P v. Obregon CA3

Filed 9/4/13 P v. Obregon CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE, C070695

Plaintiff and Respondent, (Super. Ct. Nos. CRF102348, CRF073877) v.

RAYMOND GARDUNO OBREGON,

Defendant and Appellant.

This is an appeal after remand for a hearing on whether defendant Raymond Garduno Obregon is entitled to additional custody credit for time spent in residential treatment and for time spent in custody as a sentenced prisoner. In People v. Obregon (Jan. 12, 2012, C066722) [nonpub. opn.] (Obregon I), after defense appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), defendant filed a supplemental brief.1 He contended, inter alia, that he was entitled to additional presentence custody credit, the same claims which were then pending a hearing in the

1 This court treated defendant’s motion to augment the record as a motion to incorporate case No. C066722 by reference and, as such, granted the motion.

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trial court at the time the opinion in Obregon I was written. Because the record on appeal in Obregon I did not reflect that the trial court had determined whether defendant was entitled to custody credit for time spent in residential treatment, we remanded for a hearing on the issue. We also noted that defendant appeared to be correct in his assertion that he was entitled to additional credit for time spent in custody prior to resentencing. On remand, the court did not award any credit for time spent in residential treatment or for time spent on a Sutter County offense, the term for which the court had modified. Defendant appeals. He contends he is entitled to additional credit for time spent in residential treatment, for time spent in another jail awaiting transfer, and for time as a sentenced prisoner. We will remand again for the trial court to calculate the time defendant spent in custody, jail, or prison on the Sutter County offense on which the trial court modified sentence. Credit for Residential Treatment On remand, the probation officer reported that defendant was “not entitled to credit (actual or conduct) for the time he spent in residential treatment” because he had “agreed to waive all custody credits accrued while in a program.” In refusing to award additional credit for residential treatment, the trial court impliedly agreed. In case No. CRF073877, defendant entered a no-contest plea to transportation of methamphetamine and was granted Proposition 36 probation. Defendant signed a “Declaration and Order Regarding Plea of Guilty/No Contest to a Felony,” a standard form, which contains no reference to a waiver of residential treatment credits. The reporter’s transcript of the entry of defendant’s plea likewise reflects no discussion of a waiver of residential treatment credits. In the “Order Admitting Defendant to Probation” under Proposition 36, which sets forth 21 paragraphs of the standard terms and conditions of probation, paragraph 8 provides: “Probationer shall enter into and successfully complete a substance abuse treatment program as directed by the Probation Officer;