PEOPLE v. GONZALES (1979)

A jury found defendant Frank Gonzales (Gonzales) guilty of two charges of lewd or lascivious act on a child under 14 (Pen.Code, § 288) and two charges of participation in oral copulation by a person over 21 with another person under 16 years of age (Pen.Code, § 288a, subd. (b)(2)). The victims were two nine-year-old girls. Criminal proceedings were then suspended (Welf. & Inst.Code, § 6300 et seq.); Gonzales was examined and upon hearing found to be a mentally disordered sex offender (MDSO) amenable to treatment. The court thereupon committed him to the custody of the Department of Health for placement at Patton State Hospital under the provision of section 6316.1 of the Welfare and Institutions Code. The court set Gonzales' aggregate maximum term at seven years, eight months, the maximum term of imprisonment which could have been imposed for the four underlying criminal offenses.

FACTS

The sufficiency of the evidence to support the convictions is not disputed; the facts will therefore be detailed only as required by the issues raised. After school on the afternoon of May 18, 1977, and other afternoons in the preceding months, 35-year-old Gonzales engaged in lewd fondling and oral copulation with his nine-year-old neighbors, Brenda S. and Lori W. These activities occurred inside an elevated, closed storage cabinet in Gonzales' carport at the apartment complex where they all resided. Each girl was a witness to the offenses committed against the other.

At the trial, six months later, each girl corroborated the other's testimony on most points; the girls did not entirely agree as to the exact dates of the various offenses. Gonzales conceded, however, the testimony of Brenda and Lori were not inherently improbable. There were some inconsistencies in their testimony and some uncertainties regarding the frequency of contact with Gonzales, the actions of Gonzales on the day of the charged offense, and the precise times when certain of the prior uncharged acts occurred. Both girls testified the cabinet contained a small mattress, but Brenda said there were in addition pillows, while Lori said there was a blanket. Both remembered Gonzales had rigged up an extension light which remained in the cabinet for three days. They used the light to see Gonzales' pornographic magazines.

Gonzales admitted keeping the magazines in the cabinet, admitted asking the girls to fetch him tools from the cabinet, admitted sometimes wearing torn trousers without underwear in the presence of the girls, but he denied committing the crimes charged. Gonzales appeals the judgment asserting six distinct grounds for reversal. We examine their form and substance in order of their presentation and find them to be without merit.

DISCUSSION—I

Gonzales sought to compel the prosecuting witnesses—the nine-year-old girls—to submit to psychiatric examinations in accordance with the precept of Ballard v. Superior Court, 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838. The court held Gonzales' first pretrial motion premature and denied it without prejudice. When the motion was renewed the day before trial, the trial judge read Gonzales' moving papers and an accompanying declaration by a psychiatrist, then found there was “absolutely no evidence” to show that the victims had any mental disorder or emotional condition which might cause them to fantasize. On this basis the court denied the motion, again without prejudice. After all the evidence was in, Gonzales again renewed the motion; the court denied the motion concluding there was no basis for a psychiatric examination: the girls' testimony was not contradictory or evasive and there was no evidence that either girl had any emotional or psychological problem.

Ballard held a trial court is authorized, in its discretion, to order a prosecutrix to submit to a psychiatric examination “if the circumstances indicate a necessity for an examination. Such necessity would generally arise only if little or no corroboration supported the charge and if the defense raised the issue of the effect of the complaining witness' mental or emotional condition upon her veracity․” (Ballard v. Superior Court, supra, 64 Cal.2d at pp. 176-177, 49 Cal.Rptr. at p. 313, 410 P.2d at p. 849.)

The trial court must exercise its “judgment as to whether an emotional or mental condition is involved which a body of laymen either would be unable to detect or would be unable to relate in terms of effect to the matter of credibility.” (People v. Russel, 69 Cal.2d 187, 195, 70 Cal.Rptr. 210, 216, 443 P.2d 794, 800.)

Gonzales relies upon People v. Lang, 11 Cal.3d 134, 140, fn. 3, 113 Cal.Rptr. 9, 13 n.3, 520 P.2d 393, 397 n.3, where the court said of a “Ballard” examination:

“Such an examination would seem a minimum protection for a defendant charged with molesting a child, and only the rarest of cases would excuse counsel from obtaining one. As the trial judge indicated in this case, shortly before finding defendant guilty, ‘I don't know how bright these girls [the twins] are. I don't know what their capacity for fantasy is.’ The results of a psychiatric examination of the twins might easily have tipped the balance in this close case in favor of defendant, whose strongest defense was that the twins lied about him.”

This statement was quoted with approval by the Chief Justice in her dissent in People v. Thomas, 20 Cal.3d 457, 472, 143 Cal.Rptr. 215, 573 P.2d 433.

Here, unlike Lang and In re Leonard M., 85 Cal.App.3d 887, 149 Cal.Rptr. 791, there is no charge of inadequacy of counsel. Gonzales' attorney was most active in seeking the Ballard examinations. The issue here is whether the trial court abused its discretion. Three times the judge examined the assertions of need for the psychiatric examinations and three times denied the motion. On the last occasion the trial court had the benefit of the totality of evidence; he had full opportunity for personal appraisal of the two child witnesses, their emotional and mental characteristics were before him; they had been subjected to cross-examination that should have revealed—if present—the factual base authorizing a Ballard examination. Based upon this full opportunity for appraisement of the girls, the court denied the motions. We agree the requirements authorizing the use of the Ballard-Russel discovery technique do not appear.

Nor does the cited language of People v. Lang, supra, compel an examination, once the motion is made. Lang should not be divorced from its factual base. In Lang there was good reason to seek and obtain such an examination, for the testimony of the nine-year-old prosecuting witnesses (twins) was wholly uncorroborated and also inherently improbable.

Here Gonzales concedes what Brenda and Lori testified to could have happened. While he discounts their mutual corroboration as valueless, he cites no authority which even suggests that a witness to a crime is disqualified from supplying corroboration by the fact that she too is a victim. In People v. Edwards, 12 Cal.App.3d 87, 91, 90 Cal.Rptr. 475, the court accepted mutual corroboration by victims without question. Gonzales simply failed factually to establish a “Ballard” examination was necessary. No abuse of discretion can be found here.

II

Gonzales next claims trial court error in admitting evidence of prior uncharged offenses by Gonzales against the child-victims. When he sought to suppress such evidence before the trial, the court overruled his objection but told him to renew it when the question was asked. The prosecutor later asked the girls about the prior offenses; Gonzales neither objected nor moved to strike the answers they gave, but instead his counsel explored the subject fully on cross-examination.

As a general proposition a defendant's failure to object timely, on appropriate grounds, in the trial court precludes his raising the issue on appeal. (People v. Welch, 8 Cal.3d 106, 114-115, 104 Cal.Rptr. 217, 501 P.2d 225.) However, in this specie of case, rigorous insistence upon the observance of rules on admissibility of evidence is required. Even in absence of an objection, procedural errors will be carefully examined to determine whether there has been a miscarriage of justice. (People v. Jones, 42 Cal.2d 219, 226, 266 P.2d 38; People v. Crume, 61 Cal.App.3d 803, 810, 132 Cal.Rptr. 577.)

Failure to object is not the sole barrier for Gonzales affirmatively waived any objection he may once have had to the admission of the evidence when he cross-examined the girls concerning his prior offenses.

And of greater significance, the challenged evidence was admissible. In cases involving sex crimes, evidence of other, not too remote, sex offenses with the prosecuting witness is admissible to show the defendant's lewd disposition or intent toward the victim. (People v. Sylvia, 54 Cal.2d 115, 119-120, 4 Cal.Rptr. 509, 351 P.2d 781; People v. Stanley, 67 Cal.2d 812, 816, 63 Cal.Rptr. 825, 433 P.2d 913.)

People v. Stanley, supra, held the uncorroborated testimony of the victim that the defendant committed similar sex acts with him and others was inadmissible because it was of no substantial aid to the trier of fact and might be unduly prejudicial to the accused. Such is not the case here where the testimony of the victims regarding prior offenses by Gonzales against them was mutually complementary and corroborative. In this situation, the probative value is very great in determining the veracity of the complaining witness. (People v. Hurd, 5 Cal.App.3d 865, 874, 85 Cal.Rptr. 718.)

III

Gonzales next contends (1) he was improperly convicted of multiple sex offenses with the same victim in the same time frame and (2) the maximum length of his commitment was erroneously calculated, violating the Penal Code section 654 prohibition against multiple punishment.

Gonzales, committed several different offenses with each girl on both May 16 and May 18. The pleading and the proof would allow the jury to convict him of Penal Code section 288 (lewd conduct) with each girl on May 18 and violating section 288a, subdivision (b)(2) (sex perversion) with each girl on May 16. Thus, the divisible nature of the offenses is self-evident. Further, if the jury relied solely on acts committed on May 18, four convictions were proper. This is not a case factually of a single indivisible act punishable under more than one provision of the code as in People v. Cline, 2 Cal.App.3d 989, 83 Cal.Rptr. 246.

In prosecution for multiple sex offenses under Penal Code sections 288 and 288a, a defendant may be properly convicted on counts under both sections where the evidence reflects a succession of acts by the offender, some of which were lewd conduct under Penal Code section 288 and others were perverted acts with the same child under Penal Code section 288a. (People v. Slobodion, 31 Cal.2d 555, 561, 563, 191 P.2d 1; People v. Edwards, supra, 12 Cal.App.3d 87, 92, 90 Cal.Rptr. 475.)

Furthermore, the proscription against separate punishment (Pen.Code, § 654) has been held to be inapplicable to multiple but separate and distinct sex offenses committed in the same time frame against the same victim. (People v. Hicks, 63 Cal.2d 764, 766, 48 Cal.Rptr. 139, 408 P.2d 747; People v. Robinson, 66 Cal.App.3d 624, 629, 136 Cal.Rptr. 127; People v. Smith, 22 Cal.App.3d 197, 203, 99 Cal.Rptr. 192; People v. Hurd, supra, 5 Cal.App.3d 865, 872-874, 85 Cal.Rptr. 718.)

In People v. Perez, 23 Cal.3d 545, 553, 153 Cal.Rptr. 40, 591 P.2d 63 (1979) the defendant had orally copulated and committed sodomy on the victim within a 45-minute to 1-hour period. The Supreme Court disposed of the 654 issue stating:

“A defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act. We therefore decline to extend the single intent and objective test of section 654 beyond its purpose to preclude punishment for each such act.” (P. 553, 153 Cal.Rptr. p. 44, 591 P.2d p. 68.)

and in language having direct application here held:

“None of the sex offenses was committed as a means of committing any other, none facilitated commission of any other, and none was incidental to the commission of any other.” (P. 553, 153 Cal.Rptr. p. 45, 591 P.2d p. 69.)

We echo the Supreme Court and conclude section 654 does not preclude punishment for each of the sex offenses committed by Gonzales.

IV

Gonzales contends the trial court erred in instructing the jury in accordance with CALJIC 4.71:

“When, as in this case, it is alleged that the crime charged was committed ‘on or about’ a certain date, if the jury finds that the crime was committed it is not necessary that the proof show that it was committed on that precise date; it is sufficient if the proof shows that the crime was committed on or about that date [to-wit: May 16, 17, 18, 1977].”

Gonzales argues the instruction made it possible for the jury to convict him of uncharged crimes committed before May 18 in violation of his due process right to notice of the charges.

The record reflects Gonzales stipulated the instruction could be given without requesting any clarification. Further, the instruction was legally correct. Where the time an offense was committed is not a material ingredient of the offense, the precise time of its commission need not be stated in the accusatory pleading. (Pen.Code, § 955.) Since Gonzales had no alibi defense but instead claimed nonparticipation, it was immaterial whether he committed the crimes on May 18 or on May 16 or on both of those days. So long as there was proof that he committed the crimes on May 18 or within a reasonable time of that date, he cannot complain of lack of notice.

Finally, the jury was properly instructed that each count in the complaint charges a separate and distinct offense to be decided by the jury separately based on the evidence before them. (People v. Edwards, supra, 12 Cal.App.3d 87, 92, 90 Cal.Rptr. 475.)

V

After finding Gonzales an MDSO, the court committed him for the maximum term under the Welfare and Institutions Code section 6316.1.¹ 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 §§ 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 at p. 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 at p. 315, 121 Cal.Rptr. 488, 535 P.2d 352).

In the decisions of People v. Feagley, supra, 14 Cal.3d 338, 376, 121 Cal.Rptr. 509, 535 P.2d 373, and People v. Burnick, supra, 14 Cal.3d 306, 121 Cal.Rptr. 488, 535 P.2d 352, “substantial doubt was cast on the validity of an indefinite commitment for MDSOs, at least as to those confined in a prison treatment facility ․” (In re Moye, 22 Cal.3d 457, 463, 149 Cal.Rptr. 491, 495, 584 P.2d 1097, 1101.)

After the Feagley decision, the Legislature in 1977 enacted the new provisions which limit the duration of all MDSO commitments. Sections 6316.1 and 6316.2 were added to the Welfare and Institutions Code.

Section 6316.1 provides that an MDSO may not be kept in “actual custody” for a period longer than the maximum term of commitment, defined in part as 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 enhancements and consecutive offenses. It is significant for our purposes to note that the term “actual custody” in section 6316.1 does not include any periods of outpatient supervision in determining the maximum period of confinement.

Section 6316.2 provides for an extended commitment of one year beyond the maximum term of imprisonment following jury trial if it is found that the patient suffers from a mental disorder and, as a result, “is predisposed to the commission of sexual offenses to such a degree that he presents a serious threat of substantial harm to the health and safety of others.” (§ 6316.2, subd. (a)(2).) Additional one-year commitments are available, following similar annual hearings. (Id., subd. (h).)

Gonzales contends Welfare and Institutions Code section 6316.1 is unconstitutional as a violation of equal protection of the laws (U.S.Constitution, 14th Amendment; Cal.Constitution, art. I, § 7, subd. (a)), to the extent it provides for an automatic imposition of the upper term for the base offense without opportunity to impose the lesser terms permitted other criminal offenders under Penal Code section 1170, subdivision (b), and disallows any good time credits pursuant to Penal Code section 2930 et seq. The essence of his contention is that treatment is the major purpose of the mentally disordered sex offender laws and deprivation of the right to be sentenced to a middle or lower term together with deprivation of good time credits are not necessary to further the purpose of treatment. He argues the setting of the maximum terms equal to the prison terms, which have been determined solely looking to punishment for the offenses (Pen.Code, § 1170), shows the terms are unrelated to the times required for treatment.

Because Gonzales' personal liberty is at stake, the analysis of the statutory scheme requires application of the strict scrutiny standard of equal protection analysis. The People must establish (1) that it has a compelling interest which justifies the challenged procedures and (2) the distinctions drawn by the procedures are necessary to further that interest. (People v. Olivas, 17 Cal.3d 236, 251, 131 Cal.Rptr. 55, 551 P.2d 375; In re Moye, supra, 22 Cal.3d 457, 465, 149 Cal.Rptr. 491, 584 P.2d 1097.) At minimum, persons similarly situated must receive like treatment under the law. (In re Gary W., 5 Cal.3d 296, 303, 304, 96 Cal.Rptr. 1, 486 P.2d 1201.)

No case authority addresses Gonzales' precise contention; it is therefore necessary to return to basics for guidance. As a general proposition, it is not a violation of equal protection of the laws to classify persons who show a propensity to commit sexual crimes to the extent they are dangerous to society and to treat them differently from others who commit similar crimes. (Minnesota v. Probate Court, 309 U.S. 270, 274-275, 60 S.Ct. 523, 84 L.Ed. 744; People v. Victor, 62 Cal.2d 280, 306, 42 Cal.Rptr. 199, 398 P.2d 391; In re Keddy, supra, 105 Cal.App.2d 215, 217, 233 P.2d 159; People v. Levy, 151 Cal.App.2d 460, 465, 311 P.2d 897.)

An MDSO is one “who by reason of mental defect, disease, or disorder, is predisposed to the commission of sexual offenses to such a degree that he is dangerous to the health and safety of others.” (Welf. & Inst.Code, § 6300.) Once the status of MDSO is determined, the court must decide if that person is amenable to treatment. (Welf. & Inst.Code, § 6316.) If such a finding is made, then the provisions of Welfare and Institutions Code section 6316.1 regarding the length of the commitment become operative.

“The Act's obvious purpose is to protect the public from the violent propensities of certain mentally disordered sex offenders who are convicted of crime, by confining them during such period as they continue to be a danger to society, and by care and treatment calculated to eliminate their antisocial compulsions.” (People v. Oglesby, 67 Cal.App.3d 34, 38, 135 Cal.Rptr. 640, 642; People v. Feagley, supra, 14 Cal.3d at p. 361, 121 Cal.Rptr. 509, 535 P.2d 373.)

It is this dual factual finding of a “danger to society” and “amenable to treatment” that gives rise to the “compelling interest” justifying different procedures, different periods of restraint. As was said in People v. Superior Court (Rigg), 80 Cal.App.3d 407, 414, 145 Cal.Rptr. 711, 715:

“Implicit in the decision to commit to state prison rather than as an MDSO is a finding that that defendant does not need the specialized psychiatric treatment involved in the MDSO process but that society will be amply protected by the statutory prison term, whereas the MDSOs are committed because they have been found to need the specialized process. The difference in the mental condition of the two classes is an adequate constitutional ground for the difference herein involved.”

The compulsive nature of the MDSO's antisocial tendencies justifies society's compelling interest and authorizes legislative distinctions. The ever-present danger to society from an at-large untreated MDSO needs no documentation.

This self-evident compelling interest of society will justify the statutory distinctions here challenged if the different processes, i. e., a maximum term plus possible additional year terms are necessary to further that interest. The “care and treatment” approach to the MDSO who can benefit therefrom, is at this stage of the arts of medicine-psychiatry, perhaps society's best and sometimes its only means to obtain relief, if not cure, from this source of danger.

Speaking to this point (but in a different context) in People v. Feagley, supra, 14 Cal.3d 338, 359, 121 Cal.Rptr. 509, 522, 535 P.2d 373, 386, the Supreme Court stated:

“‘The sexual psychopath law was passed by the Legislature because experience had shown that persons who came within the classification of sexual psychopaths were unable to benefit from ordinary penal confinement and were in need of medical treatment.’ [Citation.] Not only is medical treatment the raison d'etre of the mentally disordered sex offender law, it is its sole constitutional justification. It is settled that ‘A person committed as a mentally disordered sex offender is not confined for the criminal offense but because of his status as a mentally disordered sex offender.’ (Italics added.) [Citation.] It is this very fact which has been held to save the mentally disordered sex offender law from violation of the double jeopardy clause. [Citation.]”

The time frames necessary to accomplish care or relief are not in any rational sense related to the prison term choices for the underlying criminal offense. Rather, this is a question to be determined in the treatment setting. One offender may be safely returned to society with minimum care; another may constitute a danger to society until all vital forces are dead. Under these circumstances the Legislature chose to place a statutory lid on the time a person may be restrained unless further proceedings authorize additional restraints. We cannot say the term chosen, in light of the imperative for treatment and the uncertainty as to time requirements for success is unreasonable. Such a differentiation is necessary to further the treatment objective.

Based upon the foregoing authorities and objectified reasoning, we conclude the “maximum term provision” of Welfare and Institutions Code section 6316.1 meets the dual requisites of the strict scrutiny standard. It is a constitutional exercise of the legislative prerogative.

As may be deduced from the foregoing discussion, no precise authority holds Welfare and Institutions Code section 6316.1 constitutional as against a denial of equal protection of the law assertion. However, In re Moye, supra—a decision agreed upon by all seven justices of the California Supreme Court—foreshadows such a result. Moye involved the charge of denial of equal protection by a committee to the custody of Department of Mental Health under Penal Code section 1026. Moye had been found not guilty by reason of insanity of a hit and run charge; the trial court thereupon committed him to a state hospital until his sanity was restored. The Supreme Court held Moye could not be institutionalized for a period exceeding the maximum term for the underlying offense unless lawful grounds were established justifying further restraint. In arriving at this conclusion, the Supreme Court made frequent and apt analogy to the MDSO statute here under scrutiny. The Supreme Court observed:

“It seems quite clear, however, that both classes of persons present equally substantial risks of harm. By statutory definition, an MDSO is a person ‘who by reason of mental defect, disease, or disorder, is predisposed to the commission of sexual offenses to such a degree that he is dangerous to the health and safety of others.’ (Welf. & Inst.Code, § 6300, italics added.) Yet, despite their potential dangerousness, MDSOs must be released from confinement when the maximum term for their underlying offense has expired, unless the People can establish grounds for an extended commitment. (Id., § 6316.2.)” (In re Moye, supra, 22 Cal.3d 457, 466, 149 Cal.Rptr. 491, 497, 584 P.2d 1097, 1103.)

and observed:

“The MDSO can be confined for only a limited period, measured by the maximum term for the underlying offense, unless thereafter the People (or other committing authority) can establish grounds for an extended commitment. In contrast, persons in petitioner's class face indefinite, lifetime confinement unless they can prove that their sanity has been restored.” (Id. at pp. 464-465, 149 Cal.Rptr. at p. 496, 584 P.2d at p. 1102.)DC

and stated again:

“As in the case of MDSOs and other dangerous offenders, persons in petitioner's class properly, and consistent with equal protection principles, may be subjected to a period of extended commitment once the maximum term of punishment has expired, in the event the People (or other committing authority) can establish that the person committed remains a danger to the health and safety of himself or others. As noted above, for example, the commitment of MDSOs may be so extended only if a specified procedure is followed, involving the filing of a petition for an extended commitment of one year, notice to the person committed of his right to an attorney and a jury trial, and a hearing on the issue of dangerousness. (Welf. & Inst.Code, § 6316.2.) The extended commitment period is one year, subject to annual renewal following similar notice and hearing. (Ibid.)” (Id. at p. 467, 149 Cal.Rptr. at pp. 497-498, 584 P.2d at pp. 1103-1104.)

and held:

“To the extent practicable, and in the absence of further legislation on the subject, the procedure for the extended commitment of persons committed following their acquittal on the ground of insanity should conform to the procedures specified in section 6316.2 of the Welfare and Institutions Code.” (Ibid.)

The reasoning supporting the foregoing dicta as well as the precise holding of In re Moye reaffirms this independent determination. Welfare and Institutions Code section 6316.1 does not constitute a denial of equal protection of the law.

Judgment affirmed.

I concur with the thoughtful and thorough opinion authored by Justice Staniforth, except as to that portion holding Welfare & Institutions Code section 6316.1 constitutional.¹ I believe section 6316.1 is unconstitutional for it denies a defendant committed to a state hospital or mental health facility equal protection of the law (U.S.Const., amend. XIV; Cal.Const., art. I, § 7, subd. (a)) to the extent it provides for an automatic imposition of the upper term for the base criminal offense without the opportunity to impose a lesser term permitted other criminal offenders of Penal Code section 1170, subdivision (b) and disallows any good time credits pursuant to Penal Code sections 2930 through 2932.

Whether a person is ultimately committed under section 6316 after conviction of a “sex offense” (§ 6302, subd. (a)) turns on the dual finding that he is a mentally disordered sex offender² and could benefit by treatment in a state hospital or other mental health facility (§ 6316). The individual involved who might be helped by proper psychological or psychiatric treatment in a mental health setting “is given no ‘right’ to such treatment by the Act․” (People v. Oglesby (1977) 67 Cal.App.3d 34, 38, 135 Cal.Rptr. 640, 642) for the trial court, without the benefit of statutory guidelines, has a choice of resuming criminal proceedings and imposing sentence or committing the person in accordance with the applicable provisions of the statute. Only when the person is found to be a mentally disordered sex offender who will not benefit by care or treatment in a state hospital is the court without discretion, for upon that finding, the person must be referred to the court in which the criminal charge was tried for imposition of sentence or other suitable disposition (§ 6316). All persons returned to the criminal court, i.e., mentally disordered sex offenders who might benefit from treatment and those who will not, are then sentenced in accordance with the determinate sentencing laws which provide for the imposition of the middle term for the underlying criminal offense unless circumstances in aggravation are shown to warrant the upper term. (Pen.Code, § 1170, subd. (b); Cal.Rules of Court, rules 421, 433(c)(1).) Every person sentenced under Penal Code section 1170 is entitled to credit for “good behavior and participation” pursuant to Penal Code sections 2930 through 2932.

The mentally disordered sex offender committed to the state hospital under section 6316 has an indefinite term of commitment. The lower limit of the term will be determined by the superintendent of the hospital or the mental health director when, in that person's opinion, the mentally disordered sex offender will no longer benefit by further care and treatment in the hospital or facility and is not a danger to the health and safety of others or has not recovered and is still a danger to the health and safety of others; the outer limit of possible custody determined by the upper term of punishment prescribed for the underlying crime.

The challenge to this disparate procedure on the grounds of equal protection is properly examined by the strict scrutiny test. The People must establish (1) that it has a compelling interest which justifies the challenged procedures, and (2) the distinctions drawn by the procedures are necessary to further that interest. (People v. Olivas (1976) 17 Cal.3d 236, 251, 131 Cal.Rptr. 55, 551 P.2d 375.) Clearly, persons in both groups are held accountable for their conduct defined by the Penal Code, not their mental condition; their loss of personal freedom is determined by the length of sentence prescribed as punishment for the underlying criminal offense. The term of commitment is no longer predicated on one's status as a mentally disordered sex offender (see In re Bevill (1968) 68 Cal.2d 854, 858, 69 Cal.Rptr. 599, 442 P.2d 679), but rather on the commission of the criminal offense. Both groups thus comprise one class which must be treated similarly.

The automatic imposition of an additional period of time for the criminal found to be a mentally disordered sex offender and committed under section 6316 is unrelated to the purpose of treatment. The time necessary to accomplish effective psychological therapy is not in any rational sense related to the term selected by the Legislature as appropriate punishment for sex crimes. Whether a specific time needed for treatment can be predicted is in itself a questionable premise fraught with uncertainties (see People v. Burnick (1975) 14 Cal.3d 306, 325-328, 121 Cal.Rptr. 488, 535 P.2d 352) and to correlate the time for treatment with the seriousness of the underlying crime has no basis whatsoever.

The application of section 6316.1 as presently written leads to some curious results. A mentally disordered sex offender 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 (1975) 14 Cal.3d 338, 376, 121 Cal.Rptr. 509, 535 P.2d 373.) The mentally disordered sex offender amenable to treatment and committed to a state hospital may be deprived of his personal liberty for the maximum term even though the crime committed was not an aggravated one. The problem is complicated even further if shortly after the commencement of treatment, the superintendent of the hospital determines he is not amenable. In the criminal court, he receives the benefit of a hearing under Penal Code section 1170, subdivision (b), which may result in his receiving a lesser term than had he remained in the state hospital. It appears obvious that defendants may become sufficiently sophisticated to minimize their cooperation with the mentally disordered sex offender program and thus, as unamenable sex offenders, receive lighter determinate sentences for the crimes committed.

The denial of equal protection is even more clearly seen when the loss of credit for good time is examined. The person found unamenable to treatment by the hospital superintendent is sent to state prison for the criminal conviction and deprived of credits he might have earned for his time in custody had he initially gone to prison and may start his prison term after a similarly situated criminal offender has been released from state prison.

Equal protection of the laws requires a person committed under section 6316 to receive credit for good time under Penal Code sections 2930 through 2932 and to be entitled to a hearing under Penal Code section 1170, subdivision (b), before the imposition of the upper term presently set by section 6316.1.³

FOOTNOTES

1.  Section 6316.1 of the Welfare & Institutions Code provides in pertinent part: “(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 Section 2930 to 2932, inclusive, of the Penal Code. ¶ (b) In the case of a person found to be a mentally disordered sex offender who committed a felony prior to July 1, 1977, who could have been sentenced under Section 1168 or 1170 of the Penal Code if the offense were committed after July 1, 1977, the Community Release Board shall determine the maximum term of commitment which could have been imposed under subdivision (a), and the person may not be kept in actual custody longer than the maximum term of commitment, except as provided in Section 6316.2.”

1.  Unless otherwise specified, all references are to the Welfare and Institutions Code.

2.  Section 6300 provides in pertinent part: “[A] ‘mentally disordered sex offender, means any person who by reason of mental defect, disease, or disorder, is predisposed to the commission of sexual offenses to such a degree that he is dangerous to the health and safety of others.”

3.  The majority places reliance on dicta in In re Moye (1979) 22 Cal.3d 457, 149 Cal.Rptr. 491, 584 P.2d 1097. Cases are not authority for propositions not considered. (In re Tartar (1959) 52 Cal.2d 250, 339 P.2d 553.) I await the decision in People v. Saffell (1978) 87 Cal.App.3d 157, 150 Cal.Rptr. 804, hearing granted February 1, 1979, with interest.

STANIFORTH, Associate Justice.

COLOGNE, Acting P. J., concurs. WIENER, Associate Justice, concurring.