The right to custody credits for time spent on ankle monitor

The probation report filed in this case was correct that petitioner was entitled to the actual credits in the amount of 743 days for the days he spent at home under house arrest, wearing an ankle monitor, during his pre-trial confinement.

In People v. Anaya (2007) 158 Cal.App.4th 608, the court stated that “Section 1203.016 authorizes a low-risk or minimum security offender committed to a county jail to participate in a home detention program if approved by the county or the court.” (158 Cal.App.4th at 611.)  Petitioner was not ordered confined under that statute.  He was ordered confined pretrial pursuant to an order of the court of appeals that had explicit and extensive confinement and custody instructions.  Anaya has two informative passages on the topic, one is 158 Cal.App.4^th at 613 and the other is footnote 4.  The Second District Court of Appeal, Division 6, discusses what is and is not custody for purposes of presentence credit: “Anaya’s argument that her home detention program was as, if not more, restrictive than other types of custody for which credits have been awarded also is without merit. Moreover, the electronic monitoring agreement did not restrict her movements. Except for being at home to make a phone call once a day, Anaya was free to go anywhere in the County at any time[;]” and “The lynchpin for the receipt of custody credits is that one be “in custody.”  Citing People v. Reinertson (1986) 178 Cal.App.3d 320, 326, Anaya urges in her petition for rehearing that we have too narrowly defined the term.  Though the term “in custody” has never been precisely defined, it is evident that Anaya was not “in custody” for the purpose of receiving time credit. (People v. Ambrose (1992) 7 Cal.App.4th 1917, 1921-1922; see People v. Richter (2005) 128 Cal.App.4th 575, 579-580 [time spent in work release program in lieu of confinement does not entitle the participant to custody credit].)

Anaya was also sentenced under statutes where probation was eligible and a jail sentence was not mandatory. Because Luster was sentenced under the scheme contemplated in sections 1170 and 667.6, he was subject to mandatory custody time, therefore triggering the provisions of section 2900.5 subds (a) and (f).

The Anaya court affirms the continued validity of People v. Lapaille (1993) 15 Cal.App.4th 1159 in the wake of the 1999 amendments to section 2900.5. The logic of Lapille, that petitioner was in custody, carries the day, as “custody” and not monitoring is the gravamen herein.  Petitioner was restricted even more than Lapille was.  He was confined to his home with an ankle monitor 24 hours a day, allowed to leave only for pre-arranged medical appointments and for scheduled court dates. Accordingly, he is entitled to credit for his presentence time spent on ankle monitoring.  That credit is to be day-for-day.

Therefore, under the case law of People v. Lapille 15 Cal.App.4th 1159, 1169-1170, he is entitled to credit for those days.[1]

[1] People v. Lapille 15 Cal.App.4th 1159, 1169-1170:  Section 1203.016 provides that defendants on electronic home detention must remain in the interior of their homes during hours designated by the program administrator, admit the administrator to their homes at any hour to verify compliance with the program, wear an electronic monitoring device, be subject to arrest without warrant if there is reasonable cause to believe they have violated program rules, and abide by other rules and regulations imposed by county authorities. However, such defendants may also be permitted to seek and retain employment outside the home, attend psychological counseling sessions and educational or vocational classes, and go to medical and dental appointments.

Based on the limited record before us, we conclude that defendant in this case was subject to restraints at least as confining as those placed on persons in electronic home detention programs, so that his house arrest was just as “custodial.” The trial court ordered defendant to remain at his home, except for visits to his lawyer and court appearances. At some time during his lengthy home confinement, the court gave him permission to leave his home to walk his daughter to and from the school bus. The probation department or release clerk called him to verify that he was complying with his confinement. There is no indication that defendant ever left his home to attend medical or dental appointments, or to participate in any counseling sessions. He was on complete disability due to his heart condition, and thus did not work.

Based on the above comparison, we hold that defendant in this case is entitled to custody credits for preconviction custody pursuant to section  2900.5, subdivision (a), as amended in 1991, under the state and federal equal protection clauses. The only real differences between this defendant’s confinement and that of one on electronic home confinement is that one is based at home under O.R. release, and the other on a statutory program; and that one’s location is verified by electronic tracking, while the other’s is based on telephone calls to the residence. These procedural differences are not legitimate bases for treating defendant differently from those placed in electronic home detention programs pursuant to section 1203.016. (E.g., People v. Darnell, supra, 224 Cal.App.3d at p. 809.)