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Court of Appeal, First District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. Alex Arthur ABRIL, Defendant and Appellant.


Decided: December 19, 1984

Richard Power, Pleasanton, for defendant and appellant. John K. Van de Kamp, Atty. Gen. of State of California, Robert R. Granucci, Deputy Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., San Francisco, for plaintiff and respondent.

The primary issue in this appeal is whether defendant is entitled to Penal Code section 2931 1 “good time” credits as against his fixed prison sentence for the days he spent in Atascadero State Hospital as a mentally disordered sex offender (MDSO).   We hold that he is not.


In May of 1980, after defendant pled guilty to rape (Pen.Code, § 261) and false imprisonment (Pen.Code, § 236), he was referred for an MDSO evaluation.   In November, the trial court sentenced defendant to state prison for the term of six years for rape plus a consecutive eight month term for false imprisonment.   The court then found that defendant was a MDSO, suspended criminal proceedings and ordered defendant committed to Atascadero State Hospital for a maximum term of commitment of six years, eight months.

On June 8, 1983, acting in response to the Medical Director's report under Welfare and Institutions Code, section 6325, subdivision (b),2 that defendant was no longer amenable to treatment, the trial court ordered defendant returned to the superior court;  criminal proceedings were reinstated.   Finding that defendant was still a MDSO but was not amenable to treatment, the trial court sentenced him to state prison in accordance with the earlier sentence of six years and eight months.   Defendant was awarded presentence custody credits and local conduct credits as well as 945 days credit for the time he served in Atascadero.   The court denied defendant's request that he also be awarded “good time” credit for time he spent in Atascadero.


When defendant was first committed, former section 6316.1 expressly precluded conduct credits for those committed as MDSOs.3  In People v. Saffell (1979) 25 Cal.3d 223, 157 Cal.Rptr. 897, 599 P.2d 92, the California Supreme Court considered whether the application of that statute denied a MDSO equal protection of the laws because he could not earn the good time credits available to inmates of correctional facilities.   Rejecting the equal protection challenge the court found that the effective treatment of MDSOs was a compelling state interest which justified the disparate treatment.  (Id., at p. 235, 157 Cal.Rptr. 897, 599 P.2d 92.)   In so doing, the court explained in detail why recognition of “good time” credits in the MDSO setting would be inappropriate in the MDSO 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.  [¶] Second, if a patient intentionally acts in a disruptive manner in a hospital setting, he may be determined to be unamenable to treatment and transferred to state prison.   This consequence, readily perceived, itself acts as a deterrent to intentional criminal conduct in the hospital setting.  [¶] Third, at least part of the ‘good time’ may be earned by participation in prison rehabilitative and educational programs.   It is not clear whether state hospitals currently even provide such ‘work, educational, vocational, [or] therapeutic’ activities.  [¶] Fourth, denial of ‘good time’ credits (pursuant to Pen.Code, § 2932) involves a whole panoply of administrative requirements, including a hearing.   It is questionable whether hospital administrators have either the ability or the time, given an already burdensome workload, to comply with these additional procedures or whether the type of adversary proceeding which might result, contemplating written notice, investigation, hearing, etc., would assist in furthering the treatment program of the patient.  [¶] Finally, it seems pointless to give an MDSO ‘good time’ credit against his medical commitment period because section 6316.2 allows extension of the treatment period if found to be necessary.   The concept of ‘good time’ credit only has meaning within the context of a fixed criminal sentence which may not be so extended.  [¶] For the above reasons, we conclude that the compelling state interest which underlies the effective treatment of MDSOs justifies a legislative determination not to expand the application of ‘good time’ procedures to MDSO commitments.”  (People v. Saffell, supra, 25 Cal.3d at pp. 234–235, 157 Cal.Rptr. 897, 599 P.2d 92.)

The next equal protection challenge reviewed by the high court in the MDSO context was to the denial of good time credits for the time spent in a state hospital before sentence and transfer to state prison.   In People v. Sage (1980) 26 Cal.3d 498, 506–507, 165 Cal.Rptr. 280, 611 P.2d 874, the rejection of the challenge was summary:  “Regarding the period of his treatment as an MDSO, defendant's equal protection claim is foreclosed by our recent decision in People v. Saffell [supra, 25 Cal.3d 223, 157 Cal.Rptr. 897, 599 P.2d 92], in which, applying the compelling state interest test, we held that an MDSO is not denied equal protection of the laws because he cannot earn the conduct credit available to inmates of correctional facilities.”

 Thus under the compulsion of Sage and Saffell we are precluded as a matter of law under the doctrine of stare decisis from holding that defendant is entitled to good time credit for the period of time he spent in Atascadero State Hospital.  (Cf. Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

 Defendant urges that the roadblock established by Sage and Saffell to his earning of good time credits has been lifted by the repeal of the MDSO laws (former §§ 6300–6330) effective January 1, 1982.  (See Stats.1981, ch. 928, § 2, p. 3485.)   Under the new sex offender program (see Pen.Code §§ 1364–1365) conduct credits under Penal Code section 2931 are earnable.   In defendant's view, because the statutory barrier to the awarding of good time credits has been repealed, we are required to apply a new equal protection analysis in such a manner that he will be eligible for conduct credits.   At a minimum this argument ignores the express statutory determination that the repeal of the MDSO procedures is “prospective only.”   (Stats.1981, ch. 928, § 3, pp. 3485–3486.) 4  Thus, defendant cannot benefit from the repeal of former section 6316.1, which as we have noted expressly denies him conduct credits.  (Accord People v. Brunner (1983) 145 Cal.App.3d 761, 765, 195 Cal.Rptr. 367.)

 Nor is defendant denied equal protection of the laws simply because the new sex offender procedures (Pen.Code, §§ 1364–1365) allow the awarding of conduct credits to those who fall within its reach.  (Accord People v. Brunner, supra, 145 Cal.App.3d at pp. 764–767, 195 Cal.Rptr. 367.)   The Brunner court explained, “Simply stated, a person convicted and committed to state hospital during the era of the treatment model is not similarly situated vis-a-vis a person subject to the punishment model.   The theory of the law has changed.  Section 1364's award of conduct credits is part and parcel of the punishment model:  since a defendant is not to be released before the end of his DSL term, regardless of the effectiveness of any treatment, a denial of conduct credits would leave him worse off than the state prisoners not transferred to state hospital and thus create real equal protection problems.   On the other hand, equal protection does not require that a defendant who had received substantial benefits under the treatment model also receive, selectively, one benefit of the punishment model given to other persons denied the benefits that defendant received.”  (Id., at pp. 766–767, 195 Cal.Rptr. 367, emphasis in original.)

Alternatively defendant urges in effect that equal protection principles demand that he receive good time credits because as of July 29, 1980, persons committed to the California Rehabilitation Center (CRC) are so entitled (see § 3201, subd. (c)).5

Recently the Fifth Appellate District agreed with that premise and held that MDSOs such as defendant (i.e., offenders committed under the former MDSO law) are entitled to good time credits for the time spent in the hospital.   (People v. Jobinger (1984) 153 Cal.App.3d 689, 200 Cal.Rptr. 546.)   Jobinger compared the CRC scheme with the new sex offender scheme, noted that persons subject to each are entitled to conduct credits, and commented that although MDSOs cannot benefit from the new sex offender legislation “the mere enactment of Penal Code section 1364 reflects a legislative policy favoring conduct credits for MDSO commitment time.”  (Id., at p. 695, 200 Cal.Rptr. 546.)   It then concluded that the Saffell factors (see at pp. 3–5, ante ) which had justified the denial of conduct credits to MDSOs have become “meaningless in the equal protection context in light of the Legislature's implied finding that these concerns are subordinate to an MDSO's right to conduct credits.”  (Id., at p. 695, 200 Cal.Rptr. 546.)

In our view, Jobinger mischaracterizes the equal protection issue before it and in so doing fails to appropriately follow the Supreme Court's final words on the subject:  Sage and Saffell.   We repeat those words.   The Supreme Court in Saffell found it pointless to give an MDSO credit against his medical commitment because that commitment could be extended.  (Id., 25 Cal.3d at 234, 157 Cal.Rptr. 897, 599 P.2d 92.)   And in Sage the court applied that analysis to those such as defendant who are returned to court and sentenced to a fixed state prison term.  (Id., 26 Cal.3d at pp. 506–507, 165 Cal.Rptr. 280, 611 P.2d 874.)

 The new CRC scheme (and the new sex offender scheme as well) allows only for fixed term commitments.  (See, § 3201;  Pen.Code, § 1364.)   That is definitely not defendant's situation.   Those in defendant's class (i.e., MDSOs committed prior to January 1, 1982) can have their commitments extended under present California law.  (See former § 6316.2.)   This court has no power but to conclude therefore that the Legislature's refusal to extend good time credits to MDSOs such as defendant is justified because “[t]he concept of ‘good time’ credit only has meaning within the context of a fixed criminal sentence which may not be ․ extended.”  (People v. Saffell, supra, 25 Cal.3d at p. 234, 157 Cal.Rptr. 897, 599 P.2d 92;  see also People v. Austin (1981) 30 Cal.3d 155, 165, 178 Cal.Rptr. 312, 636 P.2d 1;  People v. Jennings (1983) 143 Cal.App.3d 148, 150, 191 Cal.Rptr. 592;  People v. Hankins (1982) 137 Cal.App.3d 694, 699, 187 Cal.Rptr. 210;  People v. Superior Court (Waitley ) (1982) 130 Cal.App.3d 39, 42–43, 180 Cal.Rptr. 790;  People v. Smith (1981) 120 Cal.App.3d 817, 825, 175 Cal.Rptr. 54.)   Accordingly we hold, under the compulsion of Saffell and Sage that defendant is not entitled to Penal Code section 2931 good time credits for the period he spent in Atascadero State Hospital.6


 Defendant also contends that in imposing the consecutive term the trial court erroneously relied on the factor that he “has engaged in a pattern of sexual violence which indicates a serious threat to society.”  (Cf. Cal.Rules of Court, rules 425(b) and 421(b)(1).)   Defendant believes this factor is inapplicable because “there are no priors, and the present case involves only one incident.”   Even a quick look at the probation report reveals that defendant previously had been convicted of a sex related crime (assault with intent to commit oral copulation), and with many other nonsexual crimes.   There was no error in imposing a consecutive sentence.




1.   Penal Code section 2931 provides in pertinent part:  “(a) In any case in which a prisoner was sentenced to the state prison pursuant to Section 1170, ․ the Department of Corrections shall have the authority to reduce the term prescribed under such section by one-third for good behavior and participation consistent with subdivision (d) of Section 1170.2.   A document shall be signed by a prison official and given to the prisoner, at the time of compliance with Section 2930, outlining the conditions which the prisoner shall meet to receive the credit․  [¶] (b) Total possible good behavior and participation credit shall result in a four-month reduction for each eight months served in prison or in a reduction based on this ratio for any lesser period of time.   Three months of this four-month reduction, or a reduction based on this ratio for any lesser period, shall be based upon forebearance from any act for which the prisoner could be prosecuted in a court of law, either as a misdemeanor or a felony, or any act of misconduct described as a serious disciplinary infraction by the Department of Corrections.”

2.   Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

3.   Former section 6316.1, subdivision (a), provided:  “(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 less any applicable credits as defined by Section 2900.5 of the Penal Code and disregarding any credits which could have been earned under Sections 2930 to 2932, inclusive, of the Penal Code.”  (Emphasis added.)

4.   The Legislature has indicated its intent on the matter quite specifically:  “Nothing in this act shall be construed to affect any person under commitment ․ prior to the effective date of this act.   It is the Legislature's intent 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 the resumption of the criminal proceedings․  In making the repeal of the mentally disordered sex offender commitment procedures prospective only, the Legislature finds and declares it is necessary to retain persons under this commitment who committed their crimes before the effective date of this enactment in order to have proper control over these persons and to protect society against repeated commission of sex crimes and that other enactments in the 1979–80 Regular Session of the Legislature and the 1981–82 Regular Session of the Legislature would yield prison terms which would provide this protection to society without the need to retain the mentally disordered sex offender commitment.”  (Stats.1981, ch. 928, § 3, pp. 3485–3486.)

5.   Section 3201, subdivision (c), provides in pertinent part:  “Any person ․ whose execution of sentence in accordance with the provisions of Section 1170 ․ was suspended pending a commitment pursuant to Section 3051, who has spent, pursuant to this chapter, a period of time in confinement or in custody, excluding any time spent on outpatient status, equal to that which he or she would have otherwise spent in state prison had sentence been executed, including application of good behavior and participation credit provisions of [section 2931 of the Penal Code]․”

6.   We recognize that Jobinger was recently followed by the Second District in People v. Richard (1984) 161 Cal.App.3d 559, 564, 207 Cal.Rptr. 715.

POCHÉ, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

LOW, P.J., and KING, J., concur.