Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. SF05-577 & SF05-583B
NICHOLSON, J.
In this appeal, defendant Andrew Daniel Stanley contends the trial court erred in refusing to allow him Penal Code section 2900.5, subdivision (a) credits for the time he spent in residential drug and alcohol treatment facilities, on the ground defendant failed to “complete” any treatment program.
The People concede, and we agree, that the trial court erred in concluding defendant is categorically ineligible for custody credit. We remand to the trial court for a determination consistent with this opinion of the time credits, if any, to which defendant may be entitled for days spent in residential drug treatment.
FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to a plea bargain, defendant pled no contest in case No. SF05-577 to one count of residential robbery; in the same proceeding, he entered a no contest plea in case No. SF05-583 to two counts of forgery.
At the initial sentencing in January 2007, the trial court suspended imposition of sentence, and placed defendant on five years’ probation on the condition, among others, that defendant “complete 12 months substance/alcohol abuse inpatient program” and “successfully complete” a 12-month licensed outpatient substance abuse program thereafter. Immediately after sentencing, defendant was enrolled in an inpatient program at the Father Alfred Center in San Francisco, which is overseen by the St. Anthony Foundation.
Defendant failed to complete his inpatient substance abuse program at the Father Alfred Center in San Francisco, and thereby violated his probation. The court reinstated defendant on probation, conditions of which were that he complete a six-month inpatient substance abuse program and a 12-month outpatient treatment program, and noted that arrangements had been made for defendant to enroll in the St. Anthony Farm in Petaluma. At the hearing, the following colloquy regarding a Johnson waiver occurred:
People v. Johnson (2002) 28 Cal.4th 1050 (Johnson).
“THE COURT: So in order to tee this up, I think I got to get a Johnson waiver.
“[DEFENSE COUNSEL]: He is prepared to enter that.
“THE COURT: And, [defendant], in case you’re not fluent in mumbo-jumbo like us, the Johnson waiver means that I can sentence you to more than a year’s worth of custody locally. Because otherwise you’re entitled to go to state prison where you get better custody.
“THE DEFENDANT: For a violation?
“THE COURT: Yeah.
“[DEFENSE COUNSEL]: Basically you’re going to be serving more than 365 days.
“(Discussion off the record.)
“[DEFENSE COUNSEL]: Yeah, he’s prepared to do that, Your Honor.
“THE COURT: Yeah. It’s one of those things where if you don’t give me the waiver, I have to send you to state prison. I’m quite sure that’s not where you want to go.
“THE DEFENDANT: Sure, I’ll sign it, yeah.”
Defendant was terminated from inpatient treatment programs run by the St. Anthony Farm and the Salvation Army and admitted a second probation violation. The court reinstated probation and, as conditions of probation, ordered defendant to serve additional jail time and thereafter to be enrolled in a six-month inpatient treatment program run by the Salvation Army. Before doing so, the court said, “I think I need a Johnson waiver here” and, after defense counsel consulted with defendant off the record, defendant declared he was “prepared to waive that.”
After defendant’s third probation violation, his probation was revoked, and the court determined to sentence him to prison. Defendant filed a written motion seeking a determination that he is entitled to custodial credit for time spent in residential rehabilitation -- at the Father Alfred Center in San Francisco and the St. Anthony Farm in Petaluma -- ordered as a condition of his probation, pursuant to Penal Code section 2900.5. Defendant attached to his motion two pages of information on each of these two programs, apparently printed from their respective Internet Web sites.
Penal Code section 2900.5, subdivision (a), provides in pertinent part: “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... 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....” (Italics added.)
The probation department verified that defendant spent 244 days at the Father Alfred Center, and spent 155 days at the St. Anthony Farm, for a total of 399 days in residential treatment.
At sentencing, the People argued defendant was not entitled to any custody credits because he failed to complete either inpatient program: “Usually, Your Honor, you’re very clear that if they abscond... they’re not going to get credit. And if they fail the treatment program, they’re not going to get any credit. And that’s my position given that he walked away.” Defendant objected that the reporter’s transcripts reflect he was never so advised.
Agreeing with the People, the court concluded: “I’m going to take the risk and deny the motion for inpatient credit.... [I]t’s my recollection that I am pretty consistent on that point with people. And it’s not in the minutes, which I do note. And it’s also not in the orders, which I do note. But I think it’s also [defendant’s] burden to prove certain things about the programs. And so far I don’t have any evidence on that point either.”
DISCUSSION
Defendant repeats here his claim of entitlement to 399 additional days of custody credit, representing the time he purportedly spent in inpatient drug treatment with the Father Alfred Center in San Francisco, and the St. Anthony Farm in Petaluma.
As noted parenthetically above, 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, 6-7 [same].)
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 [Penal Code] section 2900.5 credits against an ultimate jail or prison sentence for past and future days in custody.” (Johnson, supra, 28 Cal.4th at pp. 1054-1055, italics added.)
Here, however, nothing in the record presented indicates defendant made any such waiver. Defendant apparently did not waive his statutory right to custody credits for time spent in residential treatment facilities as a condition of his probation, although he twice made what purport to be Johnson waivers at the time of probation reinstatement. (Johnson, supra, 28 Cal.4th at pp. 1054-1055.) We agree with the People that, under these circumstances, defendant is not foreclosed from seeking custody credit for his time spent in a residential drug treatment program, as contemplated by Penal Code section 2900.5.
But we cannot determine from the record on appeal whether defendant was subjected to restraints not shared by the public generally by virtue of his participation in the Father Alfred Center in San Francisco, and the St. Anthony Farm in Petaluma; nor, by competent evidence of actual days thus served, so as to permit any actual 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.’ [Citation.]” (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 the pertinent programs purport to be “residential programs,” the record fails to indicate the degree to which these programs required defendant’s behavior to be supervised and regulated, nor, by competent evidence of the number of days actually served in either or all of them. 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 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 Father Alfred Center in San Francisco, and the St. Anthony Farm in Petaluma. The People concede remand is appropriate.
DISPOSITION
Defendant’s conviction is affirmed. The matter is remanded in accordance with the views expressed herein for a determination as to whether he is entitled to custody credits for time spent in substance abuse rehabilitation with the Father Alfred Center in San Francisco, and the St. Anthony Farm in Petaluma. 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 the amended abstract to the Department of Corrections and Rehabilitation.
We concur: BLEASE, Acting P. J., BUTZ, J.