Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FMB006490. Bert L. Swift, Judge.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
Defendant Marty L. Derowitsch pled no contest to possession of a controlled substance (count 2—Health & Saf. Code, § 11377, subd. (a)), driving under the influence of alcohol or drugs (count 3—Veh. Code, § 23152, subd. (a)) and admitted as to count 3 that he had two prior convictions for driving under the influence. The trial court granted defendant probation and, in lieu of incarceration, permitted defendant to enroll in a drug program. Defendant violated probation on two occasions, received several custody sanctions in the interim, and spent several periods incarcerated prior to the revocation of his probation. After revoking defendant’s probation, the court imposed a three-year prison term with credits for a total of 526 days.
The second page of the probation officer’s report prepared for the hearing on April 7, 2008, itemized the nine separate periods of incarceration defendant incurred while on probation.
On appeal, defendant contends that the court erroneously deprived him of conduct credits for the time he spent incarcerated prior to sentencing. Defendant requests this court remand the matter to the trial court with instructions that it compute and grant defendant the proper conduct credits. The People concede that defendant is entitled to receive conduct credits for the time he spent incarcerated prior to his acceptance into the drug court program and after his termination from it, in their computation, a total of 28 additional days. However; the People contend defendant waived accumulation of conduct credits for the periods he spent incarcerated while enrolled in the drug court program as a condition of his admission. On March 2, 2009, we granted the People’s request to take judicial notice of defendant’s purported drug court application in which he allegedly initialed a provision waiving all conduct credits. However, we now determine that that request was improvidently granted. Thus, we will remand the matter to the trial court for a redetermination and recalculation of the conduct credits to which defendant is entitled in accordance with the views expressed herein.
FACTUAL AND PROCEDURAL HISTORY
As a consequence of defendant’s plea, the court granted defendant three years probation, a term of which required him to serve 270 days in jail with six days credit for time already served and conduct credit pursuant to Penal Code section 4019. Defendant enrolled in a drug program on February 15, 2004, and anticipated completion of the program on June 13, 2004. He requested the court permit him to complete the program before serving his jail time. The court granted his request; it ordered him to surrender to the jail at Glen Helen on June 14, 2004.
All further statutory references are to the Penal Code unless otherwise indicated.
On June 11, 2004, defendant requested the opportunity to attend a six month live-in drug treatment program provided by the Salvation Army in lieu of serving his time at Glen Helen. Defense counsel noted that defendant “would only be getting day-to-day credits, and he would actually do more time than he would if he were to do the time at Glen Helen.” The court granted the request, ordering the term of his probation requiring that he serve 270 days in jail stayed pending his completion of the Salvation Army program.
On June 1, 2005, the People filed a petition to revoke defendant’s probation. The probation officer’s report tallied defendant’s total days in custody as 12, observing that he had served all his additional time in rehabilitation programs. A supplemental probation officer’s report dated July 20, 2005, reflected that defendant had been accepted into drug court and recommended defendant’s probation be continued and extended under the original terms and conditions, modified only to add that he participate in and complete the drug court rehabilitation program.
On August 12, 2005, defendant admitted all allegations in the petition. The court indicated that it would follow the recommendation contained in the supplemental probation officer’s report and continued defendant’s probation to July 27, 2008, under the original terms and conditions with the added condition that he complete the drug court rehabilitation program. Defendant accepted the terms of his probation as modified.
This court took judicial notice by order dated March 2, 2009, of a drug court application dated June 28, 2005, in which defendant apparently purported to “waive all [section] 4019 credits as a condition of participating in the DRUG COURT TREATMENT PROGRAM.”
The trial court subsequently imposed custody sanctions on defendant on September 29, 2005, and February 2, 2006. On March 9, 2006, the court continued defendant’s probation adding a modified term requiring that he serve 180 days in jail with zero credit for time served and complete the Inroads drug program. On March 19, 2007, defendant was given a 60-day custody sanction with the court noting that “this will be defendant[’]s last chance.” On March 26, 2007, the court ordered defendant to surrender to probation on March 30, 2007, for service of a 48-hour custody sanction and to report to drug court on April 2, 2007. On April 2, 2007, defendant was ordered to surrender to probation on April 6, 2007, to complete service of a remaining 58 days of custody sanctions.
On March 10, 2008, defendant appeared in court regarding an alleged violation of his drug court probation. Defendant had been in custody since February 21, 2008. The court ordered preparation of a supplemental probation officer’s report and continued the matter. In the supplemental probation officer’s report filed April 14, 2008, the probation officer noted that defendant waived entitlement to conduct credits pursuant to his application to drug court. The probation officer recommended imposition of the three year aggravated term for count 2 and a concurrent term of 365 days in jail on count 3 with credit for 339 days of time actually served through April 7, 2008.
At the hearing on the alleged violations held on April 14, 2008, the court noted that it had read and considered the probation officer’s report. Defense counsel determined defendant’s total number of credits by using the 339 days calculated by the probation officer, adding seven days for the time elapsing since its compilation, and including an additional 180 days for defendant’s time spent in the Salvation Army program. Defense counsel requested the court award defendant an additional 126 days of conduct credits based on his time spent in jail while enrolled in the drug court program. Nonetheless, defense counsel noted that “if it is the contention that by entering into drug court, he’s waived his credits while he participated in the program, then it is my contention that the time he spent in jail prior to entering drug court and the time he has been in jail since February 21st when he was essentially terminated from the program, he should at least for those days be given good conduct credits. [¶] The probation report shows 12 days back in 2004 and 2005 before he entered drug court. He has been in custody an extra 54 days since February 21st of this year since he’s been excluded from drug court, 68 total days. Therefore, there should be another 34 days of good time. The court were to at least add that 34 days to the 526 everyone agrees is the absolute minimum, that brings up the total to 560.”
The People responded that “the waiver when they enter drug court certainly seems readily apparent that it covers past credits earned. And it has certainly been the policy of the Court in sentencing to not award [section] 4019 credits for any of the time spent in custody up to the point leading up to sentencing. And so we would just request the Court follow its normal procedure as to that.” The probation officer agreed that defendant should receive credit for the 180 days spent in the Salvation Army program and an additional seven days for the previous week’s period of incarceration. The court revoked defendant’s probation, and sentenced him to the aggravated three-year term with credit for “a total of 526 days, which includes the additional good time, plus the Salvation Army time.”
DISCUSSION
A. Defendant’s Entitlement to Conduct Credits While Enrolled in Drug Court
In his opening brief, defendant argues that the record does not support a contention that defendant waived conduct credits as a condition of his admission to drug court; thus, he maintains he is not precluded from entitlement to conduct credits for his periods of incarceration occurring while he was enrolled in that program. The People contend defendant waived his entitlement to conduct credits during his participation in the drug court treatment program. The People note that defendant’s drug court application was not part of the record on appeal; however, they notified this court that they intended to file a motion for this court to take judicial notice of the application: “Assuming, arguendo, [defendant’s] Application cannot be located, [the People] alternatively request[] that this matter be remanded so that the trial court may determine whether such a waiver was entered.” In a later supplemental brief, the People acknowledged that the drug court application was not contained in the superior court file and, therefore, they would not be requesting judicial notice of the document. Nevertheless, the People maintained that the proper procedure for determining whether defendant waived his conduct credits was to remand the matter to the trial court. In his letter in lieu of a reply brief, defendant maintained that “[i]t is not enough to argue that trial courts customarily require defendants to waive section 4019 credits as a condition of drug court. There is nothing in the record indicating that [defendant] did so in this case. The People tried to find proof of the supposed waiver, but were unable to do so. Presumably, this is because the document does not exist.” Thus, defendant argued that this court should order recalculation of defendant’s credits to include good conduct credit for the time he spent incarcerated while enrolled in drug court.
Subsequent to the initial briefing in this matter, this court obtained a purported copy of defendant’s application for admission to the drug court treatment program. By order dated February 6, 2009, we requested the parties file supplemental letter briefs addressing the following issues: (1) Whether this court could consider the document since it was not found in the superior court file, but was obtained from the probation officer’s file, and (2) If the court could consider the application, how it would affect the issues raised on appeal.
This court took judicial notice of the application by order dated March 2, 2009.
In his supplemental letter brief, defendant contends that this court cannot consider the application because it is not properly authenticated. Defendant maintains that “[t]he sole reference to the application is made by the prosecution during the sentencing hearing.” Defendant admits that he could find “no cases directly on point,” however, he argues that the “trier of fact may” not look beyond the entire record of conviction. (See People v. Trujillo (2006) 40 Cal.4th 165, 177 (Trujillo).) The People counter that the application was “at least tacitly relied upon by the sentencing court below,” and would have been included in the record on appeal but for the parties’ inadvertence; therefore, this court may appropriately rely upon it in determining that defendant waived entitlement to conduct credits for the period of time he spent incarcerated during his treatment within the purview of the drug court program.
Judicial notice may be taken of the records of any court of this state. (Evid. Code § 452, subd. (d)(1).) “In determining the propriety of taking judicial notice of a matter, or the tenor thereof,” the court is free from nearly all of the restrictions of the rules of evidence. (Evid. Code § 454, subd. (a)(2).) “With respect to any matter specified in [Evidence Code] section 452... that is of substantial consequence to the determination of the action... [¶]... the court shall afford each party reasonable opportunity... to present to the court information relevant to (1) the propriety of taking judicial notice of the matter and (2) the tenor of the matter to be noticed.” (Evid. Code § 455, subd. (a).) Reviewing courts may take judicial notice in the same manner as that provided for by trial courts. (Evid. Code § 459; People v. Preslie (1977) 70 Cal.App.3d 486 (Preslie).)
“It is manifest that [Evidence Code] section 452, subdivision (d), by its terms authorizes taking judicial notice of records on file in the action before the trial court whether or not they are in evidence in the proceedings and whether or not the trial judge relied upon them. This is, of course, not to say that the appellate court will take judicial notice of such documents or other matters if they have not been presented to the trial court; as a general rule the court should not take such notice if, upon examination of the entire record, it appears that the matter has not been presented to and considered by the trial court in the first instance” (Preslie, supra, 70 Cal.App.3d at p. 493.)
“Before the appellate court can properly act upon a request to take judicial notice of a document or other record from the trial court which is purportedly part of that record, it must be assured that the original is actually on file in the superior court and that the copy of the document or record is in fact a true and correct copy. Without such assurance the court cannot act with confidence. Accordingly, when a party desires the appellate court to take judicial notice of a document or record on file in the court below the parties should furnish the appellate court with a copy of such document or record certified by its custodian.” (Preslie, supra, 70 Cal.App.3d at p. 494-495, fns. omitted.) “This general rule undoubtedly has its exceptions, but it is the burden of the party requesting judicial notice to show good cause for not furnishing certified copies.” (Id. at p. 495, fn. 8.) In Preslie the court concluded that it should not take judicial notice of the requested documents because they were not certified. (Id. at p. 495.)
Here, it is unclear from the record whether the trial court relied on the drug court application. Nevertheless, we believe the record below demonstrates that the parties adequately raised the substantive issue to which this document related. (Preslie, supra, 70 Cal.App.3d at 494.) Contrary to defendant’s contention, the prosecutor’s remarks at sentencing were not the only reference in the record to the defendant’s purported waiver of conduct credits in the drug court application. Rather, the probation officer’s final report noted that defendant had waived conduct credits upon application to the drug court treatment program. The court noted that it had read and considered that report. Likewise, defense counsel implicitly acknowledged the waiver when he argued “if it is the contention that by entering into drug court, he’s waived his credits while he participated in the program, then it is my contention that the time he spent in jail prior to entering drug court and the time he has been in jail since February 21st when he was essentially terminated from the program, he should at least for those days be given good time credits.” Similarly, the court’s failure to award conduct credits for the time defendant spent incarcerated while participating in the drug court treatment program appears a tacit acknowledgement that defendant had waived such credits. Finally, as already acknowledged, the prosecution specifically referenced the waiver of conduct credits required by an applicant to drug court.
Moreover, the document bears sufficient indicia of its reliability as an authentic document produced in this case. The heading on the document reads “SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN BERNARDINO.” The document itself bears the superior court case number for this case in two different places. Thus, the document appears to be a superior court document rather than a probation office document. Furthermore, the document is dated June 28, 2005, and apparently bears the signatures of both defendant and his counsel below the date of June 28, 2005. Thus, the document was apparently produced during the pendency of the instant case, only shortly before the probation officer noted that defendant had been admitted to the drug court treatment program and the court continued defendant on probation with a modified term requiring his participation and completion of that very program. Defendant’s initials evidently appear within 31 boxes next to provisions regarding the terms and conditions of defendant’s admission to the drug court treatment program. As noted above, one of these conditions provides that defendant “waive all [Penal Code section] 4019 credits as a condition of participating in the DRUG COURT TREATMENT PROGRAM.” The document accurately, at that time, lists defendant’s next hearing date as July 27, 2005. The document requests defendant fill out his “true name” which defendant apparently did. The document accurately lists the sections for which defendant was initially convicted. The document contains a notation in the upper right corner of the first page reading “accepted,” which is consistent with the probation officer’s later report that defendant had been accepted into the drug court treatment program. The document accurately lists defendant’s birth date.
Defendant’s citation to Trujillo is inapposite. Trujillo narrowly held that for purposes of determining whether a defendant suffered a prior conviction for a serious felony, his statements in the probation officer’s report made after his conviction for the alleged prior offense were not permissible to prove the allegation true. (Trujillo, supra, 40 Cal.4th at pp. 179-181.) Here, neither this court nor the court below is attempting to rely upon statements made by defendant in a probation officer’s report made after a previous conviction. Rather, the current document entitled “Drug Court Application and Agreement” was apparently part of the probation officer’s file in this case. The superior court clerk transmitted the document to this court indicating it had been obtained from the probation officer’s file. The copy of the document transmitted to this court from the People bore a fax transmittal cover sheet from “JOSHUA TREE PROBATION OFFICE.” As discussed above, the document contains substantial indicators that it was, in fact, a superior court document from this case.
Nonetheless, in determining whether this court may rely on the drug court application when considering whether defendant was erroneously deprived of his conduct credits, the document’s fatal flaw is its lack of certification. (Preslie, supra, 70 Cal.App.3d at pp. 494-495.) Indeed, as noted above, the superior court clerk specifically informed this court that the document was not in the superior court file. Likewise, as the proponent of the document, the People have failed to show good cause for not furnishing a certified copy. (Id. at p. 495, fn. 8.) In a case nearly directly on point, a similarly positioned appellate court determined that where there is a factual dispute regarding the documentation required to properly determine a defendant’s entitlement to custody credits, the appellate court should remand the matter to the trial court for redetermination of those credits: “[T]his is the sort of determination trial courts are in the best position to make, aided by their administrative support including the probation department.” (People v. Fares (1993) 16 Cal.App.4th 954, 957; see also People v. Eastman (1993) 13 Cal.App.4th 668, 679-680.) This we shall do. Thus, the trial court on remand may conduct such further proceedings as it may deem necessary to determine whether defendant waived entitlement to conduct credit for the period he spent incarcerated while enrolled in drug court. If so, it may reinstate its initial determination of defendant’s credits for that period. If not, it should calculate the additional conduct credits he is entitled to receive and revise its order accordingly.
As discussed above, there are substantial indicators on the drug court application that it was, in fact, a superior court document and not a probation department document. We cannot determine why the original was not retained in the superior court file, at the very least, in a confidential portion of that file along with the probation officer’s report. We suggest that in the future, if indeed drug court applications are superior court documents, the superior court retain the original in its file to forestall precisely the type of claim asserted here.
B. Defendant’s Entitlement to Conduct Credits Before His Enrollment in and After His Termination from Drug Court
Defendant contends the court erred in failing to award him conduct credit for the periods he spent incarcerated prior to his enrollment in drug court, a total of 12 actual custody days entitling him to four additional days of custody credit. The People concede the matter. The People further concede that defendant is entitled to an additional 24 days of conduct credit based on the time he spent incarcerated after he was terminated from drug court.
Penal Code section 4019 provides that when a prisoner is committed to county jail he is entitled to conduct credits for performance of labor therein and for compliance with the rules of that institution based on the time spent in actual custody from the date of his arrest to the time of sentencing. (People v. Bravo (1990) 219 Cal.App.3d 729, 735; People v. Smith (1989) 211 Cal.App.3d 523, 525-527.) “The correct amount of credit is calculated by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody. [Citation.]” (People v. Fry (1993) 19 Cal.App.4th 1334, 1341.)
Here, defendant spent time in custody between February 21, 2004, and February 26, 2004, and between May 31, 2005, and June 5, 2005, a total of 12 days that were served prior to his admission to drug court. The People maintain defendant was incarcerated for an additional 34 days after he was terminated from drug court on March 10, 1998, until sentencing on April 14, 2008. However, the People’s record citation in no way supports its contention that defendant was terminated from drug court on March 10, 2008. Neither the minute order nor the reporter’s transcript of the hearing conducted that day indicated that defendant was terminated from drug court on that date. Rather, the minute order dated March 10, 2008, indicated only that defendant had “FAILED DRUG COURT,” but failed to indicate the date of his termination from that program. The only other reference to defendant’s termination from drug court was defense counsel’s statement below at the sentencing hearing on April 14, 2008, that “with regards to the issue of the Court’s choice to remove him from the drug court program, he is asking the Court reconsider that.” Defense counsel below contended that defendant’s incarceration beginning on February 21, 2008, was the functional equivalent of termination from drug court as of that date, which, if true, would certainly entitle him to even more conduct credits. There is no other indication as to when or if defendant was actually terminated from drug court; however, at the latest, the court would have to have terminated defendant from drug court when his probation was revoked and he was sentenced to prison.
Moreover, even if we were to find that defendant’s termination from drug court occurred on March 10, 2008, the People’s math does not add up. If defendant was entitled to conduct credit for the 12 days he spent incarcerated prior to entry into drug court and the 36, not 34, days he spent incarcerated from March 10, 2008, through April 14, 2008, he would be entitled to 24, not 28, additional conduct credit days. However, the People below challenged defendant’s eligibility to any conduct credits for the period defendant spent incarcerated prior to his enrollment in drug court, noting that “the waiver when they enter drug court certainly seems readily apparent that it covers past credits earned. And it has certainly been the policy of the Court in sentencing to not award section 4019 credits for any of the time spent in custody up to the point leading up to sentencing. And so we would just request the Court follow its normal procedure as to that.” The waiver of conduct credits in defendant’s purported drug court application appears to waive “all” conduct credits, not just conduct credits that would have been accumulated during enrollment in the drug court program. Thus, this court has no way of definitively knowing if defendant waived conduct credits as a precursor to admission to drug court; if so, whether that waiver waived all conduct credits or just conduct credits earned while he was enrolled in drug court, or when defendant was actually terminated from drug court. Again, this is a matter involving a factual dispute which would be better resolved in the trial court. (People v. Fares, supra, 16 Cal.App.4th at p. 957.) We strongly concur with the determination of our colleagues in the first division of this court that “[t]he most expeditious and, we contend, the appropriate method of correction of [alleged] errors of this kind is to move for correction in the trial court.” (Id. at p. 958.)
“It is presumed the Legislature intended to treat any partial day as a whole day. [Citation.] Conduct credits shall be computed on the full period of custody commencing with the day of arrest. [Citation.] Therefore, a sentencing court must award credits for all days in custody up to and including the day of sentencing. [Citation.]” (People v. Bravo (1990) 219 Cal.App.3d 729, 735; see also People v. Smith (1989) 211 Cal.App.3d 523, 525-527; § 4019, subd. (a)(1).)
Twelve plus 36 equals 48; 48 divided by four equals 12; 12 times two equals 24. (Fry, supra, 19 Cal.App.4th at pp. 1340-1341.)
DISPOSITION
The trial court is directed to reconsider the information before it, including such additional information as it may determine appropriate, render a revised minute order, if appropriate, correctly determining the number of days of custody credit to which defendant is entitled, and to forward a certified copy of any revised order to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RICHLI, Acting P. J., GAUT, J.