PEOPLE v. BRIDGMAN (1991)

OPINION

FACTUAL AND PROCEDURAL HISTORY

The People charged defendant with one count of attempted murder (Pen.Code, §§ 664/187) ¹ and alleged that she inflicted great bodily injury on her victim (§ 12022.7) and personally used a firearm, a rifle (§§ 12022.5/1192.7, subd. (c)(8)), when she allegedly shot and wounded a man in a neighborhood dispute.   Defendant pled not guilty but eventually entered a guilty plea pursuant to a plea bargain in which she agreed to serve a minimum of five years and possibly up to nine years in prison.

Pending determination of the case, the superior court released defendant on her own recognizance, on the condition that she remain on “home detention” at a designated residence except during her working hours.   Under the terms of her home detention release, defendant was permitted to attend alcoholism counseling.   She was also permitted to leave home in emergencies, if she notified an “own recognizance” officer, and could attend movies and other recreational events with the permission of the officer.   She was also apparently required or at least expected to check in with the officer by phone every day.   Defendant apparently spent 386 days released on her own recognizance in the home detention program.   For approximately the first six months of home detention, defendant was required to remain at the home of her mother-in-law;  she was allowed to go back to her own home after the victim, her next-door neighbor, moved away.

DISCUSSION

Defendant's sole contention on appeal is that the court erred in not giving her presentence credit for the 386 days she spent on own recognizance home detention.   She argues that she is entitled to such credit because she was “in custody” within the meaning of section 2900.5, subdivision (a) while she was on home detention.²

In People v. Reinertson (1986) 178 Cal.App.3d 320, 223 Cal.Rptr. 670, the Third District Court of Appeal was confronted with the identical issue which is now before us.   The court surveyed the body of law concerning the definition of the phrase “in custody” and concluded that section 2900.5 did not encompass own recognizance home detention:  “It is clear from the words of the statute and from judicial decisions that, for purposes of credit, ‘custody’ is to be broadly defined.  (See People v. Mobley (1983) 139 Cal.App.3d 320, 323 [188 Cal.Rptr. 583] ․ [credit for period of residence in ‘Discovery House’];  People v. Sylvestry (1980) 112 Cal.App.3d Supp. 1, 7 [169 Cal.Rptr. 575] ․ [credit for stay in custodial ‘Impact House’];  People v. Rodgers (1978) 79 Cal.App.3d 26, 31–32 [144 Cal.Rptr. 602] ․ [credit for stay in ‘Delancey Street facility’];  In re Wolfenbarger (1977) 76 Cal.App.3d 201, 205–206 [142 Cal.Rptr. 745] ․ [credit for stay in residential ‘Cri–Help’ program].)   Whether a particular facility will be regarded as sufficiently restrictive as to amount to custody may constitute a factual question.   (People v. Rodgers, supra, 79 Cal.App.3d at p. 33 [144 Cal.Rptr. 602].)   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.  (See Annot. (1983) 24 A.L.R.4th 789, 792.)

“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.   None of these aspects of custody applied to defendant.   He was simply required to be at home when not at work, school or counseling, or excused by the probation officer.   There were no restrictions on visitation, no program to follow, and there was no one required to supervise him closely.   Under these circumstances we cannot conclude that the home detention condition constituted custody which would entitle defendant to credit against his prison term.”  (People v. Reinertson, supra, 178 Cal.App.3d at pp. 326–327, 223 Cal.Rptr. 670.)

Defendant disputes the correctness of Reinertson on the ground that home detention pursuant to section 1203.016 can be an alternative to jail or prison as a location to serve a term of imprisonment.   However, we conclude that home detention under section 1203.016 is sufficiently restrictive as to constitute a custodial setting akin to institutional supervision, while the own recognizance programs of this case and Reinertson, which are virtually identical, are not.   Section 1203.016 requires that the prisoner wear an electronic monitoring device at all times, remain in the interior of his or her home as directed by the correctional administrator, admit any agent of the administrator to the home at any time to verify compliance with conditions of detention;  and that an agent of the administrator may arrest the prisoner without warrant and return him or her to prison or jail to complete the remainder of a sentence, if the administrator concludes the prisoner is not complying with the rules of the home detention program.

We conclude that Reinertson is dispositive of this matter and hold that defendant is not entitled to presentence credit for the time she spent on own recognizance home detention.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   All further statutory references are to the Penal Code unless otherwise indicated.

2.   Section 2900.5, subdivision (a) provides in pertinent part:“In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including but not limited to any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant ․ shall be credited upon his [her] term of imprisonment․”

HOLLENHORST, Acting Presiding Justice.

TIMLIN and McDANIEL,* JJ., concur.