IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
January 12, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RAYMOND GARDUNO OBREGON, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. CRF102348 & CRF073877)
The opinion of the court was delivered by: Duarte , J.
P. v. Obregon
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appointed counsel for defendant Raymond Garduno Obregon has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We shall remand to the trial court to conduct a hearing on defendant's entitlement to additional custody credit, as we explain post, and shall otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On July 9, 2007, during a traffic stop, an officer conducted a parole search on defendant and found .35 grams of methamphetamine. Defendant was charged with transportation of methamphetamine (case No. CRF073877; Health & Saf. Code, § 11379, subd. (a)) and entered a no contest plea, admitted a prior prison term allegation (Pen. Code, § 667.5, subd. (b)), and was granted Proposition 36 probation.
Within a month, defendant violated probation by failing to appear at an appointment with the probation officer as well as for his drug treatment program assessment, and by failing to register as a drug offender. Defendant did not appear at a probation revocation hearing because he was in custody on a parole violation. Upon his release after serving time on the parole violation, he admitted the probation violation allegations and was reinstated on Proposition 36 probation.
Five months later, defendant violated probation by failing to meet with his probation officer and by failing to enter and successfully complete a substance abuse treatment program. He had been discharged from Cache Creek Lodge residential program for twice recycling the facility's property and for his resistance in groups and towards staff. Defendant failed to appear at a court hearing on the allegations. When he did appear two months later, he was subject to a parole hold. He admitted the probation violation allegations and, when he was scheduled to be released from custody on the parole violation, he was ordered to report to probation. When he was released, parole placed defendant in a residential program.
Upon his release from the residential program, he violated probation by failing to contact his probation officer, failing to keep appointments, update his residence address, and make payments on his financial obligations. He also committed new offenses.
On April 8, 2010, during an argument between defendant and the woman he had been dating, he grabbed her by the face and throat and slammed her head into a car window, injuring her. Defendant was charged (in Yolo County case No. CRF102348) with assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), dissuading a witness from reporting a crime (Pen. Code, § 136.1, subd. (c)(1)) and second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)); it was also alleged that he had served a prior prison term (Pen. Code, § 667.5, subd. (b)). A bench warrant was issued.
On May 12, 2010, in Sutter County, defendant was sentenced in a separate case to state prison for 16 months for possession of methamphetamine (case No. CRF101032; Health & Saf. Code, § 11377, subd. (a)).
In case No. CRF102348, defendant entered a plea of no contest to assault by means of force likely to produce great bodily injury as a nonstrike offense in exchange for the midterm sentence of three years in prison; the remaining counts were dismissed. Based on defendant's plea, the court found that defendant violated probation in case No. CRF073877. Defendant entered his plea and admissions with the understanding that he would receive a sentence of five years and eight months in prison: the midterm of three years for assault, one-third the midterm (one year) consecutive for the transportation offense, one year for the prior prison term, and one-third the midterm (eight months) consecutive for the Sutter County possession offense. The court sentenced defendant accordingly. The court awarded 126 actual days and 126 conduct days for a total of 252 days of presentence custody credit. The court later modified the judgment, awarding 151 actual days and 151 conduct days for a total of 302 days of presentence custody credit.
Defendant timely appealed in both case Nos. CRF102348 and CRF073877.
Counsel filed an opening brief that sets forth the facts of the case and asks us to determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant has filed a supplemental brief raising two issues.
Defendant first contends that his sentence was deemed concurrent when initially imposed in Sutter County and then changed to consecutive when he was resentenced in Yolo County. The abstract of judgment from Sutter County reflects that the court imposed a low-term sentence of 16 months in prison for possession of methamphetamine; the court did not run the 16-month sentence concurrent with any other sentence.*fn1 When defendant was resentenced on the same offense in Yolo County, the court properly imposed a consecutive sentence of one-third the midterm, or eight months in prison, for the Sutter County possession charge, thereby taking into account the other offenses of conviction and their sentences. There was no error.
Defendant next contends he is entitled to additional presentence custody credit for three separate periods of time. We note that counsel is seeking modification of custody credit in the trial court, asserting the same claims as defendant does here; as of this writing the hearing in the trial court is scheduled for January 17, 2012.
A. Residential Treatment
Defendant first claims he is entitled to credit for time spent in residential treatment, 90 days in Eagle Recovery and 75 days in Cache Creek Lodge. The record on appeal reflects that defendant was placed in Eagle Recovery by parole and such placement was considered transitional housing. Defendant's placement in Cache Creek Lodge was also labeled transitional housing, but was paid for by Proposition 36 funding. The record does not reflect that defendant was awarded credit for either placement.
A defendant is entitled to time spent "in custody," which includes time spent in a residential treatment program, but whether a facility is sufficiently restrictive to amount to custody is a question of fact for the trial court. (Pen. Code, § 2900.5, subd. (a); People v. Ambrose (1992) 7 Cal.App.4th 1917, 1921-1922.) Because the record does not reflect that the trial court has yet made a determination as to whether defendant's time spent in Eagle Recovery and Cache Creek Lodge constituted custody for which credit should be given, we must remand the matter for a hearing on custody credit.
B. Credit as a Sentenced Prisoner
Defendant also claims that he is entitled to credit for the period from May 13, 2010, through September 27, 2010, when he was a sentenced prisoner from the Sutter County possession case and had not yet been taken into custody on the arrest warrant out of Yolo County. Defendant appears to be correct on this point--if he was serving the time between May and September 2010 only for the Sutter County possession case, that time served should be credited toward his sentence at the time of his new commitment. (See Pen. Code, §§ 2900.1, 2900.5, subds. (a) and (b).)
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
The matter is remanded to the trial court to conduct a hearing on defendant's entitlement, if any, to additional custody credit for his time in residential treatment. The trial court is further directed to determine defendant's entitlement to additional custody credit for that portion of defendant's sentence which may have been served prior to his new commitment upon his resentencing. The judgment is otherwise affirmed.
We concur: BLEASE , Acting P. J. HULL , J.