People v. Emrick

Filed 4/24/26
                       CERTIFIED FOR PUBLICATION

         IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         FIRST APPELLATE DISTRICT

                                DIVISION THREE


    THE PEOPLE,
         Plaintiff and Respondent,
                                              A172010
    v.
    CODEY SAGE EMRICK,                        (Napa County
                                              Super. Ct. No. 24CR000411)
         Defendant and Appellant.


         Defendant Codey Sage Emrick challenges a condition of his probation
relating to his participation in residential rehabilitative treatment. He
argues the condition (1) violates separation of powers by delegating excessive
judicial authority to the probation department; and (2) is unconstitutionally
vague with regard to his entitlement to custody credits for time spent in
treatment he did not successfully complete. Although the appeal has become
moot due to the termination of Emrick’s probation, we exercise our discretion
to reach its merits because the issues are of broad public interest that are
likely to recur but evade appellate review. We conclude the trial court
delegated excessive judicial authority to the probation department, which
rendered the challenged probation condition invalid. We also observe that
the condition was improperly imposed without Emrick’s voluntary and
knowing waiver of his right under section 2900.5 of the Penal Code1 to receive
credit for all time served in rehabilitative treatment.

1        Further unspecified statutory references are to the Penal Code.

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                 FACTUAL AND PROCEDURAL BACKGROUND
      In February 2024, Emrick was charged by felony complaint with one
count of grand theft of personal property. (§ 487, subd. (a).) In September
2024, Emrick pled no contest to the felony count, admitted probation
violations in three other cases, and admitted a count of misdemeanor receipt
of stolen property in another case. As part of the plea, Emrick agreed to
serve 120 days in jail, subject to release to a treatment program after an
alcohol and drug services assessment.
      In October 2024, the probation department filed its report
recommending that the trial court suspend imposition of sentence and grant
Emrick formal probation for two years under various conditions. The court
placed Emrick on three years’ probation and imposed consecutive jail terms
of 120 days as to both the felony and misdemeanor cases (with 121 days of
credit in the misdemeanor case).
      Among the probation conditions imposed by the trial court was
condition no. 3, which stated that Emrick would “[s]erve 120 days in jail,” but
that the probation department had “discretion” to “release” him to a
treatment program. Condition no. 23 required Emrick to “[e]nroll in, pay for,
and successfully complete an outpatient or residential treatment program”;
“[a]bide by all of the program’s rules and regulations”; and “not leave the
program without the Probation Officer’s permission.”
      At issue here is condition no. 24, which stated: “If you do not
successfully complete the treatment program, the Probation Officer, or any
peace officer, may arrest you without a warrant and keep you in jail for up to
120 days, with credits, while attempting to find another treatment program
for you. The Probation Officer can release you from jail for placement in
another treatment program. You will not have to return to jail if you



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successfully complete the program. You will not receive any credit for time
served in a residential treatment program, unless you successfully complete
it.”
       Defense counsel objected to condition no. 24, arguing it improperly
delegated judicial authority to the probation department to impose a jail
sentence on Emrick without a hearing in the trial court. The prosecutor
responded, “I have seen this particular term quite often. I think it provides
the Probation Department the ability to operate in the best interest of the
defendant, that sent him to treatment, and if that is not successful we
continued to have that time enabled for him to be put into custody while they
find a new position for him. So I don’t find that to be outside the spirit of
what was agreed to between the parties.” Upon questioning from the court,
the prosecutor confirmed that condition no. 24 was “in lieu of filing a VOP”
(i.e., a “violation of probation” petition). In imposing condition no. 24 over the
defense’s objection, the court reasoned the condition was for defendant’s
“benefit” because “it is in lieu of filing a petition, and so these things are done
internally by Probation. We never find out about it. The next thing we know,
someone is either back in a program or in a different program because
ultimately the goal was to get the defendant services that he or she needs
rather than incarcerate.”
       In early November 2024, the People petitioned for revocation of
probation, alleging Emrick had absconded from his residential treatment
program on October 23, 2024, and failed to report to the probation
department. The trial court revoked Emrick’s probation and issued a bench
warrant for his arrest. Emrick was arrested on November 15, 2024. He then
filed this appeal.




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                                 DISCUSSION
      Emrick contends condition no. 24 (1) unlawfully delegates judicial
authority to the probation department to decide whether Emrick has violated
his probation with regard to his performance in rehabilitative treatment; and
(2) is unconstitutionally vague due to an internal inconsistency as to whether
he would be credited with time spent in a treatment program he did not
successfully complete. Emrick requests various modifications to the condition
to address these purported deficiencies.
      A. Motions to Dismiss/Mootness
      In April 2025, the People moved to dismiss the appeal under the
fugitive disentitlement doctrine, claiming Emrick had absconded from
custody. In May 2025, we issued an order indicating our intention to dismiss
the appeal unless Emrick returned to custody within 45 days. In June 2025,
Emrick’s counsel notified the court that Emrick had been booked into custody
at the Napa County Jail. Accordingly, we denied the motion to dismiss.
      In July 2025, the People again moved to dismiss the appeal, this time
on the ground of mootness. According to the moving papers, in June 2025,
the trial court terminated Emrick’s probation and sentenced him to serve 16
months in jail. The People argued that since Emrick’s probation had been
terminated, any remand to modify condition no. 24 would have no practical
effect, and thus, the appeal should be dismissed as moot. We deferred ruling
on the motion pending our consideration of the merits of the appeal.
      Thereafter, the People filed supplemental clerk’s transcripts, and the
appellate record was augmented. As augmented, the record reflects that




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when Emrick was sentenced to jail in June 2025, the trial court awarded him
custody credits for his time in uncompleted residential treatment programs.2
      Generally, “ ‘[a]n appeal should be dismissed as moot when the
occurrence of events renders it impossible for the appellate court to grant
appellant any effective relief.’ ” (Brown v. California Unemployment Ins.
Appeals Bd. (2018) 20 Cal.App.5th 1107, 1116, fn. 6.) Because Emrick is no
longer subject to the challenged probation condition and has been awarded
the custody credits he claims the condition purported to deny him, there
would be no practical effect of his success on appeal. (People v. Dunley (2016)
247 Cal.App.4th 1438, 1445 (Dunley) [case becomes moot when ruling “can
have no practical effect” or cannot provide “effective relief”].)
      Still, “[w]hen an action involves a matter of continuing public interest
that is likely to recur, a court may exercise an inherent discretion to resolve
that issue, even if an event occurring during the pendency of the appeal
normally would render the matter moot.” (Building a Better Redondo, Inc. v.
City of Redondo Beach (2012) 203 Cal.App.4th 852, 867.) This is particularly
appropriate where the duration of a challenged order is shorter than the
likely duration of the appellate process. (See, e.g., Dunley, supra, 247
Cal.App.4th at pp. 1442–1443, 1445.)
      This appeal implicates issues of public interest regarding separation of
powers in the context of probation conditions and the right to custody credits.
(See In re D.N. (2022) 14 Cal.5th 202, 211–212 (D.N.); People v. Penoli (1996)


2      Specifically, the record shows that Emrick was in jail between October
3 to 23, 2024; November 15, 2024, to January 9, 2025; and May 18, 2025, to
June 4, 2025, for a total of 93 days. He was in residential treatment
programs between October 23 and 25, 2024; and January 9, 2025, to
February 7, 2025, for a total of 30 days. The trial court awarded Emrick a
total of 123 days of custody credits when it terminated his probation and
sentenced him to jail in June 2025.

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46 Cal.App.4th 298, 305 (Penoli) [discussing public interests underlying
custody credits under section 2900.5].) Because the remarks made during the
sentencing hearing indicate the challenged condition is commonly used in
Napa County, it is likely the same issues may arise in other cases but evade
appellate review given the relatively short time frames involved. For these
reasons, we will exercise our discretion to reach the merits of the appeal.
      B. Excessive Delegation of Judicial Authority
      “ ‘Trial courts are granted broad discretion under Penal Code section
1203.1 to prescribe conditions of probation.’ ” (Penoli, supra, 46 Cal.App.4th
at p. 302.) Likewise, probation officers “have wide discretion to enforce court-
ordered conditions, and directives to the probationer will not require prior
court approval if they are reasonably related to previously imposed terms.”
(In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373.)
      Notwithstanding such discretion, the doctrine of separation of powers
(Cal. Const., art. III, § 3) bars a trial court from delegating excessive judicial
authority to a nonjudicial officer. (Penoli, supra, 46 Cal.App.4th at p. 307;
see, e.g., People v. Cervantes (1984) 154 Cal.App.3d 353, 356–358 [court may
not delegate discretion to probation officer to determine propriety, amount,
and manner of restitution].) “While the probation officer may properly
specify the details necessary to effectuate the court’s probation conditions, it
is the court’s duty to determine the nature of the requirements imposed on
the probationer.” (People v. Smith (2022) 79 Cal.App.5th 897, 902, (Smith).)
In other words, “the court’s order cannot be entirely open-ended. It is for the
court to determine the nature of the prohibition placed on a defendant as a
condition of probation.” (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1359
(O’Neil).)




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      Though the imposition of probation conditions is generally reviewed for
abuse of discretion, “we review constitutional challenges to probation
conditions de novo.” (People v. Appleton (2016) 245 Cal.App.4th 717, 723.)
We give the challenged condition “ ‘the meaning that would appear to a
reasonable, objective reader’ ” and interpret it “in context and with the use of
common sense.” (People v. Rhinehart (2018) 20 Cal.App.5th 1123, 1129
(Rhinehart).) As we explain below, condition no. 24, when read in context, is
constitutionally flawed for several reasons.
      As case law holds, a trial court may validly order a probationer to
participate in an unspecified residential drug treatment program and leave
the particulars of the program to the discretion of the probation department.
(E.g., Penoli, supra, 46 Cal.App.4th at pp. 307–308.) But that is not what
happened in this case.
      As a threshold matter, although Emrick focuses his appellate challenge
on condition no. 24, the People invite us to read the challenged condition in
context with conditions nos. 3 and 23, which we agree is appropriate. (See
Rhinehart, supra, 20 Cal.App.5th at p. 1129.) As discussed, condition no. 3
gave the probation department “discretion” to decide whether Emrick should
receive treatment or serve a 120-day jail term, essentially giving the
probation department—not the trial court—the ultimate decision on the
nature of the prohibition placed on Emrick. Meanwhile, condition no. 23
appears to have authorized the probation department to decide whether
Emrick must complete “an outpatient or residential treatment program.” But
it is well-settled that “[g]iven the significant liberty interest at stake, a
court—not a probation officer—must make the decision to require a
defendant to attend residential treatment.” (Smith, supra, 79 Cal.App.5th at
p. 903.) Finally, condition no. 24 allowed the probation department to place



                                         7
Emrick in jail based on its determination that he did not “successfully
complete” a treatment program, but the condition included no standard by
which the probation department was to be guided. Conceivably, the
probation department could decide to place Emrick in jail simply because he
was not accepted to any treatment program, could not afford to pay for one,
or could not comply due to other extenuating circumstances, with no formal
process to dispute the probation department’s decision. Read together, the
above conditions created an open-ended process in which the probation
department was not simply charged with enforcing the orders of the court,
but given broad discretion to determine the very nature of the prohibitions
placed on Emrick. This was an excessive delegation of judicial authority.
(See O’Neil, supra, 165 Cal.App.4th at p. 1359.)
      The People argue that condition no. 24 simply told the probation officer
what to do if Emrick was unsuccessful in treatment, not to decide whether
his failure was a probation violation. Be that as it may, the fact remains the
probation department was broadly authorized to hold Emrick in jail based on
its unilateral determination that he was unsuccessful in treatment. As the
trial court and prosecutor made clear, condition no. 24 created a process “in
lieu of” a formal petition for revocation of probation based on a violation of
probation. Though the court believed this streamlined process was for
Emrick’s benefit, it could nevertheless result in Emrick immediately serving
jail time for alleged probation violations without an opportunity to contest
them in a formal proceeding. (See People v. Gray (2023) 15 Cal.5th 152, 164
[minimum standards of due process apply to adjudication of alleged probation
violations].)
      D.N., supra, 14 Cal.5th 202, is instructive. There, the Supreme Court
upheld a condition authorizing the probation department to offer a minor



                                        8
probationer “ ‘up to 50 hours of community service . . . as an option to work
off alleged probation violations.’ ” (D.N., at p. 204.) D.N. concluded the
condition “does no more than authorize the probation officer to reach a
consensual arrangement with minor for performance of community service as
a means of addressing allegations of relatively insignificant, technical
violations of probation. Under that grant of authority, if minor wishes to
contest an allegation that he has violated his probation or the probation
officer’s determination that community services hours are warranted, he is
free to decline the offer. . . . [T]he probation department would then be free
to decide whether the alleged violation warrants seeking a modification of the
juvenile court’s probation order.” (Id. at p. 210.)
      Here, in contrast, condition no. 24 did not reflect a consensual
arrangement for resolution of alleged noncompliance issues that Emrick was
free to decline. Rather, the probation department could, upon its own
determination of Emrick’s unsuccessful treatment completion, hold Emrick in
jail while attempting to place him in another program. This condition
permitted the probation officer to “impose a sanction without [Emrick] having
notice, an opportunity to be heard, or any form of judicial process,” a process
which D.N. acknowledged would “raise constitutional concerns.” (D.N.,
supra, 14 Cal.4th at p. 210.)
      In sum, the trial court delegated to the probation department authority
to make critical decisions involving far more than just the “details that
invariably are necessary to implement the terms of probation.” (O’Neil,
supra, 165 Cal.App.4th at pp. 1358–1359.) We conclude such delegation was
excessive and constitutionally impermissible under separation of powers and
due process principles.




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      C. Vagueness and Section 2900.5
      Emrick further contends condition no. 24 is unconstitutionally vague
because it contains contradictory clauses concerning his entitlement to
credits for time spent in uncompleted treatment programs. The People
notably do not respond to this claim. Emrick additionally contends—and this
time, the People agree—that to the extent condition no. 24 purported to deny
him credit for time spent in an incomplete rehabilitative treatment program,
it violated section 2900.5. We find no vagueness but accept the People’s
concession on the latter point.3
      “ ‘ “[T]he underpinning of a vagueness challenge is the due process
concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the
due process concepts of preventing arbitrary law enforcement and providing
adequate notice to potential offenders’ [citation], protections that are
‘embodied in the due process clauses of the federal and California
Constitutions.’ ” ’ ” (In re D.H. (2016) 4 Cal.App.5th 722, 727.)
      Emrick insists the first and last sentences of condition no. 24 are
inconsistent as to whether he was entitled to a reduction of the 120-day jail
term for any time he unsuccessfully spent in rehabilitative treatment. As
Emrick points out, the first sentence states that if the probationer does “not
successfully complete the treatment program, the Probation Officer, or any
peace officer, may arrest you without a warrant and keep you in jail for up to
120 days, with credits, while attempting to find another treatment program


3     Because Emrick’s vagueness claim raises a question of facial
constitutional validity, his failure to object on these grounds below did not
result in forfeiture. (See In re Sheena K. (2007) 40 Cal.4th 875, 888–889
[claim that probation condition was unconstitutionally vague and overbroad
was not forfeited for failure to raise it in juvenile court].) Though the same
cannot be said for Emrick’s claim of error under section 2900.5, we elect to
reach the issue given the People’s concession of error.

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for you.” (Italics added.) The last sentence then states, “You will not receive
any credit for time served in a residential treatment program, unless you
successfully complete it.” Though not artfully worded, the condition is not
inherently contradictory. Reasonably construed, the condition provides that
a probationer will be credited for their time spent in residential rehabilitative
treatment, including unsuccessful programs, only if the probationer
ultimately completes a treatment program. This means the first sentence’s
“with credits” language was contingent on Emrick’s ultimate success in a
program, even if multiple attempts had to be made to find a suitable program
and for Emrick to complete it.
      But our resolution of the vagueness question begs a different one:
whether the condition could properly deny custody credits for time spent in
unsuccessful residential rehabilitative treatment. Emrick argues, and the
People concede, that a knowing and voluntary waiver was required, and that
the record here does not disclose Emrick’s express waiver of his right to
custody credits. We agree.
      “In all felony and misdemeanor convictions, . . . when the defendant has
been in custody, including, but not limited to, any time spent in a . . .
rehabilitation 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, credited to the period of confinement pursuant
to Section 4019, . . . shall be credited upon his or her term of imprisonment.”
(§ 2900.5, subd. (a), italics added.) “[U]nder section 2900.5, time spent in a
residential treatment program operates as a credit against any future
confinement which might occur.” (Penoli, supra, 46 Cal.App.4th at p. 302.)
This custody credit applies whether or not the probationer completes the
rehabilitation treatment program, unless the probationer explicitly waives



                                           11
the right to credit for uncompleted program days. (Id. at pp. 298, 303–305
[trial court’s blanket rule against awarding custody credits for time spent in
uncompleted rehabilitation program was abuse of discretion]; see People v.
Johnson (2002) 28 Cal.4th 1050, 1054–1055 (Johnson) [defendant may
expressly waive entitlement to section 2900.5 credits].) A waiver is knowing
and intelligent when it is “entered into with awareness of its consequences.”
(People v. Ambrose (1992) 7 Cal.App.4th 1917, 1922 (Ambrose).)
      Here, the record contains no express waiver by Emrick of his right
under section 2900.5 to custody credits for all days in a rehabilitative facility.
(See, e.g., Johnson, supra, 28 Cal.4th at p. 1053 [defendant “expressly agreed
to a waiver of custody credits”].) Nor does the record contain any indication
Emrick was specifically advised at sentencing that he would not be entitled to
credits for his time in a rehabilitative treatment program in the event he was
not successful in the program. (See Ambrose, supra, 7 Cal.App.4th at p. 1923,
fn. 4 [trial court told defendant “ ‘if you take one drink, . . . you are going to go
to state prison and you don’t get credits for the time you have been in
custody.’ ”].) In the absence of a knowing and intelligent waiver by Emrick of
his section 2900.5 rights, condition no. 24 was not validly imposed.4
                                   DISPOSITION
      Having decided the issues on the merits because they are likely to
recur, we dismiss the appeal as moot.




4      Granted, the record reflects Emrick was eventually credited with time
spent in unsuccessful rehabilitative treatment when he was sentenced in
June 2025. However, we underscore the necessity of a knowing and
intelligent waiver of section 2900.5 rights given the indication in the record
that condition no. 24 is commonly used in Napa County.

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                            _________________________
                            Fujisaki, Acting P.J.


WE CONCUR:


_________________________
Petrou, J.


_________________________
Rodríguez, J.




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Trial Court:                 Napa County Superior Court

Trial Judge:                 Hon. Elia Ortiz

Counsel:                     Lindsey M. Ball, under appointment by the Court of
                                Appeal, for Defendant and Appellant

                             Rob Bonta, Attorney General, Charles C. Ragland, Chief
                               Assistant Attorney General, Jeffrey M. Laurence, Senior
                               Assistant Attorney General, Donna M. Provenzano,
                               Supervising Deputy Attorney General, Melissa A. Meth,
                               Deputy Attorney General, and Andrew Haney, Deputy
                               Attorney General, for Plaintiff and Respondent.




People v. Emrick (A172010)




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