P v. Obregon
Filed 9/4/13 P v. Obregon 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Yolo)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
RAYMOND GARDUNO
OBREGON,
Defendant and Appellant.
C070695
(Super. Ct. Nos.
CRF102348, CRF073877)
This is an
appeal after remand for a hearing on whether defendant Raymond Garduno Obregon
is entitled to additional custody credit
for time spent in residential treatment and for time spent in custody as a
sentenced prisoner. In
counsel filed a brief pursuant to People
v. Wende (1979) 25 Cal.3d 436 (Wende),
defendant filed a supplemental brief.
entitled to additional presentence custody credit, the same claims which were
then pending a hearing in the trial court at the time the opinion in
court had determined whether defendant was entitled to custody credit for time
spent in residential treatment, we
remanded for a hearing on the issue. We
also noted that defendant appeared to be correct in his assertion that he was
entitled to additional credit for time spent in custody prior to resentencing.
On remand,
the court did not award any credit for time spent in residential treatment or
for time spent on a
County offense, the term for which the court had modified.
Defendant
appeals. He contends he is entitled to
additional credit for time spent in residential treatment, for time spent in
another jail awaiting transfer, and for time as a sentenced prisoner. We will remand again for the trial court to
calculate the time defendant spent in custody, jail, or prison on the Sutter
County offense on which the trial
court modified sentence.
Credit for Residential Treatment
On remand,
the probation officer reported that defendant was “not entitled to credit
(actual or conduct) for the time he spent in residential treatment†because he
had “agreed to waive all custody credits accrued while in a program.†In refusing to award additional credit for
residential treatment, the trial court impliedly agreed.
In case No.
CRF073877, defendant entered a no-contest plea to transportation of
methamphetamine and was granted Proposition 36 probation. Defendant signed a “Declaration and Order
Regarding Plea of Guilty/No Contest to a Felony,†a standard form, which
contains no reference to a waiver of residential treatment credits. The reporter’s transcript of the entry of
defendant’s plea likewise reflects no discussion of a waiver of residential
treatment credits. In the “Order
Admitting Defendant to Probation†under Proposition 36, which sets forth 21
paragraphs of the standard terms and conditions of probation, paragraph 8
provides: “Probationer shall enter into
and successfully complete a substance abuse treatment program as directed by
the Probation Officer; program to be secured and approved by the Probation
Officer. If in a residential treatment program, probationer agrees to waive all
custody credits that might accrue while in said program. If now in custody, probationer may be
released to the custody of the Probation Officer for transport to the
program. Regardless of whether the
treatment selected is residential or outpatient, probationer must be in the
program within 30 days of this order.â€
(Italics added.)
Defendant
entered his plea and was granted probation the same day (August 22, 2007). He also signed the declaration and order of
probation the same day. Before defendant
entered his plea, the court asked defendant whether he had “gone over the terms
of [his] probation order.†The court
noted that defendant had signed the terms, which defendant confirmed. When asked if he had any questions, defendant
asked about the requirement of employment (paragraph 7 of the 21 paragraphs of
terms and conditions). After discussion
of the employment requirement, the court asked, “[o]ther than what we’ve talked
about, what you’ve gone over in the plea agreement in terms of probation order
[sic], has anybody promised you
anything else . . . ?†Defendant
answered in the negative and then entered his plea.
Defendant
was granted Proposition 36 probation, which he violated in short order; he was
reinstated, violated again within months, committed new offenses, was sent to
prison in Sutter County in May 2010, and was resentenced in Yolo County in
November 2010.
Defendant
argues the standard waiver of residential treatment credits without the trial
court’s exercising case-specific discretion is invalid. The People respond that by arguing the trial
court abused its discretion in implementing a standard waiver of custody
credits “as part of [defendant’s] plea,†defendant is attacking the validity of
his plea, which requires a certificate of probable cause. In reply, defendant claims he is not
attacking the validity of the plea but instead the terms of the sentence.
Although
defense appellate counsel filed a Wende
brief in Obregon I, defendant filed a
supplemental brief raising the issue of credits for residential treatment and
the People did not respond. After the
opinion in Obregon I was filed,
remanding the matter on the issue of credits, the People did not seek rehearing
to assert that the waiver of credits was part of defendant’s plea. In any event, the record does not clearly
reflect that waiver of credits was a term of the
was not in the plea form, the probation terms were not incorporated by
reference in the plea form, and there was no oral mention of waiver of credits
at the entry of plea hearing.
Anticipating
that defendant does not need a certificate of probable cause, the People respond
that the waiver issue is forfeited because defendant did not raise it in the
first appeal. The People argue that
defendant did not “argue that the trial court had abused its discretion in
imposing the waiver of custody credits for the time [he] spent in the
residential rehabilitation programs.â€
Again, the
People did not respond to defendant’s claim in his supplemental brief or
petition for rehearing to raise the issue in Obregon I. The issue of
waiver of credits was first raised on remand when defendant challenged the
waiver. Although we reach the merits, we
conclude that because defendant did not challenge the probation condition when
it was imposed in 2007, he has forfeited the issue.
As the
People argue, the standard waiver was knowing and intelligent in that defendant
signed the standard terms and conditions after having reviewed the conditions
of probation with his attorney, had no questions about the same (other than the
employment condition), and signed the terms and conditions. Defendant accepted probation upon the terms
set forth, including waiver of residential treatment credits. Defendant has forfeited his challenge to his
waiver, including his claim that the trial court was required to exercise case-specific
discretion. “[A] defendant who does not
object to that probationary condition when it is imposed, [forfeits] the right
to later challenge its validity on appeal.â€
(People v. Torres (1997) 52
Cal.App.4th 771, 783 (Torres)
[defendant forfeited challenge to standard probation condition waiving custody
credit for time spent in residential treatment]; see People v. Welch (1993) 5 Cal.4th 228, 230.) “A timely objection allows the court to
modify or delete an allegedly unreasonable condition or to explain why it is
necessary in the particular case. . . .
A rule foreclosing appellate review of claims not timely raised in this
manner helps discourage the imposition of invalid probation conditions and
reduce the number of costly appeals brought on that basis.†(Welch,
at p. 235.)
Even assuming
defendant preserved his contention that the court abused its discretion by
applying a standard policy requiring waiver of residential treatment credits,
we would reject his claim.
“[W]hen
defendants convicted of drug offenses are granted probation conditioned on
participation in a residential drug treatment program, the court does not abuse
its sentencing discretion by imposing as a standard condition of that probation
a waiver of custody credits under Penal Code section 2900.5, subdivision (a)
for time spent in the applicable rehabilitation facility.†(Torres,
supra, 52 Cal.App.4th at p. 773, fn. omitted.) This court cited Torres with approval in People
v. Thurman (2005) 125 Cal.App.4th 1453, 1460-1461, 1463-1464. We agree with the reasoning in
v. Penoli (1996) 46 Cal.App.4th 298, 303-306 and People v. Juarez (2004) 114 Cal.App.4th 1095, 1103-1106, which
defendant cites in support of his claim of case-specific exercise of
discretion.
title="">[2]
Credit for Time Spent on Sutter County Offense
The
probation officer reported that defendant was not entitled to credit from
May 4, 2010, onward since he “was a sentenced prisoner out of Sutter
County.†The probation officer reported
that defendant was in the Sutter County jail from May 4, 2010, to May 31, 2010
(28 days), in the Department of Corrections and Rehabilitation (CDCR) from June
1, 2010, to July 28, 2010 (58 days), and the Yolo County jail from July 29,
2010, to November 12, 2010 (107 days).
The probation officer stated that defendant was not entitled to credit
for these three periods because he was a sentenced prisoner out of Sutter
County, having been sentenced in that case on May 13, 2010, and returned to
Yolo County on an order to produce prisoner from CDCR.
Actually,
defendant was sentenced in Sutter County on May 12, 2010, and at that time, he
was awarded nine actual days and eight conduct days for a total of 17 days of
presentence custody credit. On remand,
the court did not award additional credit for the time spent in jail or prison
for the Sutter County offense, and the abstract of judgment reflects no credit
at all for the Sutter County offense even though the court had modified the
sentence from a low term of 16 months which had been originally imposed to a
consecutive one-third the midterm or eight months. At a subsequent hearing, defense counsel
indicated that she would “follow up with CDC[R] and make sure [defendant] gets
his credits in Sutter County.â€
On appeal,
defendant claims that he is entitled to 28 actual days, from May 4, 2010, to
May 31, 2010, plus conduct credit for time spent in Sutter County jail awaiting
transfer to Yolo County on the arrest warrant.
He also claims that when the trial court modified the term for the
Sutter County offense from a low term of 16 months to a consecutive one-third
the midterm or eight months, the trial court failed to calculate the time
defendant spent as a sentenced prisoner on the Sutter County offense and award
those credits; defendant claims the abstract of judgment must reflect those
credits.
The People
argue that defendant’s custody credits for time spent in Sutter County jail
were properly calculated by the probation officer, who noted that the time was
attributable to the Sutter County offense.
The People concede, however, that time spent in custody on the Sutter
County offense should be reflected on the abstract of judgment.
We conclude
that the abstract of judgment must reflect the credit for the Sutter County
offense which the Sutter County court awarded when it originally sentenced
defendant, that is, nine actual days and eight conduct days for time spent in
custody in the Sutter County jail from May 4, 2010, to May 12, 2010, when
defendant was originally sentenced.
Defendant received consecutive sentences and is thus not entitled to
duplicative credit for May 4, 2010, to May 12, 2010. (Pen. Code, § 2900.5, subd. (b).) Since the trial court modified the term for
the Sutter County offense, defendant is entitled to have the abstract of
judgment also reflect postsentence actual
days in prison, from May 13, 2010, onward, whether he was in custody in prison
or in Sutter or Yolo County jail.
Clearly, defendant is not entitled to Penal Code section 4019 conduct
credits since defendant’s Sutter County prison sentence was already in progress
and he was still under the custody of the Director of Corrections. The trial court has the responsibility to
determine these dates of custody and to ensure the abstract of judgment so
reflects. (Pen. Code, § 2900.1;
20, 23, 37; People v. Saibu (2011)
191 Cal.App.4th 1005, 1011-1013.)
Since the
trial court did not calculate the total time to be credited on the Sutter
County offense which must appear on the abstract of judgment, we will remand
again.
DISPOSITION
The matter
is remanded to the trial court to calculate the total time to be credited on
the Sutter County offense and to prepare an amended abstract of judgment
reflecting those credits. The judgment
is otherwise affirmed.
RAYE , P. J.
We concur:
NICHOLSON , J.
HULL ,
J.
name="_ftn1" title="">[1] This court treated defendant’s motion to
augment the record as a motion to incorporate case No. C066722 by reference
and, as such, granted the motion.
name="_ftn2" title="">[2] People
v. Johnson (2002) 28 Cal.4th 1050, 1055, footnote 3 noted a split of
authority as to whether a waiver of time credits may be a standard condition of
probation without the trial court’s exercising any case-specific discretion.
