IN RE: Floyd A. VAN RENSELAAR on Habeas Corpus.

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

IN RE: Floyd A. VAN RENSELAAR on Habeas Corpus.

G001270, G001328.

Decided: July 23, 1984

William C. Spater, Los Angeles, for petitioner. John K. Van de Kamp, Atty. Gen., and Pat Zaharopoulos, Deputy Atty. Gen., for respondent.

OPINION

Floyd A. Van Renselaar petitions in habeas corpus after the superior court denied his post-judgment motion for good behavior and participation credits for the period he was confined in a state hospital as a mentally disordered sex offender (MDSO).

I

Van Renselaar was convicted on July 17, 1979 of lewd and lascivious conduct (Pen.Code, § 288, subd. (a)) 1 and incest (§ 285).   Criminal proceedings were subsequently suspended, and in August 1981 he was committed to a state hospital as an MDSO under former Welfare and Institutions Code section 6316.

 On October 11, 1983, Van Renselaar stipulated with the prosecution to terminate the Department of Mental Health commitment and reinstate criminal proceedings at a hearing pursuant to section 1604, subdivision (a).   He was sentenced to the middle term of five years for the section 288, subdivision (a) violation.   A similar sentence on the section 285 conviction was stayed per section 654.   He received a total of 1014 days in presentence credits:  186 days for the time he actually spent in custody in jail, plus 93 days for good behavior and participation while there, and 735 days for the term of his commitment in the state hospital.   Van Renselaar's counsel at this hearing did not ask for or suggest he was entitled to good behavior and participation credits for the period of hospital confinement.

 Several months later, however, Van Renselaar moved to amend the abstract of judgment to add good behavior and participation credits for the entire period of hospitalization, citing section 4019.   The motion was denied.2

Van Renselaar's petition for habeas relief in this court relies on People v. Jobinger (1984) 153 Cal.App.3d 689, 200 Cal.Rptr. 546.   There, a different court determined the denial of presentence conduct credits to a sex offender for the time spent in a state hospital as an MDSO violated equal protection principles, since those credits are afforded narcotics addicts committed to the California Rehabilitation Center under Welfare and Institutions Code section 3201, subdivision (c).3  We believe Jobinger mischaracterizes the equal protection issue, however, and is incorrectly decided.

II

The MDSO provisions in effect when Van Renselaar was committed (former Welf. & Inst.Code, § 6300 et seq.) reflected the then legislative policy that a particular class of sex offenders should be treated rather than punished.   Under this program, section 2931 credits were not available to MDSOs.   In People v. Saffell (1979) 25 Cal.3d 223, 157 Cal.Rptr. 897, 599 P.2d 92, the Supreme Court rejected an MDSO's equal protection claim, noting the compelling state interest in treatment of sex offenders justified denial of these credits:  “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.”  (Id., at pp. 233–234, 157 Cal.Rptr. 897, 599 P.2d 92.)

The MDSO scheme was repealed effective January 1, 1982, however, and replaced by sections 1364 and 1365, which “substituted a ‘punishment model.’ ”   (People v. Brunner (1983) 145 Cal.App.3d 761, 766, 195 Cal.Rptr. 367.)   The new system did mandate the development of “a voluntary experimental treatment program that can be evaluated, limited to no more than 50 beds ․”  It also provided, “All days of confinement in a state hospital for testing and treatment shall be credited to the [defendant's] term of imprisonment and the provisions of section 2931 shall apply.”  (§ 1364.)   The legislation was expressly prospective only and not applicable to MDSOs committed before its effective date.  (Stats.1981, ch. 928, § 3.)   It was also “the intent of the Legislature that persons convicted of a sex offense after [January 1, 1982], who are believed to have a serious, substantial, and treatable mental illness, shall be transferred to a state hospital for treatment under the provisions of section 2684 of the Penal Code.”  (Stats.1981, ch. 928, § 4.)

In this context the Jobinger court held that equal protection principles require extension of section 2931 good behavior and participation credits to MDSOs committed under the old law from July 29, 1980, the effective date of legislation extending those credits to narcotics addicts committed to the California Rehabilitation Center (Welf. & Inst.Code, § 3201, subd. (c)).  The court held, “the mere enactment of Penal Code section 1364 reflects a legislative policy favoring conduct credits for MDSO commitment time.  [¶] Furthermore, there appears to be no persuasive rationale in case law for maintaining any distinction between MDSOs and CRC addicts, at least for conduct credit purposes.   In People v. Saffell [supra ] 25 Cal.3d 223, 157 Cal.Rptr. 897, 599 P.2d 92 (reaffirmed in People v. Sage [supra ] 26 Cal.3d 498, 506, 165 Cal.Rptr. 280, 611 P.2d 874), the Supreme Court set forth several reasons for denying an MDSO's equal protection claim that he was entitled to the same conduct credits as a prison inmate.   These reasons were that good-time credit is fundamentally at odds with the treatment of the mentally disturbed;  that MDSO confinement offers incentives in itself for good behavior;  that hospitals are ill-equipped to provide work-time opportunities;  that hospitals don't have the ability or time to conduct disciplinary hearings to decide a loss of credits and, finally, that credits are meaningless when commitment can later be extended.   While these factors may have been persuasive prior to the enactment of Penal Code section 1364, they 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.”  (People v. Jobinger, supra, 153 Cal.App.3d at p. 695, 200 Cal.Rptr. 546.)   We believe this attempt to distinguish Saffell and Sage must fail on several grounds.

 First, extension of conduct credits to CRC inmates expresses a legislative recognition they are really in a mode which more closely resembles that of punishment than treatment and are effectively subject to control by a credits system.   The legislation merely recognized what our Supreme Court held in Saffell;  the concept of good time credits makes sense only in a scheme of fixed criminal sentences which cannot be extended.  (People v. Saffell, supra, 25 Cal.3d 223, 234, 157 Cal.Rptr. 897, 599 P.2d 92.)

 Second, equal protection principles apply only when similarly situated persons receive different treatment as the result of state action.  (See In re Strick (1983) 148 Cal.App.3d 906, 912, 196 Cal.Rptr. 293.)   Thus the question is not, as characterized in Jobinger, whether MDSOs committed under the treatment mode and current CRC inmates are now similarly situated and constitutionally entitled to similar treatment (although they are not),4 but whether, for equal protection purposes, an MDSO committed under a “treatment” model is similarly situated to one committed under a “punishment” model.   The answer to this question is, in our view, no.

A year before the Jobinger decision a different panel of the same court rendered the opinion in People v. Brunner, supra, 145 Cal.App.3d 761, 195 Cal.Rptr. 367.   There, the court determined the extension of conduct credits to persons who would be committed as MDSOs after January 1, 1982 under section 1364 did not apply retroactively to those committed before that date pursuant to the now repealed Welfare and Institution Code provisions.   The court observed, “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 has 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.)   During the term of his state hospital commitment, Van Renselaar received the benefits of the “treatment” program and philosophy in effect at that time.   He was not then similarly situated to CRC inmates—or even post-1981 MDSOs;  both of whom were committed under the “punishment” model and never eligible for those benefits.

 Similarly, the Court of Appeal in People v. Jennings (1983) 143 Cal.App.3d 148, 191 Cal.Rptr. 592 (hg. den., August 24, 1983) relied on People v. Saffell, supra, 25 Cal.3d 223, 233–235, 157 Cal.Rptr. 897, 599 P.2d 92 and People v. Wasley (1982) 133 Cal.App.3d 344, 350, 184 Cal.Rptr. 25 to deny conduct credits to a defendant committed to a state hospital before conviction pursuant to section 1368.   The court noted the result would be the same in any case where criminal proceedings are suspended and the defendant is committed to a medical facility before sentencing.  (Id., 143 Cal.App.3d at p. 150, fn. 2, 191 Cal.Rptr. 592.)   We agree.   Denial of section 2931 conduct credits to Van Renselaar does not raise an equal protection issue.

Writ denied.

FOOTNOTES

1.   All statutory references are to the Penal Code unless otherwise indicated.

2.   Van Renselaar's reliance on section 4019 in the superior court was clearly erroneous.  “[He] is not entitled to conduct credit under section 4019 for the period of his treatment as an MDSO because the section does not authorize credit for time in such nonpenal institutions as state hospitals.”  (People v. Sage (1980) 26 Cal.3d 498, 501–502, 165 Cal.Rptr. 280, 611 P.2d 874.)   Nevertheless, it appears his request for additional conduct credits was calculated under the provisions of section 2931, not section 4019.   This error might have some impact on an appeal, but is irrelevant on habeas since the superior court motion was not a prerequisite to this petition.  (Van Renselaar has filed a companion appeal raising the same issue, but we have examined it in this proceeding to avoid his serving the balance of the sentence before his argument can be considered.)Section 2931, subdivision (a) provides, “In any case in which a prisoner was sentenced to 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․”

3.   Welfare and Institutions Code section 3201, subdivision (c) provides in part, “Any person ․ whose execution of sentence in accordance with the provisions of Section 1170 ․ was suspended pending a commitment pursuant to Section 3051 [applicable to narcotics addicts], 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] ․”

4.   For example, “we are cognizant of one fundamental difference between MDSO and narcotic addict confinement.   In practice, an MDSO commitment is involuntary;  the CRC commitment is largely voluntary.   What compelling state interest is there in deterring narcotic addicts guilty of crimes from seeking treatment and rehabilitation while in custody?   Few, if any, addicts are going to volunteer for CRC commitment knowing that if they are found ‘unamenable to treatment’ they will be deprived of conduct credits.”  (People v. Hankins (1982) 137 Cal.App.3d 694, 699, 187 Cal.Rptr. 210, fns. omitted.)

 CROSBY, Associate Justice.

WALLIN, Acting P.J., and SONENSHINE, J., concur.