P. v. Borlik

Filed 7/12/07 P. v. Borlik CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Pursuant to a negotiated disposition, appellant pleaded no contest to hit and run resulting in death, child endangerment, and gross vehicular manslaughter and admitted an enhancement for personal infliction of great bodily injury. (Veh. Code,  20001, Pen. Code,  273a, subd. (a), 191.5, subd. (a), 1023, subd. (e)(3), 12022.7, subd. (c).) He entered his plea with the understanding that the maximum sentence that could be imposed would be six years in state prison and that a charge of driving under the influence causing injury would be dismissed. (Veh. Code,  23153, subd. (b).) The trial court sentenced appellant to six years in prison with credit for four days. Appellant contends that he was entitled to pre-sentence credit for time spent in a residential treatment facility. We affirm.

Background

On May 25, 2005, while driving his Ford Expedition in Palo Alto, appellant ran a red light and struck a 72-year-old bicyclist who was returning home from Stanford University. Appellant drove off and, after about an hour, was discovered passed out on the stairs of a nearby residence. Appellant's three-year-old son was in his car seat in the Expedition. Appellant's blood alcohol level was approximately .23. The bicyclist died three weeks later from his injuries.

After his arrest, appellant posted bail. In July 2005, appellant entered a 30-day residential treatment program at Support Systems Homes, a substance abuse treatment program. In August 2005, he completed the first phase, the "primary treatment" part of the program, and entered phase two, the "continuing care" part of the program. On September 19, 2005, appellant completed phase two and entered phase three, the "aftercare" part of the program. On October 12, 2005, at defense counsel's request, appellant was remanded and then released on his supervised own recognizance on the conditions that he reside at Support Systems Home and that the $100,000 bail he had posted remain in effect.

Appellant continued to reside at Support Systems until his sentencing June 23, 2006. Support Systems provided regular reports to the court about appellant and the program. At the time of sentencing, the trial court had received a report from Support Systems that said that appellant was "a participating resident of Support Systems Homes, Inc. transitional sober living home." Samuel Newsom from Support Systems told the court that appellant had completed the three phases of the program "before getting a job and moving on and going back to work and participating in the activities of the house." Newsom said that appellant was a "senior house resident in one of our sober living environments. He's a chore supervisor [at the house] and abides by all the rules." According to the probation report, "The Support Systems program maintains lots of structure including random urinalysis testing. The defendant must sign in and out of program and he must return in the evenings. The defendant leaves the program during the day to attend work and take care of his two (2) sons when his wife is at school. . . . The defendant is also expected to attend seminars and at least five (5) Alcoholics Anonymous meetings a week." Appellant also attended church on Sundays.

The trial court said that it found no unusual circumstances justifying a grant of probation and imposed a six-year state prison sentence. Toward the end of the trial court's recitation of appellant's sentence, the following exchange took place:

"[DEFENSE COUNSEL]: . . . [T]here's one other request that I have to make, and that is could he be given credit for his stay at Support Systems, since I believe the letter shows

"THE COURT: Did the Court order him into that program?

"[DEFENSE COUNSEL]: Only after three or four months, Your Honor. [He] started on July 8th voluntarily.

"THE COURT: . . .  I'm not going to consider that. I mean, I think I don't think that's appropriate under the circumstances of this case, unless the People are willing to stipulate.

"[THE PROSECUTOR]: No, Your Honor.

"[DEFENSE COUNSEL]: Subsequently the Court converted it, I believe, on October 13th. I'm not sure.

"PROBATION OFFICER: Your Honor, I'm not sure about if the Court ordered him to be at the S.L.E. [sober living environment], but the law states that he's only entitled if he's ordered to do a residential portion, he's entitled to the actual days. It's my understanding

"THE COURT: This is not residential. It's S.L.E.

"PROBATION OFFICER: Correct. It's my understanding that was S.L.E. time.

"THE COURT: Okay."

The court awarded appellant four days of credit toward his sentence and ordered him remanded into custody.

Discussion

Citing Penal Code section 2900.5, appellant contends that he "was entitled to pre-sentence credit for the time spent at Support Systems Homes, a residential rehabilitation facility." He argues that the trial court erred in failing to award credit for the time he spent at Support Systems from the date he was released on his supervised own recognizance with the condition that he reside at the Support Systems Home until the date of his sentencing, which he calculates as 255 days.

Appellant began the Support Systems program while he was out on bail. After appellant had completed the more restrictive phases of the program, defense counsel asked the court to remand appellant and then release him on his supervised own recognizance with the conditions that he reside at Support Systems and that the $100,000 bail that he had posted remain in effect. Although this type of motion is usually made with an eye toward an award of credit for time in the program, nothing in the record reflects any agreement that that would be the case here. Furthermore, "It is not the procedure by which a defendant is placed in a facility that determines the right to credit, but the requirement that the placement be 'custodial' . . . ." (People v. Darnell (1990) 224 Cal.App.3d 806, 809.)

Penal Code section 2900.5 provides, in pertinent part: "(a) 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. Scott (1994) 9 Cal.4th 331, 354, fn. 17; People v. Jack (1989) 213 Cal.App.3d 913, 916-917.)

The crucial inquiry in determining whether to award custody credits for time in a residential treatment program is whether the program conditions were sufficiently restrictive to constitute "custody" within the meaning of Penal Code section 2900.5. (See, e.g., People v. Rodgers (1978) 79 Cal.App.3d 26, People v. Schnaible (1985) 165 Cal.App.3d 275; People v. Darnell,supra, 224 Cal.App.3d 806.) As the court stated in People v. Ambrose (1992) 7 Cal.App.4th 1917, however, "[t]he term 'in custody' as used in section 2900.5, subdivision (a) has never been precisely defined. . . . 'It is clear from the words of the statute and from judicial decisions that, for purposes of credit, "custody" is to be broadly defined. [Citations.] . . .  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.' " (Id. at pp. 1921-1922, quoting People v. Reinertson (1986) 178 Cal.App.3d 320, 326-327.)

"The question of whether a particular facility should be regarded as sufficiently restrictive as to amount to custody constitutes a factual question [citation], even though certain facilities by their very nature involve some restraint on untrammeled liberty [citation]. Although it is difficult to conceive of a live-in alcohol treatment program that does not include some modification of behavior and supervision, at least regarding the availability of alcohol, this does not necessarily constitute 'custody.' " (Ambrose, supra, 7 Cal.App.4th at p. 1922.) "The 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. [Citation.]" (Reinertson, supra, 178 Cal.App.3d at p. 326.)

Here there was substantial evidence to support the trial court's finding that appellant was not "in custody" at Support System Homes within the meaning of section 2900.5. Though appellant was required to attend seminars and Alcoholics Anonymous meetings during the day and sleep at Support Systems each night, he was otherwise free to spend his days as he chose. There was no specific program at Support Systems that appellant was required to follow. Appellant chose to work and care for his children while his wife was at school. However, it appears that if he had not made these choices, he would not have been penalized. There is nothing in the record to suggest that the supervision and structure of appellant's daily life was any greater than it would have been had he been released, with conditions, to his own home. Thus, there was sufficient evidence to support the trial court's determination that staying in the Support Systems sober living environment did not constitute being "in custody" for purposes of section 2900.5.

Appellant's reliance on People v. Darnell is misplaced. In Darnell, the trial court found that the rehabilitation facility in question was custodial within the meaning of section 2900.5, but denied presentence credits under what it believed was controlling case law. The reviewing court held that the defendant was entitled to presentence credits and remanded for resentencing. In contrast to Darnell, here the trial court made a factual finding that the program was "not residential" and it appears that there is sufficient evidence to support this finding.

Disposition

The judgment is affirmed.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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