Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM023094
BUTZ, J.In this appeal, defendant Victoria Louise Mickele contends the trial court erred in refusing to allow her Penal Code section 2900.5, subdivision (a) credits for the time she spent in a residential substance abuse treatment facility. The People concede, and we agree, that the matter should be remanded to the trial court for a determination of the time credits to which defendant may be entitled for the 28 days spent in residential substance abuse treatment.
FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to a plea agreement, defendant pleaded no contest to felony possession of cocaine (Health & Saf. Code, § 11350, subd. (a)); misdemeanor being under the influence of a controlled substance (id., § 11550, subd. (a)); and misdemeanor driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)).
At the initial sentencing in 2005, defendant was placed on three years’ probation and ordered to serve 120 days in jail and to complete a substance abuse treatment program. The terms of her probation state “[n]o custody time credits will accrue for participation in a residential treatment program, as a condition of probation.” Defendant completed an outpatient substance abuse program.
In 2007, defendant admitted violating her probation by testing positive for cocaine and failing to report to her probation officer. The court reinstated defendant on probation, on the condition she serve additional jail time. In addition, several terms and conditions of her probation were modified, including the term pertaining to her participation in a residential substance abuse program, which was modified to read: “The probation officer is authorized to release this probationer from the Butte County Jail for the limited purpose of facilitating an evaluation for and/or placement into a licensed residential substance abuse treatment program. If so placed, the defendant shall be given credit for time served.”
Defendant entered Eagle Recovery, a residential substance abuse program, on January 30, 2008. On or about the following February 26, defendant left Eagle Recovery without court permission, and thereby violated her probation. Her probation was revoked, and the court determined to sentence her to state prison for two years.
At sentencing, defense counsel asked “for her credits for the time she was in the Eagle Recovery, as she was ordered there.... I think that those days have not been included in the proposed credit sheets prepared by probation.”
The court refused, stating: “Number 20 on the original probation report provided that any residential treatment program would not result in credits. You are familiar with the law in this regard, and you would have to make an affirmative showing of the custodial nature of Eagle Recovery. I don’t think you are prepared to [do so] at this time. And even if it was custodial in nature, she’s waived credit by signing the probation report.”
DISCUSSION
Defendant contends on appeal she is entitled to 28 additional days of custody credit, representing her time spent in inpatient substance abuse treatment with Eagle Recovery. She asks that we remand the matter to the trial court for a determination of the custodial nature of that program. The People concede remand is appropriate.
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 or her 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 (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)). The courts 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, 224 Cal.App.3d at p. 809; see also People v. Tafoya (1987) 194 Cal.App.3d Supp. 1, 4; Pen. Code, § 2900.5, subd. (b).)
Of course, 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), or “a defendant may expressly waive entitlement to section 2900.5 credits against an ultimate jail or prison sentence for past and future days in custody.” (People v. Johnson (2002) 28 Cal.4th 1050, 1054-1055.)
Here, however, nothing in the record indicates such a waiver was in effect when defendant entered Eagle Recovery. True, the original terms of probation indicate such a waiver, although defendant challenges on appeal the circumstances under which it was entered, and asserts the waiver was inadequate. But we need not address that argument, because the original terms were modified to provide that if defendant is placed in “a licensed residential substance abuse treatment program,” she “shall be given credit for time served.”
We cannot determine from the record on appeal whether defendant was subjected to restraints not shared by the public generally by virtue of her participation in Eagle Recovery, so as to permit her time there to be considered “custodial” under Penal Code section 2900.5, and the trial court did not permit her to make such a showing. (Cf. Darnell, supra, 224 Cal.App.3d at p. 809.) “‘While no hard and fast [sic] 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 Eagle Recovery is a residential program, the record fails to indicate the degree to which it required defendant’s behavior to be supervised and regulated for the 28 days in which she participated in it. 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 the Eagle Recovery program.
DISPOSITION
The judgment is affirmed, except that the matter is remanded in accordance with the views expressed herein for a determination of whether defendant is entitled to custody credits for time spent in substance abuse rehabilitation with the Eagle Recovery 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 and to forward a certified copy of the same to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P. J., SIMS, J.