Opinion
A158087
05-07-2020
THE PEOPLE, Plaintiff and Respondent, v. JODY A. McCOY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUKCRCR18-94660)
After defendant Jody McCoy admitted violating probation for the third time, the trial court terminated probation and imposed a sentence of 16 months in county jail. Defendant contends he is entitled to additional presentence custody credits because he did not knowingly waive his right to credit for 20 days he spent in a residential treatment program he failed to complete as a term of probation. We dismiss the appeal as untimely.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2018, defendant was charged with one count of grand theft, and in July, he entered an open guilty plea.
The probation department recommended probation, noting defendant was a heroin addict, this was his first felony conviction, and his extensive misdemeanor criminal record and current offense were consistent with his addiction. The probation report stated, "The defendant understands he will have to enroll in and successful[ly] complete at least a six-month residential treatment program and comply with standard terms and conditions of probation. It is also recommended the defendant be ordered to serve 120 days in jail with credit for 14 actual days served, and the defendant receive day-for-day credit upon successful completion of a residential treatment program."
At the sentencing hearing on August 3, 2018, defendant told the court he had been accepted at the Humboldt Recovery Center. The court emphasized the importance of successful completion of the residential treatment program as being key to defendant's success on probation. The trial court, after extensive colloquy, suspended imposition of sentence and granted defendant formal probation for 36 months, with terms and conditions stated by the court. At issue here, the court stated: "The defendant is to serve 120 days in Mendocino County Jail with credit for 14 actual days. [¶] Day-for-day credit in a residential treatment program is authorized only upon successful completion."
After announcing the terms and conditions of probation, the court asked defendant whether he understood them and then whether he accepted probation on these terms. Defendant answered yes to both questions. The court then referred to a written order that defendant would be given to sign. This written order of probation, six pages in all, includes the condition that defendant serve 120 days in jail with credit for 14 days actually served and "[d]ay-for-day credit in a residential treatment program is authorized, upon successful completion." Defendant signed the written order of probation, next to printed language that he understood the requirements and agreed to abide by them.
Immediately after formally admitting defendant to probation, the trial court advised defendant of his right to appeal from the sentence, including that he had 60 days to do so.
In November 2018, the probation department filed a first petition alleging violation of probation. It was alleged that defendant entered Friendship House on October 4, 2018, and on October 23, he walked out of the program and then failed to check in with probation as directed after leaving the program. An amended first petition was filed in January 2019 with additional allegations of probation violation.
On January 11, 2019, defendant admitted all allegations of probation violation. The court stated that the probation department's recommendation was that defendant remain in custody for 60 days and for defendant "to do an additional residential treatment program." Defendant's counsel responded, "he's not interested at this point" [in residential treatment]." The trial court revoked and reinstated probation with 60 days in jail and credit for three days in custody.
In February 2019, the probation department filed a second petition alleging probation violations. Defendant admitted the allegations, and the court again revoked and reinstated probation with 60 days in county jail.
In May 2019, the probation department filed a third violation of probation petition, and on June 28, the petition was amended. It was alleged (1) defendant failed to check in with probation in March 2019 after being released from jail, (2) he failed to appear for an appointment with probation, (3) he was cited for driving with a suspended license on April 1, (4) he failed to provide a monthly report form for April, (5) he had never made payment toward his court ordered fees and fines, (6) he failed to submit proof of enrollment, payment or completion of a six-month residential treatment program, (7) he failed to appear in court on May 15, and an arrest warrant issued; he was arrested on June 27.
On July 16, 2019, defendant admitted allegations 1 through 4 and 6. In a sentencing memorandum, defendant asked for a low term of 16 months for the underlying grand theft offense and argued he was entitled to 20 days of credit for time spent in Friendship House, a residential rehabilitation program. He recognized that presentence custody credits may be conditionally waived under People v. Johnson (2002) 28 Cal.4th 1050, 1054-1055 (Johnson), but argued there was no knowing and intelligent waiver in this case because "there is nothing in the record to suggest that [defendant agreed to the probation term] knowing that he was relinquishing the 'significant right' (Johnson, supra, at p. 1055) [of presentence custody credit] provided by section 2900.5."
At the sentencing hearing on July 24, defense counsel reiterated the argument that defendant had not knowingly waived his right to custody credit for the time he spent in residential treatment. "[T]he thing about when you give up a right [is] you have to know that it's a right you're giving up. So the Court told him what the rules [i.e., the terms of probation] were, but he wasn't told you have a right to a different set of rules and I'm asking you to agree to this other set of rules. [¶] So, you know, it has to be a knowing relinquishment of a known right and there's nothing in the record to suggest that he relinquished a right knowing he had right to those credits."
The probation officer told the court, "As far as whether [defendant] should get those credits, when I interviewed him I told him that he would get day-for-day credit if he completed the program that he wanted to go to and he understood that." Defense counsel responded that "unless [the probation officer] can represent that he advised [defendant] he had a right to receive credit for any time in residential rehab under 2900.5 and that he was relinquishing that right, then we can't say there was a knowing and intelligent waiver of that right."
The trial court sentenced defendant to 16 months in local custody pursuant to Penal Code section 1170, subdivision (h). As to the time defendant spent in a residential treatment program, the court stated, "And I'm not going to give him credit for the 20 days spent in Friendship House because I do believe that he more than likely had an understanding that he had to complete the program in order to get the custody credits."
DISCUSSION
Respondent argues defendant's appeal must be dismissed as untimely. We agree.
"A criminal appeal must generally be filed within 60 days of the making of the order being appealed. (Cal. Rules of Court, rule 8.308(a).) 'A timely notice of appeal, as a general matter, is "essential to appellate jurisdiction." [Citation.]' (People v. Mendez (1999) 19 Cal.4th 1084, 1094 [(Mendez)].)" (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1420-1421 (Ramirez).)
In Ramirez, the trial court originally imposed a four-year sentence, then suspended execution of sentence and granted the defendant Ramirez probation. In 2004, Ramirez admitted a probation violation as part of a plea agreement that allowed him to remain on probation but increased his unexecuted sentence to five years. In 2006, the trial court found Ramirez violated probation, terminated probation, and executed the five-year sentence. At that time, Ramirez appealed the executed sentence, arguing the trial court lacked authority in 2004 to change his already-imposed sentence from four years to five years in prison. The Court of Appeal agreed the trial court acted improperly in 2004, but concluded Ramirez's challenge was untimely because he did not appeal from the 2004 order imposing the five-year sentence. (Ramirez, supra, 159 Cal.App.4th at p. 1417.)
The same reasoning applies here. Defendant challenges a probation condition imposed on August 3, 2018. An order granting probation is deemed an appealable final judgment (Pen. Code, § 237, subd. (a)), but defendant did not appeal from the August 3 order. "In general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment. [Citation.] Thus, a defendant who elects not to appeal an order granting or modifying probation cannot raise claims of error with respect to the grant or modification of probation in a later appeal from a judgment following revocation of probation." (Ramirez, supra, 159 Cal.App.4th at p. 1421.)
In his reply, defendant responds that when the question of preservation of an appellate issue is a close one, the issue should be addressed on the merits. But that is a different question. Here, the issue is whether we have jurisdiction at all. (See Mendez, supra, 19 Cal.4th at p. 1094 ["A timely notice of appeal, as a general matter, is 'essential to appellate jurisdiction' "].)
Because defendant's sole issue on appeal is an untimely challenge to the probation order from 2018, the appeal is dismissed. (See Mendez, supra, 19 Cal.4th at p. 1094 [an appellate court has no power to give relief when an appeal is untimely, and " 'must dismiss the appeal' "].)
DISPOSITION
The appeal is dismissed.
/s/_________
Miller, J. WE CONCUR: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.