Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA080003, James B. Pierce, Judge.
Jonathan B. Steiner and Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
Defendant, Jeramy Clifford Gerardo, appeals following his nolo contendere plea to first degree burglary and subsequent probation violations. (Pen. Code, § 459.) The trial court ordered defendant be transferred to the Department of Corrections and Rehabilitation for a diagnostic study. (§ 1203.03.) Thereafter, defendant was placed on formal probation and ordered to complete a residential treatment program. Defendant was later twice found in violation of probation. Defendant was sentenced to the mid-term of four years in state prison. Defendant argues that the trial court improperly failed to award pre-sentence credits for the days he spent in a residential treatment program and imposed the middle rather than the low term. We remand to allow the trial court to determine defendant’s presentence credits and otherwise affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On October 1, 2008, the locked residence of Harold Matanovich was burglarized. Several items of jewelry, a jewelry box, a camera and a handgun were stolen. Defendant’s fingerprints were found at the crime scene. When defendant was arrested, he was found in possession of several of the items of stolen jewelry. A search of defendant’s home revealed a watch taken during the burglary.
First, defendant argues that he is entitled to additional pre-sentence credits for the time he spent in the court-ordered residential treatment program. At the time defendant was placed on formal probation on June 4, 2009, the trial court imposed a condition that he complete a residential treatment program at Fred Brown Recovery Service. The trial court emphasized that the program was a minimum of 90 days and could involve up to a full year. Defendant was awarded 337 days presentence custody credits, consisting of 225 actual days in custody and 112 days conduct credit. On September 4, 2009, defendant appeared for a probation violation hearing. A letter from Palm House, Incorporated indicated that defendant had a positive cocaine test on September 2, 2009. Defendant admitted he violated a probation condition. Defendant’s probation was revoked and reinstated under the same terms and conditions. Defendant was ordered to serve 30 days in jail, subject to a conditional release to an authorized residential drug program. Defendant was not awarded any custody credits. On September 22, 2009, defendant was ordered continued on probation on the same terms and conditions. Defendant was ordered to be released and to report to the Palm House facility. On November 3, 2009, defendant’s probation was revoked. Defendant was discharged with a “very negative report” from Palm House on November 2, 2009.
At the probation violation hearing on December 9, 2009, defense counsel noted that defendant left the first residential program on July 7, 2009. Defendant was remanded into custody for 30 days on September 4, 2009. Defendant was then released from jail on September 22, 2009 and was admitted into the Palm House program, where he remained until the “end” of October 2009. The trial court indicated that amounted to six weeks. Defendant walked away from the program on November 2, 2009, because of “staff” issues. Defendant appeared in court on November 3, 2009 for his progress hearing. Defendant admitted that he walked away from the program without permission. Defense counsel indicated defendant had earned an additional 95 days. Defense counsel added, “Actually, I didn’t include the time in the program.” The trial court responded, “I don’t think that should be included.”
Section 2900.5, subdivision (a) states in part, “In all felony and misdemeanor convictions, ... when the defendant has been in custody, including... any time spent in a jail, ... halfway house, rehabilitation facility, hospital, ... or similar residential institution, all days of custody of the defendant... shall be credited upon his... term of imprisonment.” Our Supreme Court has held: “The provisions of Penal Code section 2900.5-entitling a defendant sentenced either to county jail or state prison to credit against the term of imprisonment for days spent in custody before sentencing as well as those served after sentencing as a condition of probation-apply to custodial time in a residential treatment facility as well as straight county jail time. [Citations.]” (People v. Jeffrey (2004) 33 Cal.4th 312, 318; People v. Johnson (2002) 28 Cal.4th 1050, 1053; People v. Davenport (2007) 148 Cal.App.4th 240, 245; People v. Thurman (2005) 125 Cal.App.4th 1453, 1460.)
In People v. Davenport, supra, 148 Cal.App.4th at page 245, we held: “Under section 2900.5, subdivisions (a) and (b), entitlement to credits for time spent in a residential rehabilitation facility depends on whether such participation was a condition of probation for the same underlying criminal conduct. ‘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.] Courts have given the term “custody” as used in section 2900.5 a liberal interpretations.’” (People v. Darnell (1990) 224 Cal.App.3d 806, 809.)
In this case, the trial court indicated, “I don’t think [credits for time spent in a drug program] should be included.” We respectfully disagree. As we noted in People v. Davenport, supra, 148 Cal.App.4th at page 246: “Section 2900.5, subdivision (f), resolves an arguable ambiguity in subdivision (a) of the same statute. Under subdivision (a), a defendant is entitled to custody credits for time spent in a rehabilitation facility in felony and misdemeanor cases. However, there are criminal statutes which require service of a mandatory period of time in county jail [citations]. Section 2900.5, subdivision (f) clarifies that a defendant who spends time in a rehabilitation facility in lieu of mandatory imprisonment in a county jail is entitled to custody credit against the mandatory term. Subdivision (f) functions not as a limitation on the right to custody credits, but rather as an extension of that right to a particular set of circumstances-where ‘the statute under which the defendant is sentenced requires a mandatory minimum period of time in jail, ’ and the defendant served time in a rehabilitation facility or other enumerated facility or program) ‘in lieu of imprisonment in a county jail.’ (§ 2900.5, subd. (f).)”
Our inquiry regarding defendant’s eligibility for credits does not end here. It is unclear whether the residential facilities where defendant was enrolled actually constituted “custody” within the meaning of section 2900.5, subdivision (a). As used in section 2900.5, subdivision (a), the term “custody” has not been precisely defined. Courts generally agree that “custody” connotes the imposition of restraints not shared by the public generally and the custodial circumstances must be attributable to the proceedings relating to the same conduct for which the defendant has been convicted. (See People v. Ambrose (1992) 7 Cal.App.4th 1917, 1921; People v. Darnell, supra, 224 Cal.App.3d at p. 809; People v. Rodgers (1978) 79 Cal.App.3d 26, 30-33.) Whether the Fred Brown Recovery Service or the Palm House facilities should be considered sufficiently restrictive as to amount to custody constitutes a factual question more appropriately left to the trial court in the first instance. There is no evidence in the evidentiary record on the subject.
Finally, we note that the trial court did award 95 days credit at the sentencing hearing. Defense counsel indicated this computation did not include the residential drug programs. However, our computations of the time between June 4, 2009, when defendant was ordered to the Fred Brown Recovery Service and November 2, 2009, when defendant left the Palm House comes fairly close to amounting to 95 days. However, this does not account for additional jail time between November 3 and December 9, 2009. The record suggests that defendant entered the Fred Brown Recovery Service immediately after his June 4, 2009 sentencing hearing and was released from that program on July 7, 2009. That would amount to 34 days. Defendant’s whereabouts between July 7 and September 4, 2009 is unknown. Defendant was in jail from September 4, to September 22, 2009, 19 days, at which time he was ordered to enter the Palm House drug program. Defendant left the Palm House program on November 2, 2009. However, the probation report states that defendant was arrested on October 1, 2009, on an outstanding bench warrant related to another case and released on October 2, 2009. It is unclear whether defendant immediately returned to the Palm House program. On November 3, 2009, defendant was remanded into custody, where he remained until December 9, 2009, when he was sentenced to state prison. We therefore remand this matter for a determination, once the remittitur issues, as to the credits to which defendant is entitled for his days spent in custody at the two residential drug programs and the county jail.
Second, defendant argues that the trial court improperly sentenced him to the middle rather than the lower term. Preliminarily, we agree with the Attorney General that defendant’s failure to object at the time of sentencing resulted in a waiver of this issue on appeal. (People v. Butler (2003) 31 Cal.4th 1119, 1126; People v. Stowell (2003) 31 Cal.4th 1107, 1113 [“Such ‘[r]outine defects in the court’s statement of reasons are easily prevented and corrected if called to the court’s attention.’”]; People v. Scott (1994) 9 Cal.4th 331, 355 [defendant’s claim that reasons used for sentencing were “inapplicable, duplicative, and improperly weighed” was waived]; People v. Kelley (1997) 52 Cal.App.4th 568, 581-582 [failure to consider mitigating factors].)
We address the issue notwithstanding that forfeiture. We review the trial court’s imposition of sentence for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847; People v. Carmony (2004) 33 Cal.4th 367, 375.) Our Supreme Court has held: “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citation.]” (People v. Carmony, supra, 33 Cal.4th at pp. 376-377, quoting People v. Superior Court (Alvarez)(1997) 14 Cal.4th 968, 977-978; People v. Superior Court (Du)(1992) 5 Cal.App.4th 822, 831.) A sentencing court abuses its discretion when it relies upon circumstances that are irrelevant or which may not properly be viewed to select a term. (People v. Sandoval, supra, 41 Cal.4th at p. 847; People v. Moberly (2009) 176 Cal.App.4th 1191, 1196.)
California Rules of Court, rule 4.433(c)(1) requires the sentencing court to select one of three terms and state on the record the reasons the sentence choice. Rule 4.435 (b) states: “On revocation and termination of probation under section 1203.2, when the sentencing judge determines that the defendant will be committed to prison: (1) If the imposition of sentence was previously suspended, the judge must impose judgment and sentence after considering any findings previously made and hearing and determining the matters enumerated in rule 4.433(c). [¶] The length of the sentence must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term or in deciding whether to strike the additional punishment for enhancements charged and found.” (See People v. Goldberg (1983) 148 Cal.App.3d 1160, 1163, fn. 2.) However, in People v. Black (2009) 176 Cal.App.4th 145, 150-151, our colleagues in the Court of Appeal for the Fourth Appellate District held that there is an exception to rule 4.435(b)(1) where the defendant’s probation was previously revoked and reinstated: “‘[A] later sentence upon revocation of the reinstated probation may take into account events occurring between the original grant and the reinstatement.’ [Citation.] ‘To hold otherwise would seriously impede a court’s flexibility to deal effectively with the offender who, granted the “clemency and grace” of probation in the hopes of achieving rehabilitation [citation], proves unable to abide by the conditions of that liberty the first time out. Allowing an offender to fail multiple grants of probation with absolute impunity under rule [4.435(b)(1)] would discourage a court from ever reinstating probation.’ [Citation.]” (See People v. Harris (1990) 226 Cal.App.3d 141, 147.) Moreover, the 2007 amendments to the Determinate Sentencing Law gave the trial courts discretion, pursuant to section 1170, subdivision (b): “to select among the lower, middle and upper terms specified by statute without stating ultimate facts deemed to be aggravating or mitigating under the circumstances and without weighing aggravating and mitigating circumstances.” (People v. Jones (2009) 178 Cal.App.4th 853, 866, citing People v. Sandoval, supra, 41 Cal.4th at p. 847.)
Hereafter, references to a rule are to the California Rules of Court.
Here, in imposing sentence, the trial court noted that defendant’s section 1203.03 evaluation was positive. The trial court continued: “And we gave him a chance on probation. He went to the program, but since June now he’s had at least two dirty tests. He’s also had a walk away from the program. So he’s had a total of three violations. And I guess [defendant] is not ready to turn his life around yet. [¶] So I think the only thing I can do is send him to state prison. If he wishes to admit, I’m going to have to - - in view of the time that he’s already served in state prison, I’m going to have to give him the mid term four years.”
Thereafter, defense counsel clarified that the burglary offense was not random. Rather, the burglary stemmed from a dispute with an acquaintance. In addition, defendant had only one “dirty” test result. However, after defendant’s probation was revoked it was reinstated with the opportunity to participate in another drug program. But then defendant left that drug program without permission. Defendant then admitted that he walked away from the program without permission. The prosecutor noted defendant was convicted of misdemeanor controlled substance possession in 2007 and a weapons charge in 2008. (Health & Saf. Code, § 11377, subd. (a); § 12020, sub. (a)(i).) Defendant stole $13,000 worth of merchandise in the burglary in this case and was caught only by a match of his fingerprints. When arrested, defendant was in possession of several of the stolen items.
Defendant’s assertion the trial court abused its discretion in selecting the middle term is meritless. In imposing the middle term, the trial court was entitled to consider defendant’s performance on probation from June 4, 2009, until it was revoked and reinstated on September 4, 2009, as well as his subsequent admitted probation violation. (People v. Black, supra, 176 Cal.App.4th at p. 151; People v. Harris, supra, 226 Cal.App.3d at p. 147.) Moreover, California courts have long held that a single factor in aggravation is sufficient to justify a sentencing choice. (People v. French (2008) 43 Cal.4th 36, 45; People v. Osband, supra, 13 Cal.4th at p. 670; People v. Castaneda (1999) 75 Cal.App.4th 611, 615; People v. Cruz (1995) 38 Cal.App.4th 427, 433.) Therefore, even if the only factor in aggravation was that defendant stole $13,000 worth of jewelry, that factor would have been sufficient, standing alone, to support the trial court’s selection of the middle term. The trial court did not abuse its discretion in imposing the middle term. Moreover, where it is not reasonably probable that a remand for resentencing would result in a more favorable result, we need not do so. (People v. Jones, supra, 178 Cal.App.4th at p. 867; People v. Sandoval (1994) 30 Cal.App.4th 1288, 1303; People v. Sanchez (1994)23 Cal.App.4th 1680, 1684; see also People v. Hall (1994) 8 Cal.4th 950, 961, 963 [any circumstance in aggravation may be used to impose an upper term].) Any purported error was harmless.
Upon remittitur issuance the trial court is to calculate the number of credits, if any, to which defendant is entitled for the days he spent in custody at the two residential drug programs and the county jail. The judgment is affirmed in all other respects.
We concur: ARMSTRONG, J., MOSK, J.