, grant credit day for day on any completed program; however, the program wasn't completed. [¶] So [the] request for program credits is denied."
II. DISCUSSION
Barker argues the court erred by denying his request for presentence custody credit for the time he spent in required residential drug treatment. He argues he was entitled to the credit under section 2900.5. The People argue Barker was not entitled to credit for this time (1) because he participated in treatment as part of a diversion program, and (2) because his enrollment in the treatment program was attributable to the conduct that violated his original terms of probation (i.e., his possession of drugs in July 2009 and his attempted theft in November 2009), not to the conduct for which he was sentenced (i.e., his possession of methamphetamine in or before June 2009), and section 2900.5, subdivision (b), therefore barred the credit. We find that Barker is entitled to the additional custody credit and reverse. A. Credit for Residential Drug Treatment & Diversion
Section 2900.5, subdivision (a) (section 2900.5(a)) provides, "In all felony and misdemeanor convictions, . . . when the defendant has been in custody, including, but not limited to, any time spent in a . . . rehabilitation facility, . . . or similar residential institution, . . . all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment . . . ." Time spent in a private residential treatment program as a condition of probation qualifies for presentence custody credit under section 2900.5(a). (People v. Jeffrey (2004) 33 Cal.4th 312, 318 (Jeffrey); People v. Johnson (2002) 28 Cal.4th 1050, 1053 (Johnson); People v. Davenport (2007) 148 Cal.App.4th 240, 245 (Davenport); People v. Thurman (2005) 125 Cal.App.4th 1453, 1460.) Although a defendant can be required to waive credit he would otherwise earn in residential drug treatment as a condition of being placed on probation (Johnson, at pp. 1054-1055; Jeffrey, at p. 315), it is undisputed that Barker made no such waiver in this case.
The People do not cite, and we have not found, any authority for a rule that section 2900.5 credit is precluded for time spent in a residential treatment facility if the treatment program was not successfully completed. The plain language of the statute includes no such limitation. Moreover, the Supreme Court strongly suggested in Jeffrey that there is no such restriction. In Jeffrey, the defendant's probation was revoked because she had been discharged from her treatment program without completing it. (Jeffrey, supra, 33 Cal.4th at p. 316.) The issue on appeal was whether the defendant's pretreatment waiver of that credit, which was a precondition of her being placed on probation, was enforceable. (Ibid.)The Court expressly held in Jeffrey that section 2900.5 applies to custodial time in a residential treatment facility, thus clearly implying that the treatment time in that case would have qualified for section 2900.5 credit absent the waiver even though the defendant failed to complete the program. (Id. at p. 318.) It would not have been necessary for the Court to decide the waiver issue if the time the defendant unsuccessfully spent in treatment did not trigger section 2900.5 credit in the first instance.
The People argue Barker's "claim to custody credit despite his failure to complete the treatment program, which he agreed to and which the diversion statutes require (see Pen. Code, §§ 1001.7, 1001.9), is unsupported by authority. On the contrary, [his] acceptance of diversion necessarily meant he would have to 'successfully complete' whatever program he was placed in to avoid prosecution for the two offenses alleged in the . . . probation violation notices." The People further argue, without citation to legal authority, that Barker's time in the treatment program was not " 'custody' in the legal sense, since by accepting diversion, appellant avoided prosecution for the two crimes alleged as probation violations."
These arguments fail for several reasons. First, the referenced diversion statutory scheme (§ 1001 et seq.) applies only to pretrial diversion for crimes designated misdemeanors. (See § 1001.1.) In the case on appeal, Barker pled no contest to a felony and had already been sentenced by the time he was placed in the residential drug treatment facility. In this case, Barker's participation in drug court and residential drug treatment satisfied a condition of his felony probation, not diversion. At the March 22, 2010 hearing, the court explained that Barker was being placed "on drug court post plea, . . . that you will be on three years formal probation with drug court ordered." (Italics added.) The minute order also states, "Formally admitted to drug court post plea," and "defendant shall seek and maintain treatment, counseling, or therapy as directed by the probation officer." Even if we assume that Barker was also ordered to participate in residential drug treatment as a requirement of diversion in his misdemeanor cases (a fact that is not established by the appellate record), that circumstance would not change the fact that his participation also satisfied a condition of his felony probation in the case on appeal.
Second, we also disagree with the People's suggestion that, because a failure on diversion precludes dismissal of the charges in the diverted case, a failure on diversion also precludes section 2900.5 custody credit against a sentence in that case. "It is not the procedure by which a defendant is placed in a facility that determines the right to credit, but the requirement that the placement be 'custodial,' and that the custody be attributable to the proceedings relating to the same conduct for which the defendant has been convicted. [Citations.]" (People v. Darnell (1990) 224 Cal.App.3d 806, 809.) In People v. Darnell, the court held that a defendant is entitled to credit if he is released on his own recognizance on condition he remain in residential drug treatment. (Ibid.; see also Davenport, supra, 148 Cal.App.4th at p. 244 [time spent in residential treatment as condition of Prop. 36 probation qualifies for § 2900.5 credit].) There is no logical reason that a defendant would not also be entitled to credit if he enters the same residential drug treatment program as a condition of diversion.
Finally, even if there were a bar to awarding section 2900.5 credit in the cases for which Barker may have received diversion, the People cite no authority barring an award of such credit against Barker's sentence in this felony case.
The record clearly establishes that a condition of Barker's felony probation was participation in drug treatment as ordered by the probation department, regardless of whether this was also a condition of diversion in his separate misdemeanor case or cases. Thus, under section 2900.5(a), the time Barker spent in treatment as a condition of his probation in this felony case qualified for section 2900.5 credit against his felony sentence unless that credit is otherwise prohibited by section 2900.5, subdivision (b) (section 2900.5(b)). B. Treatment Custody Was Attributable to Conduct Underlying the Sentence
The People's main argument on appeal is that Barker's placement in the treatment program "was not a condition of probation 'for the same underlying criminal conduct' of his original June 24, 2009, conviction for possession of methamphetamine. [Barker] was placed on Proposition 36 probation for that offense, without specification of any particular treatment program. [¶] . . . [He] violated the terms of that grant of Proposition 36 probation on July 23, 2009, and November 7, 2009, by possessing a controlled substance and attempting to steal gasoline. . . . The court summarily revoked that grant of probation . . . [and he] was granted diversion with a new three-year term of probation . . . . [¶] Thus, [Barker's] diversion placement in the Latino Commission residential treatment program was attributable to the two criminal offenses committed on July 23 and November 7, 2009 . . . ." The People contend Barker was therefore not entitled to section 2900.5 credit for his time in treatment because that time was not "attributable to proceedings related to the same conduct for which the defendant has been convicted" as required by section 2900.5(b).
We again disagree.
Section 2900.5(b) provides in relevant part, "For the purposes of this section, credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted." "The legislative purpose [of this provision] appears to have been to eliminate the unequal treatment suffered by indigent defendants who, because of their inability to post bail, served a longer overall confinement than their wealthier counterparts. [Citations.]" (In re Rojas (1979) 23 Cal.3d 152, 156 (Rojas).) Consistent with this limited purpose, the Supreme Court has held that "[s]ection 2900.5 does not authorize credit where the pending proceeding has no effect whatsoever on a defendant's liberty." (Id. at p. 156.) Thus, when a defendant charged with a crime is already serving a sentence for a prior offense, "the deprivation of liberty [following the charge for the second offense] . . . cannot be attributed to the second offense" and the defendant will not receive section 2900.5 credit for that custody toward his sentence for the second offense. (Ibid.)When, on the other hand, a defendant is at liberty on parole for a prior offense at the time he is charged with a new offense and is taken into custody because of the new offense, the period of custody following the charge for the second offense can be attributed to the second offense and the defendant will receive section 2900.5 credit toward his sentence for the second offense. (Id. at p. 157 [approving result in In re Bentley (1974) 43 Cal.App.3d 988].) In the latter scenario, the defendant would have been at liberty but for the fact that he was charged with the second offense. "[C]redit is to be given 'only where' custody is related to the 'same conduct for which the defendant has been convicted.' The sensible inference is that a defendant is not to be given credit for time spent in custody if during that same period he is already serving a term of incarceration." (Id. at pp. 155-156 [quoting § 2900.5(b)].)
Strict "but for" causation also controls whether a defendant will receive section 2900.5 credit for a single period of custody against multiple sentences where the custody is attributable to conduct underlying multiple criminal proceedings. (In re Joyner (1989) 48 Cal.3d 487, 489 (Joyner); People v. Bruner (1995) 9 Cal.4th 1178, 1191, 1193-1194 (Bruner); In re Marquez (2003) 30 Cal.4th 14, 20-21 (Marquez).) The Supreme Court's opinions in Joyner, Bruner and Marquez establish the following principles. When a single period of custody is attributable to crimes underlying more than one criminal proceeding, it should be credited against the first sentence to be imposed and not against the other sentences. (Marquez, at p. 22.) Once the credit is awarded against the first sentence, the period of custody essentially becomes a part of that sentence and the defendant is not entitled to credit in the other proceedings because he cannot show that he would have been at liberty during that period of custody but for the crimes underlying his other proceedings. (Joyner, at p. 492; Bruner, at p. 1192; Marquez, at p. 22.) If, on the other hand, custody attributable to more than one criminal proceeding has not been credited against another sentence (or was credited but the conviction was reversed), the defendant should receive credit for the custody in one of the other proceedings. (Marquez, at p. 23.)
In Joyner, supra, 48 Cal.3d at pp. 489-490, the defendant was arrested in Florida for crimes committed there and on the same day California placed a hold on him based on outstanding California warrants. The time the defendant spent in custody from that day forward thus was related both to his new Florida and his California crimes. When the defendant was sentenced for the Florida crimes, he received credit for the custody up to the date of his Florida sentencing. The Court held that the defendant was not entitled to section 2900.5 credit for that same period of custody when he was later sentenced for his California crimes. (Id. at pp. 489-490, 492.) Because there was no evidence that defendant could have avoided incarceration during that period (e.g., by posting bail) absent the California hold, "[i]t has not been shown . . . that the California hold . . . had any effect upon petitioner's liberty at any time." (Id. at p. 492.) The custody between the Florida sentencing and the California sentencing "was as a practical matter unavoidable" because the defendant was then serving his Florida sentence and "therefore could not be attributable to the California proceedings." (Ibid.)As to the entire period of custody, therefore, the petitioner "failed to demonstrate that his presentence custody was, within the meaning of section 2900.5, 'attributable to' anything other than the Florida proceedings." (Ibid.)
Similarly, in Bruner, supra, 9 Cal.4th at p. 1181, the defendant was at liberty on parole when he was arrested for three alleged parole violations: absconding from parole supervision, credit card theft and cocaine use. During the arrest, police found rock cocaine on his person and he was charged with cocaine possession. The defendant was released on his own recognizance on the cocaine possession charge but held in custody on a parole hold. About two months later, his parole was revoked based on the three alleged violations and the cocaine possession charge, and he was sentenced to 12 months in prison with credit for two months in custody. When he was later sentenced on the cocaine possession charge, he was correctly denied presentence custody credit for the same period of custody even though it was attributable in part to the cocaine possession conduct. (Id. at pp. 1181-1183, 1191.) "The mere happenstance that separate proceedings addressing unrelated conduct also concern one or more common acts should not trigger full duplicate credit against all resulting terms. . . . [S]ection 2900.5 did not intend to allow credit for a period of presentence restraint unless the conduct leading to the sentence was the true and only unavoidable basis of the earlier custody." (Id. at p. 1192.)
In Marquez, supra, 30 Cal.4th at p. 17, the defendant was arrested and held in custody on charges that he committed a crime in a Santa Cruz County. About one month later, Monterey County placed a hold on the defendant based on a crime he allegedly committed in that county. The defendant was sentenced to 10 years in prison for the Santa Cruz County crime and received credit for his custody up to the time of that sentencing. He was then transferred to Monterey County, convicted and sentenced to 30 years in prison. The Santa Cruz County conviction was later reversed and the charges in that county were dismissed. The Supreme Court held that the defendant should have then received credit against his Monterey County sentence for the period of time he had been in custody from the date of the Monterey County hold to his Monterey County sentencing. The Court explained that the custody from the Monterey County hold to the Santa Cruz sentencing was attributable to both the Santa Cruz County and Monterey County crimes. (Id. at pp. 17-20.) "[A]s an initial matter, the Santa Cruz County Superior Court correctly awarded petitioner credit against his Santa Cruz County sentence for his time spent in pretrial custody up until . . . the date he was sentenced on the Santa Cruz County charges. Because petitioner's Santa Cruz conviction occurred first, that was the sentence against which the credit should have been applied. And once the credit was awarded it in effect became part of the sentence for those crimes[,] . . . [thus] prohibit[ing] credit [for that period of custody] . . . to reduce his Monterey County sentence . . . ." (Id. at p. 22, fn. omitted.) However, "once Santa Cruz dismissed its charges, all custody following Monterey County's hold . . . is properly characterized as 'attributable to [the Monterey County] proceedings related to the same conduct for which the defendant has been convicted.' (§ 2900.5(b).)" (Id. at p. 20; see also id. at pp. 22-23.) Reconciling this result with Joyner and Bruner, the Court explained, "The requirement of 'strict causation[]' . . . is applicable in cases involving the possibility of duplicate credit that might create a windfall for the defendant. Here, because the Santa Cruz County charges have been dismissed, no possibility of a windfall (in the form of double credit) to petitioner exists. . . . The choice is instead between granting petitioner credit once for his time in custody . . . or granting him no credit at all for this period of local custody." (Id. at p. 23.)
In Marquez, the petitioner sought credit "for time he spent in custody between the day he was sentenced in the Santa Cruz County case and the day he was sentenced in the Monterey County case." (Marquez, supra, 30 Cal.4th at p. 18.) He did not seek credit for the period between the date of the Monterey County hold and the Santa Cruz County sentencing because he was already awarded credit for that period of custody. (Id. at pp. 22, fn. 3, 24-25.) The Court explained that the trial court erred by awarding credit for this period of custody against the Monterey sentence because Marquez had already been credited for the same period of custody against his Santa Cruz sentence. However, that error became moot when the Santa Cruz County sentence was reversed and the charges dismissed. (Id. at p. 22, fn. 3.) Accordingly, Marquez was entitled to credit against his Monterey sentence for both the period between the Monterey hold and the Santa Cruz sentencing (which was initially awarded in error but was properly awarded after the Santa Cruz charges were dismissed) and the period between the Santa Cruz sentencing and the Monterey sentencing (which was initially properly denied but should have been awarded after the Santa Cruz charges were dismissed). The Supreme Court opinion ordered a modification of Marquez's credit in the Monterey case to reflect both periods of custody. (Id. at pp. 24-26.)
To clarify its holding, the Marquez court distinguished People v. Huff (1990) 223 Cal.App.3d 1100 (Huff), on its facts. (Marquez, supra, 30 Cal.4th at pp. 23-24.) In Huff, the defendant was on probation for drug possession when he was arrested on a new charge of auto theft. After he spent two months in custody on the auto theft charge, his probation was summarily revoked and he was remanded into custody for the revocation. The auto theft charge was dismissed. When the defendant's probation was terminated and he was sentenced for the drug possession conviction, he was properly given section 2900.5 credit only for his time in presentence custody following the summary revocation of his probation. (Marquez, at p. 24.) The two months of custody before that date was "dead time" for which the defendant received no credit against any sentence once the auto theft charge was dismissed. (Id. at pp. 20, 24.) Similarly, in the Marquez case, the time Marquez spent in pretrial custody in Santa Cruz County before Monterey County placed a hold on him became "dead time" once the Santa Cruz County charges were dismissed. (Id. at pp. 20-21, 24.)
Here, the time Barker spent in the residential treatment facility was directly attributable to his June 2009 conviction for drug possession, i.e., the conduct underlying this criminal case, even if it also was a consequence of the conduct underlying the two separate misdemeanor cases. The record clearly demonstrates that Barker received no credit for his treatment time in the misdemeanor cases. He received no sentence at all in the misdemeanor drug possession case because the case was dismissed. In the attempted theft case, he received 156 days of presentence custody credit. Since the trial court explained that it was denying any credit for Barker's treatment time in his felony matter due to his failure to complete the program, an issue equally applicable to his misdemeanor cases, it can readily be inferred that the credit he received in the attempted theft case was not awarded for any time Barker spent in the treatment facility. Accordingly, if Barker is awarded custody credit for his treatment time in this case, he will not receive a windfall of duplicative credit for a single period of custody against two or more sentences. Under established Supreme Court precedent, the time spent in residential treatment was attributable to Barker's felony drug possession case and should be credited against Barker's sentence in this case.
Again, the record does not establish that Barker participated in residential drug treatment as a condition of diversion on his separate misdemeanor charges, and the record does establish that he participated in residential drug treatment as an express condition of probation in his felony case. Because the treatment time is attributable to the felony conduct that led to his felony sentence, even if his probation violations arose from the misdemeanor conduct, and because the record indicates that Barker has not already received credit for this period of custody against any other sentence, Barker is entitled to section 2900.5 credit for the treatment time against his felony sentence.
III. DISPOSITION
The judgment is reversed and the case remanded to the trial court for calculation of additional presentence custody credit in accordance with the views expressed in this opinion. Once that credit has been calculated, the court shall modify the abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
Bruiniers, J. We concur: Jones, P. J. Needham, J.