People v. Schnaible

Opinion

KING, J.

In this case we hold that a defendant who spends time on an outpatient basis in a drug rehabilitation program as a condition of probation is not entitled to custodial credits against a sentence imposed upon a subsequent revocation of his probation.

An information filed on June 4, 1981, charged Dennis Schnaible with receiving stolen property (Pen. Code, § 496). Schnaible pleaded guilty and was placed on five years’ probation.

A subsequent information filed on September 23, 1982, charged Schnaible with two counts of grand theft (Pen. Code, § 487a, subd. (a)), two counts of burglary (Pen. Code, § 459), and one count of receiving stolen property. The two causes were joined by court order. Schnaible pleaded nolo contendere to one count of grand theft. The court sentenced him to the upper term of three years’ imprisonment for grand theft, but suspended imposition of sentence and reinstated probation on the condition, among others, that Schnaible participate in the “Genesis House” rehabilitation program.

Schnaible was a live-in patient at Genesis House for 191 days. He spent 91 additional days as an outpatient at Genesis House, living and working on the outside but still participating in the Genesis House program.

On May 3, 1984, the court found that Schnaible had violated the conditions of his probation. The court revoked probation and ordered the three-year suspended sentence into execution. The court also imposed a concurrent two-year sentence for the offense charged in the information of June 4, 1981. The court granted 406 days’ credit against the sentence, including 191 days for the time Schnaible spent as an inpatient at Genesis House, but denied credit for the 91 days Schnaible spent as an outpatient in the program.

Schnaible appeals in each of the joined cases, challenging the computation of sentence credits because of the denial of credit for his outpatient time.

[277]

Because the same issue is presented in both cases, we order the appeals consolidated and render a single opinion affirming the judgments.

Schnaible contends the court erred in denying sentence credit for the time he spent as an outpatient with the Genesis House program. Penal Code section 2900.5 provides for credit for time spent “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 . . . .” The issue presented is whether time spent as an outpatient in a drug rehabilitation program is custodial within the meaning of section 2900.5.