Opinion
C068134
01-20-2017
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN ADEFOLU THOMAS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCYKCRBF03753)
Defendant Justin Adefolu Thomas appeals from the judgment following his guilty plea to possession for sale of cocaine base and possession for sale of a controlled substance. He contends the trial court miscalculated his custody credits and that the abstract of judgment contains an error as to his date of conviction. We conclude the trial court miscalculated defendant's credits, but not to the extent defendant contends. We also conclude the abstract needs to be corrected to reflect the correct date of conviction. We modify the judgment and otherwise affirm.
We note, however, appellate counsel advised this court that she was informed by the litigation coordinator at the state prison where defendant was confined that his release date was scheduled for January 21, 2012, which was during the period that briefing was still pending in this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
On September 17, 2003, defendant pleaded guilty to possession for sale of cocaine base and possession for sale of a controlled substance. He stipulated to a prison term of five years. The parties then stipulated that defendant may be in danger of becoming addicted to a controlled substance and the trial court referred him for an evaluation for admission into the civil addict program pursuant to former section Welfare and Institutions Code section 3051.
The civil addict program and the statutory scheme supporting it became inoperative on April 1, 2014, and the statutes were repealed as of January 1, 2015. (Former Welf. & Inst. Code, § 3202, added by Stats. 2012, ch. 41, § 119, eff. June 27, 2012.) The program began phasing out in 2012. At that time, Welfare and Institutions Code section 3050, subdivision (c), provided there would be no more commitments beginning July 1, 2012. (Stats. 2012, ch. 41, § 114, eff. June 27, 2012.)
At sentencing on October 29, 2003, the trial court imposed the five-year prison term. Finding defendant was addicted, or in danger of becoming addicted, to a controlled substance, the trial court then suspended execution of the prison sentence and ordered defendant committed to the civil addict program at the California Rehabilitation Center (CRC).
While in the program, defendant was paroled on outpatient status and arrested for violations on three occasions, January 13, 2007, October 24, 2008, and October 23, 2009. Each time he was returned to CRC for additional treatment.
On December 17, 2010, CRC excluded defendant from the program due to concerns for his safety. He was, however, retained at CRC pending court action. Defendant arrived at the Siskiyou County jail on March 14, 2011.
On March 25, 2011, the trial court found that defendant was excluded from CRC, lifted the stay on the execution of the five-year prison sentence, and ordered that defendant be transferred to the California Department of Corrections and Rehabilitation (CDCR).
On April 13, 2011, after written briefing by the parties, the trial court awarded defendant 1,152 actual custody days and presentence conduct credits of 72 days for a total of 1,224 days of custody credit. As we discuss post, the trial court's calculation was erroneous.
The parties do not dispute the actual custody time defendant served, and we agree with their calculation. Defendant served 1,187 days in custody. The calculations and timeline of defendant's actual custody, including parole violations and returns to CRC for treatment, are as follows:
• 17 days -- in county jail prior to release on bail, April 16, 2003, to May 2, 2003.
• 9 days -- in county jail after his guilty plea and referral to CRC awaiting transfer to CRC, October 29, 2003, to November 6, 2003.
• 20 days -- in prison awaiting transfer to CRC, November 6, 2003, to November 26, 2003.
• 264 days -- in treatment at CRC, November 26, 2003, to August 16, 2004.
• Paroled on August 16, 2004.
• Parole violated and returned to CRC January 13, 2007.
• 102 days -- in treatment at CRC, January 13, 2007, to April 24, 2007.
• Paroled on April 24, 2007.
• Parole violated October 24, 2008.
• 77 days -- in local custody and prison after parole violation waiting re-transfer to CRC, October 24, 2008, to January 8, 2009.
• 179 days -- in treatment at CRC, January 8, 2009, to July 6, 2009.
• Paroled on July 6, 2009.
• Parole violated on October 23, 2009.
• 34 days -- in local custody and prison waiting re-transfer to CRC after parole violation, October 23, 2009, to November 25, 2009.
• 386 days -- in treatment at CRC, November 25, 2009, to December 16, 2010.
• 99 days -- Excluded from treatment on December 17, 2010, and housed in CRC and county jail until his sentence was executed on March 25, 2011.
Calculations exclude the duplicative first date which is included in the calculation for the previous location of custody. (For example, the calculation for time spent in prison excludes November 6, 2003, as that date is included in the previous calculation for time in county jail.)
2004 was a leap year.
In defendant's memorandum of points and authorities on the issue of custody credits submitted in the trial court, defendant said he was "received at the CRC" on January 13, 2007. Defendant's CRC chronological history indicates "Gate Turn In" on this date. Thus, defendant was not housed locally or in prison pending his transfer back to CRC on the occasion of this parole violation.
Defendant absconded between January 24 and October 24, 2008.
DISCUSSION
I. Custody and Presentence Conduct Credits
A. Actual Custody Credits
The parties agree that defendant is entitled to 1,187 days of actual custody credit. As noted, the trial court awarded 1,152. This was in error. The trial court counted the 17 days between defendant's arrest and his release on bail, April 16, 2003, and May 2, 2003, but did not count the nine days between October 29, 2003, and November 6, 2003, while defendant was in county jail awaiting transport to CRC. Additionally, the trial court did not count the 20 days between November 6, 2003, and November 26, 2003, when defendant was in CDCR custody following his transfer from the jail to CDCR to await transport to CRC.
On October 26, 2011, defendant asked the trial court to correct this error in a motion filed pursuant to section 1237.1. But defendant also asked the court to do other things in his motion to which he was not entitled under section 1237.1, which is a mechanism for correcting mathematical errors. Defendant asked the court to apply the goodtime credit formula in section 2933, subdivision (e)(1), for a total of 125 days presentence conduct credits or in the alternative, the version of section 4019 in effect as of January 25, 2010. Although the trial court acknowledged apparent mathematical errors, it denied the motion.
Because the trial court did not state its total actual time calculation in separate time periods, it is unclear where the trial court missed the other six days.
B. Applicable Presentence Conduct Credit Formulas
Defendant asserts the trial court should have calculated all of his presentence conduct credit based on the formula in effect on March 24, 2011, the day his stayed prison sentence was executed. He asserts the one-for-one day ratio set forth in the former Penal Code section 2933, subdivision (e)(1) (Stats. 2010, ch. 426, § 1) applied to him. Alternatively, he asserts he was entitled to the two-for-two day presentence credits provided in the version of section 4019 that went into effect on January 25, 2010. (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.) The People assert that for all time periods defendant was entitled to presentence conduct credits, he was entitled to the credit available under section 4019. The People do not expressly state which version of section 4019 should apply, but the formula the People cite is the formula in the version of section 4019 enacted in 1982 and in effect at the time of defendant's original sentencing in 2003. (Stats. 1982, ch. 1234, § 7.) We partially agree with both parties.
Undesignated statutory references are to the Penal Code in effect at the time indicated in our discussion.
Defendant was entitled to presentence conduct credit, based on the version of the conduct credit law in effect during the time defendant was in custody. (See People v. Brown (2012) 54 Cal.4th 314, 318 (Brown) [the version of section 4019 that went into effect on January 25, 2010, was to be applied prospectively, not retrospectively].) We shall discuss the applicable provisions in our discussion regarding the relevant time periods, post.
C. Defendant's Presentence Conduct Credits
1. Local Custody Prior to Commitment to CRC
Defendant spent a total of 17 days in county jail prior to entering his guilty plea and being committed to CRC -- April 16, 2003, to May 2, 2003. Defendant contends he was entitled to presentence conduct credits under former section 2933, subdivision (e)(1), which was in effect at the time of his sentencing on March 11, 2011. In the alternative, defendant asserts he was entitled to conduct credits under the version of section 4019 that went into effect on January 25, 2010. We disagree with defendant.
The purpose of conduct credit is to incentivize good behavior at the time defendants are in custody. (Brown, supra, 54 Cal.4th at pp. 317, 322.) Such credits are "earned day by day over the course of a defendant's confinement as a predefined, expected reward for specified good behavior." (Id. at p. 322.) Thus, in the absence of a legislative expression that such credits should be applied retroactively, they must be applied prospectively. (Id. at pp. 319-323.) Accordingly, defendant is entitled to presentence conduct credits based on the conduct provision in effect at the time he was confined.
Section 4019 applies, and the 1982 version, which was in effect in 2003 provided two days of presentence conduct credit for every four days served. Accordingly, defendant is entitled to eight days of presentence conduct credit for his custody time between April 16 and May 2, 2003.
Under the formula in this version of section 4019, presentence conduct credit is calculated "by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody." (People v. Fry (1993) 19 Cal.App.4th 1334, 1341.)
Defendant is entitled to a total of 25 days credit for this period of time.
2. Time Awaiting First Transfer to CRC
After his original commitment to CRC in 2003, defendant spent nine days in local custody and 20 days in prison awaiting transfer to CRC. Applying the version of section 4019 formula in place at the time, defendant is entitled to 14 days of presentence conduct credits for the period between October 29 and November 26, 2003.
Defendant is entitled to a total of 43 days credit for this period of time.
3. Treatment in CRC
Defendant spent a total of 931 days in treatment during his various stays at CRC -- November 26, 2003, to August 16, 2004 (264 days); January 13, 2007, to April 24, 2007 (102 days); January 8, 2009, to July 6, 2009 (179 days); and November 25, 2009, to December 16, 2010 (386 days). Defendant is entitled to actual custody time but not presentence conduct credit during these time periods. (People v. Lizarraga (2003) 110 Cal.App.4th 689, 693, citing People v. Nubla (1999) 74 Cal.App.4th 719, 731 (Nubla); People v. Guzman (1995) 40 Cal.App.4th 691, 694 (Guzman).)
Defendant is entitled to a total of 931 days credit for these time periods.
4. Awaiting Transfer to CRC after Parole Violations
As we have noted, defendant was paroled on out-patient status, had his parole violated, and was returned to CRC for additional treatment on three occasions. Defendant spent a total of 111 days in local custody and prison awaiting re-transfer to CRC on two of these occasions -- October 24, 2008, to January 8, 2009 (77 days), and October 23, 2009, to November 25, 2009 (34 days).
Former Welfare and Institutions Code section 3152 provided: "The rules for persons in outpatient status shall include but not be limited to close supervision of the person after release from the facility, periodic and surprise testing for narcotic use, counseling and return to inpatient status at the California Rehabilitation Center or its branches at the discretion of the authority, if from the reports of agents of the Department of Corrections or other information including reports of law enforcement officers as to the conduct of the person, the authority concludes that it is for the best interests of the person and society that this be done." Former Welfare and Institutions Code section 3201, subdivision (c), provided that a person out on parole who violated the rules, regulations, or conditions imposed by the Narcotic Addict Evaluation Authority "shall be subject to being retaken and returned to the California Rehabilitation Center."
The record reflects a portion of the time periods commencing on October 24, 2008, and on October 23, 2009, were spent in local custody after arrest. On each occasion, defendant was subsequently transferred to state prison prior to his transfer back to CRC.
Invoking equal protection principles, defendant contends he was entitled to presentence conduct credit for these time periods. This is so, according to defendant, because (1) he had no incentive for good behavior other than the allowance of conduct credit and thus there was no compelling interest for distinguishing between him and presentence detainees in county jail, and (2) his confinement during these periods was "essentially penal."
The People argue defendant should not be entitled to conduct credits for these time periods. They contend defendant was "still under the direct authority of CRC," even though housed in a penal institution and, therefore, was not entitled to conduct credits. We agree with the People, but we set forth our reasoning in greater detail.
Because neither former sections 4019, nor 2933, subdivision (e)(1), referenced CRC in the list of facilities where pre-sentence conduct credits were available, defendant relies on equal protection principles. In asserting his equal protection claim, defendant relies primarily on Guzman, supra, 40 Cal.App.4th 691. As we will explain, Guzman focuses on the compelling interest prong of the equal protection analysis and identifies the incentive for good behavior fostered by the presentence conduct credit provisions as the compelling interest.
In Guzman, after the defendant was excluded from CRC, he remained in custody at CRC for a period of time pending his return to court. In challenging the trial court's refusal to award presentence conduct credits for this time period, the defendant argued a failure to award these credits violated equal protection. The Guzman court agreed. (Guzman, supra, 40 Cal.App.4th at p. 695; accord, Nubla, supra, 74 Cal.App.4th at pp. 731-732 [the defendant was entitled to presentence conduct credits for time held in custody at CRC and locally between exclusion and the execution of his sentence, even when the defendant was excluded from CRC for a fault-based reason].)
We note that similar to defendant here, the defendant in Guzman also spent a number of days in county jail after several arrests for violating his CRC parole. (Guzman, supra, 40 Cal.App.4th at p. 693.) It is unclear whether defendant specifically argued he was entitled to presentence conduct credit for these time periods on appeal. In listing the issues on appeal, the Guzman court wrote, "[The defendant] claims that (1) he is entitled to 'good behavior and participation' credit pursuant to Penal Code section 2931, (2) he is entitled to 'worktime' credit pursuant to Penal Code section 2933, and (3) he is entitled to additional Penal Code section 4019 credit for the period between the CRC's decision to exclude him and his sentencing." (Ibid.) The Guzman court then noted that after People v. Jones (1995) 11 Cal.4th 118, where our high court held that persons committed to CRC are not entitled to " 'good behavior and participation' " credits under sections 2931 and 2933 for time spent during a CRC commitment, the only issue remaining in Guzman's appeal was whether he was wrongly deprived of his section 4019 presentence conduct credits between his exclusion and his sentencing hearing. (Guzman, at pp. 693-694.) What is unclear is whether the Guzman court saw the time the defendant spent in county jail pending transfer back to CRC after his parole violations as time spent during the CRC commitment to which he was not entitled to presentence conduct credits. We do and we will explain.
In its reasoning, the court in Guzman first observed that the purpose for presentence conduct credits under section 4019 is to encourage good behavior by incarcerated defendants before they are sentenced. (Guzman, supra, 40 Cal.App.4th at p. 695.) The court then noted the Legislature's decision to deny section 4019 credits to defendants while they are in CRC was grounded on the recognition that " 'those receiving treatment in [non-penal institutions] have their own incentives for good behavior . . . .' [People v. Moore (1991) 226 Cal.App.3d 783], 787 [(Moore)].)" (Guzman, at p. 695.) The Guzman court then concluded, "This rationale does not apply where the person held in the nonpenal institution has already been excluded therefrom and therefore is no longer receiving treatment. A person who has been excluded from the CRC, but remains housed there, has no incentive for good behavior other than the allowance of Penal Code section 4019 credit. Although a person who spends presentence time in custody at the CRC after being excluded from the CRC is not being held in a penal institution, the state's interest in encouraging such a person's good behavior is identical to its interest in encouraging the good behavior of presentence county jail detainees. [¶] Accordingly, no compelling state interest supports the distinction drawn by Penal Code section 4019 between presentence time spent in custody at the CRC after exclusion therefrom and presentence time spent in custody in jail." (Guzman, at p. 695, first italics added.) Consequently, a defendant is entitled to section 4019 credits for the period held in custody in CRC between his exclusion and the execution of sentence upon return to the trial court.
In Moore, the court held that equal protection does not entitle defendants sentenced to a local in-patient alcohol recovery center as a condition of probation to presentence conduct credit for the time spent in the in-patient program. (Moore, supra, 226 Cal.App.3d at pp. 784-785.) In quoting Moore, the Guzman court substituted the bracketed words "nonpenal institutions" for "in alcohol recovery centers" and abbreviated the sentence by omitting language that is relevant here. What the Moore court actually wrote reads, "[T]hose receiving treatment in alcohol recovery centers have their own incentives for good behavior, including fulfillment of the terms of their probation and avoiding alternate jail time." (Moore, at p. 787, italics added.) We discuss the import of the italicized language, post.
Based on the Guzman court's reasoning, defendant argues there is no compelling interest supporting a distinction between CRC committees who have been detained pending transportation back to CRC for additional treatment and those who are detained in jail presentence. Defendant argues, "The state's interest in encouraging a person's good behavior in local custody and in prison when they are awaiting transfer to CRC is identical to its interest in encouraging the good behavior of presentence county jail detainees." Additionally, defendant argues, "There is no indication in the record that [defendant] was receiving any type of treatment that would provide an incentive for good behavior while he was in custody and prison awaiting transfer to CRC," and his "only incentive . . . for good behavior in jail and in prison when he was not receiving treatment and was awaiting transfer to CRC was the prospect of receiving conduct credit." We disagree.
In order to establish an equal protection claim in the context of the issues presented here, defendant must establish (1) that he is similarly situated to another group that is treated differently, and (2) that there is no compelling state interest for the distinction. (People v. Eddy (1995) 32 Cal.App.4th 1098, 1108 (Eddy) [noting that cases involving equal protection claims related to section 2933 good time/worktime credits for CRC committees assumed such committees are " 'similarly situated' " without deciding the issue and focus on the compelling state interest].) Since the parties have apparently assumed the highly debatable notion that CRC committees who violate their parole and are detained pending transport back to CRC for additional treatment are similarly situated to pretrial detainees and instead focus solely on the compelling state interest supporting a distinction between the two groups, so do we.
Defendant's comparison of his detentions incident to his parole violations to the scenario in Guzman in his effort to support his contention that there is no compelling interest here is unpersuasive. To the contrary, there was indeed a compelling interest supporting a distinction between CRC committees who had been detained on parole violations pending transportation back to CRC and people who were detained in jail pending the original disposition of their case in court. CRC committees who had been arrested on parole violations while on out-patient status and detained locally or in prison prior to transport back to CRC for additional in-patient treatment shared an incentive to exhibit good behavior with committees in CRC receiving treatment; they had an incentive to avoid being excluded from the program. Former Welfare and Institutions Code section 3053, subdivision (a), authorized the Director of Corrections to return a defendant to court for further criminal proceedings if for any "relevant reason" the Director determined the defendant was not a fit subject for treatment. Avoiding exclusion was an incentive not unlike the incentives of fulfilling terms of probation and avoiding alternate jail time found to be good behavior incentives supporting a compelling interest in Moore, supra, 226 Cal.App.3d at page 787. (See fn. 14, ante.)
Former Welfare and Institutions Code section 3053, subdivision (a), provided: "If at any time following receipt at the facility of a person committed pursuant to this article, the Director of Corrections concludes that the person, because of excessive criminality or for other relevant reason, including the person's eligibility for treatment pursuant to Section 1210.1 of the Penal Code, is not a fit subject for confinement or treatment in the narcotic detention, treatment, and rehabilitation facility, he or she shall return the person to the court in which the case originated for further proceedings on the criminal charges that the court may deem warranted." (Italics added.)
Beyond avoiding exclusion, CRC committees awaiting transport back to CRC after parole violations shared another significant incentive for which there was no analogue related to those who are detained in county jail pending disposition of their case. Upon successful completion of the CRC program, the trial court was statutorily authorized to dismiss the committee's entire case. (Welf. & Inst. Code, § 3200, subd. (b); Nubla, supra, 74 Cal.App.4th at p. 725.) This kind of dismissal had the effect of a dismissal under section 1203.4 (expungement). (Welf. & Inst. Code, § 3200, subd. (b).) For these reasons, we disagree with defendant's assertion that his only incentive when he was in jail and prison purportedly not receiving treatment while awaiting transfer back to CRC was the prospect of receiving conduct credit.
When a committee successfully completes the program, "The court may, unless otherwise prohibited by law, modify the sentence, dismiss the criminal charges of which the person was convicted, or suspend further proceedings, as it deems warranted in the interests of justice." (Former Welf. & Inst. Code, § 3200, subd. (b).)
As for defendant's contention he was not receiving treatment during these periods of detention, we find it unavailing. Defendant did not establish whether or not he received any treatment while he was in local custody or prison awaiting transport back to CRC. Rather defendant simply asserted there is "no indication in the record" that he was receiving "any type of treatment" pending his transfer back to CRC. That there is no indication in the record on appeal does not mean that he was not receiving treatment. Defendant has the burden of showing error and as such, he has the burden of providing a record supporting his contentions. (People v. Gamache (2010) 48 Cal.4th 347, 377-378; People v. Green (1979) 95 Cal.App.3d 991, 1001; People v. Romo (1975) 14 Cal.3d 189, 195; People v. Garcia (1987) 195 Cal.App.3d 191, 198 [defendant challenging award of credits based on inaccuracy in the probation report should have challenged the probation report in the trial court or made it part of the record on appeal to demonstrate affirmatively he was entitled to additional days].) As this court has observed regarding this burden, a defendant does not make the requisite showing "by arguing about what evidence is not in the record." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573 [rejecting a claim of insufficiency of the evidence].)
Here, defendant had the obligation of providing affirmative evidence in the trial court to prove he did not receive any type of treatment while awaiting transport back to CRC and he failed to do so. On appeal, he essentially asks us to speculate on this matter. We decline to do so.
Moreover, in our view, whether defendant did or did not receive any type of treatment while in custody awaiting transfer back to CRC simply does not matter. Even if he did not receive treatment, his being in custody during these time periods facilitated his treatment. When CRC parolees who have violated the terms of their outpatient status are in custody awaiting transport to CRC, they have been separated from the controlled substances to which they are addicted. Thus, defendant being in custody placed him in a situation where he no longer had the same access to controlled substances he had on the street, making abstinence and detoxification, if needed, likely. As has been noted, there is a compelling state interest in the "the need to foster effective treatment of narcotics addicts." (Eddy, supra, 32 Cal.App.4th at p. 1108, italics added), and that is what happened here.
Citing a footnote in People v. Buckhalter (2001) 26 Cal.4th 20, 30, footnote 6 (Buckhalter), defendant asserts that his confinement while awaiting transfer back to CRC was "essentially penal." From this, he contends he is entitled to presentence conduct credits. In the Buckhalter footnote, our high court stated, "Section 4019 provides that its formula for good behavior credit applies to persons detained, prior to felony sentencing, in specifically enumerated local facilities, including 'county jail[s], industrial farm[s], or road camp[s] or . . . city jail[s], industrial farm[s], or road camp[s].' [Citation.] The statute does not apply to presentence time spent receiving treatment 'in [such] nonpenal institutions . . . as state hospitals.' [Citation.] However, it has been held that equal protection requires application of section 4019 credits to presentence confinement in a state facility if the circumstances of the confinement are essentially penal. (See [Guzman, supra, 40 Cal.App.4th at pp.] 693-695 . . . ; see also [Nubla, supra, 74 Cal.App.4th at p.] 731.)" (Buckhalter, at p. 30, fn. 6, fourth italics added.)
Buckhalter was not an equal protection case. In that case, our high court addressed the "narrow issue" concerning the trial court's duty to calculate custody credits upon a remand for resentencing after appeal (Buckhalter, supra, 26 Cal.4th at p. 22), and held that when an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence. (Id. at p. 23.) The footnote upon which defendant relies was in a part of the Buckhalter court's discussion in which it gave an "overview" of felony sentencing and the independent credit schemes for presentence and postsentence custody. (Id. at p. 30.) The overview did not include the scenario presented in the instant case. The footnote upon which defendant relies was attached to the following text in the opinion: "Persons detained in a specified city or county facility, or under equivalent circumstances elsewhere [citation], 'prior to the imposition of sentence' may also be eligible for good behavior credits of up to two additional days for every four of actual custody. (§ 4019, subds. (a)(4), (b), (c), (e), (f).)" The Buckhalter court did not elaborate on what it meant by "essentially penal" in the footnote, but in context with the text to which it was attached and the court's citations to Guzman and Nubla, the court's footnote appears to have been intended to illustrate an exception to the provision of presentence conduct credits under section 4019 (custody in a treatment facility) and an exception to the exception (custody in CRC after exclusion). In the exception to the exception -- custody after exclusion from CRC -- the circumstances of confinement are essentially penal. Such a defendant is simply awaiting final disposition of his case in court, the same as any presentence detainee. But as we have explained, a CRC committee who was on parole and violated the terms of his outpatient status was still in the civil addict program when awaiting transport back to CRC. And if the CRC committee successfully completed the program, the committee could have been discharged and never sent to prison. Thus, as we have noted, the CRC committee who violated his parole had every incentive to exhibit good behavior. In this circumstance, the detention was not essentially penal; the detention served to foster abstinence and was part of an effort to reinforce treatment by getting the committee back in in-patient programming at CRC.
We note that neither the Guzman nor the Nubla courts used the term "essentially penal" in their opinions.
We conclude the Legislature had a compelling interest for not including in section 4019 or section 2933, subdivision (e)(1), time CRC committees spent in custody awaiting transport back to CRC for additional treatment after having violated parole. Thus, defendant's equal protection claim fails.
Defendant is not entitled to presentence conduct credit for the time he spent in local and prison custody awaiting transfer back to CRC after violating his parole. He is, however, entitled to 111 days credit for actual custody time.
5. Excluded from Treatment but Housed at CRC Awaiting Return to Court
Defendant spent a total of 99 days in custody from the day after he was excluded from treatment at CRC to the day the trial court lifted the stay, executed the sentence, and remanded him to serve his prison term -- December 17, 2010, to March 25, 2011.
Defendant is entitled to presentence conduct credits for this time. (Nubla, supra, 74 Cal.App.4th at p. 731; Guzman, supra, 40 Cal.App.4th at pp. 694-695.) Defendant again contends he is entitled to credits under the one-for-one day formula in section 2933, subdivision (e)(1). On this point, we agree with defendant.
Section 2933, subdivision (e)(1), was operative between September 28, 2010, and September 21, 2011. (People v. Denman (2013) 218 Cal.App.4th 800, 815 (Denman).) Because the period after defendant was excluded from CRC was within this time period, he was entitled to the one-for-one day presentence conduct credits during that period of his custody. (Denman, at p. 815; People v. Tinker (2013) 212 Cal.App.4th 1502, 1507 (Tinker).)
The People contend that credits available under section 2933, subdivision (e)(1), could not be awarded by the trial court; rather such credits could only be awarded by CDCR. This argument was rejected first in Tinker, supra, 212 Cal.App.4th at pages 1508-1509, and again in Denman, supra, 218 Cal.App.4th at pages 815-816. We agree with the reasoning in those cases. The trial court had the responsibility to award presentence conduct credit under 2933, subdivision (e)(1).
Defendant is entitled to 198 days credit for the period of time after he was excluded from CRC to the date the trial court executed his sentence.
6. Summary of Credits Earned
Defendant is entitled to the following credits:
• 25 days -- for the time he spent in local custody prior to entry of his plea and being ordered placed at CRC (17 actual days plus eight days of presentence conduct calculated under the 1982 version of section 4019);
• 43 days -- for the time he spent in local custody and prison prior to his transfer to CRC after his original sentencing (29 actual days plus 14 days of presentence conduct calculated under the 1982 version of section 4019);
• 931 days -- for the actual time he spent in treatment at CRC;
• 111 days -- for the actual time he spent in local custody or prison pending transfer back to CRC for additional treatment after two of his three parole violations; and
• 198 days -- for the time he spent in custody between the time he was excluded from CRC and the time his prison sentence was executed (99 actual days plus 99 days presentence conduct credits calculated under § 2933, subd. (e)(1)).
Thus, defendant is entitled to 1,187 actual days and 121 conduct days, for a total of 1,308 days of custody credit.
II. Error on Abstract
Defendant contends, and the People concede, that the abstract of judgment erroneously reflects defendant's conviction date as October 26, 2003. We agree. Defendant pleaded guilty on September 17, 2003. The conviction date on the abstract of judgment must be corrected to reflect September 17, 2003, as the date of conviction.
DISPOSITION
The judgment is modified to award defendant with 1,187 actual days and 121 presentence conduct days, for a total of 1,308 days custody credit. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting this modification, and correcting the conviction date as indicated herein, and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
MURRAY, J. We concur: BUTZ, Acting P. J. DUARTE, J.