PEOPLE v. SMITH

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Roger Dale SMITH, Defendant and Appellant.

Cr. 4485.

Decided: March 23, 1981

Howard J. Berman, San Francisco, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Joel Carey and J. Robert Jibson, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

Appellant, Roger Dale Smith, was convicted upon his plea of guilty to arson (Pen.Code, s 447a). On his plea of not guilty by reason of insanity, appellant was found insane at the time of the offense pursuant to Penal Code section 1026 and was committed to a state hospital for treatment. Though the court specifically found that there were no aggravating circumstances, appellant was committed to the upper base term of four years. The court also denied precommitment credits for actual time served pursuant to Penal Code section 2900.5 and good time credits under Penal Code section 4019. Appellant challenges his commitment to the upper base term and the denial of precommitment credit for actual time served and good time.

In People v. Saffell (1979) 25 Cal.3d 223, 157 Cal.Rptr. 316, 599 P.2d 88, a proceeding relating to the commitment of a mentally disordered sex offender, the court expressly rejected these contentions, except that the defendant was held to be entitled to precommitment credits for actual time served.

Appellant argues that he was denied due process and equal protection of the law because his maximum term of confinement is longer than the term of imprisonment he would have received had he not been found to be insane under Penal Code section 1026. The statute (see Welf. & Inst.Code, s 6316.1, subd. (a)) pursuant to which the MDSO in Saffell was committed to the maximum term without proof of aggravating circumstances is substantially identical in content to the language of Penal Code section 1026.5.1 In that case the court rejected an equal protection attack, pointing out that while fundamental interests of personal liberty are involved (Saffell, at p. 228, 157 Cal.Rptr. 316, 599 P.2d 88), the state has a compelling interest in the confinement of persons for the purpose of treatment rather than punishment (Saffell, at p. 229, 157 Cal.Rptr. 316, 599 P.2d 88). The court pointed out that being an MDSO is a status, not a crime, and confining such a person for the purpose of treatment rather than to punish him by sending him to state prison is not a violation of equal protection. The court concluded that a valid comparison cannot be drawn between a person committed for treatment of a mental condition and a person committed for punishment for having committed a criminal offense.

In re Moye (1978) 22 Cal.3d 457, 149 Cal.Rptr. 491, 584 P.2d 1097 concerns a defendant who was found not guilty by reason of insanity and was committed to a state hospital for treatment pursuant to Penal Code section 1026. In that case the court observed:

“MDSOs comprise a class of individuals quite similar to those, such as petitioner, who have been acquitted of a criminal offense by reason of insanity. Both classes, for example, involve persons who initially have been found to have committed a criminal act, but whose mental condition warrants a period of confinement for treatment in a state institution, in lieu of criminal punishment.” (In re Moye, supra, at p. 463, 149 Cal.Rptr. 491, 584 P.2d 1097.)

Again, at page 466, 149 Cal.Rptr. 491, 584 P.2d 1097, the court notes:

“As we have noted, by reason of their commission of a prior criminal act and the finding of a mental disorder justifying the initial commitment, persons committed as MDSOs are ‘similarly situated’ with persons like petitioner.”

Accordingly, though there was no evidence in aggravation, the court did not err in committing appellant to a mental treatment facility for the upper base term.

However, the court did err in not awarding appellant precommitment credit time for actual time served pursuant to Penal Code section 2900.5. He is entitled to credit for the actual time he spent in confinement, including the time he spent at Patton State Hospital during the suspension of criminal proceedings due to appellant's Penal Code section 1368 incapacity to stand trial. Respondent agrees with this conclusion. (See Pen.Code, s 1026.5; Welf. & Inst.Code, s 6500 et seq.; People v. Sage (1980) 26 Cal.3d 498, 502, 165 Cal.Rptr. 280, 611 P.2d 874; In re Banks (1979) 88 Cal.App.3d 864, 870, 152 Cal.Rptr. 111; In re Jordan (1975) 50 Cal.App.3d 155, 158, 123 Cal.Rptr. 268.) In this regard, it is to be specifically noted that the maximum term of commitment in a hospital under Penal Code section 1026 is to be calculated in accordance with Welfare and Institutions Code section 6316.1. (In re Moye, supra, 22 Cal.3d 457, 149 Cal.Rptr. 491, 584 P.2d 1097.) Finally, it is to be noted that Welfare and Institutions Code section 6316.1 expressly provides that the term imposed will be “less any applicable credits as defined by Section 2900.5 of the Penal Code....”

Turning to good time credits, Saffell held that an MDSO was not entitled to good time/work time credits pursuant to Penal Code section 4019. Since no statutory authority exists for an award of good time/work time credits, entitlement must be necessarily predicated upon a contention of equal protection violation. (See People v. Sage, supra, 26 Cal.3d 498, 506-507, 165 Cal.Rptr. 280, 611 P.2d 874.) But, as we have noted, confinement pursuant to Penal Code section 1026 for treatment creates no parallel disparity with felons confined to prison for punishment. In Saffell the court explained in part:

“The purposes of the provision for ‘good time’ credits seem self-evident. First, and primarily, prisoners are encouraged to conform to prison regulations and to refrain from engaging in criminal, particularly assaultive, acts while in custody. Second, section 2931, subdivision (c), induces prisoners to make an effort to participate in what may be termed ‘rehabilitative’ activities.

“While these twin goals are undoubtedly both appropriate and necessary in a prison setting, for several reasons they are not necessarily suitable within a hospital context.

“First, the very concept of ‘giving’ or ‘taking away’ time credits might materially interfere with other principles central to the operation of a therapeutic program. We cannot presume that hospital programs in general, and staff-patient relationships in particular, will benefit from a procedure in which patients are threatened with varying lengths of commitment dependent upon their in-hospital behavior. MDSOs are, by statutory definition, individuals who suffer from a ‘mental disease, defect, or disorder.’ The rationale of ‘good time’ credit as a reward for behavioral conformity does not readily fit the company of the mentally disturbed. The ‘carrot or stick’ approach represented by the extension or withdrawal of credit as reward or punishment seems inconsistent with the goals of a hospital treatment facility.” (People v. Saffell, supra, 25 Cal.3d at pp. 233-234, 157 Cal.Rptr. 316, 599 P.2d 88.)

The court further observed that: “The concept of ‘good time’ credit only has meaning within the context of a fixed criminal sentence which may not be so extended.” (Id., at p. 234, 157 Cal.Rptr. 316, 599 P.2d 88.) Accordingly, we conclude the trial court correctly ruled that appellant was not entitled to good time credits.

The judgment is affirmed. The Department of Corrections, upon application of appellant, is directed to administratively determine and give appellant credit for precommitment time actually served pursuant to Penal Code section 2900.5.

FOOTNOTES

1.  Pertinent parts of subdivision (a)(1) state: “In the case of any person committed to a state hospital or other treatment facility pursuant to Section 1026 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 this section. 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 person was convicted, including the upper term of the base offense and any additional terms for enhancements and consecutive sentences which could have been imposed less any applicable credits as defined by Section 2900.5 and disregarding any credits which could have been earned under Sections 2930 to 2932, inclusive.”

GEO. A. BROWN, Presiding Justice.

PAULINE DAVIS HANSON and ANDREEN, JJ., concur.