Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF050006707
NICHOLSON, J.
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.
DISCUSSION
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 drug treatment program, the waiver must be knowing and intelligent. (People v. Ambrose (1992) 7 Cal.App.4th 1917, 1922-1923.)
Defendant contends the italicized portion of Judge Gaard’s statement demonstrates Yolo County Superior Court has a policy of requiring defendants to waive custody credits for residential drug treatment when placed in felony drug court probation. Citing People v. Penoli (1996) 46 Cal.App.4th 298 (Penoli), defendant asserts this practice contravenes the legislative policy set forth in section 2900.5 to award custody credits for time in a drug treatment program. He argues the waiver was unauthorized, as Judge Rosenberg failed to exercise his discretion when obtaining defendant’s waiver. We disagree.
“Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal. [Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875, 880.) Forfeiture applies to a trial court’s failure to properly make or articulate its discretionary sentencing choices, but it does not apply to unauthorized sentences. (People v. Scott (1994) 9 Cal.4th 331, 353, 354.)
In Penoli, the Court of Appeal held that a trial court’s standard practice of imposing a waiver of custody credits for time spent in residential treatment “constituted an erroneous failure to exercise the discretion vested in the court by law. [Citations.]” (Penoli, supra, 46 Cal.App.4th at p. 303.) The Court of Appeal recognized a trial court could obtain a defendant’s waiver of credits for time in a treatment facility, but held the waiver must be determined on a case-by-case basis, rather than as a blanket policy applied to all defendants. (Ibid.)
Defendant’s reliance on Penoli does not excuse his claim from forfeiture. The error identified in Penoli is the trial court’s failure to exercise sentencing discretion. This type of error is similar to an abuse of discretion that does not result in an unauthorized sentence. Both are claims involving “sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.” (People v. Scott, supra, 9 Cal.4th at p. 354.) “[A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case.” (Ibid.) Since defendant could waive custody credits, Judge Rosenberg’s decision to obtain that waiver before placing defendant on felony drug court probation was authorized and subject to the forfeiture rule.
Defendant argues his claim is not forfeited because he did not learn about the blanket policy until Judge Gaard’s statement in 2008, depriving him of a meaningful opportunity to raise an objection when the waiver was obtained. (See People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1224.) The timing of Judge Gaard’s statement does not excuse defendant from failing to make a timely objection when he waived custody credits. The Penoli decision was over 10 years old when defendant was placed on probation and waived custody credits. Trial counsel was able to raise this objection in 2008, before Judge Gaard’s statement indicating Yolo County policy, and defendant does not explain how he was incapable of raising the same objection when he entered his plea in 2006. Defendant’s failure to object to the waiver in the original proceeding forfeits the claim on appeal.
Defendant’s claim also fails on the merits. In People v. Torres (1997) 52 Cal.App.4th 771, the Court of Appeal declined to follow Penoli, holding “that when defendants convicted of drug offenses are granted probation conditioned on participation in a residential drug treatment program, the court does not abuse its sentencing discretion by imposing as a standard condition of that probation a waiver of custody credits under... section 2900.5, subdivision (a) for time spent in the applicable rehabilitation facility.” (People v. Torres, supra, 52 Cal.App.4th at p. 773, fn. omitted; People v. Thurman (2005) 125 Cal.App.4th 1453, 1460-1461 [citing Torres with approval].)
We agree with the reasoning in Torres and decline to follow Penoli. The idea behind conditioning probation on a waiver of the section 2900.5 custody time credit is that if a defendant knows that the only benefit he will obtain from a residential drug treatment program is the successful completion of that program, he is more apt to be successful, as opposed to simply obtaining custody credit under section 2900.5 by serving “easy” time in a failed effort at the residential drug treatment facility. (People v. Thurman, supra, 125 Cal.App.4th at p. 1461.) In deciding to dismiss a strike allegation and place defendant on felony probation drug court, Judge Rosenberg noted defendant had a serious drug addiction problem and the drug court is a very tough program which can change the lives of those committed to success. Waiving credits for time spent in the treatment facility was one part of this decision.
Judge Rosenberg clearly exercised discretion in determining defendant was a suitable candidate for that program. The policy of requiring waiver of credits neither compromises that discretion nor invalidates the legislative policy of section 2900.5.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, P. J., BLEASE, J.