Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County, Marsha N. Revel, Judge, Los Angeles County Super. Ct. No. BA279656
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Tim Phu appeals from postjudgment rulings revoking his probation and ordering execution of a previously stayed seven-year state prison sentence, contending the court abused its discretion in declining to reinstate probation. In a supplemental brief Phu also argues he is entitled to additional presentence custody credit pursuant to Penal Code section 2900.5, subdivision (b), for time actually spent in a residential treatment facility as a condition of his probation. We affirm the rulings revoking probation and ordering execution of the previously stayed sentence, but remand for recalculation of presentence custody credits.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Original Charges and Phu’s Plea and Sentence
On April 7, 2005 Phu was charged by information with selling cocaine base (Health & Saf. Code, § 11352, subd. (a)) and misdemeanor possession of an opium pipe (§ 11364). The information specially alleged he had suffered two prior drug-related convictions (§ 11370.2, subd. (a)) and had previously served one separate prison term for a felony (Pen. Code, § 667.5, subd. (b)).
Statutory references are to the Health and Safety Code unless otherwise indicated.
On August 10, 2005, pursuant to a negotiated agreement, Phu pleaded guilty to selling cocaine base and admitted he had suffered one prior conviction for selling narcotics (§ 11370.2, subd. (a)). The court informed Phu of the consequences of the plea agreement, stating in part, “These are the things that can happen to you as a result of your plea. The worst is that you fail at everything, you can go to prison for seven years on this case. . . .”
On August 18, 2005, in accordance with the terms of the agreement, Phu was sentenced to seven years in state prison; execution of the sentence was stayed; and Phu was placed on three years formal probation (Los Angeles Superior Court No. BA279656). As a condition of probation Phu was ordered to complete a one-year residential drug treatment program. The court admonished Phu he had to remain in the program for at least one year and could not leave the facility without permission. “If you go to the program and you have a problem, you can’t get along with the people at the program, call your lawyer and come and see me. If you work with me, I will work with you . . . But if you just run away from the program because you don’t like it, then you’re going to go to prison.”Phu told the court he understood. The remaining charge and special allegations were dismissed on the People’s motion.
2. Phu’s Arrest for Drug Possession and the Probation Violation Hearing
On March 19, 2007 Phu was arrested for possession of cocaine base (§ 11350, subd. (a)) and possession of drug paraphernalia (§ 11364). Phu’s probation was summarily revoked, and he was remanded into custody without bail pending a probation violation hearing. A contested probation revocation hearing was held on June 8, 2007 before a different judge from the one who had presided at the earlier plea and sentencing hearings.
At the hearing Los Angeles Police Officer Christopher Doan testified he saw Phu on the morning of March 19, 2007 standing at a street corner holding a glass pipe. Doan arrested Phu, seized the pipe and found cocaine base in Phu’s jacket pocket during a post-arrest search. Phu testified on his own behalf and denied owning the pipe or having cocaine base on his person. Phu claimed he was holding the pipe for a friend, a drug user, and was attempting to return the pipe when the officers arrived.
The court questioned Phu at length, specifically asking whether Phu knew his friend was a drug user when he agreed to hold the pipe and whether Phu knew he had been ordered not to associate with known drug users. Phu answered yes to both questions.
After both sides rested and counsel had argued, the trial court found Phu had willfully violated his probation by possessing cocaine base and a glass (opium) pipe and by associating with a known drug user. The court then proceeded to consider whether to order execution of the previously stayed prison sentence or to reinstate probation. Defense counsel acknowledged Phu understood his negotiated plea called for the execution of the previously stayed state prison term if he violated the conditions of his probation. Nonetheless, counsel argued, Phu was unable to comply with the terms of probation because of his severe drug addiction; Phu’s counsel urged the court to reinstate probation so Phu could undergo “rigorous in-patient drug treatment.”
The trial court declined to reinstate probation. Initially, the court observed Phu had made a good bargain in light of his criminal record; at the time Phu could have been sentenced to substantially more than seven years in state prison. The court indicated Phu had been given a break when his sentence was suspended and he was placed on probation. Although Phu had completed the residential drug program ordered as a condition of probation, he thereafter committed the present offenses. The court then stated, “The problem is when someone is told if you get this break and bargain and if you commit any violation of probation you are going to prison for seven years, there are consequences to what they do at the time.” The court found Phu’s testimony at the revocation hearing was not credible and demonstrated Phu’s unwillingness to admit any wrongdoing or to take responsibility for his criminal conduct. The court further found Phu was not a suitable candidate for probation in view of his lengthy criminal history. It ordered into effect the previously stayed aggregate state prison sentence of seven years.
According to the probation officer’s report, before entering his plea in Los Angeles Superior Court No. BA279656 in 2005, Phu had five prior drug-related felony convictions. He also had repeatedly violated probation.
On the People’s motion the trial court dismissed the substantive offenses underlying the probation violations (possession of cocaine base and an opium pipe).
Phu received presentence custody credit of 376 days (253 days for custody prior to his August 18, 2005 sentencing; 82 actual days and 41 days of conduct credit for time served following his March 19, 2007 arrest). Phu neither sought nor was awarded presentence custody credit for the time he spent in two residential treatment facilities, the Volunteers of America and the Midnight Mission drug and alcohol programs, pursuant to the conditions of his probation.
The court also ordered Phu to pay a $20 security assessment, a $50 laboratory fee plus penalty assessments and a $200 restitution fine. A parole revocation fine was imposed and suspended pursuant to Penal Code section 1202.45.
DISCUSSION
1. The Trial Court Was Aware of and Exercised Its Discretion in Declining To Reinstate Probation
Phu contends the trial court was unaware it had any discretion to reinstate probation. He theorizes the court mistakenly believed it was required to revoke probation and order execution of the previously stayed state prison sentence after reviewing the earlier probation and sentencing hearing transcripts and misconstruing certain comments made by the court: If “you fail at everything, you can go to prison”; and if “you just run away from the program because you don’t like it, then you’re going to go to prison.”
The record establishes the trial court was not only aware of, but also exercised, its discretion after stating specific reasons for deciding against reinstating probation. Phu’s reliance on an isolated comment by the court is misplaced and misleading. In context, the comment was simply part of the court’s response to defense counsel’s argument that Phu’s probation violation was due to his overwhelming addiction and his request that Phu be given another opportunity to participate in residential treatment. The court noted, in spite of the leniency Phu had been afforded at the time of his plea by reason of his addiction, Phu had shown he was not sufficiently motivated to rehabilitate himself. Instead, Phu continued to engage in drug-related criminal conduct; his criminal history alone made him an unsuitable candidate for reinstatement of probation. Nothing in the record suggests the trial court misinterpreted any statements made at the 2005 plea and sentencing hearing or believed it was legally bound not to consider reinstating probation.
Phu’s argument the court failed to understand the scope of its discussion relies on the statement, “[I]f you commit any violation of probation you are going to prison for seven years . . . .”
2. The Trial Court Did Not Abuse Its Discretion in Declining To Reinstate Probation and Ordering Phu To Serve the Previously Stayed State Prison Sentence
A decision to revoke probation after the defendant has failed to comply with its terms and conditions rests within the broad discretion of the trial court: Pursuant to Penal Code section 1203.2, subdivision (a), “a court is authorized to revoke probation ‘if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his [or her] probation . . . .’” (People v. Rodriguez (1990) 51 Cal.3d 437, 440.) “It has been long recognized that the Legislature, through this language, intended to give trial courts very broad discretion in determining whether a probationer has violated probation.” (Id. at p. 443.) “[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation.” (People v. Lippner (1933) 219 Cal. 395, 400.)
The trial court’s decision not to reinstate probation and to order into effect the previously imposed and stayed state prison sentence was a proper exercise of discretion. The probation violation itself was a drug offense that supported revocation of probation. In addition, the court properly considered Phu’s lengthy history of drug use, resulting poor performance on probation and persistent unwillingness to address his drug addiction in concluding reinstating probation was not appropriate.
3. Phu Is Entitled to Additional Custody Credit Under Penal Code Section 2900.5 for Time Spent in Residential Treatment as a Condition of Probation
Phu asserts and the People agree the trial court miscalculated Phu’s presentence custody credit by omitting the time he spent in residential treatment programs (first in the Volunteers of America program and later in the Midnight Mission program) as a condition of probation. “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 as well as those served after sentencing as a condition of probation -- apply to custodial time in a residential treatment facility as well as straight county jail time.” (People v. Jeffrey (2004) 33 Cal.4th 312, 318; accord, People v. Johnson (2002) 28 Cal.4th 1050, 1053 [“Under [Pen. Code] section 2900.5, a defendant sentenced either to county jail or to state prison is entitled to credit against the term of imprisonment for days spent in custody before sentencing as well as those served after sentencing as a condition of probation. [Citations.] This provision also applies to custodial time in a residential treatment facility.”].)
Penal Code section 2900.5, subdivision (a), provides: “In all felony . . . convictions . . . when the defendant has been in custody, including, but not limited to, any time spent in a jail, . . . rehabilitation 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, . . . shall be credited upon his or her term of imprisonment . . .”
The People also acknowledge Phu has not forfeited his right to the omitted presentence custody credits where no knowing and intelligent waiver of such credits appears on the record. (See People v. Johnson, supra, 28 Cal.4th at p. 1055.)
As the parties note, the record fails to show the exact dates during which Phu participated in the Volunteers of America program and the Midnight Mission program. In addition, Phu should be awarded presentence custody credits for any time he spent in local custody after sentencing on August 18, 2005 but before he was transported to the Volunteers of America program. Accordingly, we remand the matter to the trial court for additional findings as to the time Phu spent in residential treatment programs and in local custody post-sentencing, if any, and for recalculation of the total presentence custody credit to which he is entitled. (See People v. Jeffrey, supra, 33 Cal.4th at p. 318.)
DISPOSITION
The matter is remanded to the trial court to recalculate the presentence custody credit to which Phu is entitled under Penal Code section 2900.5. In all other respects the orders are affirmed. Following redetermination of Phu’s presentence custody credit, the superior court is directed to prepare a corrected abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
We concur: WOODS, J. ZELON, J.