I'm always excited about published opinions from the Appellate Division of the Superior Court because they often involve oft-recurring conduct, which is often why the Appellate Division elected to publish the opinion in the first place. I am doubly interested when, as here, the opinion is from San Diego.
The Appellate Division holds here that someone who's on GPS monitoring isn't entitled to custody credits for that period. First off: I'm totally on board for that result. It seems entirely sensible and correct. If you're out of jail, on GPS monitoring, allowed to walk free about town as you wish, with the only limitation that you're not allowed to harass or get within 100 feet (or yards, or whatever) of a domestic violence victim and the like, yeah, that's not like being in jail -- or even on house arrest -- so, no, you don't get custody credits. (P.S. - You shouldn't be harassing people in the first place.)
So I'm extraordinarily sympathetic with the result.
But I actually think it's somewhat hard to actually get there given the actual law.
Under the statute and caselaw, you get custody credits in situations like the one here if you're in a program in which you're required to "(1) remain[] within the interior premises of his or her residence during the hours designated by the correctional administrator; (2) admit[] persons into his or her residence at any time for purposes of verifying compliance with the conditions of his or her detention; and (3) [wear] a GPS device or other supervising device."
There's zero doubt that Mr. Brown here meets the latter two requirements. He definitely has to wear a GPS device, and he had to submit a Fourth Amendment waiver as well. So the fight is only about the first of the three requirements.
And, as to that one, the Appellate Division understandably -- and correctly -- says that there was nothing in Mr. Brown's supervision that required him to be at home. He just had to stay away from the victim's work, home, etc.
So he wasn't required to "remain[] within the interior premises of his or her residence during the hours designated by the correctional administrator," right?
Not so fast.
Yes, it's true that the court didn't require him to remain at his home during any particular period. But that's just a different way of saying that "the hours designated by the correctional administrator" during which he was required to remain at home were zero.
The defendant in Gerson (the central case discussed in the Appellate Division), for example, was entitled to custody credits even though he has a ton of time in which he was free to roam outside of his home. He could be at work between 7 a.m. and 6 p.m. (and even as late as 8:30 p.m. on Wednesdays), could spend the night at his girlfriend's house three days a week (thanks!), could do personal errands for 90 minutes a day, etc. The restrictions changed over time, but the point is that at many points during which he was entitled to custody credits, he was not required to be in his home virtually at all -- and, when he was spending those three nights a week with his girlfriend, he might well spend ZERO time at his own home.
Imagine that the release conditions expressly said as; i.e., that initially he had to spend, say, 8 hours at his house, but eventually that time went down to 4 hours, then 1 hour, then zero. But he still had to wear the GPS and be subject to unannounced home searches. It seems to me like he's entitled to credits for all those days: it's just that, at the end, while he was indeed required to "remain[] within the interior premises of his or her residence during the hours designated by the correctional administrator," it turns out that those "designated hours" were zero.
How's that different than here? Where the court, essentially, says in the first instance: "Yeah, you gotta wear the GPS and be subject to home searches, but your 'designated hours' in the home are zero."
Or what about if the Court said "You gotta wear the GPS and be subject to home searches, and you are required to be in the home during any home search." That home search may only take 15 minutes, but the guy was nonetheless required to "remain[] within the interior premises of his or her residence during the hours designated by the correctional administrator," so he'd get custody credits for the full amount of time he was on GPS monitoring. (Not just the 15 minutes he was at home.)
The point is this: Textually, I think there's actually a decent argument that maybe Mr. Brown should get credit for his time. Even though the Appellate Division here thinks it obviously goes the other way.
One more thing. Somewhat of a double whammy for Mr. Brown.
Not only does Mr. Brown lose on the custody credit issue, but he apparently loses this issue even though no one raised it on appeal. The trial court gave him custody credits. His trial counsel filed an appeal, but then simply filed a Wende brief saying that there was no nonfrivolous appellate argument on his behalf. So Mr. Brown was basically an automatic loser.
But then the Appellate Division sua sponte raised the custody credit issue, and found against the guy on the merits.
So the guy ends up net negative on his own appeal. He appealed based on nothing. The City Attorney didn't appeal at all. And yet the guy ends up spending more time in prison.
He'd have been better off never even filing an appeal.
Tough for the guy, eh?
Again, I'm extraordinarily sympathetic to the result. You shouldn't get custody credits, in my view, if you're solely on GPS monitoring rather than actual house arrest.
It's just not so easy to get to that result as it might otherwise appear.
