Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC788899
Premo, J.
Pursuant to a negotiated disposition, defendant Brett Darren Wetterlin pleaded no contest to driving under the influence of alcohol with a blood alcohol level of 0.08 percent, providing a false name to a peace officer, and driving while unlicensed. The trial court placed defendant on probation conditioned upon a one-year jail term. It awarded defendant 33 days actual custody credits for presentence time spent in a residential treatment facility. It later denied defendant’s motion to instead award credit for 359 days. On appeal from the judgment, defendant contends that the trial court erred by denying his motion for the additional credits. We disagree and affirm the judgment.
BACKGROUND
After his arrest, defendant posted bail. He later moved to be released into a residential drug and alcohol treatment program under the supervised own recognizance release program (SORP). The trial court granted the motion, and defendant signed the SORP papers that conditioned his release upon his residing at Support Systems Homes, Inc. (Support Systems), residential program, a state-licensed facility that provides “a 6-month Inpatient Residential Treatment Program, to include 30-days Inpatient Residential Treatment followed by 5-months in the Sober Living Home and Aftercare.” Defendant completed the six-month program and remained in the program for another six months until his sentencing.
Support Systems describes the two phases as follows: “While in our Treatment Center all clients are supervised 24-hours per day. Initially each client is clinically and physically assessed. Immediate participation in group and individual counseling, relapse prevention, disease concept education, family components and powerlessness and unmanageability assignments is mandatory. Entry into the second phase occurs upon the program counselor’s approval. Clients may then begin work or school and attend treatment in the evenings or mornings and on the weekends. Progress is closely monitored and reviewed daily in both treatment and transitional aspects. In the transitional phase each client lives in our homes and have [sic] the following requirements: Random urinalysis testing, 5-7 outside 12-Step meetings per week (documented), 5 in-house meeting[s] per week, must be working with a program sponsor on the 12-Steps, attendance at bi-weekly educational seminars, documentation of whereabouts at all times and daily chores.”
During defendant’s participation in the transitional phase he was employed. Support Systems reported the following: “[Defendant’s] freedom is very limited. If he is not at work, he is at Support Systems Homes’ Licensed Residential Treatment Program. At no time has [defendant] spent time outside of work or out of the program. [Defendant] signs in and out of Support Systems Homes’ Licensed Residential Treatment Program for work and his schedule is monitored very closely by staff of Support System[s] Homes. He is subject to verifiable whereabouts at all times, that of which have been checked.”
At the hearing on defendant’s motion, the People argued that defendant did not qualify for credits beyond the initial 30 days because defendant was in a custodial situation only for the initial 30 days. They pointed out that, while in the transitional phase, defendant was allowed to go to work and, in fact, received permission to, and did twice, leave the state.
The trial court concluded as follows: “Based on the argument and based on the evidence introduced, I am making a factual determination that the program after the 30 days did not qualify as custody and, thus, your Motion to Correct the Abstract of Judgment and/or to Reconsider the Denial of Presentence Custody Credits, I am denying that.”
DISCUSSION
Citing Penal Code section 2900.5, defendant contends that he was entitled to presentence credit for the entire time spent at Support Systems. The section provides, in pertinent part: “(a) In all felony and misdemeanor convictions,... when the defendant has been in custody, including... any time spent in a jail,... halfway house, rehabilitation facility, hospital,... or similar residential institution, all days of custody of the defendant... shall be credited upon his... term of imprisonment....” A failure to accurately award custody credits results in an unauthorized sentence, subject to correction at any time. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17; People v. Jack (1989) 213 Cal.App.3d 913, 916-917.)
“It is not the procedure by which a defendant is placed in a facility that determines the right to credit, but the requirement that the placement be ‘custodial.’ ” (People v. Darnell (1990) 224 Cal.App.3d 806, 809 (Darnell).) The crucial inquiry is whether the program conditions were sufficiently restrictive to constitute “custody” within the meaning of Penal Code section 2900.5. (See, e.g., People v. Rodgers (1978) 79 Cal.App.3d 26; People v. Schnaible (1985) 165 Cal.App.3d 275; Darnell, supra, 224 Cal.App.3d 806.) As the court stated in People v. Ambrose (1992) 7 Cal.App.4th 1917 (Ambrose), however, “[t]he term ‘in custody’ as used in section 2900.5, subdivision (a) has never been precisely defined.... ‘It is clear from the words of the statute and from judicial decisions that, for purposes of credit, “custody” is to be broadly defined. [Citations.]... While no hard and fast rule can be derived from the cases, the concept of custody generally connotes a facility rather than a home. It includes some aspect of regulation of behavior. It also includes supervision in a structured life style.’ ” (Id. at pp. 1921-1922, quoting People v. Reinertson (1986) 178 Cal.App.3d 320, 326-327 (Reinertson).)
“The question of whether a particular facility should be regarded as sufficiently restrictive as to amount to custody constitutes a factual question [citation], even though certain facilities by their very nature involve some restraint on untrammeled liberty [citation]. Although it is difficult to conceive of a live-in alcohol treatment program that does not include some modification of behavior and supervision, at least regarding the availability of alcohol, this does not necessarily constitute ‘custody.’ ” (Ambrose, supra, 7 Cal.App.4th at p. 1922.) “The courts which have considered the question generally focus on such factors as the extent freedom of movement is restricted, regulations governing visitation, rules regarding personal appearance, and the rigidity of the program’s daily schedule.” (Reinertson, supra, 178 Cal.App.3d at p. 326.)
It is axiomatic, however, that a defendant seeking to prevail on the factual question whether a particular facility should be regarded as sufficiently restrictive as to amount to custody has the burden to prove the point. Defendant is therefore manifestly incorrect by contending that he is presenting a question of law to this court.
We generally apply the familiar substantial evidence test when the sufficiency of the evidence is at issue on appeal. Under this test, “ ‘we are bound by the established rules of appellate review that all factual matters will be viewed most favorably to the prevailing party [citations] and in support of the judgment.... “In brief, the appellate court ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing.” [Citation.] All conflicts, therefore, must be resolved in favor of the respondent.’ ” (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 60.)
But this test is typically implicated when a defendant contends that the plaintiff succeeded at trial in spite of insufficient evidence. In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. This follows because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact’s unassailable conclusion that the party with the burden did not prove one or more elements of the case (Oldenburg v. Sears, Roebuck & Co. (1957) 152 Cal.App.2d 733, 742 [trier of fact is the exclusive judge of the credibility of the evidence and can reject evidence as unworthy of credence]; Hicks v. Reis (1943) 21 Cal.2d 654, 659-660 [trial court is entitled to reject in toto the testimony of a witness, even if that testimony is uncontradicted]).
Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; Caron v. Andrew (1955) 133 Cal.App.2d 402, 409.) Specifically, the question becomes whether the appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.” (Roesch v. De Mota, supra, at p. 571.)
Here, defendant simply failed to carry his burden to prove that he was in custody at Support Systems after 30 days. He was not entitled to a favorable finding as a matter of law because the issue obligated the trial court to make highly subjective evaluations about competing, not necessarily conflicting, evidence. Though it is unlikely that the trial court simply rejected defendant’s evidence out of hand, it is likely that it discounted the evidence that defendant was required to attend seminars and meetings, drug test, report whereabouts, and sleep at Support Systems and placed more significance upon that defendant was free to spend his days as he chose unsupervised. It might also have thought significant that there was no specific program or schedule that Support Systems required defendant to follow and Support Systems did not supervise defendant 24 hours per day as it did during the 30-day inpatient-residential-treatment phase. We therefore decline defendant’s implicit invitation to review the record so as to recount evidence that supports his position with the object of reevaluating the conflicting, competing evidence and revisiting the trial court’s failure-of-proof conclusion. (Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1388 [arguments should be tailored according to the applicable scope of appellate review]; James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021 [failure to acknowledge the proper scope of review is a concession of a lack of merit]; Paterno v. State of California (1999) 74 Cal.App.4th 68, 102 [failure to acknowledge the proper scope of review is an attempt to place upon the court the burden of discovering without assistance from appellant any weakness in the arguments of the respondent--an appellant is not permitted to evade or shift his or her responsibility in this manner].) This is simply not a case where undisputed facts lead to only one conclusion. The trial court’s failure-of-proof conclusion is unassailable on appeal.
Defendant’s reliance on Darnell is misplaced. In Darnell, the trial court found that the rehabilitation facility in question was custodial within the meaning of Penal Code section 2900.5, but denied presentence credits under what it believed was controlling case law. The reviewing court held that the defendant was entitled to presentence credits and remanded for resentencing. In contrast to Darnell, the trial court here made a factual finding that the program was not custodial after 30 days, which implicitly concludes that defendant did not carry his burden of proof. Defendant’s assertion that his residency at Support Systems was “quite restrictive” is simply his interpretation of the facts with which the trial court disagreed.
Defendant argues that the failure to award him the credits transgresses his right to equal protection of the laws under the federal and state Constitutions because he, a resident of a licensed rehabilitation facility, is being treated differently from those living in a residential treatment program, work furlough facility, halfway house, rehabilitation facility, or hospital. There is no merit to this claim.
“[A]ll meritorious equal protection claims require a showing that ‘the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ (In re Eric J. (1979) 25 Cal.3d 522, 530.) In other words, ‘neither the Fourteenth Amendment of the Constitution of the United States nor the California Constitution [citations] precludes classification by the Legislature or requires uniform operation of the law [for] persons who are different... “with respect to the legitimate purpose of the law.” ’ ” (People v. Wutzke (2002) 28 Cal.4th 923, 943, quoting In re Gary W. (1971) 5 Cal.3d 296, 303.)
Penal Code section 2900.5 does not classify residents of a licensed rehabilitation facility differently from those living in a residential treatment program, work furlough facility, halfway house, rehabilitation facility, or hospital. Penal Code section 2900.5 classifies citizens as to whether they are in custody. Because citizens in custody are not similarly situated to citizens out of custody, there is no equal protection violation posed by the statutory classification. Again, defendant’s complaint is simply that the trial court failed to accept his interpretation of the facts, a complaint that is not open to reargument on appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.