Super. Ct. No. CRF050006707
The opinion of the court was delivered by: Nicholson , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
At around 1:46 a.m., an officer spotted defendant Trevor Michael Hoffman driving his Volkswagen Jetta without a front license plate. Defendant did not stop when the officer activated his overhead lights, but pulled over to the right side of the road after the siren was activated. The officer got out of the patrol car, but defendant drove away.
The officer activated his light and siren and pursued defendant, who drove 60 miles per hour in a 30 mile-per-hour zone. The officer temporarily lost sight of the car, later finding the Jetta upside down on the south side of the road. Arriving, the officer saw defendant jump a fence next to an apartment complex.
Pieces of concrete were broken off from the center divider and a tree was stripped of its bark at the point of impact. There were two 3-inch gouges in the road from the Jetta's rims, as the tires were flat when the car crossed the center island. Defendant later told an officer he was "on the run" from parole and using a lot of methamphetamine at the time.
Defendant entered a no contest plea to recklessly evading a police officer (Veh. Code, § 2800.2, subd. (a)), failing to stop at the scene of an accident resulting in property damage (Veh. Code, § 20002, subd. (a)), driving with a suspended license (Veh. Code, § 14601.2, subd. (a)), and reckless driving (Veh. Code, § 23103, subd. (a)), while admitting a prior prison term enhancement (Pen. Code, § 667.5, subd. (b); subsequent undesignated statutory references are to the Penal Code). The court sentenced defendant to a four-year prison term, suspended execution of sentence, and placed him on probation under felony drug court supervision. Probation could be revoked if defendant tested positive for drugs, failed to take a drug test, or failed to appear in court. Defendant also waived custody credits for time spent in the residential treatment program.
The court subsequently found defendant in violation of his probation after he failed to take a drug test and knowingly missed a scheduled court date. Defendant was sentenced to the original term of four years in prison. Over defendant's objection, the court did not award custody credits for time spent in the residential drug treatment facility.
On appeal, defendant contends the denial of custody credits violated due process as it was not based on an individualized determination of defendant's circumstances. We affirm.
This case involves hearings before the two trial court judges: Judge David Rosenberg, who took defendant's no contest plea and solicited the waiver of custody credits, and Judge Janet Gaard, who sentenced defendant on the probation violation and upheld the waiver. Taking defendant's no contest plea, Judge Rosenberg declared he would suspend a prison term and place defendant on felony probation drug court, a "rigorous program, which includes a residential treatment component." At the hearing on probation conditions, Judge Rosenberg sought and received without objection defendant's waiver to custody credits for time spent in the residential treatment program.
When defendant was sentenced on the violation of probation, counsel objected to the waiver of credits for time spent in the residential treatment program, arguing the waiver was not a product of the court's exercise of its discretion to sentence defendant. In denying the motion, Judge Gaard made the following statement: "Felony probation drug court is a type of probation offered to an extremely small number of people who come to the Yolo County court. [¶] . . . [¶] In the program all defendants are required to waive their custody credits while they are in residential treatment. [¶] . . . [¶] In this case the judge gave [defendant] an opportunity to participate in felony probation drug court. [¶] The judge, Judge Rosenberg, was well aware of what was required having been the drug court judge for two and a half years prior to his felony trial assignment. [¶] He expressly mentioned the waiver of credits while defendant . . . was in residential treatment, and he changed the presentence credits to be applied as set forth in the terms and conditions. So [defendant] got no credits on his felony conviction."
Under section 2900.5, a defendant sentenced to state prison is entitled to credit against his prison term for days spent in custody before sentencing and after sentencing as a probation condition. (People v. Johnson (2002) 28 Cal.4th 1050, 1053.) Custodial time spent in a residential drug treatment facility as a condition of probation is to be counted upon the term of imprisonment. (§ 2900.5, subds. (a) & (f).) Although it is permissible to waive accrual of future credit spent in a ...