Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR265002
Lambden, J.
This matter is a consolidation of a petition for writ of habeas corpus and an appeal filed by petitioner and appellant Rory Matthew Edwards. Edwards was convicted of second degree burglary of a vehicle after he pled no contest to the charge. He was sentenced to three years probation subject to certain conditions.
Edwards seeks habeas corpus relief based on ineffective assistance of counsel, claiming his trial counsel’s failure to seek a certificate of probable cause from the trial court deprived him of the opportunity to challenge the factual sufficiency of his no contest plea on appeal. We deny his petition because he was not prejudiced by his counsel’s purportedly deficient performance.
In his appeal, Edwards claims the trial court erred in imposing certain probation terms and failing to calculate presentence custody and conduct credits. We affirm two probation conditions, remand this matter to the trial court with instructions that it modify a third condition, and deny the relief Edwards requests regarding presentence custody and conduct credits without prejudice to any right he has to first raise the issue in the trial court.
BACKGROUND
In March 2009, the Solano County District Attorney charged Edwards by felony complaint with second degree burglary of a vehicle in violation of Penal Code section 459 and damaging or taking part of a vehicle in violation of Vehicle Code section 10852, and alleged he committed certain acts which aggravated these crimes pursuant to California Rules of Court, rules 4.408 and 4.421.
In June 2009, the court ordered Edwards committed to Napa State Hospital pursuant to Penal Code section 1370. In December 2009, pursuant to Penal Code section 1372, the hospital’s medical director submitted a report to the court regarding Edwards’s mental condition and certified that he was mentally competent; the court ordered the criminal proceedings reinstated on January 5, 2010.
At a January 7, 2010 hearing, Edwards appeared before the court seeking to change his plea to the charge of second degree burglary of a vehicle from not guilty to nolo contendere (hereinafter, no contest). Edwards submitted a waiver of rights form, which he and his counsel signed under penalty of perjury indicating that they had reviewed the form together, and that Edwards was freely and voluntarily, with full knowledge and understanding of the rights he was giving up, requesting that the court accept his change of plea. On the waiver form, Edwards stated that he was changing his plea in return for promises that he would be released that day and receive probation, and that the other charge against him would be dismissed. He indicated by checking a box that “[t]he facts upon which this change of plea are based” were “those contained in the police report” about the incident.
At the January 7 hearing, the court asked for the waiver form. Counsel indicated Edwards was seeking to change his plea against the advice of counsel “in order to take advantage of being released today as opposed to staying in custody pending a preliminary hearing.” The court then asked Edwards, when he went over this waiver of rights form with his lawyer, if he understood the rights listed and that he was giving up those rights, if he signed and initialed the form, and if he was “pleading no contest to a second degree burglary of a vehicle?” Edwards replied affirmatively to each of the court’s inquiries. The court said, “Let me take a moment to finish reading this police report.”
The police report, attached to Edwards’s petition for writ of habeas corpus, was written by Officer Zachary Sandoval of the Fairfield Police Department. Sandoval indicated that he was dispatched to a Ross Dress for Less apparel store in Fairfield, approximately 6:00 p.m. on March 25, 2009. A store security guard said that he saw Edwards “attempting to gain access” to a maroon Monte Carlo, which was owned by Tracy Clontz. Sandoval detained Edwards while he investigated the incident on the basis that Edwards was “on active probation with search.” He questioned Clontz, who said she saw Edwards “by her passenger front window pulling on it with his hands firmly against it, attempting to pull it down.” She also said “it appeared that he was trying to gain access into the front passenger window of her vehicle.”
Sandoval reported that he inspected the vehicle, and “noticed that the right front window appeared to have smudges on it consistent with that of somebody having their hands against it.” He also noticed “the window was partially pulled down and the weather-stripping was on the inside of the window at the top portion consistent with that of someone trying to gain entry into the vehicle.” Edwards, who agreed to talk to Sandoval after being told his Miranda rights, said at first that he “probably” did not touch the car but, after further questioning, said he “probably” did. He told Sandoval he was looking at the tint on the windows, and did not intend to steal anything from the inside of the vehicle, because he used to work at a glass company. Sandoval noted that “there was no tint on the windows of the vehicle on any side.” He arrested Edwards and booked him for attempted burglary of a vehicle and violation of probation pursuant to Penal Code section 1203.2.
The trial court found that that the police report established a violation of second degree burglary of a vehicle, accepted Edwards’s plea, found him guilty of the charge, and executed the “order and finding” section of the waiver form submitted by Edwards. Among other things, the court’s order stated that there was a factual basis for the plea.
The trial court subsequently suspended imposition of sentence and placed Edwards on formal probation for three years. As conditions of his probation, the court ordered Edwards to submit to drug testing at any time by any peace officer, probation officer, or program representative, to not own or have possession, custody, or control of any firearms or dangerous or deadly weapons of any kind, and to not have any contact with Clontz. Also, Edwards was ordered to serve nine days in county jail, but the court stated that “he has credit for time served for that amount.” Edwards filed a timely notice of appeal without obtaining a certificate of probable cause. We consolidated his petition for habeas corpus with his appeal by order filed on October 22, 2010.
DISCUSSION
I. Edwards’s Petition for Writ of Habeas Corpus
Edwards argues he was denied effective assistance of counsel because his trial counsel did not request a certificate of probable cause for his appeal, which, pursuant to Penal Code section 1237.5, he needed to argue on appeal that there was not a sufficient factual basis for his no contest plea. He requests this court issue an order to the Solano County Superior Court to show cause for the legality of Edwards’s present restraint, and set aside the judgment imposed by the trial court. For the reasons stated below, we deny Edwards’s petition.
Penal Code section 1237.5 provides in relevant part that no appeal may be taken by a defendant from a judgment of conviction based on a no contest plea except when the defendant has filed a written statement under oath with the trial court showing reasonable grounds going to the legality of the proceedings, and the trial court has executed and filed a certificate of probable cause for such an appeal. (Pen. Code, § 1237, subds. (a), (b).)
A. Legal Standard
In order to establish ineffective assistance of counsel via a petition for writ of habeas corpus, defendant must show his representation fell below an objective standard of reasonableness under prevailing professional norms and that he suffered prejudice as a result. (People v. Ledesma (1987) 43 Cal.3d 171, 217 [granting petition based on ineffective assistance of counsel.) Edwards’s burden of proof is a preponderance of the evidence. (Id. at p. 218.)
In evaluating Edwards’s claim, we may first determine whether he has in fact suffered prejudice. (In re Fields (1990) 51 Cal.3d 1063, 1079 [“ ‘[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice... that course should be followed’ ”], following Strickland v. Washington (1984) 466 U.S. 668, 697.) If he has failed to show prejudice, we need not determine whether the counsel’s performance was deficient. (Fields, at p. 1079.) To demonstrate prejudice, Edwards must show “ ‘a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ” (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218, following Strickland, at pp. 693-694.)
B. Edwards’s Claimed Grounds for an Appeal
Edwards argues his counsel’s deficient performance was prejudicial because he had grounds for an appeal for which a certificate of probable cause was necessary, i.e., that there was no factual basis for his plea. Although the determination of prejudice is a case-specific factual inquiry, “evidence that there were nonfrivolous grounds for appeal... will often be highly relevant in making this determination.” (Roe v. Flores-Ortega, (2000) 528 U.S. 470, 485 [counsel’s failure to file appeal without defendant’s consent was not per se deficient and remand was appropriate to determine whether counsel acted reasonably and the defendant was prejudiced].) Conversely, Edwards’s petition must fail if there was a sufficient factual basis for his plea because he would not have suffered prejudice under his theory. We conclude there was a sufficient factual basis for Edwards’s plea and, therefore, no legitimate grounds for such an appeal.
1. The Court’s Inquiry
In support of his argument, Edwards first asserts the trial court erred because it did not make a sufficient inquiry into the basis for his no contest plea. When taking a no contest plea, the trial court must inquire of the defendant “to satisfy itself... that there is a factual basis for the plea.” (Pen. Code, § 1192.5.) This includes developing the factual basis by “having the defendant describe the conduct that gave rise to the charge” or questioning the defendant “regarding the factual basis described in the complaint or written plea agreement.” (People v. Holmes, (2004) 32 Cal.4th 432, 436 (Holmes).) If inquiring of defense counsel, the trial court “should request that defense counsel stipulate to a particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement.” (Ibid.) The trial court may also reference “a complaint containing a factual basis for each essential element of the crime.” (Id. at p. 440.) However, “a bare statement by the judge that a factual basis exists, without the above inquiry, is inadequate.” (Id. at p. 436.)
The record indicates that the court received the waiver form from Edwards and inquired of him to confirm that he had reviewed the form with counsel, understood that he was waiving certain rights, had signed and initialed the form, and was pleading no contest to second degree burglary of a vehicle. Edwards points out that the court did not specifically inquire orally of Edwards or his counsel whether they agreed that the police report contained a factual basis for his no contest plea. However, neither Edwards nor the People address his representations in the waiver form, in which Edwards and his counsel stipulated under penalty of perjury that the police report contained the facts upon which his change of plea was based. We conclude that this stipulation by Edwards and his counsel to the court, the court’s oral inquiries about the waiver form, and the court’s review of the police report referenced in the waiver form, was a sufficient inquiry into the facts pursuant to Holmes, supra, 32 Cal.4th 432. Indeed, it was more than that found sufficient in Holmes, where the trial court merely asked defendant if he had done what was stated in the complaint before concluding there was a factual basis for the plea. (Id. at p. 437.)
In any event, any error by the court would have been harmless in light of our conclusion that the contents of the police report provided a sufficient factual basis for his plea. (Holmes, supra, 32 Cal.4th at p. 443.)
2. Factual Basis for Edwards’s Plea
Edwards further argues that the police report did not contain sufficient facts to support his plea. The People argue that, “[a]lthough the police report does not discuss all of the elements outlined in section 459, other documents establish a sufficient basis for the plea.” Specifically, the People argue, defendant’s acknowledgment to the court that he understood he was waiving certain rights and was pleading no contest to second degree burglary of a vehicle, along with the complaint “established a sufficient factual basis for the plea.”
The People correctly point out that “[a] reference to a complaint containing a factual basis for each essential element of the crime will be sufficient under section 1192.5 to establish a factual basis for the plea.” (Holmes, supra, 32 Cal.4th 440.) However, we are dubious about the merits of the People’s position, in light of the lack of any reference by the court or the parties regarding the facts alleged in the complaint. Nonetheless, we reject Edwards’s argument because we conclude, based on our independent research, that the police report does contain a sufficient factual basis for his no contest plea.
Pursuant to Penal Code section 1192.5, a trial court needs only to find that there is a prima facie factual basis for the charges. (Holmes, supra, 32 Cal.4that pp. 441, 443.) “It is not necessary for the trial court to interrogate the defendant about possible defenses to the charged crime [citation], nor does the trial court have to be convinced of defendant’s guilt.” (Id. at p. 441.)
We conduct a deferential review of the trial court’s factual determinations. “[A] trial court possesses wide discretion in determining whether a sufficient factual basis exists for a guilty plea. The trial court’s acceptance of the guilty plea, after pursuing an inquiry to satisfy itself that there is a factual basis for the plea, will be reversed only for abuse of discretion.” (Holmes, supra, 32 Cal.4th at p. 443.)
We find the trial court did not abuse its discretion in determining that the police report contained sufficient facts to support Edwards’s no contest plea. According to Penal Code section 459, “[e]very person who enters any... vehicle as defined by the Vehicle Code, when the doors are locked... with intent to commit grand or petit larceny or any felony is guilty of burglary.” (Pen. Code, § 459.) Thus, the elements required for second degree burglary of a vehicle are entry of a vehicle, locked doors, and intent to commit burglary. Sandoval’s police report contains prima facie evidence of each required element.
Second degree burglary consists of all forms of burglary except burglary of “an inhabited dwelling house, vessel, ... floating home, ... trailer coach, ... or the inhabited portion of any other building.” (Pen. Code, § 460, subds. (a), (b).)
First, there was prima facie evidence of Edwards’s entry of Clontz’s vehicle. As discussed in People v. Wise (1994) 25 Cal.App.4th 339 [burglary conviction where defendant cut a hole in a metal gate in order to enter a stairway attached to the building], “[i]t is well settled that an entry occurs for purposes of the burglary statute if any part of the intruder’s body, or a tool or instrument wielded by the intruder, is ‘inside the premises.’ ” (Id. at p. 345, and the cases cited therein.) Here, the police report states that the security guard saw Edwards trying to pull down on the vehicle’s window and that Clontz saw Edwards “by her passenger front window pulling on it with his hands firmly against it, attempting to pull it down.” When inspecting the car, Sandoval noticed smudges on one of the car’s windows and that “the window was partially pulled down and the weather-stripping was on the inside of the window at the top portion consistent with that of someone trying to gain entry into the car.” From this evidence, it is reasonable to infer that Edwards used his hands or a tool to push the weather-stripping into the car, thereby “entering” the vehicle. Therefore, there was prima facie evidence that entry occurred for purposes of Penal Code section 459.
Second, there was prima facie evidence that the car doors were locked. In People v. Rivera (2003) 109 Cal.App.4th 1241, the appellate court held that a broken window was substantial circumstantial evidence in support of the finding that the car was locked. (Id. at p. 1245.) The court concluded it was not rational that someone would break a car window in the early morning hours in order to enter a car that was unlocked. (Ibid.) This same logic applies to the present case.
Edwards cites People v. Burns (1952) 114 Cal.App.2d 566 to argue there was no evidence that Clontz’s car was locked. In Burns, the court found that the fact that a window of a parked car was broken was not evidence of the doors being locked; however, the court’s conclusion was premised on there being no evidence regarding the condition of the window before it was parked. (Id. at p. 570.) Burns is inapposite to the present case in light of two eyewitnesses, Clontz and the security guard, reporting that they saw Edwards trying to pull down the window of Clontz’s car and Sandoval’s observation that the car’s window was partially pulled down and the weather-stripping was on the inside of the window at the top portion consistent with that of someone trying to gain entry into the vehicle. Based on this evidence and People v. Rivera, supra, 109 Cal.App.4th 1241, it is reasonable to infer that Edwards would not attempt to pull down the window and disturb the weather-stripping if the doors of the car were unlocked. Therefore, there was prima facie evidence that Clontz’s car was locked for the purposes of Penal Code section 459.
Finally, there is prima facie evidence that Edwards had the requisite felonious intent. The felonious intent to commit theft can be inferred from the circumstantial evidence of unlawful entry alone. (People v. Walters (1967) 249 Cal.App.2d 547, 551, followed in People v. Osegueda (1984) 163 Cal.App.3d Supp. 25, 29.) Edwards’s felonious intent can be inferred from the evidence that he attempted to pull down Clontz’s car window and disturbed the window’s weather-stripping. His waffling answers to Sandoval about whether he touched the car, and his claim that he was merely looking at the car’s tinted windows, which Sandoval found did not exist, further cast suspicion on his intentions. (See Walters, at p. 551 [noting that other circumstances cast suspicion on the defendant’s intent, they being the lateness of the hour and the presence in the area of instruments commonly used by burglars].)
In short, the trial court did not abuse its discretion when it concluded that the police report provided a sufficient factual basis for second degree burglary. Due to the sufficient factual basis for Edwards’s plea, he did not suffer prejudice and cannot claim ineffective assistance of counsel. In light of our conclusion, we need not address whether counsel’s representation was deficient. Edwards’s petition for writ of habeas corpus is denied.
II. Edwards’s Appeal
Edwards’ appeal raises two claims: first, the trial court abused its discretion by imposing three conditions of probation that were not reasonably related to his crime or to future criminality, and second, the court failed to award him the presentence credit to which he was entitled, 481 days.
A. Probation Conditions
Edwards contests the probation conditions that he have no contact with the alleged victim, not possess dangerous or deadly weapons, and submit to drug testing. We order the first condition modified to prohibit knowing contact only, and affirm the weapons and drug testing conditions.
Trial courts have broad discretion when imposing probation conditions. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) Pursuant to Penal Code section 1203.1, the trial court may impose any “reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer[.]” (Pen. Code, § 1203.1, subd. (j).)
We review the court’s conditions for abuse of this discretion, which occurs when a determination is “arbitrary, ” “capricious, ” or “ ‘ “ ‘exceeds the bounds of reason, all of the circumstances being considered.’ ” ’ ” (People v. Carbajal, supra, 10 Cal.4th at p. 1121.) Furthermore, “[p]robation conditions have been upheld even though they restrict a probationer’s exercise of constitutional rights if they are narrowly drawn to serve the important interests of public safety and rehabilitation [citation] and if they are specifically tailored to the individual probationer.” (In re Babak S. (1993) 18 Cal.App.4th 1077, 1084.) A probation condition will not be held invalid unless it “ ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality....’ [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which defendant was convicted or to future criminality.” (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent), italics added, followed in People v. Anderson (2010) 50 Cal.4th 19, 32.)
1. Contact with Victim
Edwards asserts the condition of probation prohibiting him from having contact with Clontz is constitutionally defective because it prohibits even unknowing contact. The People agree. We do as well.
Although Edwards’s trial counsel argued that Clontz was “a stranger to Edwards, so if he had contact with her he would not know it, ” the trial court would not limit the subject condition “to knowingly or not. He is just simply not to have any contact with [Clontz].” The court’s failure to limit the condition was an abuse of discretion.
As Edwards points out, in People v. Leon, the Sixth Appellate District held that a probation condition prohibiting the defendant from associating with gang members was constitutionally defective because it lacked “an explicit knowledge requirement.” (People v. Leon (2010) 181 Cal.App.4th 943, 950.) As such, the defendant could be criminally punished for associating with persons not known to him to be gang members. (Ibid.) The court ordered the trial court to modify the condition to include a knowledge requirement. (Ibid.)
Similarly, in this case, by failing to limit the contact to only knowing contact, Edwards could be criminally punished for unknowingly having contact with Clontz, a stranger to him. Therefore, the condition as stated is constitutionally defective. We remand this issue to the trial court with instructions that it modify the condition to only prohibit knowing contact with Clontz.
2. Possession of Weapons
Edwards argues the condition of probation forbidding him from possessing any dangerous or deadly weapons beyond firearms (which Edwards concedes he is prohibited from possessing pursuant to Penal Code section 12021, is improperly overbroad under the Lent test because it has no relationship to Edwards’s crime, second degree burglary of a vehicle, relates to conduct which is not in itself criminal, and requires or forbids conduct which is not reasonably related to future criminality. We hold the court did not abuse its discretion in imposing this condition.
In order for a probation condition to be found unreasonable, all three factors of the Lent test must be met. (Lent, supra, 15 Cal.3d at p. 486.) When evaluating the third factor of the Lent test, whether a probation condition requires or forbids conduct which is not reasonably related to future criminality, there must be a factual nexus between the crime, manifested propensities of the defendant, and the probation condition. (In re Martinez (1978) 86 Cal.App.3d 577, 583.)
Edwards relies on Martinez to challenge the weapons ban condition as overbroad. There, the court struck down a condition of prohibition that the defendant submit to warrantless searches of his person and property because there was no such factual nexus. (In re Martinez, supra, 86 Cal.App.3d at pp. 579, 581, 584.) The defendant was convicted of battery on a police officer for throwing a beer bottle, a misdemeanor, leading to the warrantless search probation condition. (Id. at pp. 579, 583.) The appellate court was not prepared to declare that in all cases where a defendant is convicted of an assault not involving the use of dangerous or deadly weapons, imposition of the warrantless search provision would per se be unreasonable. (Id. at p. 581.) However, the court thought it was the wrong approach to approve such a condition simply because of the “inordinately large role which weapons play in the high incidence of violent crime that our society is experiencing.... Such an approach... would be unreasonable and would result in denying to a large group of nonviolent persons the right to own or possess weapons for any reason.” (Id. at pp. 581-582.) It noted that the defendant was honorably discharged from the Marine Corps, married with three children, regularly employed, and had no prior convictions, and that the probation officer described the incident as “ ‘an isolated situation.’ ” (Id. at p. 582.) It also concluded that a warrantless search was “unreasonable in a case of such minor importance.” (Id. at p. 583.) Thus, in light of the misdemeanor nature of the crime and the lack of evidence indicating any propensity by the defendant to resort to the use of concealed weapons in the future, the court held that the search condition was unreasonable. (Id. at p. 583.)
We disagree with Edwards that we should follow Martinez here because there are significant differences between the facts and circumstances presented in the two cases. Here, in contrast to Martinez, Edwards was convicted of a felony. Although the record does not indicate that he was in possession of any weapons when arrested, the trial court made a finding that the weapons ban provision was “appropriate” for a burglary incident, where “during the course of this crime any dangerous or deadly weapons could also be used as burglary tools or during this particular type of conduct.” We do not have reason to disagree with this finding, although it alone cannot justify the probation condition, as indicated in Martinez. (Martinez, supra, 86 Cal.App.3d at pp. 581-582.) Most importantly, Edwards, unlike the defendant in Martinez, had risk factors for violence and mental health issues; the December 2009 Napa State Hospital report to the court indicated Edwards was involved in two fights in the first 48 hours of his admission and was considered a low to moderate acute risk of violence. It stated that Edwards was diagnosed with poly substance dependency, schizoaffective disorder, and adult antisocial behavior during his commitment there. Furthermore, he had a criminal record with numerous convictions over the past 22 years.
Given these facts and circumstances, we conclude the trial court did not abuse its discretion in setting the weapons condition because there was a sufficient factual nexus between the crime of burglary, Edwards’s manifested propensities, and the probation condition. Therefore, Edwards does not meet the third factor of the Lent test, in that the weapons condition does reasonably relate to future criminality.
3. Drug Testing
Edwards argues the record is devoid of any evidence that he used illegal drugs prior, during, or after the burglary, or that he engaged in recent drug use, and the condition of probation requiring him to submit to drug testing is improper because there was no factual nexus between the crime, Edwards’s manifested propensities, and the condition. We disagree.
The People correctly argue that the drug-testing condition was proper because the court properly imposed it for the purpose of reforming and rehabilitating Edwards. Where a probation condition serves the purpose stated in Penal Code section 1203.1, subdivision (j) of “ ‘reformation and rehabilitation of the probationer, ’ ” it does not have to relate to the crime for which the defendant was convicted because it “necessarily follows that such a condition is ‘reasonably related to future criminality.’ ” (People v. Balestra (1999) 76 Cal.App.4th 57, 65.) In Balestra, the court upheld a condition of prohibition that the defendant submit to warrantless searches of her person and property even though the condition did not specifically relate to her conviction for elder abuse. (Id. at pp. 67-68.) The court stated that “warrantless search conditions serve a valid rehabilitative purpose, and because such a search condition is necessarily justified by its rehabilitative purpose, it is of no moment whether the underlying offense is reasonably related to theft, narcotics, or firearms.” (Id. at p. 67.)
In this case, the trial court stated it was imposing the drug-testing condition “because of [Edwards’s] mental health conditions. I think it is important that [Edwards] be monitored, that he is not using illegal drugs, such that they could exacerbate any mental health conditions.” There is sufficient evidence in the record to support the condition based on the court’s concern. As we have already discussed, and as the People point out, the December 2009 Napa State Hospital report stated that Edwards was diagnosed with poly substance dependency, schizoaffective disorder, and adult antisocial behavior during his commitment there. The Napa State Hospital report also stated that “Edwards endorsed substance abuse beginning at an early age and spanning his entire adult life which included marijuana, LSD, Quaaludes, and methamphetamine.”
Furthermore, Edwards’s argument that “there was no evidence of recent illegal drug use” by him is not supported by the record. As the People also point out, along with Edwards’s adult drug use and diagnosis of poly substance dependency that we have already discussed, the Napa State Hospital report stated, “According to police records, he tested positive for marijuana prior to this admission despite being on probation and used other substances intermittently.” Edwards, while acknowledging this is contained in the record, considers it significant that the report did not state when prior to admission Edwards had tested positive, and he cites to another passage in the report indicating that he “is not currently known to be using substances.” Edwards’s emphasis of this time ambiguity ignores that he was diagnosed as having poly substance dependency at Napa State Hospital, and that it was reported that he used illegal substances “spanning his entire adult life.”
Edwards also cites to a part of the February 2010 probation report to the court, contending it shows that Edwards last smoked marijuana a couple of years prior, had used cocaine one time in high school, and had not experimented or used other illegal substances. However, Edwards neglects to mention that the report merely summarizes Edwards’s own statement of his drug use. He also does not indicate that this same probation department reported test information that contradicted his rendition of his drug history. According to the report, in 2003 Edwards tested positive for amphetamine/ methamphetamine, cocaine/cocaine metabolite, and marijuana, and admitted to illegal use of drugs to a doctor. Certainly, this part of the report, Edwards’s statements in contradiction of it, and the diagnoses and statements contained in the Napa State Hospital report were sufficient evidence of Edwards’s continuing problems with illegal drugs as an adult to support the trial court’s concerns.
For each and all of these reasons, we hold that the trial court did not abuse its discretion in imposing the drug-testing probation condition.
B. Presentence Credits
Edwards next argues that this court should award him 481 days in presentence credits for time served in custody and conduct credits, implying that the trial court erred when it awarded him only nine days credit instead. The People oppose the request, arguing that it is premature for this court to decide Edwards’s claim when the trial court suspended imposition of sentence in favor of probation. We decline to award him these credits because, pursuant to Penal Code section 1237.1, Edwards should present his claim first to the trial court.
As we have discussed, at the February 26, 2010 sentencing hearing, the trial suspended imposition of sentence in favor of probation. Contrary to the implication of Edwards’s argument, the trial court did not calculate the number of presentence credits for time served in custody to which Edwards was entitled. Instead, in the course of stating its conditions for probation, the court stated that Edwards “shall serve nine days in the county jail; he has credit for time served for that amount.” At the hearing, no one otherwise raised what amount of presentence custody and conduct credits Edwards was entitled to receive. After stating all of the probation conditions, the court asked the People and defense counsel if they requested any further terms. Defense counsel did not raise the issue of credits.
On appeal, Edwards argues that, in accord with the probation department’s calculations, he is entitled to 289 days of presentence custody credits and 192 days of conduct credits, for a total of 481 days of credit. He contends that he is entitled to these credits notwithstanding the fact that during the period of time that he was incarcerated in this case, he was also serving time on a probation violation in another case involving a conviction for receiving stolen property, because his previous custody and conduct credits together had already exceeded the maximum prison time he could serve for that crime. The People do not address Edwards’s calculations and legal assertions, instead arguing it is premature to consider the issue in the absence of imposition of sentence.
Edwards’s raising the issue of his presentence credits for the first time on appeal flies in the face of the requirements of Penal Code section 1237.1, which provides: “No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.” (Pen. Code, § 1237.1)
Edwards correctly argues that notwithstanding Penal Code section 1237.1 and his failure to first raise any issue about credits before the trial court, he is not barred from raising his issues in this appeal because he does so with other appellate claims, citing as support People v. Mendez (1999) 19 Cal.4th 1084, 1100, and People v. Donan (2004) 117 Cal.App.4th 784, 792-793.) However, our Supreme Court in Mendez made clear, without ruling on the propriety of this case law-created exception to Penal Code section 1237.1’s requirements, that the case law “holds no more than that the Court of Appeal may address a question of this sort if it is properly presented with others as well. It does not even suggest that the Court of Appeal must do so[.]” (Mendez, at p. 1101.)
Edwards argues that the trial court should have determined his presentence credits when at the February 26, 2010 sentencing hearing, citing for support, Penal Code section 2900.5 and People v. Engquist (1990) 218 Cal.App.3d 228. However, nothing in these authorities contradicts the Supreme Court’s holding People v. Mendez, supra, 19 Cal.4th 1084, that appellate review of the issue, as raised by Edwards, is discretionary.
In light of Penal Code section 1237.1, Edwards’s failure to raise the issue of custody and conduct credits before the trial court first, and the lack of any comprehensive review by the trial court regarding the matter, we decline to consider the issue and deny his appeal without prejudice to any right he has to first raise the issue in the trial court.
DISPOSITION
The petition is denied and the judgment is affirmed, except that we remand to the trial court with instructions to modify Edwards’s probation condition so that only knowing contact with Clontz is prohibited. Edwards’s requested relief regarding presentence custody and conduct credits is denied without prejudice to any right he has to first raise the issue in the trial court.
We concur: Kline, P.J., Richman, J.