People v. Pascoe CA2/8 ( 2021 )

Filed 12/21/21 P. v. Pascoe CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B309439
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA072850)
v.
MICHAEL EUGENE PASCOE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Daviann L. Mitchell, Judge. Affirmed.
Evan D. Williams, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., and John
Yang, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
INTRODUCTION
Michael Eugene Pascoe used controlled substances and
failed to attend domestic violence classes, in violation of the
terms of his probation imposed following his plea of no contest to
a felony charge of injury upon a dating partner. (Pen. Code,
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§ 273.5, subd. (a).) The trial court revoked probation and
imposed a prison sentence. Appellant now contends the trial
court abused its discretion in not reinstating probation, because it
had not fully considered his addiction and inability to afford the
classes. He also contends that he should be awarded custody
credit for the time he voluntarily remained at a residential
treatment program beyond the probation-mandated period.
These contentions are without merit. The trial court
properly revoked probation, as his violation of probation was due
to willfulness and/or irresponsibility. Moreover, there exists no
authority that mandates the award of custody credit based on
voluntary self-placement in a rehabilitative residential program.
As such, appellant’s contentions on appeal must be rejected and
we affirm.
BACKGROUND
In December 2017, police officers responding to a domestic
violence call found appellant “jump[ing] on top of the victim.”
The victim, who was in a dating relationship with appellant,
reported that he had pushed her repeatedly to make her fall,
placed himself on top of her, compressed her chest with his
hands, and “bear hugged” her. She suffered discomfort and
immediate redness to her chest area.
1
Undesignated statutory references herein are to the Penal
Code.
2
After pleading no contest to a felony charge of injury upon a
dating partner in violation of section 273.5, subdivision (a),
appellant, on January 31, 2018, was placed on formal probation
for five years with terms that included 180 days of county jail and
a 52-week domestic violence treatment program (DVRP). In
February 2018, appellant indicated to the trial court that he was
accepted to a sober living house to provide a residential
treatment program. The trial court ordered him to first complete
180 days in county jail before beginning a six-month residential
treatment program. The following month, the trial court ordered
appellant’s release on the condition that he enroll in a sober
living house program.
In May 2019, the trial court ordered appellant, who
remained at his sober living house as an employee, to begin
compliance with the probation requirement of enrolling in a
DVRP. In December 2019, the trial court found appellant was
not in compliance with his DVRP obligations but excused his non-
compliance due to his financial difficulties. It directed him to
confer with probation to identify free programs that might be
available to bring him into compliance. At appellant’s February
2020 court date, the court received proof of appellant’s enrollment
in a DVRP.
On August 21, 2020, the trial court found appellant not in
compliance with the terms of his sentence and revoked probation.
However, it released appellant on his own recognizance and ordered
him to attend the previously mandated DVRP sessions, whether
online or in-person. The court stated that it would reinstate
probation if appellant’s October 2020 probation report was
positive.
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On October 20, 2020, the probation department reported
that appellant attended three DVRP sessions, but had tested
positive for marijuana and prescription drugs. The trial court did
not reinstate probation and ordered appellant to undergo a
prompt re-test for drugs and furnish a valid prescription for
prescription drugs found in his system. According to a
supplemental probation report dated November 2, 2020,
appellant did not comply with his testing obligations and
admitted to his probation officer that he had been under the
influence of drugs while in court at the prior hearing.
Accordingly, on November 6, the trial court remanded appellant
to custody pending hearing on his probation violations. Such
hearing proceeded on November 20 and 24, 2020.
During the hearing, the Deputy Probation Officer (PO)
testified that in February 2020, appellant tested positive for
hydrocodone, marijuana, metabolite, and oxycodone and that in
August 2020, appellant admitted to the PO that he had been
dismissed from his DVRP due to absences. The PO verified with
the program that appellant indeed was discharged for non-
attendance after having attended only three classes (not the 17
that appellant had claimed). The PO further testified that
appellant submitted documentation that he had re-enrolled in the
domestic violence classes in October 2020 but subsequently failed
to provide proof of attendance. The PO called the instructor, who
confirmed that appellant had not been attending. On October 22,
2020, in a call to the PO about drug testing, appellant admitted
that he was addicted to pills and had been under the influence
while in court a few days before. The PO told him to check
himself into a drug rehabilitation center in Tarzana.
Appellant underwent a drug test at the Tarzana center on
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November 3, 2020 which came back positive for opiates and
fentanyl. The PO recommended probation be revoked and that
appellant be sentenced to prison.
Following the evidentiary hearing, the trial court found
appellant to be in violation of probation for failing to complete the
DVRP, testing positive for drugs and marijuana, being under the
influence of a controlled substance, testing positive for opiates,
and lying to the PO regarding his compliance with the DVRP
requirement.
During sentencing following revocation, Paul Dumont from
appellant’s sober living house testified that appellant had
recently been using drugs, but it was due to addiction. Appellant
had asked Dumont to help him check into the treatment center in
Tarzana because appellant knew he needed help. During
sessions with Dumont, appellant was regularly tested and every
time he tested negative for drugs. Appellant at the time had
actually volunteered in the organization’s homeless outreaches.
Dumont testified that appellant could be subject to detoxification
while in custody and thereafter he would be amenable to
treatment in a community-based setting.
Based on the testimony and the probation reports, the
court found that appellant was not amenable to continued
probation. The court sentenced appellant to an upper term of
four years and awarded appellant 413 days of custody credit,
consisting of 395 days of actual custody and 18 days of conduct
credit. The 395 days included the required 180 days served in a
residential program.
Appellant appealed from the judgment.
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DISCUSSION
I. The Trial Court Properly Exercised Its Discretion in
Not Reinstating Probation
Appellant first contends that the trial court abused its
discretion when it failed to reinstate appellant’s probation. He
argues the trial court failed to properly consider his addiction and
his success in the residential treatment program. This
contention is without merit. Given appellant’s repeated failure to
comply with probation conditions, including to stay drug-free
after his treatment, the trial court acted well within its discretion
in declining to reinstate probation.
“[U]pon finding a violation of probation and revoking
probation, the court has several sentencing options. It may
reinstate probation on the same terms, reinstate probation with
modified terms, or terminate probation and sentence the
defendant to state prison.” (People v. Bolian (2014) 231
Cal.App.4th 1415, 1420.) The trial court’s decision to reinstate
probation or to impose the original sentence is reviewed for an
abuse of discretion. (People v. Downey (2000) 82 Cal.App.4th 899,
909; People v. Medina (2001) 89 Cal.App.4th 318, 323.) When
“the record reveals that a defendant’s violation of the terms of
probation was the result of irresponsible or willful behavior,
termination of probation and imposition of a prison sentence is no
abuse of discretion.” (People v. Kingston (2019) 41 Cal.App.5th
272, 278.)
Here, the record shows irresponsible or willful behavior.
Appellant may have done well initially when he completed the
residential treatment program, and the trial court acknowledged
his early success. Nonetheless, appellant relapsed once he was
out of the program. Contrary to appellant’s contention, the court
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acknowledged addiction as a deep-seated problem, but given
appellant’s continued relapses, the court believed any treatment
should continue in the confines of a custodial environment. The
irresponsible behavior on the part of appellant was particularly
acute, given that appellant even appeared in court under the
influence and later lied about it. The court properly found
irresponsibility for only completing seven DVRP classes during a
span of two years. Appellant presented no evidence that every
absence for almost two years was caused by involuntary
addiction, as opposed to his poor choices and priorities. It was
not disputed that appellant, after being dismissed from one
DVRP, re-enrolled in October 2020, but thereafter continued to
be absent several times. He also repeatedly failed to submit proof
of attendance to the PO before testing positive for narcotic
substances.
Appellant highlights his alleged inability to pay as
justification for not attending DVRP classes. That problem
surfaced early in the probationary period, and the trial court at
that point did reinstate probation after appellant’s counsel
represented that appellant was going to receive funds to pay for
the program. But in later review hearings appellant failed to
raise inability to pay as the reason for noncompliance. The trial
court cannot be faulted for ignoring an excuse that appellant no
longer made.
The question before us is not whether the trial court was
compelled to revoke probation. It is whether it was an abuse of
discretion to do so. The record before the trial court was replete
with conduct by appellant fully justifying probation revocation as
a permitted choice.
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II. The Trial Court Properly Calculated Custody Credits
Appellant was ultimately ordered to spend 180 days in a
residential treatment program as one of his probation conditions.
He chose to remain in the program for 484 days. Appellant
argues that because he spent 484 days at the community
residential program, and the program had been ordered by the
court pursuant to a conviction, he was entitled to receive credit
for the entire 484 days he remained rather than just the 180 days
the court ordered. Appellant is incorrect as a matter of law.
Section 2900.5, subdivision (a), provides that a convicted
person “shall be credited” with credit against his or her sentence
of imprisonment for all days spent in custody, including time
spent in a “rehabilitation facility . . . or similar residential
institution,” “including days served as a condition of probation in
compliance with a court order.” (§ 2900.5, subd. (a).) The
provisions of section 2900.5 “apply to custodial time in a
residential treatment facility as well as straight county jail time.”
(People v. Jeffrey (2004) 33 Cal.4th 312, 318.)
Entitlement to credits for time spent in a residential
treatment facility “depends on whether such participation was a
condition of probation for the same underlying criminal conduct.”
(People v. Davenport (2007) 148 Cal.App.4th 240, 245.) “ ‘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, and that the custody be attributable to
the proceedings relating to the same conduct for which the
defendant has been convicted. [Citations.]’ ” (Ibid.) A defendant
bears the burden of demonstrating his or her entitlement to
presentence custody credits. (People v. Shabazz (2003) 107
Cal.App.4th 1255, 1258.)
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The People do not question that appellant’s residential
treatment program qualified as custodial treatment. (See People
v. Rodgers (1978) 79 Cal.App.3d 26, 31.) But they dispute his
claim that when he voluntarily stayed in the program longer than
mandated by the court, that he should also receive custody credit
for the voluntary portion. Since entitlement to credits for
residential treatment depends on whether the treatment “was a
condition of probation” under People v. Davenport, supra, 148
Cal.App.4th at page 245, appellant’s burden is to show there was
a condition of probation for him to serve 484 days of residential
treatment. The record only shows that he was ordered to do
180 days. He was free to walk away from the residential
treatment program after that without being in violation of
probation. His participation in the program was a “condition of
probation” only to the extent failing to comply could be a violation
of probation. If the rule were otherwise, a defendant initially
sentenced to electronic monitoring could claim custody credits for
all the subsequent days during probation when he chose to stay
home, as purported voluntary “house arrest.”
Appellant contends that People v. Sylvestry (1980) 112
Cal.App.3d Supp. 1 (decided by an appellate department of the
Superior Court), supports his contention that he was entitled to
additional custody credits for the voluntary portion of his
treatment program. But the facts of Sylvestry did not involve
voluntary residence in a treatment program. The trial court in
Sylvestry ordered the defendant to reside in a residential
treatment program. (Id. at p. 5.) There was nothing voluntary
about his presence in the program; he was compelled to be in the
program by the court. Sylvestry simply stands for the proposition
that where a defendant complied with a pre-trial order to
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undergo a rehabilitative program in a custodial residential
facility, that period of time is to be calculated as presentence
custody time within the meaning of section 2900.5. (See
Sylvestry, supra, 112 Cal.App.3d Supp. at pp. 4, 9.) Appellant’s
reading of Sylvestry was further undercut by the decision in
People v. Tafoya (1987) 194 Cal.App.3d Supp. 1, 5, where the
court stated, “[c]ontrary to defendant’s assertion, [Sylvestry] does
not stand for the proposition that a defendant who places himself
in a rehabilitation facility will be given time credit under
section 2900.5.” (Italics added.) Appellant was not entitled to
additional custody credits under the actual holding in Sylvestry.
The trial court did not abuse its discretion in declining to
reinstate probation. Nor was the court required to grant custody
credits for appellant’s voluntary continuation in residential
treatment.
DISPOSITION
The judgment is affirmed.
HARUTUNIAN, J.*
We concur:
GRIMES, Acting P. J. WILEY, J.
*
Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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