Filed 6/29/16 P. v. Taylor CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A144483
v.
DIEGO JESUS TAYLOR,                                                  (Marin County
                                                                     Super. Ct. No. SC191797A)
         Defendant and Appellant.


         Defendant Diego Jesus Taylor appeals from an order imposing 180 days of county
jail time for a drug-related violation of postrelease community supervision (PRCS). He
also asserts the trial court failed to properly account for all of his custody credits. We
affirm the jail sentence, but remand for the accurate calculation of defendant’s credits.
                                               I. BACKGROUND
         In October 2011, defendant pleaded guilty to one count of possession of a firearm
by a felon (Pen. Code,1 former § 12021, subd. (a)(1)) and two counts of possession for
sale of a controlled substance (Health & Saf. Code, §§ 11351, 11378). He was sentenced
to state prison for a determinate term of four years four months. In August 2013,
defendant was released from prison on PRCS.
         While on PRCS, defendant struggled to abstain from illegal drug use. On May 2
and 9, 2014, defendant tested positive for amphetamines and methamphetamine.
Probation directed defendant to report to the Helen Vine Detox Center (Helen Vine) for


         1
             All statutory references are to the Penal Code unless otherwise specified.
72 hours, which he did on May 9. On May 30 and June 2, 2014, defendant again tested
positive for drugs. His tests were clean on June 9 and 16, but on July14 he admitted to
using methamphetamine to his probation officer. Probation once again directed
defendant to report to Helen Vine for 72 hours.
       On July 21, defendant tested positive for amphetamine and methamphetamine.
Between July 23 and July 28, defendant was placed in flash incarceration. Upon his
release, defendant reported to Marin Services for Men, a residential sober living
environment. On August 8, 19, and 26, defendant tested positive for marijuana. As a
result of the marijuana use, defendant was ordered to report to Helen Vine for 72 hours.
Defendant relapsed and tested positive for marijuana on September 9 and 10. On
December 19 and 22, defendant tested positive for amphetamine and methamphetamine.
       On December 22, defendant told his probation officer his mother had passed away
that day. Defendant was told to check in with probation on December 24, but he failed to
do so. Defendant’s probation officer contacted defendant on December 29, and told him
to report to probation on the following day. Defendant told the officer he would be
unable to return to Marin County until January 5, 2015, because he was handling funeral
arrangements for his mother in Sacramento. Defendant failed to report to probation on
January 5, and a bench warrant was issued for his arrest. Defendant talked with his
probation officer by phone on January 12, stating he did not feel he had done anything
wrong and would not go to residential drug treatment. On January 20, defendant reported
to his probation officer, was placed under arrest, and tested for drugs. The test came back
positive for amphetamine and methamphetamine.
       The following day, January 21, probation filed a petition for revocation of
defendant’s PCRS. On February 23, the court heard testimony from various witnesses
and then rendered its decision. The court found defendant was not amenable to drug
treatment, refused drug treatment, and was dangerous and presented a risk to society
based on his ongoing drug use and the nature of his most recent conviction. The court
sustained the petition, revoked defendant’s PRCS, and imposed a custodial sanction of
180 days.


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                                    II. DISCUSSION
A. Revocation of PRCS
       Defendant argues the trial court erred in revoking his PRCS and incarcerating him
pursuant to section 3455 because that statute impermissibly overrides Proposition 36, the
Substance Abuse and Crime Prevention Act of 2000. Defendant relies on People v.
Armogeda (2015) 233 Cal.App.4th 428 (Armogeda), which holds: “As applied to
nonviolent drug possession offenders and violators of drug-related conditions of [PRCS],
section 3455, which permits the incarceration of those persons under circumstances not
permitted by Proposition 36, unconstitutionally amends Proposition 36 and to that extent
is invalid.” (Id. at p. 436.)
       The fundamental problem with defendant’s argument is the trial court’s decision
was not predicated on section 3455. Consistent with Armogeda , the court looked to
section 3063.1, which was added by Proposition 36, to determine whether revocation of
PRCS was justified. Section 3063.1 expressly applies to the revocation of parole and,
pursuant to Armogeda, also applies to the revocation of PRCS. (Armogeda, supra,
233 Cal.App.4th at pp. 434–436.) Subdivision (a) of section 3063.1 provides that, except
as provided in subdivision (d), “parole shall not be suspended or revoked for commission
of a nonviolent drug possession offense or for violating any condition of any drug-related
condition of parole.” (§ 3063.1, subd. (a).) Subdivision (d) states parole may be revoked
and the defendant incarcerated “if the parole violation is proved and a preponderance of
the evidence establishes that the parolee poses a danger to the safety of others.”
(§ 3063.1, subd. (d)(1).) Additionally, subdivision (a) does not apply to a “parolee who
refuses drug treatment as a condition of parole.” (§ 3063.1, subd. (b)(3).) Parole may
also be revoked, if at any point during the course of drug treatment, the drug treatment
provider provides notice the parolee is “unamenable to the drug treatment provided and
all other forms of drug treatment provided.” (§ 3063.1, subd. (c)(2).)
       Here, the trial court expressly referenced section 3063.1 and found defendant
refused drug treatment, was unamenable to treatment, and posed a danger to the safety of



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others. Thus, contrary to defendant’s contentions, the court did not apply the wrong legal
standard.2
       Defendant’s appeal of the revocation also fails because it is moot. As defendant
concedes, there is no remedy we can provide as he has already served the 180-day term at
issue on appeal. Defendant nevertheless argues we should consider his claims because
the validity of section 3455 presents a matter of continuing public interest. As defendant
asserts, we have discretion to decide moot claims presenting questions of general public
concern, “particularly in the area of the supervision of the administration of criminal
justice.” (In re Walters (1975) 15 Cal.3d 738, 744.) But this claim does not present such
a question. As discussed above, this case does not turn on a dispute over the validity of
section 3455, as the trial court followed Armogeda and evaluated whether revocation was
proper under section 3063.1. The thrust of defendant’s remaining arguments is that the
trial court erred in finding he refused treatment and was unamenable to it. These
arguments concern the sufficiency of evidence in this particular case and thus do not raise
issues of public interest.
       In any event, the trial court’s finding that defendant refused treatment is supported
by substantial evidence. Defendant tested positive for drugs at least a dozen times from
May 2014 and January 2015, despite being sent to drug treatment centers on several
occasions. Moreover, on January 12, 2015, defendant told his probation officer he
would not submit to residential drug treatment. Based on this evidence, the trial court
reasonably concluded revocation was proper under section 3063.1.
B. Custody Credits
       Defendant further argues the trial court erred by failing to credit his excess
custody credits against his PRCS period and eligible fines.3 We agree. Section 2900.5


       2
        Defendant also argues section 3455 violates the equal protection rights of
persons on PRCS such as himself because it treats them differently than similarly situated
parolees, who are entitled to drug treatment under section 3063.1. We need not and do
not reach the issue because trial court considered whether drug treatment was appropriate
under section 3063.1 and thus treated defendant exactly the same as a parolee.


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mandates that a defendant’s excess custody credits be applied to reduce his or her parole
period and eligible fines. As persons on PRCS are similarly situated to those on parole,
denying them the benefits of section 2900.5 would violate their equal protection rights.4
Accordingly, those on PRCS are also entitled to excess custody credits.
       Section 2900.5 provides that when a defendant convicted of a felony or
misdemeanor has been in custody, his or her days of custody “shall be credited” against
the “term of imprisonment” or to any fine. (Id., subd. (a).) A defendant’s days in
custody include any time spent in a jail or “rehabilitation facility.” (Ibid.) The statute
defines “ ‘term of imprisonment’ ” to include parole. (Id., subd. (c).) Custody credit
must first be applied to reduce some or all of the term of imprisonment, with any
remaining credit applied against fines. (Id., subd. (a).) Effective January 2016, custody
credits are to be applied against fines at a rate of not less than $125 per day. (Ibid.)
       Here, defendant received credit for a total of 69 days, 35 days of actual credit and
34 days of conduct credits under section 4019. The 35 days of actual credit were
presumably accrued when defendant served time in the Marin County jail between
January 20, 2015, when he surrendered to his probation officer, and February 23, 2015,
the date of the revocation hearing. But the awarded credits do not account for
defendant’s flash incarceration between July 23 and July 28, 2014, or his stints at the
Helen Vine Detox Center. Accordingly, remand is necessary for the accurate calculation
and application of defendant’s excess custody credits.
       3
        Defendant did not object to the court’s calculation of his custody credits below.
As the Attorney General has not argued defendant waived the issue, we will consider it.
       4
         The Attorney General argues People v. Espinoza (2014) 226 Cal.App.4th 635
(Espinoza) rejected an identical equal protection claim. Espinoza held that inmates
subject to community supervision were not entitled to apply excess credits against that
period. Although the discussion is in part framed in terms of “equal protection,” the
court’s analysis focuses on the permissibility of distinguishing between inmates
sentenced before the Criminal Justice Realignment Act (and thus subject to parole) and
those sentenced thereafter (and thus subject to community supervision). We have no
quarrel with the court’s view that the ex post facto clause does not bar drawing such a
distinction. Therefore, there is no need to express any view on the correctness of the
result in Espinoza.


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                                  III. DISPOSITION
      We affirm the trial court’s revocation of PRCS, and remand for proper calculation
of defendant’s custody credits.




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                                _________________________
                                Margulies, J.


We concur:


_________________________
Humes, P.J.


_________________________
Dondero, J.




A144483
People v. Taylor


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