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