Opinion
E066976
08-08-2017
THE PEOPLE, Plaintiff and Appellant, v. KEVIN DWAYNE HARRIS, Defendant and Respondent.
Michael A. Hestrin, District Attorney, and Natalie M. Lough, Deputy District Attorney, for Plaintiff and Appellant. Nancy Susan Brandt, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1502974) OPINION APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Affirmed with directions. Michael A. Hestrin, District Attorney, and Natalie M. Lough, Deputy District Attorney, for Plaintiff and Appellant. Nancy Susan Brandt, under appointment by the Court of Appeal, for Defendant and Respondent.
Defendant and respondent, Kevin Dwayne Harris, pled guilty to two counts of lewd and lascivious acts upon a child (counts 1 & 6; Pen. Code, § 288, subd. (a)) and two counts of lewd and lascivious acts by force upon a child (counts 2 & 7; § 288, subd. (b)(1)). The court sentenced defendant to 20 years' imprisonment and awarded defendant a total of 265 days of custody and conduct credit for the time he spent wearing an electronic monitoring device (EMD).
All further statutory references are to the Penal Code unless otherwise indicated.
The court awarded defendant an additional 31 days pursuant to the probation officer's recommendation, for a total custody credit award of 296 days.
I. PROCEDURAL BACKGROUND
At sentencing, defendant's counsel agreed with the calculation of credits for time served recommended by the probation officer in her Static-99 report, a total of 31 days. However, defendant's counsel argued defendant should be entitled to an additional 231 actual days pursuant to section 2900.5 for the time he was released on bail while wearing an EMD.
The minute order dated December 9, 2015, reflects that the only restriction placed upon defendant by the court when releasing him on bail was "to have a GPS put on within [two] days of being released."
Defendant's counsel maintained that "my client has been on a GPS monitor, the monitoring company indicated to him, his mobility was limited to Riverside, San Bernardino, and Los Angeles Counties. It would be my perspective that that is a significant enough limitation on his freedom of movement that the Court should award him an additional 231 days, and then 15 percent of that would be an additional 34 days, for a total of 265 days."
The People noted that additional credit for wearing the EMD was not proposed as part of the plea bargain. The People further observed: "In addition, I think the span of three counties, which in square mileage is probably tens of thousands of miles. I have no idea. I mean, we're talking about from here to the border of Nevada and I think San Diego."
The court responded that "none of the credits in any plea bargain are ever things that you negotiate. Credits are earned. . . . The credits are calculated based upon custodial time, separate and apart from any deal that you would agree to."
The People replied: "But this isn't a GPS monitoring device that he received and was told that he had to stay at home, therefore home detention. This is a GPS monitoring device to find out where he is at all times. [¶] It wasn't the Court or the People that told him that he had to stay within the three counties. It was his bail company that did." The People contended that construing a limitation of movement over three counties as "home detention" would seem "preposterous."
The court disagreed that it was "preposterous." "I don't think it's unreasonable to consider the restriction of a person's freedom . . . to be somewhat custodial. There is no question that included in the three counties are the two largest counties in the country. Riverside and San Bernardino Count[ies] alone encompass[] massive square miles, and I would agree with you."
The court continued: "But one of the things that's at the heart of our country is complete and utter freedom of movement without any restriction. The gentleman is getting, essentially, a life sentence at his age. 20 years in state prison is a very, very long time, and I don't think it's unreasonable to request this. [¶] . . . I think intellectually there's enough to [defense counsel's] argument for me to accept that and grant that request. [¶] . . . If the People really disagree with it, then the Court of Appeal[] is going to be the body that tells me, 'Judge, you were dead wrong. You should have never done that,' and that's something I am willing to accept in a situation like this."
The court further reasoned: "Because to me, at my age, and given the fact that I'm a Veteran, freedom means complete freedom, If I want to get up and pack up and go to New York tomorrow, I don't have to ask anybody. I don't have to show any ID. I can just pack up and go." The court granted defense counsel's request and awarded defendant a total of 265 days of custody and conduct credit for the time he spent wearing an EMD.
II. DISCUSSION
The People contend the court erred as a matter of law by awarding defendant custody credit for the time he spent wearing an EMD. Defendant maintains that the language in the statute reading "including, but not limited to" gave the court discretion to award him custody credit; he further argues the court acted within its discretion in awarding defendant custody credit for the time he spent wearing the EMD. We agree with the People.
Although, we agree with defendant that the court does have some discretion in determining whether restrictions placed upon a defendant prior to sentencing qualify a defendant for custodial credits (People v. Anaya (2007) 158 Cal.App.4th 608, 612 (Anaya)), this discretion is narrowly circumscribed by the text and intent of the statute which is to provide credits only for restrictions which closely approximate the conditions of institutional custody such as those expressly listed in the statute itself. Thus, although section 2900.5 does not provide an exhaustive list of all the restrictions which might entitle a defendant to custodial credits, it does provide a narrow framework for determining what type of restrictions would actually qualify for an award of custody credit. We hold the court erred in determining that a court requirement that defendant simply wear an EMD, without any other restrictions, came within the narrow proscriptions which would define institutional custody pursuant to the statue. Thus, the court erred in awarding defendant custody credit for the time he spent wearing the EMD.
"Whether a defendant is in 'custody' for the purposes of section 2900.5 . . . is a matter of statutory interpretation, a question of law we review de novo. [Citation.]" (People v. Ravaux (2006) 142 Cal.App.4th 914, 919; accord, Anaya, supra, 158 Cal.App.4th at p. 611.) Former section 2900.5, subdivision (a) provides, in pertinent part, that: "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 jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention 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, credited to the period of confinement pursuant to Section 4019, and days served in home detention pursuant to Section 1203.016 or 1203.018, shall be credited upon his or her term of imprisonment . . . ."
The statute has been modified a number of times over the past few decades with little substantive change relevant to the issue at hand. There are two exceptions: (1) when, in 1991, the statute expressly authorized custodial credit for electronically monitored home detention programs, the authorization of which ended in the version of statute effective January 1, 1999 (Anaya, supra, 158 Cal.App.4th at p. 612, fn. 3; Stats. 1994, ch. 770, §§ 6-7, pp. 3853-3855); and (2) in 2011, when sections 1203.016 through 1203.018 became part of the language of the statue (Stats. 2011, ch. 15, § 466, pp. 480-481).
The parties appear to agree that application of neither the section 1203.016 nor 1203.018 home detention conditions are relevant here. Indeed, section 1203.016 relates only to electronic monitoring as part of a "home detention program" in which the "participant shall remain within the interior premises of his or her residence during the hours designated by the correctional administrator." (§ 1203.016, subd. (b)(1).) Section 1203.018 relates only to electronic monitoring where "the inmate . . . be an inmate with no holds or outstanding warrants to whom one of the following circumstances applies: [¶] (A) The inmate has been held in custody for at least 30 calendar days from the date of arraignment pending disposition of only misdemeanor charges. (B) The inmate has been held in custody pending disposition of charges for at least 60 calendar days from the date of arraignment. (C) The inmate is appropriate for the program based on a determination by the correctional administrator that the inmate's participation would be consistent with the public safety interests of the community." (§ 1203.018, subd. (c)(1).) Neither of these programs apply factually to the court's ordered electronic monitoring of defendant. Similarly, section 2900.5, subdivision (f), which would include credit for time served pursuant to involuntary home detention or the wearing of an EMD, is inapplicable here because it "relates only to time served by a defendant as part of a sentence, not time while awaiting trial." (Anaya, supra, 158 Cal.App.4th at p. 613.) --------
"Section 2900.5 has a 'dual legislative purpose of "eliminat[ing] the unequal treatment suffered by indigent defendants who, because of their inability to post bail, served a longer overall confinement than their wealthier counterparts" [citation] and equalizing the actual time served in custody for given offenses. [Citation.]' [Citation.] The statute '". . . reflect[s] the basic philosophy that when a person is incarcerated he is being punished by the reality of incarceration. . . ."' [Citation.]" (People v. Pottorff (1996) 47 Cal.App.4th 1709, 1715.)
"[T]he phrase 'including, but not limited to,' referred only to those facilities preceding '. . . home detention . . . .' [Citation.] Then, as now, the Legislature acknowledged the difference between home detention programs and those programs requiring more restrictive custody." (Anaya, supra, 158 Cal.App.4th at pp. 612-613.)
"'[T]he 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.'" (People v. Pottorff, supra, 47 Cal.App.4th at p. 1718, fn. omitted, citing People v. Reinertson (1986) 178 Cal.Ap.3d 320, 327; accord, Anaya, supra, 158 Cal.App.4th at p. 613 [reversing an award of custody credits where the defendant's "electronic monitoring agreement did not restrict her movements."]; accord, People v. Lapaille (1993) 15 Cal.App.4th 1159, 1164-1165.) "[T]he mere fact detention occurs at home does not preclude an award of credit. However, . . . that credit is available under section 2900.5 only where the imposed restrictions render the placement akin to confinement in a facility or institution." (People v. Pottorff, supra, 47 Cal.App.4th at p. 1718.)
In Anaya, supra, 158 Cal.App.4th 608, the defendant was released after posting bail with the following restrictions: (1) she wear an EMD; (2) she answer the door for community confinement staff (CCS); (3) she limit phone usage so that CCS could reach her by phone; (4) she contact CCS twice daily at prescribed times; and (5) she not leave the county. (Id. at pp. 610-611, 613.) At sentencing, over the People's objection, the court awarded the defendant credit for the time she was subject to the aforementioned restrictions pursuant to section 1203.016. (Anaya, supra, at p. 611.) The People appealed. The court reversed the credit award in part, holding that the conditions placed upon her did not sufficiently restrict her movement to such an extent as to qualify as custodial confinement. (Ibid.)
In People v. Pottorff, supra, 47 Cal.App.4th 1709, the court released the defendant on bail while he was awaiting trial with conditions that he live only at his current address or his mother's home and that he not be anyplace other than his residence, place of employment, or a place where he was aiding in the preparation of his defense. (Id. at p. 1712.) After his conviction, the defendant moved for custody credits under section 2900.5 for the time he was on bail. The court denied the motion. (Id. at p. 1713.) The defendant appealed; the court affirmed the denial of custody credits, holding that the defendant was not "in 'custody' within the meaning of section 2900.5 simply because he was subject to 'constraints not shared by the general public.'" (Id. at pp. 1717-1718.)
Here, other than the requirement that defendant wear an EMD, he was not subject to any of the more restrictive conditions as were the defendants in Anaya and Pottorff.
If the defendants in those cases were not subject to restrictive enough conditions to approximate institutional custody, then certainly defendant was not either. Indeed, in Anaya the defendant was restricted by the court to travel in only one county. (Anaya, supra, 158 Cal.App.4th at p. 613.) Here, the record does not establish that any geographical restrictions were placed upon defendant by the court. Although the bail company restricted defendant's travel to within three counties, the court had nothing to do with this condition. Moreover, even if it had, this condition would have been less restrictive than the one imposed by the court on the defendant in Anaya. Thus, the requirement that defendant wear an EMD does approximate institutional custody for which he could legally be awarded custody credit.
Defendant attempts to distinguish Pottorff by noting that the court based its decision on equal protection grounds, not on the discretion of a court to award credits. However, by arguing the court acted within its discretion, he is maintaining that he was similarly situated as to individuals who actually spent their time prior to conviction incarcerated in jail. Thus, the analysis remains the same. The court simply did not have discretion to award credits to defendant for the time he spent before conviction, free of custody, and with no other restrictions than that he wear an EMD. This is because the single condition placed upon defendant by the court bore none of the hallmarks of institutional custody, but was a rather modest restriction upon his freedom.
III. DISPOSITION
We direct the trial court to amend the abstract of judgment and sentencing minute order to eliminate 265 days of presentence custody credits. The court is directed to forward a copy of the new abstract of judgment and sentencing minute order to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. SLOUGH
J.