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Court of Appeal, Second District, Division 2, California.

PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Darrald Timmie OSTOPOWICH, Real Party in Interest.

No. B 042064.

Decided: August 22, 1989

Ira Reiner, Dist. Atty., Los Angeles, Maurice H. Oppenheim and Brent Riggs, Deputy Dist. Attys., for petitioner. No appearance for respondent. Wilbur F. Littlefield, Public Defender, Lawrence M. Sarnoff, David Yamada, and John Hamilton Scott, Deputy Public Defenders, for real party in interest.


By petition for writ of mandate, the People challenge an order dismissing their petition to extend the state hospital commitment of a defendant whose original eight-year commitment as a mentally disordered sex offender was about to expire.

By a complaint filed in municipal court on November 26, 1980, defendant was charged with six counts of sodomy, oral copulation, and child molestation, involving three victims.   On January 12, 1981, defendant agreed to plead guilty to one count.   It was further agreed that the People would move to dismiss the remaining five counts at the time of sentencing;  that it was contemplated that defendant would be found to be a mentally disordered sex offender and committed as such for a period not to exceed eight years;  and that if he were not so found, he would be permitted to withdraw his plea.

After psychiatric evaluation, the superior court on April 13, 1981, found defendant to be a mentally disordered sex offender, adjourned criminal proceedings, and committed him pursuant to Welfare and Institutions Code section 6300 to the Department of Mental Health, with a recommended placement at Patton State Hospital, for a period not to exceed eight years.

In the interim, on February 20, 1981, the court of appeal ruled, in People v. Lomboy (1981) 116 Cal.App.3d 67, 171 Cal.Rptr. 812, that a defendant who pleaded not guilty by reason of insanity and was committed to the Department of Mental Health for a period not to exceed six years could appeal the commitment and win the right to withdraw her plea because she was not told, at the time of the plea, of the statutory provision for successive two-year extensions of the commitment if she should not recover her sanity and were found to represent a substantial danger of physical harm to others.

Later in 1981 the Legislature repealed the Mentally Disordered Sex Offenders Act, declaring that “the commission of sex offenses is not in itself the product of mental diseases.”  (Stats.1981, ch. 928, § 4.)   The Act remained effective, however, with respect to persons committed as mentally disordered sex offenders before January 1, 1982.  (Id., § 3.)

In August 1988 the acting medical director of Patton State Hospital reported to the office of the district attorney that defendant's term of commitment was scheduled to expire on April 11, 1989, but that he continued to suffer from a mental disease, defect, or disorder, as a result of which he was predisposed to the commission of sexual offenses to such a degree that he continued to present a substantial danger of bodily harm to others.   Accordingly, on December 14, 1988, the district attorney filed a petition for a two-year extension of defendant's commitment to the Department of Mental Health, pursuant to former Welfare and Institutions Code section 6316.2.

On January 11, 1989, the superior court appointed the public defender to represent defendant, and appointed a psychiatrist and a psychologist to examine him.

On February 7, 1989, the court-appointed psychiatrist reported to the court that defendant was a pedophile;  defendant had estimated that during the four years before his arrest in this case he had had sex with about fifty boys, generally nine- to eleven-year-olds whom he met at Cub Scout meetings where he was an assistant scoutmaster;  that he continues to have sexually arousing fantasies involving young children;  and that he is not ready for discharge because he represents a substantial danger of doing bodily harm to others.

The psychologist's report is not in the record.

On March 16, 1989, defendant filed a motion to dismiss the petition for extended commitment, on the basis of the rationale of People v. Lomboy, supra.   The reporter's transcript of the 1981 plea showed that defendant was told, on the record, that “If [the court] finds that you are a mentally disordered sex offender, you will be sentenced up to eight years of detention.   That means that you could be kept in a place of confinement for up to eight years.   That confinement would normally be in hospitals or places of that nature but places where you will not be free to leave.   That eight years can be extended—apart from the eight years, you can be released, you can be on parole or be released from hospitals under doctors' care.   That time will not count against the eight years of detention․  That eight years can be extended for 12 or 14 years.   Sometimes you would be out.   Sometimes you might be in, depending on your condition and what the doctors want to do․  Your overall effect is that you can be confined for up to eight years of your plea of guilty.”

Defendant also stated, by declaration and by testimony at a hearing on his motion, that he had not been informed of the possibility of an extension, and that he would not have pleaded guilty had he been so informed.

Defendant did not offer a declaration from the privately-retained attorney who had represented him at the time of his guilty plea.

On April 24, 1989, the trial court ruled that defendant was not adequately informed, when he entered his plea of guilty, of the possibility of an extension of his commitment, and on that basis granted his motion to dismiss the petition for extension.   This petition followed.

The courts of appeal are in conflict over whether the rule of People v. Lomboy, supra, should be applied to guilty pleas entered before it was decided.  (See People v. Superior Court (Bannister) (1988) 203 Cal.App.3d 1525, 250 Cal.Rptr. 909 [rev. denied] (Lomboy not retroactive));  People v. McIntyre (1989) 209 Cal.App.3d 548, modified, 209 Cal.App.3d 1098b [rev. denied], 257 Cal.Rptr. 271 [as modified] (Lomboy retroactive to September 18, 1979, the effective date of legislation authorizing extensions of commitments of persons found not guilty by reason of insanity).)

The People do not contend that the ambiguous references to extension when defendant's plea was taken constituted compliance with Lomboy.   Rather, they argue that Lomboy was incorrectly decided, and in any event should not be applied to invalidate pleas taken before it was decided.

Only our Supreme Court is invested with power to break the deadlock between Bannister and McIntyre.   We ourselves have grievous doubts whether Lomboy was correctly decided, and whether it is properly extended to confer a right to withdraw a guilty plea upon a defendant who, unlike the defendant in Lomboy, only raises the issue years later after accepting the benefits of his plea.  (See People v. Superior Court (Wagner) (1989) 210 Cal.App.3d 1146, 1150–1153, 258 Cal.Rptr. 740.)   We also are dubious of defendant's assertion that had he been informed of the possibility of an extension of his state hospital commitment, he would have pleaded not guilty;  this hardly seems consistent with the fact that at the time of his plea, the main agreement he procured was the guarantee that if the court did not send him to the state hospital, then he could withdraw his guilty plea and defend himself in order to resist being sent to prison.

 In the present case, however, even if both Lomboy and McIntyre are sound, Lomboy is distinguishable.  Lomboy, Bannister, and McIntyre all involved defendants committed to the state hospital after they elected to plead not guilty by reason of insanity.   Without entry of such a plea, the only possible outcomes facing such defendants are dismissal, acquittal, and penal commitment;  the court is powerless to force a defendant to invoke the insanity defense.  (See Pen.Code, § 1026, subd. (a).)

The Mentally Disordered Sex Offender procedure was different.   Upon conviction of a sex offense, on motion of the prosecutor, or on the court's own motion, the court was authorized to institute a proceeding to determine whether the defendant was a mentally disordered sex offender.  (Former § 6302, subd. (a).)  If, as here, the defendant was charged with felony child molestation, the court was required to institute such a proceeding.  (Id., subd. (c).)  A hearing was held, and the defendant's consent was not required before the court could find him to be a mentally disordered sex offender who could benefit by treatment in a state hospital.  (See former § 6316, subd. (a).)  The defendant had only the right to challenge an order committing him as a mentally disordered sex offender by obtaining a jury's determination whether he was such an offender.  (See former §§ 6318, 6321.)

Thus commitment as a mentally disordered sex offender was a consequence of the offense committed by the defendant and the trial court's finding that he was a person who by reason of mental defect, disease, or disorder, was predisposed to the commission of sexual offenses to such a degree that he was dangerous to the health and safety of others.  (Former § 6300.)   Such a commitment was not a consequence which a defendant could have avoided by a different plea.   Here, defendant has not contended either that he did not commit the criminal acts alleged or that he was not properly found to be a mentally disordered sex offender.

 Accordingly, the trial court erred in granting defendant's motion to dismiss the petition for extended commitment on the ground he was not informed, when he pleaded guilty in 1981, of the possibility of an extension of his commitment.

All parties were informed by order entered July 26, 1989, that this court was considering issuing a peremptory writ in the first instance.  (Code Civ.Proc., § 1088;  Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–180, 203 Cal.Rptr. 626, 681 P.2d 893.)   Contrary to real party's assertion, the record is not incomplete.   The parties having been afforded an opportunity to brief the issues fully, issuance of an alternative writ would add nothing to the exposition of the issues.

Let a peremptory writ of mandate issue, directing respondent to vacate its order of April 24, 1989, granting real party's motion to dismiss the petition for extended commitment, and enter a new and different order denying real party's motion.

COMPTON, Acting Presiding Justice.

GATES and FUKUTO, JJ., concur.

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