People v. Pottorff

• Decision Date: 06 August 1996
• Docket Number: No. A067363,A067363
• Citation: 47 Cal.App.4th 1709,55 Cal.Rptr.2d 536
• Parties: , 96 Cal. Daily Op. Serv. 5913, 96 Daily Journal D.A.R. 9637 The PEOPLE, Plaintiff and Respondent, v. James Harvey POTTORFF, Defendant and Appellant.
• Court: California Court of Appeals

Page 536

55 Cal.Rptr.2d 536

47 Cal.App.4th 1709, 96 Cal. Daily Op. Serv. 5913,

96 Daily Journal D.A.R. 9637

The PEOPLE, Plaintiff and Respondent, v. James Harvey POTTORFF, Defendant and Appellant.

No. A067363.

Court of Appeal, First District, Division 3, California.

Aug. 6, 1996.

Review Denied Nov. 26, 1996. ^*

Thomas J. Nolan, Daniel L. Barton, Nolan & Armstrong, Palo Alto, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Catherine A. Rivlin and Jeffrey Bryant, Deputy Attorneys General, for Plaintiff and Respondent.

McGUINESS, Associate Justice. ^*

James Harvey Pottorff appeals from the sentence he received after pleading no contest to 19 counts of committing a lewd or lascivious act with a child. He contends that the court erred in refusing to award him presentence custody credit for the time he spent on bail subject to certain restrictions. We disagree. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

After appellant's arrest on December 1, 1993, the San Mateo District Attorney charged him by complaint with 12 counts of committing a lewd or lascivious act with a child (Pen. Code, § 288, subd. (a)), ¹ and alleged that he was ineligible for probation because he occupied a position of special trust with the victims (former § 1203.066, subd. (a)(9)). The municipal court set bail at $200,000. On December 8, the district attorney filed an amended complaint alleging 38 counts under section 288 and appellant's probation ineligibility under former section 1203.066, subdivision (a)(9), as to 37 of the counts.

At a December 8, 1993, bail status hearing, the prosecution asked that the court increase bail to at least $400,000 in light of the additional charges. The court rejected this request and permitted appellant to post bail by way of property bond. In so doing, the court imposed additional conditions on appellant's release, including the following: "I want to have the O.R. [Own Recognizance] Project involved in this. I want regular contact made with [appellant] and when bail is posted, [appellant] is either going to reside at his present address or at the home of his mother, and he may not reside in any other place." The court later continued: "You may not be in any place other than your place of residence, the place of employment, or a place related to the preparation of this case or pertaining to these charges and these issues. You must remain at home unless you are engaged in business pertaining to this case or in your employment." Appellant accepted these conditions.

Appellant remained on bail subject to these conditions until the court modified them on March 16, 1994. ² At that time, the court granted appellant's motion to have two supervised visits with his natural daughter through the Family Visitation Center. The court later denied appellant's request for unsupervised visitation with his daughter. However, on April 15, 1994, it again modified appellant's bail conditions by allowing him to attend counseling.

On May 18, 1994, appellant pleaded no contest to 19 of the charged counts and admitted the truth of 1 probation ineligibility allegation. As part of a plea agreement, the court was to dismiss the remaining charges and consider imposing "a sentence range of 15 to 24 years" in prison. On July 22, 1994, the court imposed a 20-year prison sentence and remanded appellant into custody. In imposing sentence, the court rejected appellant's claim that he should receive custody credit pursuant to section 2900.5 for the time he was released on bail.

Appellant then formally moved for an award of further custody credit under section 2900.5. In opposing the motion, the prosecution submitted the declaration of a deputy district attorney recounting his conversation with Debbie Keller, the O.R. Project (Project) representative who monitored appellant during his bail release. ³ Keller told the deputy district attorney the following: (1) appellant "was required to call into the [Project] twice a week and to personally appear at the [Project] once a month"; (2) appellant "was very reliable" and "never missed a phone call or an appearance"; (3) because she did "not have the physical ability to go out and visit her various defendants on a daily basis since she has 80 cases, and in part because [appellant] was so reliable, she never went out to personally check to see if he was where he was supposed to be"; (4) she twice "called [appellant's] mother's house to see if [appellant] was there," and both times she "talked to [appellant's] mother and was told that he was there"; (5) appellant once called her "and asked her if he could go out and have dinner with his friends, and she told him that he could not"; (6) appellant informed her "when he was going to the dentist"; and (7) appellant "had a job working at a ranch" that she believed appellant's mother owned, and he said that he went out to pick things up as part of his job. After hearing, the court denied the motion. This timely appeal followed.

DISCUSSION

Appellant's sole contention on appeal is that the court erred in refusing to award further custody credit under section 2900.5 for the time he was on bail release. Subdivision (a) of section 2900.5 provides in relevant part: "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, similar residential institution, or home detention program, all days of custody of the defendant ... shall be credited upon his or her term of imprisonment...." Appellant does not argue that he was participating in a "home detention program" under section 2900.5, but asserts that principles of equal protection require that he receive custody credits under the section because the terms of his release were no less restrictive than the terms of such programs.

In making his argument, appellant principally relies on People v. LaPaille (1993) 15 Cal.App.4th 1159, 19 Cal.Rptr.2d 390 (LaPaille ). There, the municipal court released defendant LaPaille, who was charged with drug- and weapons-related offenses, on his own recognizance on condition that he not leave his residence except to visit his lawyer and make court appearances. (Id. at p. 1162, 19 Cal.Rptr.2d 390.) The trial court later modified LaPaille's release terms by allowing him to leave his home for approximately 30 minutes in the morning and afternoon to accompany his daughter to and from the bus stop. (Id. at p. 1163, 19 Cal.Rptr.2d 390.) LaPaille sought custody credit under section 2900.5 for the time he spent confined to his residence, arguing that his confinement was part of a "home detention program" under subdivision (a) of that section. (LaPaille, supra, 15 Cal.App.4th at pp. 1163-1164, 19 Cal.Rptr.2d 390.) On appeal, the court disagreed, finding "[t]hat in referring to 'home detention programs' in [section 2900.5], 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...." ⁴ (LaPaille, supra, 15 Cal.App.4th at p. 1165, 19 Cal.Rptr.2d 390.)

However, LaPaille further held that principles of equal protection required that LaPaille receive custody credit under section 2900.5 because he "was subject to restraints at least as confining as those placed on persons in electronic home detention programs, so that his house arrest was just as 'custodial.' " (LaPaille, supra, 15 Cal.App.4th at p. 1169, 19 Cal.Rptr.2d 390.) The court based its conclusion on the following factors: "The trial court ordered [LaPaille] to remain at his home, except for visits to his lawyer and court appearances. At some time during his lengthy home confinement, the [trial] court gave him permission to leave his home to walk his daughter to and from the school bus. The probation department or release clerk called [LaPaille] to verify that he was complying with his confinement. There is no indication that [LaPaille] ever left his home to attend medical or dental appointments, or to participate in any counseling sessions. He was on complete disability due to his heart condition, and thus did not work." (Ibid.) Comparing LaPaille's confinement to that of participants in electronic home detention programs (hereafter section 1203.016 participants), the court found the "only real difference[ ]" to be the method for verifying a defendant's whereabouts; the latter involved electronic tracking, while the former involved "telephone calls to the residence." (LaPaille, supra, 15 Cal.App.4th at p. 1170, 19 Cal.Rptr.2d 390.) The court concluded that this "procedural difference[ ]" was not a legitimate basis "for treating [LaPaille] differently from those placed in electronic home detention programs...." ⁵ (Ibid.) Citing LaPaille, appellant argues that he is entitled to further custody credit as a matter of equal protection.

The basic principle of equal protection is "that persons similarly situated with respect to the legitimate purpose of the law [must] receive like treatment." (Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578, 79 Cal.Rptr. 77, 456 P.2d 645.) This principle, however, "does not require things which are different in fact or opinion to be treated in law as though they were the same." (Tigner v. Texas (1940) 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124.) "Neither the Fourteenth Amendment of the Constitution of the United States nor the California Constitution (art. I, § 7; art. IV, § 16) precludes legislative classification with respect to persons who are different. [Citation.]" (People v. Jacobs (1984) 157 Cal.App.3d 797,...