Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, David M. Szumowski, Judge, Super. Ct. No. SCD155397
McINTYRE, J.
Gary Lee Washington pled guilty to selling cocaine base (Health & Saf. Code, § 11352, subd. (a)). The court suspended a six-year sentence pending referral to the California Rehabilitation Center (CRC). On January 19, 2001, the court found Washington to be a narcotic addict and committed him to CRC under Welfare and Institutions Code section 3051. On September 14, 2006, Washington requested exclusion from CRC. The court vacated the commitment and sentenced him to prison for the six-year suspended term: three years for the cocaine base count, and three years for admitted prior violations of Health and Safety Code section 11352 (Health & Saf. Code, § 11370.2). Washington appeals. We affirm.
BACKGROUND
Almost six years after Washington was committed as a narcotic addict, he requested to be excluded from CRC. After computing the credits, the court found Washington was entitled to 1,388 days credit against his term for time spent at CRC. The court asked Washington why he would ask for exclusion, and he responded, "because I'm on parole time, I figured I had all my time. And my family is having a hardship." The court explained Washington "figured wrong" because six years times 365 is more than 2,000 days, and he did not have that many credits. Washington expressed his concern that the credits were wrong and asked "[s]o I'm — like, the CRC sends me to a program, I don't need it?" and "there is no way I can get that time?" The court responded he could not receive such credit, and sentenced him to prison for six years, with credit for 1,388 days spent in CRC.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel lists, as possible but not arguable issues, whether Washington is entitled to: (1) "good behavior and participation" credits under Penal Code section 2931 or to "worktime" credits under Penal Code section 2933 for the time he was confined at CRC; and (2) actual days credit for time spent in residential programs he was sent to by CRC on an outpatient status.
We granted Washington permission to file a brief on his own behalf. He has responded. Washington raises the second issue listed by counsel: whether he is entitled to credit for time spent in residential programs on outpatient status, such as House of Metamorphosis, McAlister Institute, and Community Resources and Self Help.
The appropriate method to correct custody credits is to raise the issue before the trial court in a noticed motion rather than pursue the formal appellate process. (People v. Fares (1993) 16 Cal.App.4th 954, 958.) This is especially true where factual determinations are involved, rather than simple arithmetic. (People v. Wrice (1995) 38 Cal.App.4th 767, 773.)
We conclude Washington failed to properly raise the issue before the trial court, and therefore waived it for the purposes of this appeal. Washington filed no motion in the trial court and there is no record for us to review. Although the augmented record indicates his commitment dates at CRC, it does not reveal his whereabouts between release dates, or his patient or custody status during those periods. Even though Washington expressed a concern that the credits were wrong and asked whether he could get credit for time when "CRC sends me to a program", this is insufficient to apprise the trial court of the claimed calculation error and to preserve a reviewable issue on appeal. (People v. Mendez (1999) 19 Cal.4th 1084, 1100-1101; People v. Wrice, supra, 38 Cal.App.4th at p. 773; Pen. Code, § 1237.1.) Moreover, even if the issue were properly raised, there is no constitutional impediment to withholding credit for outpatient status from addicts sentenced to prison because outpatient status is not the equivalent of time spent in custody. (In re Taylor (1982) 132 Cal.App.3d 260, 264; Welf. & Inst. Code, § 3201, subd. (c).)
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the remaining possible issue listed pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issues. Washington has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J., AARON, J.