PEOPLE v. TAYLOR

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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Patrick Gordon TAYLOR, Defendant and Appellant.

No. G007716.

Decided: July 30, 1990

Marilee Marshall, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Frederick Millar and Janelle B. Davis, Supervising Deputy Attys. Gen., for plaintiff and respondent.

OPINION

Patrick Gordon Taylor appeals the judgment of the lower court, imposing upon him a prison term of 11 years, following his commitment and treatment as a mentally disordered sex offender (MDSO).  (Welf. & Inst.Code, former § 6300 et seq.) 1  He contends it is unjust to sentence him to prison after successful treatment, the statutory proscription against probation constitutes cruel and unusual punishment as applied to him, and the state should be equitably estopped from demanding a prison sentence.   He also asserts he is entitled to credit for time he spent on outpatient status by order of the court, pursuant to the law in effect at the time his crime was committed.   The latter argument has merit but we affirm the judgment otherwise.

I.

On October 6, 1979, Taylor abducted 16–year–old Nancy W. from a bus stop and took her to his apartment.   There, he handcuffed her, raped her repeatedly, inserted an object in her vagina, and forced her to orally copulate him.

On March 27, 1980, Cindy S., a 15–year–old high school student, was kidnapped by Taylor on her way to school.   He took her to a place where he handcuffed her and demanded she orally copulate him.   He also raped her, occasionally displaying a knife.

On July 22, 1980, Taylor pled guilty to charges arising from these acts, and applied for MDSO treatment.   On October 22, the court suspended proceedings and committed Taylor to Patton State Hospital (Patton) for treatment.   He was released from Patton and placed in an outpatient treatment program on March 16, 1984.

Upon completion of a successful course of treatment, proceedings were reinstated and Taylor was returned to court for disposition.   On August 26, 1988, he was sentenced to a prison term totalling 11 years.

II.

 The essence of Taylor's contentions is that sentencing him to prison after his successful treatment, including four years as an outpatient, is fundamentally unfair.   He acknowledges his convictions for forcible rape (Pen.Code, § 261, subd. (2)) rendered him ineligible for probation (Pen.Code, § 1203.065), but argues the statutory scheme may be construed to provide for punishment only where the treatment has been unsuccessful.   He concludes the Legislature never contemplated an offender would be treated, cured, and then punished, and that to do so constitutes cruel and unusual punishment.

Taylor offers no support for his argument and we find none.   His reliance upon People v. Tanner (1979) 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328 and In re Messerschmidt (1980) 104 Cal.App.3d 514, 163 Cal.Rptr. 580, is misplaced.   In Tanner, the Supreme Court refused to correct an erroneous sentence where to do so would require the defendant, who had already served his term, to be returned to prison.   Similarly, in Messerschmidt, the court held it would work an injustice to return a mistakenly-released prisoner to custody, where he had reestablished himself as a productive member of the community.   Both cases recognized the unusual burden placed on a defendant as a result of the court's error.   Here, there is no erroneous sentence or mistaken release.

 Taylor's argument that punishment was designed to follow only unsuccessful treatment belies the clear language of the statute.   Pursuant to former section 6325, subdivision (a), “Whenever a person who is committed to a state hospital or treatment facility under the provisions of this article or placed on outpatient status ․ has been treated to such an extent that ․ the person will not benefit by further care and treatment and is not a danger to the health and safety of others,” the person in charge of the facility shall file a certificate of recovery with the court.   It further provides, in subdivision (c), that the court “shall resume the proceedings, upon the return of the person to the court, and after considering all the evidence before it may place the person on probation upon such terms as may be required to protect the public if the criminal charge permits such probation and the person is otherwise eligible for probation.”   The statutory scheme clearly contemplates treatment, recovery, and punishment where it is appropriate.

In order to prevail on an argument that a punishment is cruel or unusual, the proponent must establish it is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.”  (In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 503 P.2d 921.)   Although Taylor had no prior criminal record, his crimes were vicious and violent;  and the state has determined a prison sentence must be imposed.  (Pen.Code, § 1203.065.)   Such mandatory sentences have withstood constitutional scrutiny.  (People v. Gayther (1980) 110 Cal.App.3d 79, 167 Cal.Rptr. 700.)   Moreover, it cannot be seriously questioned that the sentence here fits the brutality and violence with which the underlying crime was committed.

His argument that the sentence is cruel or unusual as to him has more merit.   “This branch of inquiry ․ focuses on the particular person before the court, and asks whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.”  (People v. Dillon (1983) 34 Cal.3d 441, 479, 194 Cal.Rptr. 390, 668 P.2d 697.)   In each of these ways Taylor's individual culpability fit within the parameters of the permissible punishment at the time the crimes were committed.   Although the person before the court years later was not the same man, there is no authority for the argument that subsequent rehabilitation alone may render a punishment cruel or unusual.

 Taylor also complains that in his particular case a prison sentence constituted an abuse of discretion.   He points to his impressive record of progress, including reestablishing family relationships, acquiring stable employment and engaging in normal social interaction.   He overcame enormous emotional handicaps to achieve a heightened understanding of himself and came to view his crimes with a great deal of remorse.   But this was not disputed and the court agreed his accomplishments were laudable:  “[The Court:]  Defendant's performance in the state hospital and his exemplary performance as a [sic] outpatient convinced me that a degree of rehabilitation has been achieved here, which could not have been anticipated at the time he entered his plea.  [ ] I think that has to be considered in sentencing, and I have done so.   I indicated I congratulate Mr. Taylor on that, I assure him that were it not for that I would have imposed a much greater amount of time.   At the very least, his rehabilitation has saved him about 40 percent of his sentence.  [ ] Mr. Jones, your point is certainly well taken, I assure you I have struggled with the effect of state prison on someone after he has been rehabilitated.”

The court's remarks reflect a clear, compassionate weighing of the options before it.   There can be no question it was impressed with Taylor's progress.   At the time Taylor originally entered his plea, his maximum term of commitment was set at 22 years.   As the court noted, Taylor's accomplishments did not go unrewarded;  his prison term was not what it might have been, and he received credit against it for the time he spent in treatment.   We can see no abuse of discretion on this record.

Indeed, as we have previously noted, even if the court were so inclined, the Legislature left no room for a probation option where the crime requires a prison commitment.   Former section 6325, subdivision (c) allows a recovered MDSO to be placed on probation only “if the criminal charge permits such probation.”

III.

 Taylor next claims he is entitled to credit on his prison sentence for the nearly four years he spent in outpatient treatment.  (Former § 6325.3.)   Following his commitment to Patton, Taylor was granted outpatient status on March 16, 1984;  such status continued until its termination on March 28, 1988.   The trial court awarded credits for the time he spent at Patton but did not credit him with the nearly four years he spent as an outpatient.   Taylor charges that although Penal Code section 1600.5, enacted in 1985, prohibits such custody credits, he was committed as an MDSO in 1980 for crimes committed in 1979 and 1980;  thus, under ex post facto principles, the law in effect at the time should govern.   He cites us to former section 6325, subdivision (c), which provides:  “In any case, where the person is sentenced on a criminal charge, the time the person spent under indeterminate commitment as a mentally disordered sex offender shall be credited by the court or community release board against such sentence.”

Taylor has misread Penal Code section 1600.5.   It provides:  “For a person committed as a mentally disordered sex offender ․ who is placed on outpatient status under the provisions of this title, time spent on outpatient status, except when placed in a locked facility, shall not count as actual custody and shall not be credited toward the person's maximum term of commitment.”   The “maximum term of commitment” is defined as “the longest term of imprisonment which could have been imposed for the offense or offenses of which the defendant was convicted.”  (Former § 6316.1, subd. (a).)  Under former section 6316.1, subdivision (a), “the person may not be kept in actual custody longer than the maximum term of commitment” without implementation of formal extension proceedings.   Here, the maximum term was set at 22 years, which excludes time spent as an outpatient.

 The clear import of Penal Code section 1600.5 is that time spent on outpatient status may not be included when calculating the maximum time an offender may be kept under a commitment.   It has no relevance to custody credits upon the imposition of a sentence once criminal proceedings are reinstated.   Since Taylor's sentence is in no danger of exceeding his maximum term of commitment, we need not reach the ex post facto issue.

Nonetheless, the question of his entitlement to credit for his four years as an outpatient remains.   Former section 6325, subdivision (c) unambiguously refers to credit for “the time the person spent under indeterminate commitment as a mentally disordered sex offender.”   That necessarily includes credit for time spent on outpatient status.   The Legislature has authorized outpatient status as a part of the MDSO commitment.  (Former § 6325.3.)   Former section 6325, which provides for credit for time spent under indeterminate commitment, consistently refers to commitment in “a state hospital or other treatment facility.”   It also provides a procedure for filing of a certificate of recovery by a person in charge of the facility “where the person is on outpatient status.”  (Former § 6325, subd. (a).)  There has been no legislative attempt to single out hospitalization as the only method of treatment subject to credit against a subsequent sentence.   The time Taylor spent under indeterminate commitment, in whatever treatment form allowed by statute, entitles him to credit against his sentence.

The matter is remanded to the trial court for the purpose of calculating credits in accordance with this opinion.   In all other respects, the judgment is affirmed.

I substantially agree with the lead opinion, but I would order execution of the sentence suspended.1  The trial judge was quite correct in his expressed view that defendant should never have been placed in the MDSO program after committing offenses such as these.   That was a serious mistake, and the district attorney should have strongly resisted such a disposition.

But, miracle of miracles, the experts tell us defendant is completely rehabilitated.   We have no grounds to reject the uncontradicted evidence to that effect.   Consequently, I believe it would be cruel and unusual punishment to send this defendant to prison more than ten years after the offenses were committed and more than six years since his MDSO confinement ended.  (See People v. Tanner (1979) 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328.)   The Attorney General's effort to distinguish Tanner and its progeny on the basis that the defendants in those cases were victims of judicial or administrative errors justifying unique dispositions is unpersuasive for these reasons:  (1) Although technically a lawful commitment, it was a gross error in judgment to allow this defendant to participate in the MDSO Program.   And (2) whether a sentence is cruel and unusual depends on the defendant and his current situation.   Provided he is blameless, the cause of the problem in a particular case would appear to be essentially beside the point.

What purpose is served by taking up a bed in our overcrowded prison system for an individual who has accomplished all we asked of him and no longer poses a threat to society?   Satisfaction of the victims' desire for revenge is all that I can see.   And that, in my view, is not an appropriate societal goal at this stage of the process.   The time to think of that was when the ill-starred decision to place defendant in the MDSO program was originally taken.   Society has no justifiable interest in imprisoning this defendant now and good reason not to:  Of the breeding grounds for crime, prisons are surely among the most productive.   Why unnecessarily jeopardize the public investment in this man's future?   It is very unusual and extremely cruel to punish a productive worker and family member after he has been rehabilitated, reestablished himself in the community, and more than a decade has passed since his crimes were committed.

FOOTNOTES

1.   Contrary to the Attorney General's bald assertion, equitable estoppel can be applied in criminal cases.  (In re Monigold (1988) 205 Cal.App.3d 1224, 253 Cal.Rptr. 120.)   I do not rely on that doctrine here, however, because it is doubtful all the necessary elements are present.   (Id., at p. 1228, 253 Cal.Rptr. 120.)

1.   Legislation relating to MDSO treatment was repealed in 1981.   At that time, the Legislature specifically declared its repeal prospective only and that “persons committed as mentally disordered sex offenders and persons whose terms of commitment are extended under the provisions of Section 6316 of the Welfare and Institutions Code shall remain under these provisions until the commitments are terminated and the persons are returned to the court for resumption of the criminal proceedings.”  (Stats.1981, ch. 928, § 3, p. 3485.)All further and statutory references are to the Welfare and Institutions Code unless otherwise specified.

SONENSHINE, Acting Presiding Justice.

MOORE, J., concurs.

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