Opinion

People v. Brown

Court
California Court of Appeal
Filed
Jan 22, 2025
Status
Published
Cited by
0 cases
Authority
More cited than 33.7%

The opinion

Filed 11/26/24

TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN DIEGO

APPELLATE DIVISION

THE PEOPLE, Appellate Division No.: CA296089

Trial Court Case No.: M288983DV

Plaintiff(s) and Respondent(s), Trial Court Location: Central Division

v.

DECISION/STATEMENT OF REASONS

ROBERT LAMONT BROWN, (CCP § 77(d)) BY THE COURT

Defendant(s) and Appellant(s).

APPEAL from the November 1, 2023, verdict, and December 5, 2023, sentence, Judge

Marian Gaston.

AFFIRMED in part, REVERSED with instructions in part.

The issue in this case is whether Appellant’s Supervised Own Recognizance (“SOR”)

release requirements were as custodial or restraining as a statutory home detention program

pursuant to Penal Code section 1203.018. In order to be entitled to custody credits under Gerson, a

defendant "must establish that the terms of his release were as 'custodial, or restraining' as a

statutory home detention program pursuant to section 1203.018." (People v. Gerson (2022) 80

Cal.App.5th 1067, 1089.) For the reasons discussed below, this Court finds as a matter of law

Appellant’s SOR requirements were not as custodial or restraining as a statutory home detention

and that the trial court awarded custody credits in error.

DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT

Procedural and Factual History

In a complaint filed on October 6, 2023, Appellant was charged with one count of Penal

Code section 273.5, subdivision (a). He was arraigned on October 6, 2023, and was released on

SOR with a condition of GPS monitoring. Additionally, a Criminal Protective Order (“CPO”) was

issued prohibiting Appellant from contacting or being within 100 yards of the protected parties,

their home, schools, vehicles or places of employment. A jury trial began on October 30, 2023.

The victim testified at trial. She had been married to Appellant for 6 years and had filed for

divorce in August of 2023. On October 4, 2023, they had an argument about her vaccinating their

children. She tried to leave to de-escalate the situation. As she was trying to leave, Appellant

reached through the driver side window of the car, turned off the car, and removed the key. She

attempted to roll up the window and Appellant bit her on the shoulder. After she exited the vehicle,

Appellant moved it and removed parts from the engine to make the car inoperable. The victim went

to the leasing office and called 911. Appellant took the children and drove away. Upon arrival, the

police accompanied the victim to her apartment to determine if the children were there. Appellant

used the remote speakers from the camera system to tell police they could not be in the apartment.

An employee at the apartment complex testified that she heard the argument between

Appellant and the victim and observed the bite mark on the victim’s arm. The community manager

for the apartment complex testified Appellant appeared very upset during the argument. She also

saw the bite mark on the victim’s arm and described seeing teeth marks all the way around.

An expert witness testified for the prosecution regarding the cycle of violence in domestic

violence relationships.

SDPD Officer Christman testified that when he arrived on scene Appellant told officers to

leave and claimed because he was the head of the household, officers had no right to be inside the

home. Officer Christman also had responded to a prior incident on September 8, 2023, where

Appellant slapped a cell phone out of the victim’s hand while she was recording an argument.

SDPD Officer Yeatman testified that he responded to the October 4, 2023, call and observed

a bite mark on the victim’s arm. He testified he went with the victim to the apartment and described

hearing Appellant yell at officers through security camera speakers.

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DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT

Multiple 911 calls were played to the jury. Video from a September 8, 2023, argument was

played for the jury. Videos from the apartment complex’s security cameras were played. Photos of

the victim’s injuries from the bite were shown to the jury. And body worn camera footage from

Officer Yeatman was played.

Appellant testified in his own defense. He denied any physical touching in any of the

arguments. He denied biting the victim or hitting her with the car. He testified that as the executor

of the estate he has final decision-making authority over the children. He testified that according to

international law he had full ownership over the vehicle. He stated that corporate California cannot

tell any flesh and blood living man what to do.

Appellant was convicted by the jury on November 1, 2023. He filed a notice of appeal on

December 1, 2023. But was not sentenced until December 5, 2023. This Court treated the appeal as

timely filed even though it pre-dated the sentence.

Counsel for Appellant filed a Wende brief on May 8, 2024. On July 12, 2024, this Court

requested supplement briefing on whether the conditions of SOR were as “'custodial, or restraining'

as a statutory home detention program pursuant to section 1203.018" and about a potential fines and

fees error.

Discussion

The central issue in this case is whether Appellant’s SOR requirements were as custodial or

restraining as a statutory home detention program pursuant to Penal Code section 1203.018. In

order to be entitled to credits under Gerson, a defendant "must establish that the terms of his release

were as 'custodial, or restraining' as a statutory home detention program pursuant to section

1203.018." (Gerson, supra 80 Cal.App.5th at 1089.) For reason discussed below, this Court finds as

a matter of law Appellant’s SOR requirements were not as custodial or restraining as a statutory

home detention and that the trial court awarded custody credits in error.

Preservation of Error

Although there was no objection to the award of custody credits, a “sentence that awards

custody credits exceeding statutory limits is unauthorized and may be corrected whenever the error

is discovered.” (People v. Valenti (2016) 243 Cal.App.4th 1140, 1184.)

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DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT

Standard of Review

This is an issue subject to de novo review. The legal interpretation of the meaning of the

holding in People v. Gerson and the requirements of Penal Code section 1203.018 are the central

issues. These are pure questions of law. Pure questions of law are reviewed de novo. (People v.

Cromer (2001) 24 Cal.4th 889, 894.)

Gerson Analysis

To be entitled to custody credits under Gerson, a defendant "must establish that the terms of

his release were as 'custodial, or restraining' as a statutory home detention program pursuant to

section 1203.018." (Gerson, supra 80 Cal.App.5th at 1089.) "[P]articipants in a home detention

program must comply with the rules of the program, including the following: (1) remaining within

the interior premises of his or her residence during the hours designated by the correctional

administrator; (2) admitting persons into his or her residence at any time for purposes of verifying

compliance with the conditions of his or her detention; and (3) a GPS device or other supervising

device." (Id. at 1089-1090.)

On October 6, 2023, the court ordered as a condition of OR release that “SCRAM with GPS

monitoring to be installed and monitored by probation.” The court also issued a criminal protective

order. The trial court did not describe these release conditions as home detention. The trial court did

not designate hours where Appellant was to remain in the interior premises of his residence. There

was no limit on his movements other than the prohibition of coming within 100 yards of the

protected parties, their homes, jobs, vehicles, or schools. The Court included a 4th Amendment

waiver as a condition of Appellant’s release.

At sentencing, the trial court, citing Gerson, awarded Appellant 58 actual credits and 58

Penal Code section 4019 credits for the time he spent on GPS monitoring. When questioned by the

People, the court indicated that Gerson stood for the proposition that days monitored by GPS

qualify as actual custody days and thus the Appellant was also entitled to good time credits

pursuant to Penal Code section 4019. The court did not analyze whether the GPS monitoring in the

case was as custodial or restraining as a statutory home detention.

///

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DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT

While the second and third prongs for home detention from Gerson were present—the 4th

Amendment waiver and the GPS monitoring—the first prong was not present. There were no

restrictions requiring that Appellant remain within the interior premises of his residence during any

timeframe. Thus, as a matter of law, the conditions imposed on Appellant were not as restrictive as

home detention. Therefore, the trial court erred in awarding custody credits.

Appellant’s argument that awarding credits is within the spirit of Gerson fails. The

reasoning in Gerson relied on an equal protection analysis. (Gerson, supra 80 Cal.App.5th at 1089.)

“If persons are not similarly situated for purposes of the law, an equal protection claim fails at the

threshold. [citations omitted] The question is not whether persons are similarly situated for all

purposes, but ‘whether they are similarly situated for purposes of the law challenged.’ [citations

omitted]” (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.) In finding that the defendant

was eligible for the credits the Gerson court indicated a desire to avoid elevating form over

substance. (Gerson, supra 80 Cal.App.5th at 1091.) The substance of the analysis is whether a

defendant is similarly situated to one on pre-trial home detention under Penal Code section

1203.018. A person prohibited by a protective order from going near certain individuals or

locations is not similarly situated to a person prohibited from leaving their residence at all during

certain timeframes. While there is a restriction on their travel, they have a vast multitude of options

denied the person who must remain in their residence. Therefore, the spirit of Gershon’s analysis—

equal protection—is not served by granting credits under these circumstances.

Wende Analysis

The Appellate Division has reviewed the entire record on appeal pursuant to People v.

Wende (1979) 25 Cal.3d 436, as requested by appellant’s counsel, and has found no arguable issues

in appellant’s favor other than an issue with fines and fees.

The trial court imposed $745 in total fines, fees, and assessments. It appears the court may

have imposed a $25 assessment pursuant to Penal Code section 1463.07. Courts no longer have the

authority to impose this assessment. Penal Code section 1643.07 was repealed by Assembly Bill

177 effective September 23, 2021.

///

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DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT

Conclusion

Because the conditions of SOR release were not as custodial or restraining as a statutory

home detention program pursuant to Penal Code section 1203.018, the trial court erred as a matter

of law in awarding custody credits for Appellant’s time on SOR with GPS monitoring. By ordering

$745 in total fines, fees, and assessments, the court erred by imposing a $25 assessment that is no

longer authorized. The case is remanded to the trial court for resentencing based on this decision.

The verdict is affirmed.

Affirmed in part, reversed with instructions in part.

ALBERT T. HARUTUNIAN III

Presiding Judge, Appellate Division

FRANK L. BIRCHAK

Judge, Appellate Division

MARYANN D’ADDEZIO

Judge, Appellate Division

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DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT

Counsel for Appellant, Robert Lamont Brown:

WILLIAM R. BURGENER, ESQ.

3990 OLD TOWN AVE C-105

SAN DIEGO, CA 92110

Counsel for Respondent, The People:

MARA W. ELLIOTT, CITY ATTORNEY

APPELLATE DIVISION

1200 THIRD AVE., STE. 700

SAN DIEGO, CA 92101

DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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