People v. Dodge CA2/6 ( 2024 )

Filed 4/2/24 P. v. Dodge CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B326897
(Super. Ct. No. 20CR08383)
Plaintiff and Respondent, (Santa Barbara County)
v.
KYLE RICHARD ALONZO
DODGE,
Defendant and Appellant.
Kyle Richard Alonzo Dodge appeals from the judgment
after he pleaded guilty to several counts of drugs and firearm
offenses. He contends the trial court erred in denying him
presentence credits for the time he was released on bail and
ordered to live in a sober living facility with a GPS monitor. We
affirm.
FACTS AND PROCEDURAL HISTORY
In December 2020, Dodge was arrested for several drug and
firearm offenses. His bail was set at $500,000 with terms and
conditions of release, including that he wear a GPS monitor.
On April 6, 2021, Dodge posted bail. The trial court issued
an amended order setting bail modification. The terms and
conditions of release included that Dodge reside at a sober living
facility and wear a GPS monitor. The program at the facility
consisted of three weekly groups, two monthly individual
counseling sessions, attendance at two 12-step meetings, and
random drug and alcohol testing weekly for a minimum of six
months.
In October 2022, Dodge entered an open plea of guilty to
possessing a controlled substance with a firearm (Health & Saf.
Code, § 11370.1, subd. (a)), sale and/or transportation of a
controlled substance (Health & Saf. Code, § 11379, subd. (a)), two
counts of unlawful assault weapon activity (Pen. Code,1 § 30600,
subd. (a)), two counts of carrying a loaded firearm (§ 25850, subd.
(a)), and possession of a silencer (§ 33410). The plea agreement
specified he would not be sentenced to more than 10 years in
state prison. He entered a Cruz2 waiver and sentencing was
scheduled for January 2023.
On October 27, 2022, Dodge was arrested again for a new
offense. His supervised pretrial release was revoked, and his bail
bond was exonerated. At sentencing, Dodge admitted he violated
the Cruz waiver by committing a new crime. The trial court
sentenced him to 12 years in state prison.
1 Unspecified statutory references are to the Penal Code.
2 People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5 [a Cruz
waiver is an agreement in which the defendant is released from
custody in return for promises not to commit other crimes and
return for sentencing, or else the court could impose a sentence
greater than the bargained-for term].
2
Before the sentencing hearing, Dodge filed a “Sentencing
Memo Re Credits for Electronic Monitoring” and requested
presentence custody and conduct credits for the time he spent
released on bail in a sober living facility with a GPS monitor
(April 6, 2021-October 27, 2022). The trial court denied Dodge’s
request because it found that Dodge’s placement in a sober living
facility was not the “functional equivalent” of home detention.
The court reasoned that “when you’re in a sober living home, with
GPS, there’s absolutely no restraint on your freedom to leave the
sober living home during the course of the day and go wherever
you want. You’re not required to be employed. You’re not
required to remain within a certain geographical sort of
parameters, perimeters. You have the freedom to go to
restaurants, to go work out, to go to the park. I mean, you
have . . . pretty expansive liberty regarding how you’re going to
spend your day. [¶] If you’re in home confinement, even though
the sheriff may have a program that allows people in home
confinement to go to work, it’s pretty strictly controlled. You’re
going to go from the home, to go to work, and then you’re going to
come back to the home. [¶] So I see a substantial difference
between the restraint on liberty and circumstance presented to
me with regard to Mr. Dodge, and what is set forth in People v.
Gerson [(2022) 80 Cal.App.5th 1067] and in the Penal Code.”
DISCUSSION
Dodge contends the trial court erred in denying him
presentence custody and conduct credits for the time he was
released on bail with a GPS device and living in a sober living
facility. We disagree.
Section 2900.5, subdivision (a) provides that “[i]n all
felony . . . convictions, either by plea or by verdict, . . . all days of
3
custody of the defendant, including . . . days served in home
detention pursuant to Section . . . 1203.018, shall be credited
upon his or her term of imprisonment . . . .” Section 1203.018
authorizes the county “to offer a program under which inmates
being held in lieu of bail in a county jail or other county
correctional facility may participate in an electronic monitoring
program” under specified conditions. (§ 1203.018, subd. (b).)
“The statute leaves the exact terms of the electronic
monitoring program to the discretion of county authorities, but
requires the programs created to obtain the participant’s assent
in writing to the following conditions: (1) the participant ‘shall
remain within the interior premises of his or her residence during
the hours designated by the correctional administrator’; (2) the
participant ‘shall admit any person or agent designated by the
correctional administrator into his or her residence at any time
for purposes of verifying the participant’s compliance with the
conditions of his or her detention’; (3) the electronic monitoring
‘may include global positioning system devices or other
supervising devices for the purpose of helping to verify the
participant’s compliance with the rules and regulations of the
electronic monitoring program’ . . . ; and (4) the administrator in
charge of the facility from which the participant has been
released may ‘immediately retake the person into custody’ if the
electronic monitoring device malfunctions, the participant fails to
remain at home, the participant fails to pay the fees associated
with the program, or the participant ‘for any other reason no
longer meets the established criteria.’ ([§ 1203.018,] subd. (d)(1)-
(4).).” (People v. Raygoza (2016) 2 Cal.App.5th 593, 599.)
To receive custody credits, it is not enough for a defendant
to be placed on an electronic monitoring program. Instead, the
4
defendant must show they participated in a home detention
program as defined by section 1203.018 or an equivalent
electronic monitoring program that is “ ‘custodial, or
restraining.’ ” (See People v. Gerson (2022) 80 Cal.App.5th 1067,
1089 (Gerson).)
Here, the trial court did not err in denying Dodge
presentence custody credits for the time he was released on bail
and living in a sober living facility with a GPS monitor. Dodge
was not ordered to a home detention program. Nor does the
record reflect that Dodge’s electronic monitoring terms were
“ ‘custodial, or restraining’ ” within the meaning of section
1203.018, such as home detention. (Gerson, supra, 80
Cal.App.5th 1089.) The trial court found there was no evidence of
“restraint on [Dodge’s] freedom to leave the sober living home
during the course of the day.”
Dodge had the burden to establish any entitlement to
presentence custody credits. (People v. Jacobs (2013) 220
Cal.App.4th 67, 81.) At the sentencing hearing, defense counsel
admitted he did not “know all of the details of this particular
sober living [facility].” Although the facility required Dodge to
attend weekly group meetings, attend monthly counseling
sessions, and participate in weekly drug and alcohol testing, such
evidence fell short of establishing that the terms of his electronic
monitoring program were as custodial or restrictive as home
detention. Dodge did not show how many hours per day he was
required to remain in the facility, nor did he show he was subject
to further limitations to his movement or liberty. He did not
show he assented to conditions set forth in section 1203.018,
subdivision (d)(1)-(4). Dodge has not carried his burden to
establish entitlement to the requested presentence credits.
5
This case is distinguishable from Gerson, supra, 80
Cal.App.5th 1067. There, Gerson argued he was entitled to
presentence custody credits for the time he was out on bail and
subject to an electronic monitoring program. (Id. at p. 1089.)
Although Gerson was not on a home detention program within
the meaning of section 1203.018 because he was not “held in lieu
of bail,” he argued he was similarly situated to a person on home
detention under section 1203.018. (Gerson, at p. 1089.) As a
condition of his bail release, Gerson was ordered to wear a GPS
monitoring device, placed on home detention subject to a Fourth
Amendment waiver, and required to remain in his home during
the hours designated by the court. (Gerson, at p. 1090.) The
Court of Appeal agreed with Gerson, concluding the terms of his
release were as “ ‘custodial, or restraining’ as a statutory home
detention program pursuant to section 1203.018.” (Ibid.) The
court held there was no rational basis for treating a defendant
out on bail and subject to a home detention electronic monitoring
program different from an individual participating in a program
pursuant to section 1203.018, since both categories involved
“similarly restrictive home detention conditions.” (Gerson, at p.
1091.)
But unlike Gerson, Dodge did not show he was subject to
similarly restrictive home detention conditions as a defendant on
home detention pursuant to section 1203.018. We conclude
Dodge was not entitled to presentence custody credits for the
time he was out on bail and living in a sober living facility with a
GPS monitor. And because we deny Dodge’s claim for custody
credits, we deny his claim for conduct credits under section 4019.
6
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J.
YEGAN, J.
7
Brian E. Hill, Judge
Superior Court County of Santa Barbara
______________________________
Sanger Dunkle Law, Stephen K. Dunkle; Sanger Law Firm,
Robert F. Sanger and Sarah S. Sanger for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Ryan M. Smith,
Deputy Attorneys General, for Plaintiff and Respondent.