Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. Nos. FF512185, CC756869
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
In case No. FF512185, on July 12, 2007, defendant James Torres pleaded no contest to assault with intent to commit rape (Pen. Code, § 220).
The information in case No. FF512185 charged defendant under the name of James Torres, aka Jimmy Torres. Similarly, in case No. CC756869, the first amended complaint charged defendant under the name of James Torres, aka Jimmy Torres.
All further statutory references are to the Penal Code unless otherwise indicated.
In case No. CC756869, defendant pleaded no contest to driving under the influence (DUI), and admitted having three or more prior convictions, having a blood alcohol level of .15 percent or higher, and being out on bail or on his own recognizance at the time of the offense (Veh. Code, §§ 23152, subd. (b), 23550, subd. (a), 23578; § 12022.1). He also pleaded no contest to misdemeanor driving on a suspended license, and admitted having two prior convictions (Veh. Code, § 14601.2).
On December 17, 2007, the trial court sentenced defendant in both cases to a total prison term of two years and eight months, and to county jail for 30 days with 30 days credit.
On appeal, defendant does not raise any issues in the DUI case (No. CC756869). In the assault case (No. FF512185), defendant contends that he is entitled to presentence custody credits for the time he spent in a City Team Ministries (City Team) program, which he characterizes as a residential treatment program.
We conclude that defendant is not entitled to credit for time spent in the City Team program because the court did not order defendant’s participation in a residential treatment program and he entered into the City Team program on his own initiative. Therefore, after correcting a clerical error, we will affirm the judgment as modified.
In case No. CC756869, the trial court orally imposed penalty assessments in the amount of $980. The abstract of judgment, however, reflects penalty assessments in the amount of $9,880. We will order the abstract amended to reflect the court’s oral pronouncement.
II. FACTUAL AND PROCEDURAL BACKGROUND
Information (Case No. FF512185)
As defendant was convicted by plea, the summary of his offense is taken from the preliminary hearing. The victim testified that on August 7, 2005, defendant was in her bedroom when she indicated that she did not want to have sexual intercourse with him. Defendant grabbed her shoulders and “tossed [her] towards the wall,” where she hit her head. Defendant took her clothes off and had sexual intercourse with her against her will. She told defendant to “stop” and pushed him off her. The victim testified that defendant then inserted his penis into her rectum. She acknowledged telling a police officer that she felt defendant’s penis against her buttocks but that she was not sure if there had been penetration.
Defendant was arrested on August 7, 2005, and released on supervised own recognizance (OR) thereafter. On February 3, 2006, he was charged by information with assault with intent to commit rape (§ 220; count 1); rape by means of force, violence, duress, menace, or fear (§ 261, subd. (a)(2); count 2); and sodomy by means of force, violence, duress, menace, or fear (§ 286, subd. (c)(2); count 3).
First Motion to Revoke
In February or March 2006, the Office of Pretrial Services submitted to the court a motion to revoke defendant’s release on supervised OR. The motion stated that the conditions of defendant’s release included the following: “[n]ot [to] violate any State or Federal laws,” “[n]ot to use or possess any illegal drugs/alcohol,” “[s]ubmit to drug/alcohol testing,” “[p]articipate in drug/alcohol, psychological counseling at the direction of Pretrial Services,” reside at the specified address in San Jose “unless granted permission to live elsewhere by the Court or Pretrial Services,” and “[p]ost $25,000 bail.” The motion alleged that defendant was arrested on February 9, 2006, for a misdemeanor violation of section 647, subdivision (f), which violated the conditions of release requiring him to obey all laws and to not use or possess illegal drugs or alcohol.
March 16, 2006 Hearing
The hearing on the motion was scheduled for March 16, 2006. At the hearing, defense counsel informed Judge Hugh F. Mullin III that she had received the motion and that she wanted a continuance of the matter. The court continued the matter to April 6, 2006, whereupon the following discussion took place between the court and defense counsel:
“THE COURT: We’re going to do some further testing; correct?
“[DEFENSE COUNSEL]: Your Honor, we’re going to get some more information [¶] . . . [¶] about the new case . . . and also an update on [defendant’s] status in terms of program participation.
“THE COURT: Right. Better get into a program. It will be a lot easier on him.
“[DEFENSE COUNSEL]: Your Honor, apparently he’s in the county program, but we have to get the . . . Court the updated information.
“THE COURT: Right. Okay. Thank you.”
April 6, 2006 Hearing
The continued hearing on the motion to revoke defendant’s release on supervised OR was held on April 6, 2006, before Judge Kenneth L. Shapero. At the hearing, defense counsel stated that defendant was “participating in the out-patient program through D.A.D.S.,” and “[a]lthough he had a slow start in that program, they indicated that he was now participating satisfactorily.” Defense counsel also indicated that defendant was “attending AA meetings” and “has a sponsor.”
In response, the prosecutor argued that defendant was “lucky” to be released on the supervised own recognizance program (SORP) “to begin with.” He maintained that “[o]ne of the first conditions” of the program is not to use or possess alcohol, yet defendant had been arrested for violation of section 647, subdivision (f), “meaning the defendant was so intoxicated he was unable to care for himself in public.” The prosecutor argued that defendant’s release on supervised OR should be revoked and he should be placed into custody.
Defense counsel asserted, among other things, that defendant had not been tested for alcohol in connection with the incident and the matter was “still [to] be litigated” in court.
The following discussion then took place between the court and defendant:
“[THE COURT]: Mr. Torres, I can’t imagine for a minute why you would have put yourself in that position. You just have no margin for error. You are out of custody on very generous terms.
“[THE DEFENDANT]: Yes, Sir.
“[THE COURT]: And I’m really concerned whether you’ve got it or not. I’m not the one who released you. I know Judge Bernardini is very strict in her discussions with defendants when she releases them on supervised O.R. You have extremely serious charges filed against you, and that doesn’t do anything to help your case, Sir. I’m satisfied that steps are being taken at this time. Whether it’s just to keep you out of jail or out of a clear understanding of the issues will remain to be seen. I will allow you for the moment to remain out on all the conditions of your supervised O.R. but we’re watching real closely, Sir.
“[THE DEFENDANT]: Yes, Sir.
“[THE COURT]: . . . [N]ow the case is mine and is going to be mine. You are in no position to slip at all. So never let it be said that I didn’t give you fair warning.
“[THE DEFENDANT]: Yes, Sir.”
Second Motion to Revoke
On May 17, 2006, the Office of Pretrial Services filed a motion to admonish defendant because he tested positive for methamphetamine on April 27, 2006. The Office of Pretrial Services reported that defendant continued to receive counseling at East Valley Treatment and Recovery Services. It also reported that defendant wanted “to be enrolled into a residential treatment program, but due to his pending Court dates, he is not eligible at this time. As such, his treatment at East Valley has been upgraded.” The Office of Pretrial Services further reported that defendant had requested drug testing twice a week instead of once a week. Attached to the motion was a treatment status report, which indicated that defendant was enrolled in East Valley on November 4, 2005, that he was attending the program, and that he had missed five appointments.
May 18, 2006 Hearing
At a hearing on May 18, 2006, Judge Shapero scheduled a trial setting hearing on the underlying assault case for June 8, 2006. Regarding the motion to admonish by the Office of Pretrial Services, the trial court observed that defendant had been subject to regular testing and one test had come back positive for methamphetamine. The following discussion ensued:
“[DEFENSE COUNSEL]: As I indicated in chambers, [defendant] is working with pretrial services and the county program. However, he’s also contacted the program through – City Team’s Mr. Rosco Hawkins is present in court to indicate and to confirm that he has, in fact, made contact with this program. [¶] They are going to see about getting him into a live-in drug treatment program. And in the interim, he will be working with Mr. Hawkins to make sure that he continues to be clean and sober. [¶] If we could make the June 8th date also for a report back on [defendant’s] progress and status of whether or not he’s in any drug treatment program.
“THE COURT: Mr. Torres, we’re just having blips in the system. And we just can’t have that. And I need to make sure you’re on the right track in that regard. [¶] And so you need to follow through on these opportunities or I have to take a harder look at things. [¶] You understand that, Sir?
“THE DEFENDANT: Yes, Sir.
“THE COURT: Okay. We’ll revisit and review and have a further hearing regarding your treatment progress on the June 8th date also.
“[DEFENSE COUNSEL]: Thank you very much.
“THE COURT: Good luck, Sir.”
June 8, 2006 Hearing
At the hearing on June 8, 2006, Judge Shapero scheduled a further trial setting hearing for June 22, 2006, for the assault case. The following discussion then took place concerning defendant’s treatment:
“[THE COURT]: [I]s Mr. Torres still engaged and involved in his treatment program?
“[DEFENSE COUNSEL]: Your Honor, in fact he reminded me that he is set to surrender to his – well, he has his application in for City Team[]. He’s expected to enter City Team[] on the 12th. They require a 30 day policy of not leaving. Is it possible we can waive his presence on the 22nd if he is in the residential program?
“[THE COURT]: If in fact he’s in the program and you have some kind of verification, then I’ll understand why he’s not here. Otherwise I should see his smiling face that afternoon.
“[DEFENSE COUNSEL]: That’s fine.
“[THE COURT]: Thank you.
“[DEFENSE COUNSEL]: Thank you.”
Report from the Office of Pretrial Services
In a report filed January 26, 2007, to update the court about defendant, the Office of Pretrial Services stated the following: “In regards to his counseling, the defendant enrolled in East Valley Treatment on November 4, 2005 and successfully completed the program requirements on June 5, 2006. Since the defendant has a desire to upgrade his treatment, he entered the City Team Ministries residential treatment program on July 17, 2006 where he remained until approximately the end of 2006. Pretrial Services spoke with City Team Ministries and confirmed that the defendant left the program near the end of 2006 for medical reasons. The program has excused the defendant for one (1) month due to his medical issues. [¶] Pretrial Services also contacted Valley Medical Center (VMC) and verified that the defendant is being treated by them. . . . [¶] It should be noted that the defendant has been living with his girlfriend . . . since he left the City Team Ministries treatment program.”
Third Motion to Revoke
On February 12, 2007, the Office of Pretrial Services submitted to the court a motion to revoke defendant’s release on supervised OR. The motion referred to new charges that were filed against defendant in case No. CC756869, and stated that defendant had violated the conditions of release requiring him to not violate any laws and to not use or possess any illegal drugs or alcohol.
A first amended complaint was subsequently filed in case No. CC756869 on February 14, 2007. The first amended complaint charged defendant with two counts of DUI with three or more prior convictions (Veh. Code, §§ 23152, subds. (a) & (b), 23550, subd. (a); counts 1 & 2) and two counts of driving with a suspended or revoked license (Veh. Code, §§ 14601.2, subd (a), 14601.5, subd. (a); counts 3 & 4, misdemeanors). The first amended complaint further alleged as to counts 1 and 2 that defendant’s blood alcohol level was .15 percent or more (Veh. Code, § 23578), and as to counts 3 and 4 that defendant had previously committed one violation of Vehicle Code section 14601.2 and one violation of Vehicle Code section 14601.5. The first amended complaint also alleged an enhancement for defendant being out on bail or on his own recognizance (§ 12022.1).
The clerk’s minutes for a hearing on February 13, 2007, indicate that defendant’s release on supervised OR was revoked in the assault case, No. FF512185, and bail was set at $200,000.
Pleas and Sentencing
On July 12, 2007, pursuant to a negotiated disposition, defendant pleaded no contest in case No. FF512185 to assault with intent to commit rape (§ 220; count 1). In case No. CC756869, defendant pleaded no contest to DUI, and admitted having three or more prior convictions, having a blood alcohol level of .15 percent or higher, and being out on bail or on his own recognizance at the time of the offense (Veh. Code, §§ 23152, subd. (b), 23550, subd. (a), 23578; § 12022.1). He also pleaded no contest to misdemeanor driving on a suspended license, and admitted having two prior convictions (Veh. Code, § 14601.2).
Defendant entered into the pleas on the condition that he receive a sentence of two years in prison for case No. FF512185, and a consecutive sentence of eight months in prison for case No. CC756869. The remaining counts in each case were submitted for dismissal at the time of sentencing. The parties agreed to a “waived referral” memorandum rather than a full report from the probation department.
In the “waived referral” memorandum dated September 10, 2007, Deputy Probation Officer Michelle Kurzenknabe indicated that she had spoken with Pretrial Services Officer Fernando Quinones, Jr. on August 31, 2007. According to Pretrial Services Officer Quinones, defendant participated in East Valley “until he had ‘excessive absences’ and was terminated from the program” and then he later went into “City Team Ministries on his own accord.” Deputy Probation Officer Kurzenknabe attached a letter, dated July 19, 2007, from Louis Rodriguez, a case manager with City Team, which stated that defendant entered the City Team program on June 12, 2006, and exited the program on January 2, 2007, for medical reasons. Deputy Probation Officer Kurzenknabe concluded that “[a]lthough the defendant may have participated in this program, he was never ordered into the program as a condition of his SORP and therefore he is not legally entitled to custody credits during the time in question.”
At the sentencing hearing on September 10, 2007, before Judge Shapero, defense counsel requested a continuance. Among other reasons for the request, defense counsel stated that it was her belief that the calculation of defendant’s custody credits did not include “the time he spent in the residential program through City Team[]” and she needed “to get the court records to confirm he was ordered to participate in that” program in the assault case, No. FF512185. After hearing opposition from the prosecutor, the court continued the sentencing hearing.
On December 17, 2007, defendant filed an application “for an order to include the time he was at the City Team[] residential program as pretrial credits toward the sentence to be imposed” in the assault case, No. FF512185. In the memorandum in support of the application, defendant argued “there was an implicit order” from the court for defendant to participate in a live-in treatment program. Attached to the memorandum were, among other things, the reporters’ transcripts from the hearings on March 16, April 6, May 18, and June 8, 2006.
Defense counsel filed a declaration in support of the application. In the declaration, she maintained that defendant entered the City Team program on July 17, 2006, based on an attached letter dated August 24, 2006, from Greg Bagley, a Senior Program Manager at City Team. She further stated that Louis Rodriguez, the case manager with City Team, told her on December 10, 2007, that according to the program’s records, defendant “left the program on January 23, 2007 due to his medical circumstances at that time.” Based on these dates, defense counsel calculated that defendant served 191 days in the City Team program. She also stated that Pretrial Services Officer Quinones informed her on December 10, 2007, “that he did not order [defendant] to participate in a live-in program, however, [defendant] was required to participate in a treatment program, that Mr. Quinones authorized [defendant’s] participation in the City Team program and had [defendant] left the City Team program without authorization, Mr. Quinones would have filed a petition with the Court to revoke [defendant’s] SORP release.”
Deputy Probation Officer Kurzenknabe submitted a supplemental memorandum, dated December 17, 2007, to the court. In the supplemental memorandum, she stated that Pretrial Services Officer Quinones had verified on December 11, 2007, that “defendant was never SORPed into the [City Team] program . . . .”
The continued sentencing hearing was held on December 17, 2007, before Judge Shapero. Regarding credits, the court stated to defense counsel: “. . . I’ve read your memorandum. . . . I always find these difficult when I wasn’t the judge who made the order, but as you’ve referenced in here most of these transcripts you provided are my transcripts so I have a pretty good idea of what my intentions were. And while I was very concerned . . . about [defendant’s] issues with compliance I also did not intend to change my order. Because frankly if I was going to change my order I would have put him in jail. And in the grand scheme of things that may or may not have been advisable at the moment. But it was not – it’s just not the order of the Court in this case nor was I asked to make that order. I did not modify his supervised O.R., which was not my original order. I allowed him to continue on supervised O.R. on the original terms and conditions. And it was not my intention that it be a situation where I would be formally ordering him into residential treatment.” The court subsequently explained that the issue “is whether [defendant] is there by court order . . . .” Because the court was “not satisfied on this record that he was,” the court concluded that defendant would not receive credits for the time he spent at the City Team program.
The court proceeded to sentence defendant. In case No. FF512185, for the assault with intent to commit rape (count 1), the court denied probation and committed defendant to the lower term of two years in prison. Defendant was granted 404 days of custody credits. The court imposed various fines and made a general order of restitution. The court also waived various fines and fees. The court dismissed counts 2 and 3.
In case No. CC756869, for the DUI (count 2), the court denied probation and committed defendant to eight months in prison, consecutive to the sentence in the assault case. Defendant was awarded nine days of custody credits. For driving on a suspended license (count 3), the court denied probation and sentenced defendant to 30 days in county jail, with 30 days credit. The court ordered defendant to pay various amounts, including $980 in penalty assessments, and made a general order of restitution. The court also waived various fines and fees, and dismissed two remaining counts.
III. DISCUSSION
In the assault case (No. FF512185), defendant contends that he is entitled to presentence custody credits for the time he spent in the City Team program, which he characterizes as a residential treatment program.
Section 2900.5, subdivision (a), provides in relevant part: “In all felony . . . convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant[] . . . shall be credited upon his or her term of imprisonment . . . .” “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 . . . apply to custodial time in a residential treatment facility . . . . [Citations.]” (People v. Jeffrey (2004) 33 Cal.4th 312, 318.) However, the custody contemplated by section 2900.5, subdivision (a), is custody by court order. (People v. Tafoya (1987) 194 Cal.App.3d Supp. 1, 4; accord People v. Pottorff (1996) 47 Cal.App.4th 1709, 1717, fn. 9 [“under section 2900.5, only court-imposed confinement constitutes custody”]; see People v. Darnell (1990) 224 Cal.App.3d 806, 809 [“A defendant is entitled to credit if he is released on his own recognizance on condition he remain in a custodial setting.”] [italics added]; see also id. [“the requirement that the placement be ‘custodial[]’ . . . ” is one of the factors that determines whether a defendant has a right to credit] [italics added].)
Section 2900.5, subdivision (a) states in full: “In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment, or credited to any fine on a proportional basis, including, but not limited to, base fines and restitution fines, which may be imposed, at the rate of not less than thirty dollars ($30) per day, or more, in the discretion of the court imposing the sentence. If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served. In any case where the court has imposed both a prison or jail term of imprisonment and a fine, any days to be credited to the defendant shall first be applied to the term of imprisonment imposed, and thereafter the remaining days, if any, shall be applied to the fine on a proportional basis, including, but not limited to, base fines and restitution fines.”
In this case, defendant implicitly acknowledges that the trial court never expressly ordered him into a residential treatment program. Instead, defendant argues that his “participation in the City Team[] live-in program was effectively ordered as a condition of his continued OR release . . . .” (Italics added.) Specifically, defendant contends that “the clear effect of the trial court’s orders to [him], at the March 16, April 6, and May 18, 2006 hearings, was effectively to tell [him], ‘Get into the residential treatment program that counsel has found for you, or I [the trial court] will revoke your SORP and send you to jail.’ ” Defendant also argues that because the pretrial services officer would have sought to revoke his release on supervised OR if he had left the City Team program without authorization, he was in “custody” regardless of his “subjective reasons” for entering into the program.
We do not agree with defendant that the trial court “effectively ordered” his participation in a residential treatment program. The conditions of defendant’s release on supervised OR included, among other things, participation in drug/alcohol/psychological counseling. The court did not modify the terms and conditions of defendant’s release to require participation in a residential treatment program. When the court’s statements at the various hearings are read in context, it is apparent that the court’s statements were warnings to defendant about successful participation in a counseling or treatment program and it never required his participation to be in a residential treatment program.
Moreover, granting defendant credit in this case would not further the purpose of section 2900.5. As originally enacted, “[t]he statute’s purpose was ‘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.]’ [Citation.] Thus, the Legislature enacted section 2900.5 to address pretrial ‘incarceration’ [citation], and to ‘reflect the basic philosophy that when a person is incarcerated he is being punished by the reality of incarceration.’ [Citation.] The statute embodied a ‘policy decision . . . that for purposes of credit, pre-commitment detention should be equated with post-commitment imprisonment.’ [Citation.] [¶] ‘Recognizing that defendants may be in pretrial custody in institutions other than “jails” for reasons other than indigency, the Legislature and the courts . . . extended subdivision (a) of the statute to include a broad range of custodial situations for which credit must be granted upon conviction. [Citations.]’ [Citation.] . . . Through enactment of the statute and its amendments, ‘the Legislature addressed situations where defendants were confined to a facility (be it penal or rehabilitative) by court order.’ [Citation.]” (People v. Pottorff, supra, 47 Cal.App.4th at p. 1719, italics omitted.) In this case, defendant was not being punished by the court with pre-commitment detention. Rather, he entered the City Team program, a purportedly more restrictive program, on his own initiative.
In sum, because the court did not order defendant’s participation in a residential treatment program and defendant entered into the City Team program on his own initiative, defendant is not entitled to credits for time spent in that program.
IV. DISPOSITION
The abstract of judgment is amended to state that the penalty assessment in case No. CC756869 is $980. As so modified, the judgment is affirmed.
The clerk of the superior court shall modify the abstract of judgment as ordered herein and forward a copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: MIHARA, J., MCADAMS, J.