People v. Lapaille, No. E011153

• Decision Date: 10 May 1993
• Docket Number: No. E011153
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. John Clarence LAPAILLE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 390

19 Cal.Rptr.2d 390

15 Cal.App.4th 1159

PEOPLE of the State of California, Plaintiff and Respondent, v. John Clarence LAPAILLE, Defendant and Appellant.

No. E011153.

Court of Appeal, Fourth District, Division 2, California.

May 10, 1993.

Review Denied Aug. 13, 1993.

[15 Cal.App.4th 1161] Steven A. Schutte, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Holly D. Wilkens, Supervising Deputy Atty. Gen., and Rhonda L. Cartwright, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

McKINSTER, Associate Justice.

FACTUAL AND PROCEDURAL HISTORY

The issues in this case are (1) whether defendant, who spent most of the time before sentencing on house arrest as a condition of release on his own recognizance, is entitled to presentence custody credit pursuant to Penal Code section 2900.5, as amended in 1991; (2) if not, whether denying him such credits, while allowing them to persons in electronic home detention programs, is a denial of equal protection; and (3) if entitled to custody credit, whether he is also entitled to good time/work time (conduct) credits under section 4019. ¹

Undercover police officers arrested defendant and his wife after the couple had bought 20 pounds of ephedrine from the officers in a controlled buy. ² Defendant had told a police informant that he wanted the ephedrine for the purpose of manufacturing methamphetamine. He told the undercover officers that he was going to "cook" a batch of methamphetamine. After the couple's arrest, defendant maintained that he had become involved in a scheme to manufacture methamphetamine in order to obtain the drug for his own use. He explained that he had been addicted to methamphetamine since 1958, and that he had recently suffered a heart attack as a result of this addiction, rendering 40 percent of his heart muscle dead. He was on complete disability as a result of the condition of his heart.

Police searched defendant and his wife after their arrest, and also searched their home. They found four bags of methamphetamine weighing a total of 15.59 grams, an Ohaus scale, several weapons, and nearly $8500 in cash. Defendant was charged with six different offenses, and eventually pled guilty to one count each of sale or transport of methamphetamine and being a felon in possession of a gun. According to a plea bargain, the trial court sentenced him to a total of three years and eight months in prison.

Apparently the municipal court released defendant on his own recognizance shortly after his arrest, on the condition that he not leave his place of residence except to visit his lawyer and make court appearances (he served only three days in jail pending sentencing). At the preliminary hearing, after defendant had been bound over to the superior court, the magistrate ordered that he "remain on home detention." The minute order entered after the hearing reflects that defendant was "released O.R. and informed of the provisions of P.C. 1320 [the section explaining the consequences of willful failure to appear after being placed on own recognizance]," with a handwritten notation below stating "home detention."

Defendant remained at his residence until his sentencing, a total of 371 days. The minute order entered after defendant's arraignment in superior court states that defendant was "released to house arrest," while the reporter's transcript of the arraignment reflects that defendant's counsel explained to the superior court that defendant was "on a form of house detention due to a medical problem." A minute order continuing defendant's trial readiness conference reflected that his status remained the same. At another interim hearing, defendant's counsel requested that defendant's "home detention" be modified so that he could walk his daughter to and from the school bus. The trial court modified his "home detention" to "allow him to leave the home for 30 or so minutes in the morning and afternoon to pick up his daughter from the bus stop."

At the hearing in which defendant changed his plea to guilty, his attorney reported to the court: "He [defendant] is on home detention. It is my understanding that he has responded to each and every call that they have made from the Home Detention Unit. And if it would have been the case otherwise the Court would have heard from the release clerk." Finally, after entering his plea defendant requested that he be released from "home detention" to assist his wife in moving and in placing their belongings in storage. The trial court stated that it would remove defendant from "home detention" and place him on "straight O.R.," if he and his wife would waive their fourth amendment rights so that the authorities could come in and search the house at any time during his release on his own recognizance (O.R.). Defendant and his wife agreed to this provision, and the trial court explained the search term to them.

At his sentencing hearing, defendant's counsel requested that the trial court award custody credits to defendant for the 371 days which he had spent confined to his residence. The court refused this request. Defendant's appeal is based solely on this refusal to award credits.

DISCUSSION

I.

APPLICATION OF SECTION 2900.5 TO "HOME DETENTION" AS A CONDITION OF O.R.

Defendant contends that section 2900.5, as amended in 1991, requires that he receive presentence custody and good time/work time credits on his sentence for the time he spent in "home detention" as a condition of release on O.R. ³ He argues that the added words, "home detention program," were meant by the Legislature to include the house arrest condition of O.R. under which he was confined to his home, and that the Legislature's purpose in amending the statute was to supersede the holding in People v. Reinertson (1986) 178 Cal.App.3d 320, 223 Cal.Rptr. 670. Reinertson had held that home detention as a condition of probation was not sufficiently "custodial" to warrant award of credits against a prison sentence which had been suspended until the defendant's probation was revoked. (Id., at pp. 323, 327, 223 Cal.Rptr. 670.) Respondent argues that the words "home detention program" in the amended statute refer only to statutorily authorized electronic home detention programs established under section 1203.016, not to home detention as a condition of O.R.

In order to understand and apply section 2900.5, subdivision (a), it is necessary to examine the text of A.B. 688 and its legislative history. Section 2900.5, subdivision (a) was originally enacted in 1971. At first it covered only presentence custody in county jail, but it has been amended several times to cover other custodial settings. (51b West's Ann.Pen.Code (1982) Historical Note, p. 183.) The subdivision was added to the Penal Code to eliminate the unequal treatment of indigent defendants who would otherwise spend a longer time confined for their crimes than those who could afford to post bail pending disposition of their cases, and also of those who were unable to obtain bail for other reasons. People v. Riolo (1983) 33 Cal.3d 223, 228, 188 Cal.Rptr. 371, 655 P.2d 723.) It reflected "the basic philosophy that when a person is incarcerated he is being punished by the reality of incarceration." (Ibid.)

Section 2900.5, subdivision (a) was amended in 1991 pursuant to Assembly Bill (A.B.) 688. (No. 6 West's, Cal.Legis. Service, (1991) ch. 437, pp. 1956-1961.) The purposes of A.B. 668, according to the Legislative Counsel's Digest, were to (1) provide for a uniform, efficient way for county boards of supervisors to set rates of and collect administrative fees from county prisoners participating in work furlough, home detention, and parole programs; and (2) award prisoners in custody in a home detention program credit against their sentences for such custody, just as prisoners in institutional custodial programs already received such credit. (Id., at pp. 1956-1957.)

That in referring to "home detention programs" in A.B. 688, the Legislature meant only electronic home detention programs established under section 1203.016, in which the prisoner is permitted to be at his or her home but must wear an electronic tracking device at all times, and submit to other statutory restrictions, is clear from the text of the bill and other legislative materials, as we explain below.

A.B. 688 added several sections to the Penal Code establishing specific guidelines which program administrators of statutory work furlough, electronic home detention, and parole supervision programs must follow in levying and collecting supervision fees: Section 1203.1e covers parole supervision fees; section 1203.1f permits consolidation of probation and parole supervision fee hearings; section 1208.2 governs fees for work furlough programs established pursuant to section 1208 and "electronic home detention program[s]" set up under section 1203.016 ⁴; and section 1208.3 requires an administrator of such a work furlough program to verify that a participant is receiving legal wages and is covered by workers' compensation, and to take other steps to ensure the prisoner is not being exploited. (No. 6 West's, Cal.Legis. Service, ch. 437 at pp. 1957-1959.)

In addition to the sections which A.B. 688 added to the Penal Code, the bill amended section 1208.5 to allow prisoners serving in electronic home detention programs established under section 1203.016 to transfer from one county's program to that of another county. (No. 6 West's, Cal.Legis. Service, ch. 437 at pp. 1959-1961.) In amended section 1208.5, section 1203.016 electronic home detention programs are referred simply as "home detention" programs. ⁵ (Ibid.) The Legislature provided that the amendment to section 1208.5, as well as all the above-described additions to the Penal Code, would remain operative only until 1995. (Id., at pp....