People v. Blancas CA1/5

Filed 12/23/20 P. v. Blancas CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A158618
v.
DOMANIK CORDELL (Mendocino County
BLANCAS, Super. Ct. No. SCUK-
CRCR-16-88380-1)
Defendant and Appellant.
Appellant Domanik Cordell Blancas appeals from an order
revoking his probation for second degree robbery and sentencing
him to prison for the two-year lower term. (Pen. Code,
§§ 211/212.5, subd. (c).)1 He contends the trial court should have
awarded him additional custody credits for time spent in a
residential treatment program because his waiver of those credits
was not knowing and voluntary. Appellant’s challenge is to a
probation condition imposed at the time of the original
sentencing and as such is not cognizable in this appeal from a
revocation of that probation.
1 Further statutory references are to the Penal Code.
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I. BACKGROUND
In the early evening of November 25, 2016, 19-year-old
appellant entered a market and placed a bottle of Hennessey
whiskey in his sweatshirt pocket and began walking outside of
the store. The female clerk, who was much smaller than
appellant, stood in front of him as he attempted to leave and told
him to return the bottle. Appellant pushed the clerk’s body as he
walked toward the door and told her, “Don’t make me do it” when
she refused to get out of his way. The clerk was frightened he
would hurt her and as a result, appellant was successful in
carrying the bottle of whiskey from the store. Appellant suffered
from alcoholism and polysubstance drug addiction.
Appellant was arrested and was charged with second
degree robbery. (§ 211, 212.5, subd. (c).) On December 21, 2016,
before the preliminary hearing and against his counsel’s advice,
he pled no contest to the charge in exchange for an initial grant of
probation.
On February 2, 2017, the court placed appellant on 36
months of probation with imposition of sentence suspended,
conditioned upon his completion of 180 days residential
treatment and no time in county jail. Although the order
originally submitted by the probation officer imposed 120 days in
county jail and the prosecutor agreed with this condition, after
argument by defense counsel the court agreed not to impose any
jail time and to send appellant directly to rehabilitation when a
spot became available. Paragraph 6 of the probation order
provided, “Day-for-day credit is authorized in residential
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treatment, upon successful completion.” Paragraph 43
provided, “You shall enroll in and successfully complete a
minimum six-month residential treatment program as directed
by your Probation Officer. Also, you shall submit proof of
enrollment, payment and program completion to your Probation
Officer. You shall receive credit only upon successful
completion.” The court did not orally discuss appellant’s credits
while in residential treatment. Appellant signed the probation
order.
A first petition to revoke probation was filed on May 17,
2017, alleging appellant had failed to report, failed to provide a
monthly report, failed to provide proof of residential treatment,
and failed to appear at a scheduled court hearing. On June 1,
2017, he admitted the violation and probation was reinstated on
the same terms, conditioned upon the service of an additional 60
days in county jail. There was no discussion of credits for time
spent in a rehabilitation program.
On December 4, 2017, a second amended petition alleging a
probation violation was filed alleging that appellant had been
discharged from the Ukiah Recovery Center, had failed to submit
monthly reporting forms, and had failed to attend probation
appointments. He admitted the violation on December 27, 2017,
after defense counsel indicated, “I believe [appellant] will be
admitting an admission for the 120-day recommendation. He will
be eligible for day-to-day credit, if once accepted to rehab and
transported there.” His probation was reinstated on the same
terms, conditioned upon his service of an additional 120 days in
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county jail. The court indicated orally that the time could be
served in a residential treatment program, and the written order
provided, “Day for day credit is authorized upon successful
completion of residential treatment.”
A third petition to revoke appellant’s probation was filed on
April 5, 2018, alleging he had failed to complete monthly
reporting forms, had failed to report to the probation officer, and
had not submitted proof of participation in a residential
treatment program. A third amended petition filed August 5,
2018 also alleged appellant had committed misdemeanor
vandalism in violation of section 594, subdivision (a) and had
failed to appear at a scheduled court date. Prison was the
recommended disposition.
On August 27, 2019, the court held a probation revocation
hearing. Appellant admitted the probation violation allegations
with the exception of the allegation based on the new offense, and
a hearing was held on that issue. The court found that appellant
had committed the new offense and had violated a probation
condition requiring him to obey all laws. It set the case for a
sentencing hearing.
Appellant submitted a memorandum seeking credit for 50
days spent in a residential treatment program, notwithstanding
his failure to successfully complete the same. He acknowledged
that he signed the original probation conditions, which waived
such credit unless the program was successfully completed.
Appellant argued that his waiver was not knowing, voluntary
and intelligent because he was not advised he would otherwise be
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entitled to custody credits, whether or not he completed the
program. He submitted an accompanying declaration stating
that at the time he signed the probation conditions, he did not
know he had a right to credit for every day spent in a residential
treatment program or that he was waiving his right to such
credit; no one advised him of this until his current attorney told
him in August 2018 (at about the same time the third amended
petition to revoke appellant’s probation was filed).
On October 1, 2019, the court declined to reinstate
probation and sentenced appellant to prison for the two-year
lower term. It denied him credit for the time spent in residential
treatment: “The agreement was that he would only get credits
against a sentence if he completed successfully the treatment,
and he did not complete the treatment. [¶] And he agreed to
waive those credits unless he completed the program.” The court
did award 174 days presentence credits (152 actual days and 22
conduct credits) for time served in the county jail.
II. DISCUSSION
A defendant is entitled to presentence custody credits for
time spent in a residential treatment program. (§ 2900.5, subds.
(a) & (f); People v. Jeffrey (2004) 33 Cal.4th 312, 318 (Jeffrey).)2
2A defendant is not entitled to conduct credit for time
spent in a residential treatment program. (People v. Downey
(2000) 82 Cal.App.4th 899, 920–921; People v. Penoli (1996) 46
Cal.App.4th 298, 305.) But it appears from paragraph 6 of the
probation order authorizing “[d]ay-for-day credit. . . upon
successful completion,” that the parties anticipated appellant
would receive day-for-day conduct credits upon successful
completion of the program. (See People v. Lara (2012) 54 Cal.4th
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Nothing precludes a defendant from waiving earned or future
credits in exchange for a grant (or reinstatement) of probation.
(People v. Arnold (2004) 33 Cal.4th 294, 307–308 (Arnold); People
v. Johnson (2002) 28 Cal.4th 1050, 1054–1055 (Johnson); People
v. Johnson (1978) 82 Cal.App.3d 183, 188.) “[W]hen probation is
conditioned upon completion of a residential treatment program,
custody credit waivers ensure the defendant’s ‘optimum chances
of success in [the] treatment program, while reserving an
appropriate sentence if, despite the opportunity received, the
treatment program and probation are not completed.” (Johnson,
supra, 28 Cal.4th at p. 1056.) Such a waiver must, however, be
knowing and intelligent under the totality of the circumstances.
(Arnold, at p. 308; People v. Arevalo (2018) 20 Cal.App.5th 821,
830.)
Appellant argues that the trial court should have awarded
him 50 days in credits for time spent in a residential treatment
facility during his probationary period. He acknowledges he did
not successfully complete a rehabilitation program, and further
acknowledges that the terms of his probation granted him credit
for time spent in such a program only if he successfully completed
it. But he argues that he was not advised that the law recognized
his entitlement to custody credits for time spent in a
896, 900 [referring to conduct credits under the “day-for-day”
formula].) Given that appellant violated probation and was not
awarded any conduct credit for time spent in the residential
treatment program, we do not need to decide whether the parties
can stipulate to credits to which the defendant is not entitled.
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rehabilitation facility, and he did not knowingly and intelligently
waive those credits.
Appellant has forfeited this issue by failing to raise it in a
timely appeal from the original sentencing hearing. Pursuant to
section 1237, subdivision (a), a defendant may appeal from an
order granting probation. “In general, an appealable order that
is not appealed becomes final and binding and may not
subsequently be attacked on an appeal from a later appealable
order or judgment. [Citations.] Thus, a defendant who elects not
to appeal an order granting or modifying probation cannot raise
claims of error with respect to the grant or modification of
probation in a later appeal from a judgment following revocation
of probation.” (People v. Ramirez (2008) 159 Cal.App.4th 1412,
1421 (Ramirez).)
In Ramirez, the defendant was initially sentenced to four
years in prison, but execution of that sentence was suspended,
and he was placed on probation. (Ramirez, supra, 159
Cal.App.4th at p. 1418.) He violated probation multiple times,
and in 2004 the parties agreed that the court would reinstate his
probation but increase the execution-suspended prison sentence
from four to five years. (Id. at p. 1419.) In an appeal from a
subsequent order revoking probation and executing the five-year
sentence in 2006, defendant argued that the 2004 increase in the
sentence was unauthorized. (Id. at p. 1420.) The court of appeal
agreed, noting the well-established rule that once a sentence is
imposed it may not ordinarily be increased. (Id. at p. 1423.) But
the court concluded that defendant, having failed to timely
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appeal from the order increasing the sentence in 2004, could not
raise the issue in an appeal from the revocation of probation and
execution of sentence in 2006. (Id. at pp. 1420–1423, 1428.) It
determined that the 2004 order increasing the length of the
sentence was an act in excess of jurisdiction, rather than one
lacking in fundamental jurisdiction that could be raised at any
time. (Id. at pp. 1427–1428.)
Similarly, the court here had the power to order that
appellant would only be entitled to credits for the time spent in a
rehabilitation program if he completed that program. (Johnson,
supra, 28 Cal.4th at p. 1056.) Issuing such an order without
obtaining a knowing and voluntary waiver from appellant
involved at most an act in excess of jurisdiction and did not
involve the court’s jurisdiction in the fundamental sense.
Appellant failed to timely appeal the order granting probation in
which he waived the right to credits for time spent in a
rehabilitation program that he did not successfully complete.
(See Cal. Rules of Court, rule 8.308(a) [“notice of appeal . . . must
be filed within 60 days after the rendition of the judgment or the
making of the order being appealed”].) He is foreclosed from
challenging a probation condition imposed at the original
sentencing hearing in February 2017 in an appeal from an order
revoking his probation and sentencing him to prison in October
2019. (Ramirez, supra, 159 Cal.App.4th at pp. 1427–1429.)
It does not matter that appellant raised the issue in the
trial court in conjunction with the hearing at which probation
was revoked and a prison sentence imposed. The motion is
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effectively one seeking to modify probation by eliminating the
waiver of credits. “Because the order granting probation was
appealable, [the defendant’s] failure timely to do so precludes this
belated attempt to appeal from an order denying modification.
To hold otherwise would condone extending the jurisdictional
time limit for filing appeals through bootstrapping.” (People v.
Djekich (1991) 229 Cal.App.3d 1213, 1219.)
We also conclude that People v. Urke (2011) 197
Cal.App.4th 766, 778–780 does not require a different result.
Although the court in that case found that credit waivers given at
previous hearings were invalid following an order revoking
probation and sentencing the defendant to prison, the question of
whether that issue was timely raised was apparently not before
the court.
Appellant argues that a different result is required by
People v. McKenzie (2020) 9 Cal.5th 40, 47 (McKenzie). There,
the defendant had pled guilty to crimes that included prior drug
conviction enhancements under Health and Safety Code section
11370.2 and was placed on probation with imposition of sentence
suspended in 2014. (Id. at p. 43.) Probation was revoked and he
was sentenced to prison in 2016; while his appeal from that
judgment was not yet final, the governor signed Senate Bill 180
(2017–2018 Reg. Sess.), effective January 1, 2018, under which
some of defendant’s prior convictions no longer qualified for
sentence enhancement. (Id. at pp. 43–44.) The court concluded
the defendant was entitled to the ameliorative effect of the new
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law under In re Estrada (1965) 63 Cal.2d 740, 744 (Estrada).
(McKenzie, supra, 9 Cal.5th at pp. 44–45.)
In so holding, the court rejected an argument by the
Attorney General that because the defendant had a right to
appeal from the initial order placing him on probation with the
imposition of sentence suspended, finality for purposes of the
Estrada rule must be determined by reference to that order
rather than the later order revoking probation and the appeal
from that order. (McKenzie, supra, 9 Cal.5th at p. 47.) The court
rejected the argument that “because defendant failed to appeal
from the order granting probation he may not benefit from
ameliorative amendments that took effect long after the time for
taking an appeal from that order lapsed.” (Id. at p. 48.)
Here, we are not concerned with finality of a judgment for
Estrada purposes. Nothing in McKenzie suggests an abrogation
of the rule that the failure to file a timely appeal from a court’s
order granting probation normally bars a challenge to conditions
imposed as part of that order in an appeal from a later order
revoking probation. (People v. Dagostino (2004) 117 Cal.App.4th
974, 996–998; People v. Dixon (2003) 113 Cal.App.4th 146,
150–151; see also People v. Connors (2016) 3 Cal.App.5th 729,
734–736 [declining to follow People v. Hackler (1993) 13
Cal.App.4th 1049, 1057, which had considered validity of
probation condition imposed at original sentencing hearing in a
subsequent probation revocation hearing, noting that subsequent
developments in the law barred such challenges].)
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III. DISPOSITION
The judgment is affirmed.
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NEEDHAM, J.
We concur.
SIMONS, Acting P. J.
BURNS, J.
People v. Blancas / A158618
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