P. v. Morgan

Filed 3/19/07 P. v. Morgan CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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The sole issue raised in this appeal is defendants entitlement to custody credits for the days defendant participated in Butte Countys Sheriffs Work Alternative Program (SWAP). Defendant contends a remand is necessary for the trial court to determine his entitlement to credit for the time he spent in SWAP. We disagree and shall affirm the judgment.

BACKGROUND

Given the nature of defendants claim on appeal, a statement of the underlying facts is unnecessary. We provide only an abbreviated procedural summary of the case.

In November 2003 defendant pled no contest to carrying a concealed firearm on his person in violation of Penal Code section 12025, subdivision (a)(2).^[1] In exchange for his plea, a count of carrying a stolen, loaded firearm ( 12031, subd. (a)(1)), and a count of being under the influence with a firearm (Health & Saf. Code, 11550, subd. (e)) were dismissed with a Harvey^[2]waiver. Defendant was placed on formal probation for three years on various terms and conditions including service of 40 days in jail.

In July 2005 a petition for hearing to violate defendants probation was filed alleging defendant was found to be under the influence of an alcoholic beverage on June 23, 2005, in violation of the term of his probation that he abstain from using and possessing alcohol. Defendant admitted the violation. The trial court reinstated probation and imposed an additional 30-day jail sentence. The court authorized service of the jail time on weekends and in SWAP.

In February 2006 a second petition for hearing to violate defendants probation was filed. It alleged defendant had on February 7, 2006, violated the terms and conditions of his probation by driving under the influence of alcohol, driving on a suspended license, and failing to report the contact with law enforcement to his probation officer. A week later, a first amended petition was filed adding allegations that defendant was drunk in public on February 17, 2006, and failed to report contact with law enforcement on that date to his probation officer. The trial court found defendant had violated his terms of probation based on defendants no contest plea to reckless driving. (Veh. Code,  23103.5.) Defendant was referred to probation for a report.

The probation department prepared a supplemental report indicating, as relevant here, defendant was in custody in the Butte County jail for 81 days between October 12, 2003 and December 31, 2003, for 12 days between August 2, 2005 and December 27, 2005, for 6 days between January 8, 2006 and February 13, 2006, for 1 day on February 7, 2006, and for 2 days on February 17 and 18, 2006. An asterisk was placed next to the notation for the 12 days in 2005 and the 6 days at the beginning of 2006. The asterisk reflected the time was spent in SWAP. The report stated: No time credits given per People v. Richter [(2005) 128 Cal.App.4th 575 (Richter)]. The report calculated defendant was entitled to 84 days of custody credit, plus 42 days of conduct credit, for a total of 126 days.

At sentencing, the trial court denied defendants request to reinstate probation and sentenced defendant to the middle term of two years in prison on his conviction of carrying a concealed firearm. ( 12025, subd. (a)(2).) Defendant objected to the calculation of his credits as amounting to only 126 days. He pointed out he had served an additional 18 days on SWAP. Defendant stated that while he recognized there was an appellate case indicating credits did not need to be ordered for that type of custody[,] he thought that its a sufficient custody program that he should be given credit for. The trial court adopted the credit for time served as calculated by the probation officer.

DISCUSSION

Section 4024.2, subdivision (a), provides: Notwithstanding any other law, the board of supervisors of any county may authorize the sheriff or other official in charge of county correctional facilities to offera voluntary program under which any person committed to the facility may participate in a work release program pursuant to criteria described in subdivision (b), in which one day of participation will be in lieu of one day of confinement. (Italics added.)

Section 4024.3, subdivision (a), provides: Notwithstanding any other law, the board of supervisors of any county in which the average daily inmate population is 90 percent of the countys correctional systems mandated capacity may authorize the sheriff or other official in charge of county correctional facilities to operate a program under which any person committed to the facility is required to participate in a work release program pursuant to criteria described in subdivision (b) of Section 4024.2. Participants in this work release program shall receive any sentence reduction credits that they would have received had they served their sentences in a county correctional facility. Priority for participation in the work release program shall be given to inmates who volunteer to participate in the program. (Italics added.)

In Richter, supra, 128 Cal.App.4th 575, the court concluded a defendant was not entitled to custody credit for participation in a voluntary work release program pursuant to section 4024.2 because a probationer participating in such a program was not in actual custody, but was participating in the program in lieu or instead of being in custody. (Id. at pp. 579-580; see also People v. Wills (1994) 22 Cal.App.4th 1810, 1813 [participant in section 4024.2 work release program not entitled to work/conduct credit].) As additional support for the courts conclusion in Richter, it contrasted section 4024.2 with mandatory work release programs pursuant to section 4024.3, noting section 4024.3 specifically provides its participants are entitled to custody credits. (Richter, supra, at p. 580.)

Defendant claims the record in this case is silent as to whether he voluntarily participated in SWAP or was required to do so, that the trial court did not inquire as to the nature of his participation, and that the trial court made no finding as to whether he participated in the program voluntarily under section 4024.2 or was required to do so under section 4024.3. Therefore, defendant claims the matter should be remanded to the trial court to determine defendants entitlement, if any, to credit for the time he spent in SWAP.

Defendants entitlement to credits for his SWAP time does not depend on whether he volunteered for the program, but on whether the Butte County Board of Supervisors, by resolution or ordinance, has authorized the program as a voluntary program under section 4024.2 or a mandatory program under section 4024.3.^[3] Therefore, the trial court did not need to inquire of defendant as to whether he volunteered for the program or not. The question of defendants credits turns on the nature of the program, not the nature of defendants participation.

Here, the probation department expressly noted defendants 18 days of participation in SWAP, but stated custody credit was not available for those days based on Richter. Defendant objected to the calculation of his time credits without counting his participation in SWAP. The issue was, thus, expressly brought to the attention of the trial court. The trial court considered the issue and denied defendant the additional credit for his time spent in SWAP. Such action implies a finding that Butte Countys SWAP program is a voluntary program under section 4024.2 to which the Richter opinion applies. Defendant has not met his burden on appeal to show prejudicial error by showing Butte Countys program is actually a program authorized under section 4024.3.^[4]

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

DAVIS, Acting P.J.

HULL, J.

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^[1]Hereafter, undesignated statutory references are to the Penal Code.

^[2]People v. Harvey(1979) 25 Cal.3d 754.

^[3]Section 4024.3 specifically recognizes a person may volunteer for participation in mandatory programs, directing that [p]riority for participation . . . shall be given to inmates who volunteer . . . . ( 4024.3, subd. (a).) Such a person would still be entitled to credits under the plain language of the statute.

^[4]For example, if Butte Countys SWAP program is a mandatory program under section 4024.3, defendant could have supplied this court with a certified copy of the Butte County Board of Supervisors resolution or ordinance authorizing the program and requested we take judicial notice of it. (Evid. Code,  452, subd. (b).)