Opinion
NOT TO BE PUBLISHED.
Super. Ct. No. F03443
BUTZ , J.Defendant Ruby Ann Goodman appeals from the two-year state prison sentence she received after pleading no contest to transporting methamphetamine. On appeal, she contends the trial court erred in refusing to award her presentence custody credits for 90 days spent in a drug treatment program following her plea and before her probation was revoked.
We agree that the trial court erred in concluding defendant is categorically ineligible for custody credit. We shall remand to the trial court for a determination consistent with this opinion of the time credits to which defendant may be entitled for days spent in drug rehabilitation.
PROCEDURAL BACKGROUND
Charged in 2002 with receiving stolen property (Pen. Code, § 496, subd. (a)), possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a), transporting methamphetamine (id., § 11379, subd. (a)), and unauthorized possession of a hypodermic syringe (Bus. & Prof. Code, § 4140), defendant agreed to plead guilty to transporting methamphetamine. The remaining counts were dismissed, and she was placed on formal probation for three years under the various terms and conditions pursuant to Proposition 36.
The receiving stolen property count was dismissed with a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754, 757-759.)
In 2003, defendant admitted probation violations and her probation was reinstated.
In early 2004, another probation violation proceeding was continued at the request of defendant’s probation officer, so defendant could enroll in a 90-day inpatient rehabilitation program. At a subsequent hearing, the prosecutor informed the court that defendant completed the residential treatment program. However, she was terminated thereafter from the transitional living component of the program.
Defendant admitted the probation violations, and the trial court ultimately revoked defendant’s probation, sentenced her to the low term of two years, and granted her five days of custody credits.
Prior to filing this appeal, defendant applied to the trial court for custody credits for the 90 days she spent at Eagle Recovery Residential Program. The court denied her request.
DISCUSSION
I
Defendant repeats here her claim of entitlement to an additional 90 days of custody credit, representing her time spent in drug treatment with Eagle Recovery Residential Program.
Penal Code section 2900.5, subdivision (a) provides, in pertinent part: “In all felony and misdemeanor convictions, . . . when the defendant has been in custody, including . . . any time spent in a jail, . . . halfway house, rehabilitation facility, hospital, . . . or similar residential institution, all days of custody of the defendant . . . shall be credited upon his . . . term of imprisonment.” A failure to accurately award custody credits results in an unauthorized sentence, subject to correction at any time. (People v. Jack (1989) 213 Cal.App.3d 913, 916-917; see also People v. Scott (1994) 9 Cal.4th 331, 354 & fn. 17.)
The term “in custody” as used in Penal Code section 2900.5, subdivision (a) has not been precisely defined (see People v. Ambrose (1992) 7 Cal.App.4th 1917, 1921 (Ambrose)), and courts have given the term a liberal interpretation. (People v. Darnell (1990) 224 Cal.App.3d 806, 809 (Darnell).) They generally agree that (1) “custody” within the meaning of Penal Code section 2900.5 connotes the imposition of restraints not shared by the public generally (People v. Rodgers (1978) 79 Cal.App.3d 26, 30-33), and (2) the custodial circumstances must be attributable to the proceedings relating to the same conduct for which the defendant has been convicted. (Darnell, supra, at p. 809; see also People v. Tafoya (1987) 194 Cal.App.3d Supp. 1, 4; Pen. Code, § 2900.5, subd. (b).)
Consistent with this reasoning, several courts have held that a defendant is entitled to custody credit if he is released on his own recognizance (OR) on condition he remain in the custodial setting of a treatment and rehabilitation facility. (Darnell, supra, 224 Cal.App.3d at p. 809; People v. Mobley (1983) 139 Cal.App.3d 320, 323-324 [defendant entitled to credit for custodial time spent in residential treatment and rehabilitation facility as condition of OR release]; People v. Sylvestry (1980) 112 Cal.App.3d Supp. 1, 6 [same].)
What we cannot determine from the record on appeal is whether defendant was subjected to restraints not shared by the public generally by virtue of her participation in the Eagle Recovery Residential Program, so as to permit her time there to be considered “custodial” under Penal Code section 2900.5. (Cf. Darnell, supra, 224 Cal.App.3d at p. 809.) “‘While no hard-and-fast rule can be derived from the cases, the concept of custody generally connotes a facility rather than a home. It includes some aspect of regulation of behavior. It also includes supervision in a structured life style.’” (Ambrose, supra, 7 Cal.App.4th at pp. 1921-1922; see People v. Pottorff (1996) 47 Cal.App.4th 1709, 1714-1716 [home detention condition did not constitute custody which would entitle defendant to credit against his prison term]; but see People v. Lapaille (1993) 15 Cal.App.4th 1159, 1169-1170 .) In addition, “courts which have considered the question generally focus on such factors as the extent freedom of movement is restricted, regulations governing visitation, rules regarding personal appearance, and the rigidity of the program’s daily schedule.” (People v. Reinertson (1986) 178 Cal.App.3d 320, 326.)
Apart from the fact that it is a residential program, the record fails to indicate the degree to which the Eagle Recovery Residential Program required defendant’s behavior to be supervised and regulated for the 90 days in which she participated in the residential portion of that program. In any event, “[t]he question of whether a particular facility should be regarded as sufficiently restrictive as to amount to custody constitutes a factual question.” (Ambrose, supra, 7 Cal.App.4th at p. 1922.) Such questions are more appropriately left to the trial court in the first instance. Accordingly, we shall remand this matter to the trial court for a determination consistent with this opinion of the time credits (if any) to which defendant is entitled for days spent in custody in connection with time spent in the Eagle Recovery Residential Program. The Attorney General concedes that remand is appropriate.
The trial court here denied defendant’s request for custody credit for time spent in treatment programs between her plea and sentencing because, in the court’s view, “it seems strange . . . that under Prop[osition] 36 the court can not incarcerate a defendant as part of treatment, but on the other hand a defendant would be entitled to incarceration credits for that treatment.” We have held that, in a case governed by Proposition 36, a trial court may impose a condition of probation requiring a defendant to waive his or her statutory right to custody credits for time spent in a residential drug treatment facility. (People v. Thurman (2005) 125 Cal.App.4th 1453, 1459.) Here, however, nothing in the record indicates defendant made any such waiver; thus, she is not foreclosed from seeking custody credit for her time spent in a residential drug treatment program, as contemplated by Penal Code section 2900.5.
II
At the sentencing hearing, the trial court ordered defendant to pay a criminal laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) and a drug program fee (id., § 11372.7, subd. (a)) of $150 and $50, respectively, both of which should have included penalty assessments, and none of which are reflected in the abstract of judgment. All fines, fees and penalties must be stated separately at sentencing, with the statutory basis specified for each, and the abstract of judgment must reflect these matters. (People v. High (2004) 119 Cal.App.4th 1192, 1200.) The Attorney General concedes the error. We will direct the trial court to modify the judgment.
DISPOSITION
Defendant’s conviction is affirmed. The matter is remanded in accordance with the views expressed herein for a determination as to whether she is entitled to custody credits for time spent in substance abuse rehabilitation with the Eagle Recovery Residential Program. If an award of additional custody credits is justified, the trial court is ordered to prepare an amended abstract of judgment that includes the additional time credits. The trial court is also directed to (1) modify the judgment to specify the applicable fees, penalty assessments, and payees, less credit for amounts paid; (2) file an amended abstract of judgment incorporating these modifications; and (3) forward a certified copy thereof to defendant and the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur:
MORRISON , Acting P. J., ROBIE , J.