Filed 1/12/24 P. v. Orozco CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JOSE LUIS OROZCO,

 Defendant and Appellant.

2d Crim. No. B327776

(Super. Ct. No. 2020014067)

(Ventura County)

Jose Luis Orozco appeals from the order denying his 

request for custody credits. He contends, and the Attorney 

General concedes, the trial court erred when it denied credits for 

the time he spent in a residential treatment program. We 

reverse and order that Orozco receive an additional 259 days of 

custody credits.

FACTUAL AND PROCEDURAL HISTORY

In October 2021, Orozco pleaded guilty to unlawfully

driving or taking a vehicle. (Veh. Code, § 10851, subd. (a).) The 

trial court sentenced him to three years in state prison, 

suspended execution of the sentence, and placed Orozco on two 
2

years of formal probation with terms and conditions, including 

that he serve 365 days in county jail. 

During sentencing, the prosecutor informed the court that 

Orozco would enroll in a residential treatment program at the 

Salvation Army’s facility in Santa Monica. The trial court

“ordered [Orozco] to be transported first to the probation 

department and then to the Salvation Army Santa Monica 

facility[,] where he [was] to remain in the program.” It also 

ordered Orozco to “follow all [probation department] directions 

regarding his place of employment, his place of residence, [and] 

any treatment or . . . programs . . . they think . . . appropriate for 

him while he’s on probation.” 

The trial court ordered Orozco to complete the Salvation 

Army residential treatment program, and instructed him to 

report to the probation department if he left the program so it 

could figure out “what . . . to do next.” The court asked Orozco to 

waive confidentiality: “The program at Salvation Army is 

something that is usually private or confidential to you, but 

because it has to with your release from custody and your 

sentencing, you agree that the program may communicate with 

the [c]ourt, if necessary, and the probation department, if 

necessary, regarding your progress. Do you understand?” Orozco 

said he did. The court granted him 261 days of custody and 

conduct credits, and stayed the remainder of his jail sentence 

pending completion of the program. 

In February 2023, defense counsel told the trial court that 

Orozco had completed the Salvation Army program and was 

requesting 259 days of additional custody credits for the period 

December 1, 2021, to August 17, 2022. The court said it normally 

told defendants who choose a residential treatment program that 
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they would not receive custody credits. The court instructed the 

parties to check the record: “[T]he transcript is what controls.” 

The trial court subsequently conceded it had not expressly 

warned Orozco that he would not receive custody credits for time 

spent in the residential treatment program. It nevertheless

denied the credits because enrolling in the program was not a 

probation condition. After finding that Orozco violated probation, 

the court imposed a three-year prison sentence. It awarded 

Orozco 376 days of custody and conduct credits for the time spent 

in county jail, but denied him custody credits for the time spent 

at the Salvation Army. 

DISCUSSION

Orozco contends, and the Attorney General concedes, that 

the trial court erred when it denied his request for custody 

credits for the time spent in the Salvation Army’s residential 

treatment program. We agree.

“In all felony . . . convictions, either by plea or by verdict, 

when the defendant has been in custody, including, but not 

limited to, any time spent in a jail, camp, work furlough facility, 

halfway house, rehabilitation facility, hospital, prison, juvenile 

detention facility, or similar residential institution, all days of 

custody of the defendant, including days served as a condition of 

probation in compliance with a court order . . . shall be credited 

upon [their] term of imprisonment.” (Pen. Code, § 2900.5, subd. 

(a).) These provisions “apply to custodial time in a residential 

treatment [program].” (People v. Jeffrey (2004) 33 Cal.4th 312, 

318.) A defendant may waive their entitlement to such credits, 

however, to ensure their success in the program. (Ibid.)

Here, Orozco did not waive his entitlement to custody 

credits while participating in the Salvation Army’s residential 
4

treatment program. And his participation in the program was a 

condition of probation: The court ordered him to be transported 

there, ordered him to follow its program directives, ordered him 

to advise the probation department if he left, and required him to 

waive confidentiality so the Salvation Army could communicate 

with probation about his progress. 

The Attorney General agrees that participation in the 

Salvation Army program was a condition of Orozco’s probation 

and that Orozco did not waive entitlement to custody credits for 

his time spent there. He nevertheless requests that we remand 

the matter for the trial court to determine whether that time was 

“custodial.” (See People v. Davis (2023) 87 Cal.App.5th 771, 777 

[placement must be “custodial” to entitle defendant to credits]; 

People v. Shabazz (2003) 107 Cal.App.4th 1255, 1258 [defendant 

bears burden of showing entitlement to credits]; People v. 

Ambrose (1992) 7 Cal.App.4th 1917, 1922 [whether placement 

“custodial” a factual question for the trial court].) But when 

Orozco first requested credits a representative from the Salvation 

Army was present in the courtroom. Prosecutors chose not to 

inquire into the conditions of their program. Nor did they choose 

to do so at the subsequent hearing on Orozco’s request. We 

accordingly reject the Attorney General’s remand request. 

(People v. Davenport (2007) 148 Cal.App.4th 240, 247.) 

DISPOSITION

The March 17, 2023, order denying Orozco’s request for 

custody credits for the time spent in the Salvation Army’s 

residential treatment program is reversed. The trial court is

ordered to award Orozco an additional 259 days of custody credits

for the time he spent there pursuant to Penal Code section 

2900.5. The clerk of the superior court shall prepare an amended
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abstract of judgment reflecting the additional credits and forward 

a copy to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED.

BALTODANO, J.

We concur:

YEGAN, Acting P. J.

CODY, J.
Patricia M. Murphy, Judge

Superior Court County of Ventura

______________________________

Claudia Y. Bautista, Public Defender, and Thomas 

Hartnett, Deputy Public Defender, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle and David A. Voet, Deputy 

Attorneys General, for Plaintiff and Respondent.