Reset A A Font size: Print

Court of Appeal, Fourth District, Division 1, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank Edward SAFFELL, Defendant and Appellant.

Cr. 8900.

Decided: December 08, 1978

Appellate Defenders, Inc. by Handy Horiye, San Diego, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Alan S. Meth and Henry R. Mann, Deputy Attys. Gen., for plaintiff and respondent.

Frank Edward Saffell appeals the judgment, after he was convicted by the court of rape and sexual perversion while using a knife within the meaning of Penal Code section 12022(b), and the order committing him as a mentally disordered sex offender (MDSO).

There is no need to recite the facts. Saffell complains he was denied equal protection of the law because as an MDSO he was automatically committed for the maximum term and was denied credit for good behavior (Welf. & Inst.Code s 6316.1).

The Mentally Disordered Sex Offenders Act covers those persons who have been found to have committed a criminal act but who “by reason of mental defect, disease or disorder, . . . (are) predisposed to the commission of sexual offenses to such a degree that . . . (they are) dangerous to the health and safety of others.” (Welf. & Inst.Code s 6300.) Those MDSOs who are amenable to treatment are confined in a state hospital or other mental health facility; those who are not amenable to treatment are returned to the criminal court for processing within regular channels (Welf. & Inst.Code s 6316). An MDSO who recovers before the expiration of his term is returned to the criminal court and if he is sentenced to a prison term he receives credit for the time he was committed as an MDSO (Welf. & Inst.Code s 6325). An MDSO who has served his entire term of commitment and still presents a threat of serious harm to others may have his commitment extended beyond the maximum term (Welf. & Inst.Code s 6316.2).

Saffell does not challenge the whole commitment scheme. Rather, he argues that absent aggravating circumstances he must be sentenced to the middle term rather than the upper term required by Welfare & Institution Code section 6316.1[FN1] for his initial commitment and be given good time credit. The parties agree, in making the equal protection analysis, we must be guided by the strict scrutiny test and if the two groups are similarly situated the state carries the burden of establishing a compelling state interest which justifies treating MDSOs differently from regular criminals.

The state contends a person convicted of a crime and found to be an MDSO amenable to treatment is not similarly situated with a person convicted of the same crime and not found to be an MDSO or found to be an MDSO not amenable to treatment. Since the groups are not similarly situated, the People continue, it is not a denial of equal protection when MDSOs amenable to treatment are confined automatically for the maximum term (Purdy & Fitzpatrick v. State of California, 71 Cal.2d 566, 578-579, 79 Cal.Rptr. 77, 456 P.2d 645). However, insofar as both groups are being held accountable for their crimes regardless of their mental condition and both groups have their terms set on the basis of the crime committed, not their mental condition, they comprise one class which must be treated similarly.

Before 1977, an MDSO was committed to an institution for an indefinite period, potentially for life. (See People v. Burnick, 14 Cal.3d 306, 320-321, 121 Cal.Rptr. 488, 535 P.2d 352; People v. Feagley, 14 Cal.3d 338, 358, 121 Cal.Rptr. 509, 535 P.2d 373; Welf. & Inst.Code, former ss 6316, 6326.) Under this and earlier statutes, commitment as an MDSO was not viewed as punishment or a substitute for punishment, because the hearing was civil rather than criminal in nature (In re Keddy, 105 Cal.App.2d 215, 217, 233 P.2d 159; People v. Schaletzke, 239 Cal.App.2d 881, 885, 49 Cal.Rptr. 275) or because the purpose of the act was to protect society and rehabilitate, not punish, the sexual psychopath (People v. Rancier, 240 Cal.App.2d 579, 582, 49 Cal.Rptr. 876; People v. Feagley, supra, 14 Cal.3d 338, 361, 121 Cal.Rptr. 509, 535 P.2d 373). In addition, the length of one's confinement was based not on the commission of a particular crime but on one's status as an MDSO amenable to treatment (People v. Burnick, supra, 14 Cal.3d 306, 315, 121 Cal.Rptr. 448, 535 P.2d 352).

However, under the new determinate sentencing law taking effect July 1, 1977, the initial commitment term is designated as the maximum term which can be imposed for the particular crime in question. Thus, the length of confinement has shifted from being based on the fact one is declared an MDSO to being based on the fact one has committed a particular crime. One might argue that being an MDSO is per se an aggravating circumstance warranting the imposition of the upper term in every case. The rules of court include as an aggravating circumstance the fact the defendant has shown a pattern of violent conduct (Cal.Rules of Court, Rule 421(b)(1)). But an MDSO is not necessarily violent (see, People v. Feagley, supra, 14 Cal.3d 338, 121 Cal.Rptr. 509, 535 P.2d 373). Thus, there is no reason to expect the maximum term would be imposed in all MDSO cases absent Welfare & Institution Code section 6316.1.

The application of section 6316.1 solely to MDSOs who are amenable to treatment leads to some rather curious results. The MDSO who is not amenable to treatment and who is sentenced under regular court procedures for committing an unaggravated crime will receive the middle rather than the maximum term. Presumably the shorter period of confinement is adequate to protect against the recurrence of his conduct but not sufficient to effect a cure (People v. Feagley, supra, 14 Cal.3d 338, 376, 121 Cal.Rptr. 509, 535 P.2d 373). The amenable MDSO who is given the maximum term, is committed and recovers, is then returned to the courts for sentencing or other disposition, presumably could be required to serve the maximum term even though the crime committed was not an aggravated one.

Is there a compelling state interest which justifies making the initial confinement period for the MDSO who is amenable to treatment longer than the MDSO who is not amenable to treatment or longer than the person who is not an MDSO? The People argue there is a compelling state interest in the protection of society and in the treatment of the mentally disturbed. However, an MDSO not amenable to treatment is confined for a shorter period and, as noted earlier, is presumed able to function adequately in society at the end of that time; there is no reason to think an MDSO who is amenable to treatment would not make at least the same amount of progress in the same period of time. Since the length of the initial commitment is determined by the crime committed, not by the particular mental disturbance, there is no relationship between the maximum term and successful treatment. It is a violation of equal protection to require those declared as MDSOs amenable to treatment to serve the maximum term of confinement while other persons who commit precisely the same crime are confined only for the middle term.

Likewise because the length of confinement of an MDSO is predicated on the particular crime committed rather than the mental condition involved, he must also be given the benefit of good time credit.

The constitutional infirmity of the statute arises because the length of the initial term is based on the crime committed and all persons convicted of the same crime must be given the same term of confinement. This is not to say, however, that the state does not have an interest in protecting society and in treating its mentally disordered citizens and cannot in pursuit of these aims have the length of the term depend on treatment. (See, People v. Superior Court (Rigg), 80 Cal.App.3d 407, 414, 145 Cal.Rptr. 711.) This in effect is what now happens since an MDSO after the appropriate due process procedures may have his term extended beyond the initial term (Welf. & Inst.Code s 6316.2). The determination here that part of the MDSO procedure is unconstitutional will, in practice, make little change as far as the system is concerned. Here assuming there were no aggravating circumstances, Saffell should have been given a five-year rather than a six-year term with the opportunity of reducing the term of his confinement by one-third through good behavior (Pen.Code ss 2931, 2932). However, at least every six months the superintendent of the facility must make a report on his progress (Welf. & Inst.Code s 6317). If he has recovered before the five years has passed he should be returned to the court for sentencing with credit for the time spent committed as an MDSO (Welf. & Inst.Code s 6325); if at the end of his initial period of confinement he still presents a threat of harm his commitment can be extended. (Welf. & Inst.Code s 6316.2; see, In re Moye, 22 Cal.3d 457, 464, 149 Cal.Rptr. 491, 584 P.2d 1097.) Thus, an MDSO who does not improve can be held as long as it is necessary for treatment to be effective or for a determination that further treatment is futile.

Saffell contends the court erroneously admitted evidence of his prior prison term which, although struck from the record, was prejudicial because the case was close. However, this was a court trial and the court would not be prejudiced by a charge of a prior felony conviction (In re Hernandez, 64 Cal.2d 850, 851, 51 Cal.Rptr. 915, 415 P.2d 803, People v. Pierson, 273 Cal.App.2d 130, 133, 77 Cal.Rptr. 888).

The judgment is affirmed and the order committing defendant as an MDSO for six years is reversed and remanded for resentencing in conformity with this opinion.


1.  In pertinent part the statute says:“(a) In the case of any person found to be a mentally disordered sex offender who committed a felony on or after July 1, 1977, the court shall state in the commitment order the maximum term of commitment, and the person may not be kept in actual custody longer than the maximum term of commitment, except as provided in Section 6316.2. For the purposes of this section, ‘maximum term of commitment’ shall mean the longest term of imprisonment which could have been imposed for the offense or offenses of which the defendant was convicted, including the upper term of the base offense and any additional terms for enhancements and consecutive sentences which could have been imposed . . . and disregarding any (good time) credits.”

GERALD BROWN, Presiding Justice.

COLOGNE and HARELSON (Judge of the Superior Court of San Diego County sitting under assignment by the Chairperson of the Judicial Council), JJ., concur.