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P. v. White

P. v. White
28/06/13






P




 

 

P. v. White

 

 

 

 

 

 

 

 

 

Filed 5/24/13  P. v. White CA5

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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>

FIFTH APPELLATE DISTRICT

 
>






THE PEOPLE,

 

Plaintiff and
Respondent,

 

                        v.

 

ROY HUGHES WHITE,

 

Defendant and
Appellant.

 


 

F064482

 

(Super.
Ct. No. VCF215072A)

 

 

>OPINION


 

THE COURThref="#_ftn1"
name="_ftnref1" title="">*

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Tulare County.  Glade F. Roper, Judge.

            Barbara A.
Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Michael P. Farrell and Louis M.
Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

>INTRODUCTION

            Appellant Roy Hughes White contends he is entitled to an
award of additional custody credits in the amount of 687 days for time spent in
two residential treatment facilities. 
The trial court did not award any custody
credits
for time spent in residential treatment facilities.  The People contend that only the first 14
days in a treatment facility were sufficiently restrictive to constitute
custody and that White should be awarded an additional 14 days of custody
credits. 

We agree with the People that the
balance of the residential treatment
program,
where White was permitted freedom to leave, was not so restrictive
as to warrant an award of custody credits. 
Therefore, we will modify the judgment to award an additional 14 days of
custody credits and in all other respects will affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

            White was
charged with second degree burglary.  It
also was alleged that he had been convicted of seven prior felonies.  On February
19, 2009, White entered a plea of no contest to the burglary charge
and admitted the truth of the prior conviction allegations.  He was placed on probation in the mental
health court program.  

As part of his probation, White was
required to reside in a residential treatment facility and was placed at the
Transitional Living Center (TLC); he later was moved to Domies.  

            On January 3, 2011, White’s probation
officer, Shaun Laird, attempted to collect a urine sample for chemical
testing.  White was unable to provide a
sample, despite being given ample time to do so.  White asked Laird to meet him at TLC, where
White was scheduled to attend an Alcoholics Anonymous (AA) group meeting; White
would try to provide a urine sample at that time.  White failed to attend the AA meeting as
scheduled and did not report to Laird for drug testing.  Additionally, White failed to attend four
other treatment appointments.  

            On January 6, 2012, White admitted to
Laird that he used methamphetamine on December 24 and 31, 2011, and that he
consumed alcohol on December 17, 2011.  He stated he did not complete drug testing on
January 3, 2012, because he
thought he would test positive for methamphetamine.  On January 17 an affidavit of probation
violation was filed, alleging White had failed to (1) abstain from the use
of controlled substances, (2) submit to drug testing, and (3) attend
scheduled treatments.  On February 3, 2012, White admitted the
first two probation allegations and pled no contest to the third.  

            The trial
court revoked probation and imposed a term of three years for the second degree
burglary charge.  White was awarded
presentence custody credits.  Various
fines and fees were imposed. 

DISCUSSION

            White
contends he is entitled to custody credits for all his time spent at TLC and
Domies.  The People contend White is
entitled to an additional 14 days of custody credits, but no more, as most of
the time spent in a residential treatment facility was not sufficiently
restrictive as to constitute custody.  We
agree with the People.

            Penal Code
section 2900.5href="#_ftn2" name="_ftnref2"
title="">[1] provides for an award of credit for time spent
“in custody.”  (People v. Johnson (2002) 28 Cal.4th 1050, 1053.)  A “defendant who is sentenced either to
county jail or to state prison is
entitled to credit against the term of imprisonment for days spent in custody,
either before sentencing or after sentencing as a condition of probation, and
this includes custodial time in a residential treatment facility.  [Citation.]” 
(People v. Thurman (2005) 125
Cal.App.4th 1453, 1460.) 

            In White’s
case, the trial court accepted evidence at the sentencing hearing regarding the
two residential treatment facilities and the restrictions placed upon White
while in those facilities.  White
testified that as a condition of being placed on probation, he was required to
live at TLC or Domies.  For the first two
weeks, he was restricted to the TLC facility and could not leave.  Afterwards, there were fewer restrictions; he
could leave but had to be back at the facility by 9:00
p.m.  Leaving the facility
required only signing out and signing back in upon return.  The probation department conducted drug
testing of White while he was staying in residential treatment; it also wanted
to approve any weekend passes.  Some
counseling and treatment sessions were conducted at TLC, but some classes were
held at other locations.  Domies did not
offer any on-site classes.  At both
locations, White had an apartment or a room and meals were provided.   

            The
question before us is whether all of the time spent in TLC and Domies subjected
White to sufficient restraints on his liberty so as to constitute “custody”
within the meaning of section 2900.5.  (>People v. Ambrose (1992) 7 Cal.App.4th
1917, 1921 (Ambrose).)  The question of whether the restraints at a
particular facility are so restrictive as to constitute custody is a factual
issue.  (Id. at p. 1922.)  The trial
court found that none of the time spent by White in a residential treatment
facility was custodial.  We review a
trial court’s factual finding on whether a treatment facility is custodial
within the meaning of section 2900.5 for substantial evidence.  (People
v. Darnell
(1990) 224 Cal.App.3d 806, 809.) 


            In
assessing whether a program is sufficiently restrictive so as to constitute
custody, factors to be considered generally include the “extent freedom of
movement is restricted, regulations governing visitation, rules regarding
personal appearance, and the rigidity of the program’s daily schedule.  [Citation.]” 
(Ambrose, supra, 7 Cal.App.4th
at p. 1921.)   Here, there is no
evidence either TLC or Domies regulated White’s personal appearance.  Freedom of movement was restricted for two
weeks at TLC, in that White was precluded from leaving the facility.  After the first two weeks at TLC, White was
permitted to leave TLC and was permitted freedom to leave while at Domies.  Although White would have to check in and out
when he left TLC or Domies, there is no evidence he had to be escorted when he
left either TLC or Domies.  In fact,
White was not prevented from leaving either facility without permission,
indicating he was not in a custodial setting.  


Moreover, although White testified
the counselors would supervise the residents, clearly his daily schedule was
not rigid or subject to much supervision. 
If his schedule or activities had been closely monitored, he would not
have been able to miss numerous treatment sessions.   The fact that White obtained and used
alcohol and controlled substances, in violation of his probation, while living
in these treatment facilities is further evidence of the lack of supervision
and restriction on his movements.href="#_ftn3"
name="_ftnref3" title="">[2] 

            The level
of supervision and restriction placed on White while at TLC and Domies is
vastly different than that experienced by the defendant in People v. Rodgers (1978) 79
Cal.App.3d 26.  In Rodgers, the defendant was not permitted to leave the facility
without an escort, and communication with family members and friends was
prohibited.  (Id. at pp. 31-32.)  Under
those circumstances, the living arrangements were deemed custodial.  (Id. at
pp. 32-33.)

            The case of
In re Debra S. (1982) 135 Cal.App.3d
378 had restrictions at the other end of the spectrum.  In this case, the minor was placed on home
detention, required to attend school and participate in therapy sessions, had
to maintain a 6:00 p.m. curfew, and had to notify her mother of her whereabouts
at all times.  This was held to be a
noncustodial setting.  (>Id. at pp. 385-386; see also >People v. Reinertson (1986) 178
Cal.App.3d 320, 327.)

            As the
appellate court in Ambrose noted, “it
is difficult to conceive of a live-in … treatment program that does not include
some modification of behavior and supervision”; however, this would not
necessarily constitute custody.  (>Ambrose, supra, 7 Cal.App.4th at
p. 1922.) 

In White’s case, the restrictions
on his movements and the level of supervision were substantially less than that
of the defendant’s in Rodgers and
only slightly more than that of the minor’s in Debra S.  Although White was
in a residential living facility, he was leaving that facility to attend
classes to obtain his GED and to attend college classes at College of the
Sequoias, was attending treatment classes at various locations, and left the
facility for regular medical appointments. 


            We conclude
the trial court’s factual determination that White’s time in TLC and Domies was
not custodial is supported by substantial evidence, with the exception of the
first 14 days in TLC where White was precluded from leaving the residential
facility.   Consequently, White is
entitled to an award of an additional 14 days of credit pursuant to section
2900.5. 

DISPOSITION

            White is
hereby awarded an additional 14 days of credit pursuant to section 2900.5.  In all other respects, the judgment is
affirmed.  The trial court is directed to
prepare an amended abstract of judgment and forward it to the appropriate
authorities. 





id=ftn1>

href="#_ftnref1"
name="_ftn1" title="">*           Before
Cornell, Acting P.J., Kane, J. and Peña, J.

id=ftn2>

href="#_ftnref2" name="_ftn2" title="">[1]All
further statutory references are to the Penal Code.

id=ftn3>

href="#_ftnref3" name="_ftn3" title="">[2]Both
parties mention the trial court’s minute order of April 15, 2010, granting
“permission for children to go visit” White. 
This minute order was issued 10 days after White was released from jail
and therefore any visitation restrictions were lifted within White’s first 10
days in residential treatment.  It also
is unclear if this minute order was issued because of any restrictions on
visitors at the residential facility or because of other matters surrounding
the child custody dispute involving these children.    






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Description Appellant Roy Hughes White contends he is entitled to an award of additional custody credits in the amount of 687 days for time spent in two residential treatment facilities. The trial court did not award any custody credits for time spent in residential treatment facilities. The People contend that only the first 14 days in a treatment facility were sufficiently restrictive to constitute custody and that White should be awarded an additional 14 days of custody credits.
We agree with the People that the balance of the residential treatment program, where White was permitted freedom to leave, was not so restrictive as to warrant an award of custody credits. Therefore, we will modify the judgment to award an additional 14 days of custody credits and in all other respects will affirm the judgment.
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