People v. Sylvestry

• Decision Date: 09 October 1980
• Docket Number: Cr. 17706
• Court: California Superior Court
• Parties: 112 Cal.App.3d Supp. 1 The PEOPLE, Plaintiff and Appellant, v. Barbara Marie SYLVESTRY, Defendant and Respondent. Appellate Department, Superior Court, Los Angeles County, California

Page 575

169 Cal.Rptr. 575

112 Cal.App.3d Supp. 1

The PEOPLE, Plaintiff and Appellant, v. Barbara Marie SYLVESTRY, Defendant and Respondent.

Cr. 17706.

Appellate Department, Superior Court, Los Angeles County, California.

Oct. 9, 1980.

Burt Pines, City Atty., Rand Schrader and Peter W. Mason, Deputy City Attys., for plaintiff and appellant.

Wilbur F. Littlefield, Public Defender, Dennis A. Fischer, Thomas E. Grodin and John Hamilton Scott, Deputy Public Defenders, for defendant and respondent.

SAETA, Judge.

This case involves the legality of giving a defendant credit against a mandatory jail term for time spent in a rehabilitation facility as a result of a release on own recognizance. We have concluded that such credit was properly given.

On November 15, 1978, defendant was charged in a two-count complaint with violating, in count I, Health and Safety Code, section 11550 (use or under the influence of an opiate) and, in count II, Business and Professions, Code section 4143 subdivision (a) (possession of a hypodermic needle and syringe). Defendant was arraigned and entered a not guilty plea. The matter was set for trial on February 28, 1979. On that date defendant changed her plea to guilty to count I and count II was dismissed. The case was continued for sentence to June 1, 1979. The reporter's transcript shows an indicated disposition was given, as follows: probation would be imposed with a condition of 90 days in jail and credit for time served in a rehabilitation facility. Health and Safety Code, section 11550 (hereafter § 11550) mandates service of 90 days in jail either outright or as a condition of probation. ¹

The docket indicates that defendant was advised and understood that the People might appeal the indicated sentence and that if the appellate court reversed the sentence defendant would be permitted to withdraw her plea and go to trial or let the plea stand and serve 90 days in jail in addition to the time she spent in the rehabilitation facility. The People opposed the indicated sentence.

On May 15, 1979, on petition of the People, the superior court issued an alternative writ of mandate commanding the trial court to either vacate its order of February 28, 1979, and sentence defendant to 90 days in jail without post-conviction credit for time served in a drug rehabilitation facility, or to show cause on May 23 why the court should not so order.

Prior to the return date on the alternative writ, on May 21, 1979, the case was advanced on the trial court's calendar from June 1 and defendant moved to withdraw her guilty plea and enter a not guilty plea and be released on her own recognizance (O/R) on condition that she enter a custodial drug treatment program and remain there until further court order. ² There was no objection by the People and the motion was granted. Defendant was released O/R on condition that she enter a drug treatment facility and not leave without court order. The court was to be notified within 24 hours if defendant left the program. The case was reset for trial on July 30.

The next day, the People, having second thoughts, moved to vacate and/or stay the order permitting defendant to withdraw her plea. The court stated that it was without power to grant such a motion. No grounds or authority were advanced by the People to vacate the previous order. That order was properly grounded on the court's promise of February 28, 1979. Not only had the deputy city attorney in court on May 21, 1979, acquiesced in the withdrawal of the plea, a member of the appellate section of the city attorney's office had stated to defense counsel that there was no objection to the withdrawal of the plea and setting the case for trial. In addition, the prosecutor stated that the May 21 order did not violate the terms of the alternative writ. On May 22 the only real objection was the setting of the trial on July 30, whereupon the court reset the case for July 16.

The People again petitioned for writ relief-this time to order the trial court to vacate its order of May 21 postponing the trial to July 16. (Actually the setting of July 16 came in the order of May 22, not May 21.) The writ was denied on June 26 on the ground it was premature.

Defendant failed to appear for trial on July 16 and her O/R release was revoked and a bench warrant issued. O/R was reinstated on July 18 when defendant appeared and the matter was trailed for trial to July 20. On July 20 defendant again changed her plea and the court made the following findings:

(1) Impact House was a custodial rehabilitation facility within the terms of Penal Code, section 2900.5 (hereafter § 2900.5);

(2) Custody in that facility was attributable to the present offense; and

(3) The facility was custodial based on the testimony of a counselor from Impact House.

Defendant entered a plea of nolo contendere to count I; count II was again dismissed on the motion of the People. Defendant was sentenced to 180 days in county jail. Execution of sentence was suspended and she was placed on probation for 24 months on condition that she serve 90 days in the county jail. She was then given credit for 68 days presentence time served plus 22 days good time/work time based on her confinement in Impact House. She was further ordered to complete a six-to-nine month program in that facility as a condition of probation. The People appeal the granting of credit for time served as an order made after sentence. (People v. Belton (1978) 84 Cal.App.3d Supp. 23, 26, 149 Cal.Rptr. 231).

The analysis of the issue on appeal centers on the following questions: 1. Was Impact House a custodial facility within the terms of section 2900.5, subdivision (a)? ³

2. Was defendant's stay in Impact House attributable to proceedings related to the same conduct for which she had been convicted within section 2900.5, subdivision (b)? ⁴ and;

3. Is section 2900.5 in conflict with section 11550? Our answers to these three questions are: Yes, Yes, and No, respectively.

1. The court's finding that Impact House constituted a custodial residential institution for purposes of section 2900.5, subdivision (a) was supported by substantial evidence. A similar facility was found to qualify for credit in People v. Rodgers (1978) 79 Cal.App.3d 26, 30-33, 144 Cal.Rptr. 602; see also, In re Wolfenbarger (1977) 76 Cal.App.3d 201, 205-206, 142 Cal.Rptr. 745.

2. The applicability of section 2900.5 to credit for time served in a foreign jurisdiction was discussed in In re Watson (1977) 19 Cal.3d 646, 139 Cal.Rptr. 609, 566 P.2d 243. There the court stated that "(t)he crucial element of the statute is not where or under what conditions the defendant has been deprived of his liberty but rather whether the custody to which he has been subjected 'is attributable to charges arising from the same criminal act or acts for which the defendant has been convicted.' (§ 2900.5, subd. (b).)" (Ibid. at p. 651, 139 Cal.Rptr. 609, 566 P.2d 243.) This was further elaborated in In re Rojas (1979) 23 Cal.3d 152, 155-156, 151 Cal.Rptr. 649, 588 P.2d 789, wherein the court stated "... a defendant is not to be given credit for time spent in custody if during the same period he is already serving a term of incarceration." In the present case, defendant was not in custody on any other offense, so her time in Impact House could only be attributable to the present charge. Even though defendant accepted placement in Impact House, she was there pursuant to a court order stemming directly from the criminal proceedings.

This leads to a consideration of the legality of the order that defendant be committed to a drug rehabilitation facility as a condition of her release upon her O/R. The propriety of one custody order in an O/R release context was addressed in In re Noland (1978) 78 Cal.App.3d 161, 144 Cal.Rptr. 111. In that case an O/R was terminated 10 days before trial even though defendant had not failed to make any appearance. The court construed Penal Code, sections 1318.4 and 1318.6 to preclude custody orders terminating O/R releases unless the court made a finding, in open court, that the defendant had failed to appear or had violated any condition of the order releasing him O/R or that there had been a change of circumstances which increased the risk of failure to appear or that additional facts had been presented which were not known at the time of the original order releasing the defendant. (Id. at pp. 164-166, 144 Cal.Rptr. 111).

The facts of our case differ from those in Noland. Here the O/R release at its inception was conditioned on defendant's staying in Impact House. This was an original condition, not the Noland situation of a change in conditions based on no new circumstances. We see nothing wrong with imposing the Impact House confinement as a condition of an O/R release. No case has been cited to us that would forbid such a condition. Restricting an O/R release in this manner was well within the discretion of the trial judge, especially here where he was dealing with a possible narcotic addict. Tailoring an O/R release to the needs and situation of the individual defendant is within the power of the trial court.

Further, since neither the People nor defendant objected to the condition and since defendant complied with the order until she entered her plea of nolo contendere, it would be unfair to hold that her stay in Impact House was not attributable to either the pending charges or an order of the court.

3. Section 11550, the text of which appears in footnote 1, requires a minimum of 90 days confinement in county jail. In People v. Belton (1978) 84 Cal.App.3d Supp. 23, 149 Cal.Rptr. 231, it was held that a defendant convicted under this section must be sentenced to at least 90 days in jail and that any sentence which did not require this as a straight sentence or condition of probation was void and beyond the power of the trial court. That court noted that one defendant raised the issue of...