Filed 5/4/22 P. v. Winslow CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078773
Plaintiff and Respondent,
v. (Super. Ct. No. SCN387417)
KELLEN BOSWELL WINSLOW II,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Blaine K. Bowman, Judge. Affirmed.
Marc X. Carlos, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A.
Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff
and Respondent.
In 2019, a jury convicted defendant Kellen Boswell Winslow II of
forcible rape, indecent exposure, and lewd conduct. Winslow subsequently
pleaded guilty to rape of an unconscious person and assault with intent to
rape. After receiving a sentence of 14 years in state prison, Winslow sought
233 days of custody credit for time he spent on electronic monitoring prior to
sentencing under Penal Code1 section 2900.5, which entitles an individual to
credit for all “days served in home detention pursuant to . . . Section
1203.018.” The trial court awarded Winslow four days of credit but
determined he was ineligible for credit during the remaining 229 days that he
was under electronic monitoring but not subject to home detention.
On appeal, Winslow asserts that he is entitled to presentence custody
credit during the 229-day period when he was electronically monitored,
characterizing the conditions of his bail release during this period as “home
detention.” We conclude Winslow has not demonstrated he is entitled to
relief and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND2
In June 2018, Winslow was arrested and charged with two counts of
kidnapping (§ 209, subd. (b)(1)); two counts of forcible rape (§ 261, subd.
(a)(2)); forcible oral copulation (§ 288a, subd. (c)(2)(A)); forcible sodomy (§ 286,
subd. (c)(2)(A)); indecent exposure (§ 314, subd. (1)); and two counts of first
degree residential burglary (§§ 459, 460). Winslow was alleged to have
committed the offenses against different victims on separate occasions in
2018.
On July 12, 2018, after a two-day preliminary hearing, the trial court
held Winslow to answer on the forcible kidnapping, forcible sex crimes, and
1 All subsequent statutory references are to the Penal Code.
2 In the trial court, Winslow waived his right to appeal his criminal
convictions, and the details of Winslow’s offenses were not discussed by the
parties in their briefs. We therefore omit a discussion of facts relating to
Winslow’s offenses and limit our discussion to matters relevant to this
appeal.
2
attendant allegations as well as the indecent exposure charge, while also
finding insufficient evidence to support the charges for residential burglary.
Over the People’s objection, the court set Winslow’s bail at $2 million; ordered
GPS monitoring as a condition of Winslow’s bail release; and ordered
Winslow to surrender his passport.3 The court also issued criminal
protective orders prohibiting Winslow from contacting or coming within 100
yards of the alleged victims. Regarding the conditions of the bail release, the
court stated: “As it relates to the issue of bail, the Court is going to set bail to
the following conditions. There is to be no contact, direct, indirect,
telephonically, or in writing with any alleged victim or complainant. The
defendant is to wear a GPS monitor at all times if he is released. The bail
amount [is] set at two million dollars.” The court indicated in a minute order
that the GPS monitoring was to be installed through “SCRAM or CPAC[.]”4
3 To account for the additional charges brought against Winslow on
July 12, 2018, the court set bail at $1,900,000 for the original case and
$100,000 for the subsequent case.
4 The San Diego County Sheriff’s Department website describes CPAC as
follows: “The County Parole and Alternative Custody Unit (CPAC) was
created to provide alternative custody programs. These programs include
County Parole, Fire Camp, Home Detention, and Residential Reentry
Center/Work Furlough with electronic monitoring. These programs are
designed to socially reintegrate offenders through continued treatment and
other required programming with a proactive supervision method. This
method of supervision is designed to place the CPAC staff in contact with
participants so that the goals and objectives of community safety, security,
and reintegration can be achieved.”
(.)
3
That same day, Winslow was charged with additional counts of forcible
rape (§ 261, subd. (a)(2)) and rape of an unconscious person (§ 261, subd.
(a)(4)), stemming from a 2003 incident involving an additional victim.
Winslow requested during a hearing on August 6, 2018, for his
electronic monitoring to be administered by SCRAM rather than CPAC.
According to the minute order, the trial court denied Winslow’s request after
hearing arguments from the parties on the issue and ordered monitoring by
CPAC during Winslow’s bail release.5
On February 22, 2019, while wearing his GPS ankle bracelet, Winslow
was at a gym when he committed new offenses against a new victim. Based
on this new incident, Winslow was charged with two counts of lewd act in
public (§ 647, subd. (a)), willful cruelty to elder (§ 368, subd. (c)), and elder
battery (§ 243.25).
At the arraignment for the new charges on February 28, 2019, the trial
court modified the terms of Winslow’s bail release. In the minute order from
the hearing, the court stated: “[Defendant] is ordered to not leave his home;
to not take GPS bracelet off [and] to keep [the] GPS bracelet charged at all
times. If [defendant] fails to comply [with any] of these release conditions,
the court authorizes the sheriff to arrest the [defendant] immediately . . .
[Defendant] may only leave the house to travel to [and] from court
proceedings.” A few days later, on March 4, 2019, the court remanded
Winslow into custody without bail.
On June 10, 2019, a jury convicted Winslow of one count of forcible
rape, one count of indecent exposure, and one count of lewd conduct. The
5 The record filed on appeal does not contain a reporter’s transcript from
the August 6, 2018 hearing.
4
jury acquitted appellant of the second lewd conduct charge and deadlocked on
the remaining counts.6
Following the jury verdict, the People indicated its intention to retry
Winslow on the deadlocked charges. Winslow subsequently pleaded guilty to
one count of rape of an unconscious person, and one count of assault with
intent to rape. As part of the plea, the remaining charges and allegations
were dismissed, the parties stipulated to a 14-year prison sentence, and
Winslow waived his right to appeal his convictions.
On March 3, 2021, the trial court sentenced Winslow pursuant to the
terms of the plea agreement to 14 years in state prison. Winslow contended
at sentencing, through counsel, that he was entitled to 233 days of custody
credit for the time he spent on electronic monitoring prior to sentencing.
Counsel noted that the terms of Winslow’s release during this period required
monitoring by law enforcement officers through CPAC, and counsel also
indicated that there may have been a “curfew aspect to it as well.” In
opposition, the People argued that Winslow was not entitled to presentence
credit for this period because the preliminary hearing judge had only ordered
GPS monitoring, not home detention. The court agreed with the People,
finding that the conditions of Winslow’s presentence release did not entitle
him to custody credit because even though he was under electronic
monitoring, Winslow “was not restricted to home detention” and was “free to
roam about.” Thus, the court did not award Winslow any presentence credits
for the 233 days he was under GPS monitoring.
Winslow then filed a motion for reconsideration, reasserting he was
entitled to custody credit during the period when he was subject to electronic
6 According to the briefing on appeal and the People’s motion in the trial
court, one count of kidnapping was dismissed before trial under section 995.
5
monitoring by CPAC. He contended his custody during this timeframe was
as restrictive as any defendant on home detention, explaining, “Mr. Winslow
was subject to law enforcement entry and search of his person and home at
any time during the detention. His movements were monitored at all times.
In addition, while Mr. Winslow was permitted to travel within San Diego
County, he was subject to strict curfew conditions. Any violation of those
conditions would result in his arrest and incarceration.” However, the motion
did not refer to any evidence in the record nor was any evidence attached to
the motion relating to the terms of Winslow’s supervision during this period.
In its opposition to reconsideration, the People conceded that Winslow
was eligible for an additional four days of credit for the period of February 28
to March 3, 2019, when the trial court specifically ordered Winslow to remain
in his home. The People maintained, however, that Winslow was not entitled
to any presentence credit for the period when he was out of custody and not
ordered to home detention.
At the hearing on reconsideration, the trial court accepted the People’s
stipulation to award Winslow with four additional days of presentence credit
for February 28 to March 3, 2019, when Winslow was ordered to home
detention. However, the court ruled that Winslow was not entitled to credit
for the remaining 229 days when he was under electronic monitoring,
because Winslow was not subject to home detention during this period. The
court noted that the order issued by the preliminary hearing judge setting
the terms for electronic monitoring “was very specific and did not include
home detention.” The court also rejected Winslow’s contention that the bail
release terms during this period were the “functional equivalent” of home
detention, finding no evidence in the record to support this contention.
Winslow timely appealed.
6
DISCUSSION
Winslow’s sole contention on appeal is that the trial court erred in
refusing to award him 229 days of custody credit under section 2900.5 for the
time he was on bail release and subject to electronic monitoring. After
reviewing the record, we requested supplemental briefing from the parties
concerning what evidence, if any, demonstrated that Winslow participated in
a home detention program within the meaning of section 1230.018 during the
relevant period. Having considered the parties’ supplemental briefs and the
record on appeal, we conclude that the trial court correctly determined that
Winslow’s electronic monitoring program did not meet the statutory
requirements for presentence credit.
A. Governing Legal Principles and Standard of Review
Under section 2900.5, defendants are entitled to credit for days spent
“in custody.” (People v. Johnson (2010) 183 Cal.App.4th 253, 289.) “[Section
2900.5’s] two-fold legislative purpose is ‘ “to eliminate the unequal treatment
suffered by indigent defendants who, because of their inability to post bail,
served a longer overall confinement than their wealthier counterparts
[citations]” ’ [citations], and to ‘equaliz[e] the actual time served in custody
by defendants convicted of the same offense.’ [Citations.] ‘Recognizing that
defendants may be in pretrial custody in institutions other than “jails” for
reasons other than indigency, the Legislature and the courts have extended
subdivision (a) of the statute to include a broad range of custodial situations
for which credit must be granted . . . .’ [Citation.]” (People v. Raygoza (2016)
2 Cal.App.5th 593, 598 (Raygoza).)
Section 2900.5 provides that “[i]n all felony . . . convictions, either by
plea or by verdict, when the defendant has been in custody, including, but not
limited to . . . days served in home detention pursuant to Section . . .
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1203.018, shall be credited upon his or her term of imprisonment[.]” (Id.,
subd. (a).) “ ‘[T]erm of imprisonment’ includes any period of imprisonment
imposed as a condition of probation or otherwise ordered by a court in
imposing or suspending the imposition of any sentence.” (Id., subd. (c).)
“Section 1203.018 authorizes ‘the board of supervisors of any county’ 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’ under specified conditions. (§ 1203.018, subd. (b).)”
(Raygoza, supra, 2 Cal.App.5th at p. 599.) An “ ‘[e]lectronic monitoring
program’ ” is defined as “includ[ing], but is not limited to, home detention
programs, work furlough programs, and work release programs.”
(§ 1203.018, subd. (j)(2).) The correctional administrator is authorized to
“permit electronic monitoring program participants to seek and retain
employment in the community, attend psychological counseling sessions or
educational or vocational training classes, or seek medical and dental
assistance.” (Id. subd. (h).)
A participant in an electronic home monitoring program must “be
supervised[.]” (§ 1203.018, subd. (n)(2).) Although the statute leaves the
exact terms of the supervision to the discretion of county authorities, the
participant must, at a minimum, abide by the following restrictions: (1)
“[R]emain within the interior premises of the participant’s residence during
the hours designated by the correctional administrator”; (2) “admit any
person or agent designated by the correctional administrator into the
participant’s residence at any time for purposes of verifying the participant’s
compliance with the conditions of the detention”; and (3) agree to the use of
electronic monitoring including “global positioning system devices or
other supervising devices for the purpose of helping to verify the participant’s
8
compliance with the rules and regulations of the electronic monitoring
program,” and which may be used to record “conversation[s] between the
participant and the person supervising the participant . . . for the purposes of
voice identification.” (Id., subd. (d)(1)–(3).) Additionally, the administrator
in charge of the facility from which the participant has been released may
“immediately retake the person into custody” if the electronic monitoring
device malfunctions, the participant fails to remain at home, the participant
fails to pay the fees associated with the program, or the participant “for any
other reason no longer meets the established criteria.” (Id., subd. (d)(4).)
Whether an individual is in “custody” for purposes of section 2900.5 is a
matter of statutory interpretation, which we review de novo. (People v.
Ravaux (2006) 142 Cal.App.4th 914, 919.) The burden is on the accused to
establish entitlement to presentence custody credit. (People v. Shabazz
(2003) 107 Cal.App.4th 1255, 1258.)
B. There is No Evidence That Winslow Participated in a Home Detention
Program Within the Meaning of Section 1203.018 from July 12, 2018 to
February 28, 2019
Winslow contends he is entitled to credit for the entire period he wore
an electronic monitor prior to sentencing. He asserts that from July 14, 2018
to February 28, 2019, he “could leave his home as permitted by the home
detention program to attend doctor’s appointments, attorney appointments,
and other sanctioned activities.” He further asserts that “he had to remain
within the interior of the premises of his residence during the hours
designated by the correctional administrator; he was required to admit
officers into his residence at any time; and he could be immediately retaken
into custody to serve the balance of his sentence if the electronic monitoring
device was unable for any reason to properly perform its function or if he
failed to remain within the place of detention.” He contends that the terms of
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his presentence release amounted to a “home detention program” as defined
by section 1203.018, and he is therefore entitled to an additional 229 days of
credit.
Having reviewed the record on appeal, we conclude Winslow has not
established that he is entitled to relief. According to the transcript and
minute order from the preliminary hearing on July 12, 2018, the trial court
set Winslow’s bail at $2 million on the condition that he wear a GPS
monitoring device, while also precluding him from contacting the alleged
victims and requiring him to turn over his passport. The court later modified
Winslow’s bail conditions at a hearing on February 28, 2019, when he was
arraigned for the new charges stemming from the new crimes he committed
while on bail release. At that hearing, the court required Winslow to
continue wearing a GPS monitoring device, while also requiring Winslow to
remain in his home except for court proceedings. The court also explicitly
authorized the sheriff to arrest Winslow “immediately” if he failed to comply
with any release conditions. Winslow’s home detention lasted from February
28 to March 4, 2019, when he was remanded into custody without bail for the
remainder of the proceedings.
Although Winslow asserts that he was subject to home detention from
July 14, 2018 to February 28, 2019, there is no evidence in the record to
support this assertion. In fact, the only evidence cited in Winslow’s opening
brief to support his contention that his “home detention” began on July 14,
2018 is the minute order from the preliminary hearing when the terms of his
bail release were set. Thus, the minute order from this hearing was only for
GPS monitoring and restricted Winslow from leaving the country and did not
require home detention.
10
In our request for supplemental briefing, we directed the parties to
address whether evidence existed that could demonstrate that Winslow’s
electronic monitoring fell within the meaning of a home detention program
under section 1203.018. As we explained in the order, such evidence could
include whether Winslow had signed an agreement to participate in an
electronic monitoring program; what schedule, if any, was imposed for his
electronic monitoring program; and if any monitoring reports were generated
reflecting that Winslow complied with the terms and conditions of the
monitoring program. Winslow did not identify any evidence in his
supplemental brief that can establish that he was subject to a home detention
program during the relevant period. In particular, he has not identified any
evidence showing that he signed an agreement to participate in an electronic
monitoring program, any evidence of a schedule imposed for the hours of
home confinement, or any evidence of monitoring reports reflecting his
compliance with the conditions of his release.7
Given the lack of record support for Winslow’s assertions on appeal, we
must presume the trial court correctly denied him custody credit for the
period from July 14, 2018 to February 28, 2019. This conclusion “follows
from the cardinal rule of appellate review that a judgment or order of the
trial court is presumed correct and prejudicial error must be affirmatively
7 Although the Attorney General’s arguments on appeal suggest that
Winslow was restricted from leaving San Diego County and was subject to a
curfew, no record evidence is cited, and we have found none independently, to
show that Winslow was subject to these limitations during the relevant
period. We note that Winslow’s arguments in the trial court, through
counsel, that he was subject to a curfew are not evidence that this court may
rely on in its review of the trial court’s judgment. (Gdowski v. Gdowski (2009)
175 Cal.App.4th 128, 139 [“Statements and arguments by counsel are not
evidence.”].) Moreover, the time of Winslow’s purported curfew has never
been specified.
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shown. [Citation.] ‘In the absence of a contrary showing in the record, all
presumptions in favor of the trial court’s action will be made by the appellate
court. “[I]f any matters could have been presented to the court below which
would have authorized the order complained of, it will be presumed that such
matters were presented.” ’ [Citation.] This general principle of appellate
practice is an aspect of the constitutional doctrine of reversible error.
[Citation.] ‘ “A necessary corollary to this rule is that if the record is
inadequate for meaningful review, the appellant defaults and the decision of
the trial court should be affirmed.” ’ [Citation.] ‘Consequently, [appellant]
has the burden of providing an adequate record. [Citation.] Failure to
provide an adequate record on an issue requires that the issue be resolved
against [appellant].’ [Citation.].” (Foust v. San Jose Const. Co., Inc. (2011)
198 Cal.App.4th 181, 187.)
Moreover, even the limited record available is sufficient to support the
trial court’s judgment. Beginning on July 14, 2018, the trial court
conditioned Winslow’s bail release on his assent to electronic monitoring, he
was required to turn over his passport, and he was precluded from contacting
the alleged victims. There is no evidence in the record to indicate that
further limitations on Winslow’s movement or liberty were ever ordered prior
to February 28, 2019. As the trial court correctly observed, Winslow could
not have been confined to his home during this time, since on February 22,
2019, he committed new offenses against a new victim while he was at a gym
and wearing his GPS monitoring device. Additionally, after Winslow was
arraigned on the new offenses, the court modified the existing order to
require Winslow to home confinement, and he was explicitly not permitted to
leave his home except for court proceedings. The fact that the court changed
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the conditions of his release to house arrest at the hearing on February 28,
2019, indicates that home detention was not required prior to the date.
“Custody,” against which presentence credit is statutorily available,
involves regulation of behavior or a supervised and structured lifestyle.
(People v. Pottorf (1996) 47 Cal.App.4th 1709, 1718; People v.
Reinertson (1986) 178 Cal.App.3d 320, 327.) To be eligible for presentence
credit under section 2900.5, “the focus is properly on whether the placement
met certain custodial conditions and standards, not the procedure by which
the defendant was placed.” (Raygoza, supra, 2 Cal.App.5th at p. 601.) Here,
the evidence in the record supports the trial court’s finding that despite being
subject to electronic monitoring, Winslow was “free to roam about” while on
bail release prior to February 28, 2019, and the court appropriately
distinguished between this period and the period when the court expressly
ordered Winslow to home detention after he reoffended. Thus, the terms of
Winslow’s bail release from July 14, 2018 to February 28, 2019 do not satisfy
the statutory requirements for presentence custody credit. (Cf. Raygoza at p.
600 [appellate court found “no dispute that appellant was enrolled in the
county’s electronic monitoring program,” “[n]or [was] there any dispute that
appellant’s electronically monitored confinement was subject to the
conditions described in section 1203.018.”)
Winslow asserts that the “critical element” in this case is that his
electronic monitoring was administered through the sheriff’s department
under CPAC, rather than a private entity. He suggests that the “functional
reality” of this arrangement was that Winslow’s pretrial release was
structured under the requirements set forth by section 1203.018.
A panel from this court recently held in People v. Gerson (2022) 74
Cal.App.5th 561, 582–584 (Gerson) that a defendant placed on home
13
detention and subject to electronic monitoring while on bail is similarly
situated to persons participating in a home detention electronic monitoring
program under section 1203.018, and is therefore entitled to presentence
credits as a matter of equal protection. In Gerson, as a condition of his bail
release, the defendant was ordered to wear a GPS monitoring device, placed
on home detention subject to a Fourth Amendment waiver, and required to
remain in his home during the hours designated by the court. (Gerson, at
p. 583.) The panel from this court concluded that the defendant was
similarly situated to a person participating in an electronic monitoring
program under section 1203.018 because “the terms of his release were at
least as ‘custodial, or restraining’ as a statutory home detention program
pursuant to section 1203.018.” (Gerson, at p. 583.) The court could discern
no rational basis for treating a defendant out on bail and subject to a home
detention electronic monitoring program different from an individual
participating in a program pursuant to section 1203.018, since both
categories involved “similarly restrictive home detention conditions[.]”
(Gerson, at p. 584.)
Here, there is no evidence in the record to support the conclusion that
Winslow participated in a home detention program that was as custodial or
restraining as a home detention program pursuant to section 1203.018. As
discussed previously, the record does not contain any evidence of a signed
agreement by Winslow to participate in a home detention monitoring
program and follow all its rules and regulations, a document detailing the
schedule imposed for the hours of Winslow’s home confinement, or any
monitoring reports showing Winslow’s compliance with the terms and
conditions of his release. For instance, unlike the defendant in Gerson, there
is no evidence in this record to demonstrate that Winslow was subject to a
14
Fourth Amendment waiver or subject to a specific curfew during the relevant
period. (Gerson, at p. 583.) For these reasons, there is no evidence to support
the conclusion that the conditions of Winslow’s bail release were similarly
restrictive to the home detention conditions described in section 1203.018.
To support his claim that his bail release was the “functional
equivalent” of a home detention program under section 1203.018, Winslow
relies on the involvement of the sheriff’s department through CPAC in
administering his GPS monitoring. Although Winslow’s bail release was
monitored by CPAC, he has failed to demonstrate that this fact alone entitles
him to presentence custody credit. Under section 1203.018, the correctional
administrator with the approval of the board of supervisors is empowered to
contract with public or private agencies to operate home detention programs.
(Id., subd. (n)(1).) Other than subjecting private agencies to certain
contracting requirements, the statute does not distinguish between the
conditions of the home monitoring programs operated by a private agency
with those operated by a public agency. (Id., subd. (n)(1)–(2).) Thus, CPAC’s
involvement in presentence monitoring does not, on its own, demonstrate
that a defendant’s presentence release meets the statutory conditions set
forth by section 1203.018.
Additionally, there is no evidence in the record to show that CPAC’s
involvement created bail release conditions that were the functional
equivalent of the conditions described by section 1203.018, such that Winslow
was “in custody” for purposes of receiving custody credit under section 2900.5,
subdivision (a). Although the record reflects that Winslow asked the trial
court to order monitoring by a private agency rather than CPAC, the only
record from this hearing submitted on appeal is the minute order, which
simply indicates that the court ordered monitoring under CPAC. The minute
15
order is otherwise silent as to what the terms of Winslow’s bail release were,
or what CPAC was authorized to do to enforce those terms. Contrary to
Winslow’s assertion, we cannot “assume” from CPAC’s mere involvement that
Winslow was subject to the conditions described in section 1203.018. Rather,
the evidence in the record indicates that Winslow was not subject to home
detention during this period, meaning that the terms of his bail release did
not meet the minimum conditions set forth by the statute.
Accordingly, we conclude that Winslow is not entitled to 229 days of
custody credit pursuant to section 2900.5, subdivision (a).
DISPOSITION
The judgement is affirmed.
O'ROURKE, Acting P. J.
WE CONCUR:
IRION, J.
DO, J.
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