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Filed 11/5/15 P. v. Stover CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

CARL DAVID STOVER, JR.,

Defendant and Appellant.

A143847

(Humboldt County

Super. Ct. No. CR1305813)

While awaiting trial on stalking charges, defendant Carl David Stover, Jr.,

participated in a supervised release program operated by the county’s probation 

department, although the program had not been adopted pursuant to a resolution of the 

county board of supervisors. Following entry of his guilty plea, defendant was placed on 

probation with the condition that he spend one year in county jail. On appeal, defendant 

contends the trial court erred in denying his request for preconviction custody credits for 

the time he spent on supervised release. We agree that defendant was entitled to custody 

credits for his time on supervised release and, therefore, we shall remand the matter for

recalculation of preconviction custody credits and affirm the judgment in all other 

respects.

Procedural History1

On December 16, 2013, defendant was charged with one felony count of stalking 

in violation of Penal Code2section 646.9, subdivision (b) and one misdemeanor count of 

 

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The facts of the underlying offense are irrelevant to the decision on appeal and are thus 

omitted. 
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disregarding a restraining order in violation of section 273.6, subdivision (a). On 

December 23, 2013, defendant was taken into custody and held on $110,000 bail. The 

following day, the court approved defendant’s release into the probation department’s 

supervised release program “under the conditions in [the probation department’s] report.”

The probation department’s report recommended the following conditions, among others: 

“(1) The defendant will reside at [address] . . . . The defendant agrees to remain in the 

above residence at all times, except those times approved by the Home Supervision 

Officer. [¶] (2) Defendant understands the Home Detention restrictions may be enforced 

by the use of computer technology. To ensure defendant’s compliance with the terms and 

conditions of the Home Detention Electronic Monitoring program, [he] agrees to wear 

. . . [an] ankle bracelet/transmitter twenty-four (24) hours a day during the entire period 

of home detention . . . . [¶] (3) . . . [¶] (4) . . . Probation or other law enforcement officers 

may enter defendant’s residence at any time . . . for any . . . reason involving the 

monitoring, inspection, verifying, or enforcing this agreement or the court’s order.”

Defendant was terminated from the supervised release program on May 5, 2014.

On September 17, 2014, defendant pled guilty to a lesser offense of count one, 

under section 646.9, subdivision (a), and to count two as charged. Consistent with the 

terms of his negotiated plea, the court suspended imposition of sentence and placed

defendant on probation, with the condition that he serve a 365-day term in county jail. 

The court awarded defendant presentence custody credits of 180 days for time spent in 

county jail, but refused to apply an additional 131 days of presentence credit for time 

defendant spent in the supervised release program.

Defendant timely filed a notice of appeal from the court’s denial of preconviction

credits. 

Discussion

Preconviction custody credits are governed by section 2900.5, subdivision (a)

which provides in relevant part that “[i]n all felony and misdemeanor convictions, either 

 

2 All statutory references are to the Penal Code unless otherwise noted.
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by plea or by verdict, . . . all days of custody of the defendant, including . . . days served 

in home detention pursuant to Section . . . 1203.018, shall be credited upon his or her 

term of imprisonment . . . .”

Under section 1203.018, “the board of supervisors of any county may authorize 

the [sheriff, probation officer, or director of the county department of corrections] . . . to 

offer a program under which inmates being held in lieu of bail in a county jail or other 

county correctional facility may participate in an electronic monitoring program.” 

(§ 1203.018, subd. (b), citing subd. (k)(1).) The statute leaves the terms of the electronic 

monitoring program to the discretion of county authorities, but, at a minimum, the rules 

and regulations of the program must require that the participant “remain within the 

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

administrator” and “admit any person or agent designated by the correctional 

administrator into his or her residence at any time for purposes of verifying the 

participant's compliance with the conditions of his or her detention.” (§ 1203.018, 

subds. (d)(1) & (d)(2).) The statute allows for the use of “global positioning system 

devices or other supervising devices for the purpose of helping to verify the participant’s 

compliance with the rules and regulations of the electronic monitoring program.” 

(§ 1203.018, subd. (d)(3).)

The board of supervisors in Humboldt County has not specifically authorized the 

home detention program into which the probation department placed defendant. 

Defendant thus was not placed into a home detention program “pursuant to” section 

1203.018 since the board of supervisors never adopted such a program. Accordingly, 

defendant was not entitled to custody credits under the literal language of section 2900.5. 

(See People v. Lapaille (1993) 15 Cal.App.4th 1159, 1165 [“home detention program” 

listed as example of “custody” under former section 2900.5, subdivision (a), included 

only specific electronic monitoring program established under section 1203.016.].) 

Nonetheless, defendant argues that because the terms and conditions of his release 

under the county’s supervised release program mirror the terms and condition of a home 
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detention program under section 1203.018, he is entitled to custody credits under the 

equal protection clauses of the United States and California Constitutions. We agree. 

In People v. Lapaille, supra, 15 Cal.App.4th at pages 1169-1170, the court held 

that a defendant in a home detention program that was “as custodial, or restraining” as the

statutory electronic home detention program enumerated in section 2900.5 was entitled to 

custody credits, under principles of equal protection. The court found the “only real 

difference[]” between the defendants home detention and the statutory electronic 

monitoring program was the method for verifying a defendant’s whereabouts; the latter 

involved electronic tracking, while the former involved “telephone calls to the 

residence.” (Id. at p. 1170.) The court concluded that this “procedural difference[]” was 

not a legitimate basis “for treating defendant differently from those placed in electronic 

home detention programs.” (Ibid.) The court also found irrelevant the fact that electronic 

home detention was based “on a statutory program,” while defendant’s detention was 

“based at home under [own recognizance] release.” (Ibid.)

In People v. Pottorff (1996) 47 Cal.App.4th 1709 defendant also challenged, on 

equal protection grounds, the court’s denial of preconviction custody credits for home 

detention under section 2900.5. The court observed that “to show that he is similarly

situated with respect to these purposes, appellant must show that ‘his confinement to his 

home was as custodial’ ” as the confinement of participants in the statutorily authorized 

program. (Id at p. 1715.) The court found that defendant had not met this burden: “Here, 

the court simply required appellant generally to ‘remain at home’ and have ‘regular 

contact’ with the Project. As implemented, the latter condition required appellant to 

contact the Project only twice a week by telephone and once a month in person. By 

contrast, a participant in an electronic home monitoring program must ‘be supervised’

[citation] and must, at minimum, abide by the following restrictions: (1) ‘[r]emain within 

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

correctional administrator’; (2) ‘. . . admit any person or agent designated by the 

correctional administrator into his or her residence at any time for purposes of verifying 

[his or her] compliance with the conditions of . . . detention’; and (3) ‘. . . agree to the use 
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of electronic monitoring or supervising devices for the purpose of helping to verify his or 

her compliance with the rules and regulations of the home detention program.’ ” (Id. at 

p. 1716.)

In this case, there is no meaningful difference between the conditions imposed by 

the court under the supervised release program and the statutory requirements. The record 

establishes that the probation department’s supervised release program is “as custodial” 

as the home detention program authorized by section 1203.018. Indeed, even the 

probation department’s supervised release report repeatedly refers to its program as 

“home detention.” The People’s arguments to the contrary are not persuasive.

Initially, the People argue that the absence of an official section 1203.018 program 

in the county necessarily defeats defendant’s equal protection challenge: “Although 

[defendant] had the burden of showing that section 1203.018 participants and persons 

subject to electronic monitoring as a condition of supervised own recognizance are 

similarly situated, he did not make even a threshold showing that Humboldt County has 

authorized its correctional administrator to offer a home detention program or adopted 

rules and regulations governing the operation of such a program. Since [defendant] has 

not established the existence of a section 1203.018 program in Humboldt County, or the 

rules and regulations applicable to any such program, he also cannot show that the 

conditions of his supervised own recognizance release were ‘as custodial, or restraining’ 

as the confinement of section 1203.018 participants, assuming there are any such 

participants in Humboldt County.” Defendant’s participation in the county’s supervised 

release program, as ordered in this case, however, satisfies the requirements of a home 

detention program under section 1203.018. While the board of supervisors has not passed 

a resolution authorizing the probation department program, there is no dispute that the 

program satisfies the requirements of the statute. The absence of a board of supervisors 

resolution does not defeat the equal protection analysis. 

The People also contend that defendant was not entitled to custody credits because 

he was not “an inmate held in lieu of bail” within the meaning of section 1203.018

because the supervised release program is “similar to release on one’s own 
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recognizance.” The record establishes, however, that defendant was being held in custody 

prior to his release and bail had been set. Thus, he was released from jail, into the 

program, in lieu of bail. 

The People argue that “there is no indication in the record that [defendant] was 

ever advised of or ordered to follow these conditions. Nor does the record contain 

[defendant’s] consent and agreement in writing to participate in the program and comply 

with the rules and regulations, as required by section 1203.018.” The court’s minute 

order, however, indicates that defendant was released pursuant to the conditions 

recommended by the probation department and the sentencing report filed by the 

probation department indicates that defendant was actually supervised while in the 

supervised release program. In the absence of any evidence to the contrary, we presume 

defendant was properly advised on the terms of his release. (Evid. Code, § 664.)

Finally, the People argue that defendant’s supervised release program was not “as 

custodial” as the statutory program because, as implemented, he was not required to 

remain at his residence at all times. The People rely on the probation officer’s statement 

in the trial court that while on supervised release “defendant was basically free to come 

and go as he pleased.” However, the statutory requirement that the participant “remain 

within the interior premises of his or her residence” applies only “during the hours

designated by the correctional administrator.” (§ 1203.018, subd. (d)(1)).3The conditions 

of defendant’s release required that he “remain in the above residence at all times, except 

those times approved by the Home Supervision Officer.” The record contains no 

indication of what time restraints the probation department imposed on defendant’s 

absence from his home, but there is no suggestion that defendant failed to comply with 

whatever limitations the department specified. To the contrary, the probation 

 

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Section 1203.018, subdivision (d) provides that as a condition of participation in the 

electronic monitoring program, the participant must agree “to comply with the rules and 

regulations of the program, including . . . [¶] . . . the participant shall remain within the 

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

administrator.”
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department’s sentencing report states that “[d]uring the five months defendant was on 

supervised release, he was mostly compliant with the program. It appears that he reported 

regularly; however, it was noted several times that defendant had tampered with his 

electronic monitoring device.” While the probation department may have permitted 

defendant considerable freedom of movement outside of his premises, there is no 

question that under the statute he would have been entitled to custody credit for the 

period he was subject to supervision and electronic monitoring, regardless of the laxity of 

the probation department’s demands, had the department’s program been explicitly 

authorized by a board of supervisors resolution. The absence of such a resolution does 

not negate the equal protection analysis. A defendant’s entitlement to custody credits 

cannot be dependent on how rigidly an individual probation officer exercises the officer’s 

supervisorial discretion so long as the defendant complies with the probation officer’s 

conditions.

Accordingly, as a matter of equal protection, defendant is entitled to the same 

custody credits for the period of his preconviction restriction under the probation 

department’s supervised release program as those individuals subject to identical 

restrictions under a program authorized by a board of supervisors resolution.

Disposition

The judgment is reversed as to the award of custody credits pursuant to section 

2900.5, subdivision (a), and the case is remanded so that the trial court can determine the 

number of days of additional preconviction custody credit to which defendant is entitled. 

In all other respects, the judgment is affirmed.
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_________________________

Pollak, Acting P.J.

We concur:

_________________________

Siggins, J.

_________________________

Jenkins, J.
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A143847