PEOPLE v. LOVEDY (1984)

A jury convicted defendant of two counts of forcible sodomy with a child under age 14 who was more than 10 years his junior (Pen.Code, § 286, subd. (c)) and two counts of forcible oral copulation with a child in the same age range (Pen.Code, § 288a, subd. (c)).  Defendant was adjudged a mentally disordered sex offender (MDSO) and committed to the state hospital at Atascadero (former Welf. & Inst.Code, § 6300 et seq.).   He appealed (Pen.Code, § 1237) and the convictions were affirmed in an unpublished opinion of this court (3 Crim. 12163).   After a period of treatment, defendant was returned to the superior court, the superintendent (medical director) of the hospital certifying that he remained an MDSO, a danger to the health and safety of others and would not benefit from further care and treatment (former Welf. & Inst.Code, § 6325, subd. (b)).  Defendant was sentenced to state prison for a term of 32 years, consisting of consecutive upper terms of eight years for each of the four counts.   The court awarded defendant custody credit but no conduct credit for time spent at Atascadero.   He appeals, contending, (1) his MDSO treatment was improperly terminated, (2) the court improperly imposed consecutive upper terms for all four offenses, (3) the sentence of 32 years constitutes cruel and unusual punishment and, (4) the court incorrectly denied conduct credits for time spent in the state hospital.   We agree with defendant that the record fails to show trial court awareness of its discretion to sentence consecutively under Penal Code section 1170.1 and the matter must therefore be remanded for resentencing (People v. Belmontes (1983) 34 Cal.3d 335, 348, 193 Cal.Rptr. 882, 667 P.2d 686).   In all other respects, defendant's contentions are rejected as without merit.

The information charged defendant with two violations each of Penal Code sections 286, subdivision (c), and 288a, subdivision (c).   Each count alleged that the charged act was committed forcibly and also that the victim was then under age 14 and more than 10 years younger than defendant.   The jury convicted defendant of all four counts, precisely as charged.

The facts are set forth essentially as detailed in our unpublished opinion affirming defendant's convictions.   Robert C., age 9, lived with his brother John, age 11, defendant, age 36, and his mother in a two-bedroom apartment.   The boys occupied one bedroom and defendant and their mother the other bedroom.   Robert testified that on Saturday, October 3, 1981, his mother left to go to the store, leaving him, John and defendant in the apartment.   Defendant told the boys to go to their bedroom.   Defendant then had the boys remove their clothes and he removed his.   Defendant told the boys to get on the bed and committed an act of sodomy on each boy.   Defendant then had John and Robert orally copulate him.   Robert testified he participated in the acts because he was afraid defendant would spank him if he did not.   Defendant had spanked him before.

Robert heard his mother come home.   Both boys dressed and went to the living room.   Later that day Robert told his mother what had happened.   He was taken to a doctor and told her what happened.

Robert testified defendant had performed these acts several times prior to the charged incidents and that he had told his mother of these incidents previously.

John C. testified that on the day in question he and his brother were watching television when defendant told the boys to go into the bedroom.   John complied with the request because he was afraid defendant would hit him with a belt.   John testified to the same acts described by his brother Robert except that he did not observe an act of oral copulation between defendant and Robert.   John also testified defendant had threatened to beat him with a belt if he told anyone about the sexual incidents, but John did tell his mother that day and showed her a place on the mattress where defendant had ejaculated.   John also showed his mother the bathroom faucet which had vaseline on it.

Sharon C., mother of John and Robert, had lived with defendant for approximately four years.   On October 3, 1981, she left the apartment to go to the store leaving her two boys with defendant.   She was gone approximately 30 minutes.   When she returned, John asked her to come to his bedroom to look at the mattress.   She noted there was semen on it.   John then told her of defendant's actions while she was gone.   She stated the boys had told her of the sexual assaults in June of 1981 and she tried to talk to defendant about the matter then.   She stated on October 3 she asked defendant about the spot on the mattress and he became very angry.

A doctor examined the boys and found they both exhibited physical symptoms of repeated, long-term anal intercourse.

I.

Upon defendant's return to court from the state hospital he filed a motion for a new MDSO hearing pursuant to former section 6325.2 of the Welfare and Institutions Code (all references in Part I of this opinion to an unspecified code are to sections of the Welfare and Institutions Code).   Finding defendant's supporting declaration insufficient to justify “a reasonable belief that there is any other side to the case other than is set forth by the medical personnel at Atascadero in their report,” the court concluded termination of treatment for unamenability was not an abuse of discretion.  (RT 3–4)

 On appeal defendant challenges the termination of his MDSO treatment.   He argues first that because the medical director's certification that defendant was no longer amenable to treatment was subject to judicial review only for abuse of discretion, former section 6325.2 constitutes an unconstitutional delegation of judicial authority to administrative personnel.

Former section 6325, subdivision (b), provided that whenever a person committed to a state treatment facility as an MDSO “has not recovered, and in the opinion of the medical director of the state hospital or other facility or of the county mental health director where the patient is on outpatient status the person is still a danger to the health and safety of others, the director shall file with the committing court a certification of that opinion, including therein a report, diagnosis and recommendation concerning the person's future care, supervision or treatment.”   Under former section 6325.2, an MDSO who “is returned to the committing court pursuant to Section 6325 ․ may move for a new examination and hearing pursuant to Sections 6306 through 6318, inclusive, within five days of the person's arrival.   The motion may be granted if the moving party shows by affidavit the existence of facts which establish that the opinion certified under [subdivision (b) ] of Section 6325 was an abuse of discretion.”

Ignoring the statutorily prescribed standard of “abuse of discretion” in reviewing section 6325, subdivision (b), certifications, defendant argues the committing court should grant the motion for a new MDSO hearing under section 6325.2 unless it appears the motion is “clearly frivolous.”   This contention wholly disregards the constraint imposed on courts by article III of the California Constitution, which provides for the separation of powers among the three branches of government:  “The powers of State government are legislative, executive, and judicial.   Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.”   Where, as in section 6325.2, the Legislature has prescribed in unambiguous terms the standard of review applicable in a particular judicial proceeding, article III renders a court powerless to substitute guidelines of its own choosing in place of such a standard.

The scheme under which an MDSO may be certified as unsuitable for continued treatment does not represent an excessive delegation of judicial authority to administrative officials, namely state hospital directors.   Section 6325 properly reposes with mental health professionals the authority to determine the continuing amenability of one already undergoing MDSO treatment, because this determination predominantly involves a medical judgment which is best left to such professionals.  (See Tex-Cal Land Management, Inc., v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 346, 156 Cal.Rptr. 1, 595 P.2d 579.)

Section 6325.2 entitles defendant to a new determination of the issue if he can show the prior decision was an abuse of the director's discretion conferred by section 6325.   A court, of course, is well-suited to applying this standard which poses essentially legal questions such as whether procedural safeguards were observed in making the unamenability determination and whether the director's findings were supported by substantial evidence.  (See People v. Lee (1980) 110 Cal.App.3d 774, 782, 168 Cal.Rptr. 231.)   This standard invests the court with sufficient authority to safeguard a defendant from improper termination of his treatment as an MDSO.

 Defendant next argues essentially that the court erred in concluding the director did not abuse his discretion under section 6325 in that (1) the proceedings in which that determination was made did not meet constitutional standards and (2) there is no substantial evidence to support the medical director's opinion defendant would not benefit from further care and treatment in the hospital.   Neither argument is persuasive.

Under People v. Lee, supra, 110 Cal.App.3d at page 783, 168 Cal.Rptr. 231, defendant was entitled to notice of the grounds for the proposed termination of MDSO treatment and of his right to respond in person or otherwise to those grounds, access to the information relied on by those proposing termination, and an actual opportunity to respond before the official responsible for the determination.   The report attached to the director's certification under section 6325, subdivision (b), indicates these safeguards were observed.   On April 29, 1983, defendant received a draft of the staff evaluation, upon which the director would eventually base his determination.   This evaluation contained information and opinions contributed by various Atascadero staff members who were familiar with defendant's case and the treatment afforded him up to that point.   On May 17, 1983, defendant appeared before the hospital's dispositional review committee, expressing his wish to remain “for treatment because he needs to dig deeper into his life, use of alcohol, and why he molested—if he really did molest.”   The report does not indicate defendant challenged the staff evaluation in any other respect.   We conclude these procedures satisfied the standards set forth in Lee.

The director's certification under section 6325, subdivision (b), was based on the opinions of members of the interdisciplinary team charged with evaluating defendant's treatment.   The team agreed defendant had developed a “ ‘delusional’ form of amnesia” regarding his offenses, which along with the residual effects of his longstanding alcohol abuse and his Vietnam experiences, effectively hampered his treatment as an MDSO.

In support of his motion under section 6325.2, defendant submitted a declaration which included a description of his progress in overcoming problems of alcohol and drug abuse, his assertion the members of the interdisciplinary team were not qualified to evaluate his amenability to further treatment, and what amounts to an offer of proof that a psychologist, described only by name, would testify he remained amenable to MDSO treatment.   Defendant presented no relevant facts establishing the director's decision was not supported by substantial evidence.   We concur with the trial court's assessment of all the evidence and conclude it did not err in holding the unamenabilty decision was not an abuse of discretion.

II

 Defendant further contends relevant circumstances did not justify imposing the upper term for each count or running those terms consecutively.

In sentencing defendant to upper terms, the court cited five aggravating circumstances pertinent to all four offenses:  the crimes involved threats and infliction of great bodily harm (rule 421(a)(1)), the victims were particularly vulnerable (rule 421(a)(3)), attendant facts indicate the crimes were premeditated (rule 421(a)(8)), defendant committed the offenses by taking advantage of a position of trust (rule 421(a)(12)), and his prior performance on probation was unsatisfactory (rule 421(b)(5)).   The court concluded these circumstances outweighed the only mitigating factor, that defendant had an insignificant criminal record.  (All references to rules are to the California Rules of Court.)

Defendant argues this conclusion is unsound because the court's citation of two aggravating circumstances, defendant's threats and infliction of great bodily harm and the victims' vulnerability, violated rule 441(d).   Under that rule, a sentencing court may not cite as circumstances justifying the upper term facts that are elements of the offenses for which sentence is imposed.   Parenthetically, we note defendant does not challenge the other three aggravating circumstances cited by the court nor does he contend the court overlooked any relevant mitigating factor.

The court stated as follows:  “[U]nder [rule] 421(a) the crime involved bodily harm, threat of great bodily harm, and this is demonstrated in the record by the testimony of the two victims, Robert and John [C.], that the defendant would hit them with a belt and/or threaten to hit them if they did not submit to the acts, and that Robert would cry loudly telling the defendant it hurt when he was being sodomized.  [¶] Now, that went over a long period of time.   I can understand Counsel as an advocate asking the Court for mercy and consideration for Mr. Lovedy, but he sure didn't show any mercy or consideration for little Robert.   None.  [¶] Dr. Kutschbach at the Medical Center testified that both victims had lax anal tone and stretch marks around the anus which indicated chronic sodomy, which indicates that the sodomy was frequent and of long term in nature.”

These reasons do not contravene rule 441(d).   Under Penal Code sections 286, subdivision (c), and 288a, subdivision (c), it must be shown defendant committed the prohibited sexual act “by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury․”  Neither section, however, requires actual infliction of bodily harm of the sort that occurred here.   Nor do violations of these sections inherently involve the harm that was amply demonstrated by the evidence cited in the record.

Likewise, the court did not base its finding the victims were particularly vulnerable solely on an element of either offense.   Since defendant stood convicted of crimes that in part were age-range offenses, the court could not properly have found the victims were particularly vulnerable simply by virtue of their youth.  (People v. Flores (1981) 115 Cal.App.3d 924, 927, 171 Cal.Rptr. 777.)   Youthful victims of such crimes may, however, be considered particularly vulnerable if the evidence shows “circumstances such as supervision or control a defendant has over the victim, including perhaps consideration of the time or location of the offense giving rise to a vulnerability through isolation, temporary dependency or fear of factors other than the defendant himself.”  (People v. Ginese (1981) 121 Cal.App.3d 468, 477, 175 Cal.Rptr. 383.)   Here, the court stated the victims' particular vulnerability “is demonstrated in the record by evidence of the youthful age of the two boys, 9 and 11 years of age, and evidence that the acts occurred only when the boys were alone with defendant under his control and custody.”   This evidence amply supports the finding the victims were particularly vulnerable.   (Ibid.)

We conclude the trial court correctly determined and weighed all relevant aggravating and mitigating circumstances and that it properly imposed upper terms for the offenses.

Defendant also contends the court erred in imposing consecutive terms for all the offenses.

We note preliminarily that defendant's speculation is unwarranted as to whether the court imposed consecutive sentences pursuant to subdivision (c) or subdivision (d) of Penal Code section 667.6 (hereinafter all further references to an unspecified code are to the Penal Code).   The court stated on the record its intention “to exercise discretion in this rather than in the mode of non-discretionary sentencing.”   Then, citing several circumstances from rule 425, it imposed full, consecutive terms for the offenses.   The court could only have proceeded in this manner under section 667.6, subdivision (c).

The thrust of defendant's argument is that, in imposing consecutive terms, the court abused its discretion under section 667.6, subdivision (c), by misapplying provisions of rule 425, which prescribes circumstances relevant to the decision to impose consecutive terms.

The court stated four reasons for imposing consecutive terms:  the crimes and their objectives were predominantly independent of each other (rule 425(a) (1)), some of the crimes involved multiple victims (rule 425(a)(4)), the convictions for which sentences are to be imposed are numerous (rule 425(a)(5)), and “there is the testimony in evidence before the Court that this was an ongoing thing.”   Defendant does not contest the numerosity of his convictions.   He does, however, challenge the validity of the court's other three reasons.

 The last circumstance cited constitutes a valid reason under rule 425(b).   That subdivision makes any aggravating or mitigating circumstance relevant to the decision to impose consecutive sentences.   The court's statement that defendant's sexual abuse of the two boys was “an ongoing thing,” combined with his affirmation immediately thereafter that defendant is “a danger to society and other young children,” amounted to citation of a fact recognized as an aggravating circumstance under rule 421(b)(1), which reads as follows:  “[Defendant] has engaged in a pattern of violent conduct which indicates a serious danger to society.”   The court was not required to state its reason in the precise language of that rule.  (Rule 443.)   Moreover, the court properly cited this circumstance as one reasonably related to its decision.  (Rule 408.)

 We also uphold the court's use in this instance of the fact that some of the crimes involved multiple victims.   In so doing, we adopt the analysis of People v. Burney (1981) 115 Cal.App.3d 497, 171 Cal.Rptr. 329, and other cases, in which courts “have found the phrase ‘transactionally related’ convenient in distinguishing between those cases where a finding of multiple victims is proper because of the circumstantial cohesiveness of multiple crimes each involving a single victim, and those cases where the crimes are sufficiently separated in time and circumstance such that a multiple victim finding is unwarranted.”  (People v. Coulter (1983) 145 Cal.App.3d 489, 492, 193 Cal.Rptr. 476.)   In Burney, the defendant shot and wounded one victim in a bar, then immediately fired into a crowd of patrons nearby killing a second victim.  (People v. Burney, supra, 115 Cal.App.3d at p. 502, 171 Cal.Rptr. 329.)   There, it was held the trial court properly found the resulting assault with a deadly weapon and voluntary manslaughter convictions involved multiple victims under rule 421(a)(4) “because the crimes were transactionally related.”  (Burney, supra, 115 Cal.App.3d at p. 505, 171 Cal.Rptr. 329, citing People v. Guevara (1979) 88 Cal.App.3d 86, 93, 151 Cal.Rptr. 511.)

The same result obtains here in the application of rule 425(a)(4), pertaining to consecutive terms;  that rule is virtually identical to rule 421(a)(4), which pertains to aggravating facts and was considered in Burney.   The incidents occurred in the same room, only moments apart, with each boy present during the violation of his brother.   Defendant's acts were transactionally related.  (Burney, supra.)

 The court's proper use of the “multiple victims” factor under these circumstances seems incompatible with its accompanying statement that “the crimes and their objectives were predominantly independent of each other.”   Nevertheless we conclude the valid reasons stated on the record weighed heavily in favor of imposing four consecutive terms.

 Defendant argues the record fails to show the court was aware of its discretion to sentence consecutively under section 1170.1 rather than subsection (c) of section 667.6.   The trial court expressly indicated its belief that the mandatory provisions of subsection (d) of section 667.6 were inapplicable and stated its intention to exercise discretion in the decision whether to impose consecutive terms.   The assertion of discretion whether to sentence consecutively under subsection (c) of section 667.6 necessarily implies recognition that another mode of discretionary sentencing is potentially applicable.   While it is thus clear the court recognized the alternative of imposing concurrent sentences, it is not at all clear the court was aware that an alternative mode of consecutive sentencing was available under section 1170.1.   Accordingly the matter must be remanded for resentencing (People v. Belmontes, supra, 34 Cal.3d 335, 193 Cal.Rptr. 882, 667 P.2d 686).¹

For the guidance of the court on remand, we point out that the mandatory provisions of subdivision (d) of section 667.6 are applicable to two of the four counts of which defendant was convicted.   The trial court selected count I, violation of section 286, subdivision (c), committed upon John C., as the base term.   If count I is again the base term, the sentence for count II, violation of section 288a, subdivision (c), also committed upon John C. may be imposed consecutively under either sections 1170.1 or 667.6, subdivision (c), or concurrently in the discretion of the court.   In any event the sentence for either count III, violation of section 286, subdivision (c), or count IV, violation of section 288a, subdivision (c), both committed upon Robert C., must be full, separate and consecutive to the term imposed under count I because each is a crime specified in subdivision (d) of section 667.6 committed upon a victim separate from the one involved in count I.   So also, the sentence for the remaining count (count III or IV, whichever is not run consecutive to count I) committed upon Robert C. must be full, separate and consecutive to the term imposed under count II since the remaining count also involves a crime specified in subdivision (d) of section 667.6 perpetrated upon a victim separate from the one involved in count II.

III

 Defendant contends that his 32-year sentence constitutes cruel and unusual punishment because it is grossly disproportionate to the gravity of his conduct and represents excessive punishment for his offenses.   He argues a punishment may contravene provisions of the state Constitution (art. I, § 17) and the federal Constitution (Eighth Amend.) if, “although not cruel ․ in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.”  (Fn. omitted;  In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 503 P.2d 921.)   In the main, he urges that comparison of his sentence with lesser punishments held to be cruel and unusual when imposed for conduct defendant deems more serious than his, makes plain the disproportionality of his sentence.  (Ibid.)

Defendant overlooks People v. Karsai (1982) 131 Cal.App.3d 224, 242, 182 Cal.Rptr. 406.   There, the court held section 667.6 does not authorize punishment that is so unduly severe and so disproportionate to the multiple violent sex offenses for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.  (Ibid.)

Defendant would have us believe his crimes amounted to a few minutes of aberrant behavior, which did not warrant a 32-year sentence.   In truth, he committed violent and degrading sexual acts over a period of time upon two vulnerable children, who had no choice but to reside with, and be in the care of, their abuser.   He persisted in so acting despite the pleas of one boy for mercy.   This conduct, against the backdrop of convincing evidence that defendant had abused these children to the extent of causing them grave bodily injuries justifies the trial court in the proper exercise of its sentencing discretion in imposing full, consecutive upper terms.   His sentence was eminently condign, not cruel and unusual.  (See also People v. Preciado (1981) 116 Cal.App.3d 409, 412, 172 Cal.Rptr. 107.)

IV

 Defendant urges that he is entitled to “good time/work-time” (conduct) credits (§§ 2931, 2933) for the time he spent as an MDSO at Atascadero.   He argues withholding such credits from MDSO's who are excluded from Atascadero as no longer amenable to treatment and sentenced to state prison denies them equal protection since the same credits are awarded narcotic addicts who are found to be no longer suitable for treatment in the California Rehabilitation Center (CRC) and sentenced to prison.

Former Welfare and Institutions Code section 6316.1 required that a court, in computing the maximum term of an MDSO's commitment, disregard any conduct credits defendant could have earned had he been sentenced to State Prison.   Section 2931 empowers the Department of Corrections to reduce the term of a prison inmate by one-third for good behavior and rehabilitative participation while in prison.   Section 2933 allows the department to award such inmates earned credit reductions for performance in employment and educational programs.   Section 2932 enumerates the available grounds for denying inmates conduct credits.

Conduct credits were available only to prison inmates when the California Supreme Court held in People v. Saffell (1979) 25 Cal.3d 223, 157 Cal.Rptr. 897, 599 P.2d 92, that withholding these credits from MDSOs did not deny them equal protection.  (25 Cal.3d at p. 233–234, 157 Cal.Rptr. 897, 599 P.2d 92.)   In so holding, the court noted the purposes of conduct credits are to encourage inmates “to conform to prison regulations and to refrain from engaging in criminal, particularly assaultive, acts while in custody” and to induce them “to make an effort to participate in what may be termed ‘rehabilitative’ activities.”  (25 Cal.3d at p. 233, 157 Cal.Rptr. 897, 599 P.2d 92.)  Saffell's rejection of appellant MDSO's equal protection claim rested on the court's conclusion prison inmates and MDSOs are not similarly situated with regard to the stated purposes of conduct credits, which the court deemed “not necessarily suitable in the hospital context,” for the following reasons summarized in a later case:  “[G]ood 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.”   (People v. Jobinger (1984) 153 Cal.App.3d 689, 695, mod. on den. rehg. 154 Cal.App.3d 603c, 200 Cal.Rptr. 546 [as modified].)

Following Saffell, two events that prompted the awarding of conduct credits to CRC inmates who are excluded as untreatable cast doubt again on the question whether similarly excluded MDSOs are entitled to such credits.   First, in 1980, the Legislature amended Welfare and Institutions Code section 3201, subdivision (c), to require the parole of a CRC inmate who had served an amount of time there equal to the period he would otherwise have served in prison;  in computing the latter period, the Narcotic Addict Evaluation Authority (authority) is required to take into account the conduct credits defendant would have received had he been in prison.   Since 1981, several courts have held that allowing such credits only in cases of CRC inmates who complete their terms at CRC operated to deny equal protection to those inmates who were excluded from CRC as no longer treatable and sentenced to prison without the benefit of conduct credits.  (In re Martin (1981) 125 Cal.App.3d 896, 178 Cal.Rptr. 445;  People v. Hankins (1982) 137 Cal.App.3d 694, 700, 187 Cal.Rptr. 210.)   Thereafter, the authority began awarding CRC inmates in the latter category conduct credits against their eventual prison sentences retroactive to July 29, 1980, the effective date of the amendment to Welfare and Institutions Code section 3201, subdivision (c).

In support of his position defendant cites People v. Jobinger, supra, where the Court of Appeal for the Fifth District held “it is a denial of equal protection for [defendant] to be denied presentence conduct credits for time spent at Atascadero State Hospital as an MDSO when such credits are afforded CRC addicts.”  (Jobinger, supra, 153 Cal.App.3d at p. 698, mod. 154 Cal.App.3d 603c, 200 Cal.Rptr. 546.)

In opposing an award of conduct credits, the Attorney General argues that Saffell remains good authority to deny excluded MDSOs conduct credits against their eventual prison sentences.   We agree.

There continue to be substantial differences between MDSO's and CRC inmates.   The most significant for present purposes is the fact that CRC inmates serve fixed criminal sentences (Welf. & Inst.Code, § 3201, subd. (c)), while the term of a pre-repeal MDSO's commitment to state hospital may be extended.   (Former Welf. & Inst.Code, § 6316.2.)   The flexibility of MDSO commitments was an important factor in the analysis in Saffell, prompting the Supreme Court to observe that “․ 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.”  (People v. Saffell, supra, 25 Cal.3d at p. 234, 157 Cal.Rptr. 897, 599 P.2d 92;  see Baker v. Superior Court (1984) 35 Cal.3d 663, 668–670, 200 Cal.Rptr. 293, 677 P.2d 219.)   The Jobinger decision gave little if any weight to this continuing distinction between MDSO's and CRC inmates.   As a result, we believe Jobinger was incorrectly decided.

There are of course other relevant distinctions between MDSOs and CRC inmates.   It is a matter of reality that CRC confinement more closely resembles that of punishment than treatment;  on the other hand the objectives of pre-repeal MDSO legislation were clearly incompatible with punishing MDSOs by subjecting them to control by a credits system.   Furthermore, CRC commitments are “largely voluntary” while MDSO commitments are involuntary (People v. Hankins, supra, 137 Cal.App.3d at p. 699, 187 Cal.Rptr. 210).   For that reason, when determinate sentencing rendered the punishment mode frequently less onerous than the CRC treatment mode, the viability of the program of voluntary treatment for addicts was jeopardized.   Following enactment of the Determinate Sentencing Act the number of felons committed to the CRC decreased.   In an effort to serve the shortest possible time, felon-addicts would frequently opt for a prison term with possibility of parole instead of a potentially longer CRC commitment.   The 1980 amendment to Welfare and Institutions Code section 3201 was part of a comprehensive restructuring of the Civil Addict Commitment provisions to conform them to the Determinate Sentencing Act (Stats.1980, ch. 822, § 10, p. 2490.)   Reduction of the maximum period of civil commitment to the equivalent term exacted under determinate sentencing once again rendered voluntary CRC commitment a viable option for addict offenders (12 Pacific L.J. 366, 367).   Obviously, no such adjustments were required to rescue involuntary commitments from a similar desuetude.

In view of these distinguishing circumstances, terminated, sentenced MDSO's are not situated similarly to terminated, sentenced CRC addicts.   It is equally as pointless now as when Saffell was decided to award conduct credits to persons, who like MDSOs, are subject to extension of treatment beyond any fixed term of commitment.   Furthermore, given the above noted distinctions, the fact that CRC inmates now receive conduct credits, does not alter the reality recognized by the Supreme Court when it declined to 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.”  (People v. Saffell, supra, 25 Cal.3d at p. 234, 157 Cal.Rptr. 897, 599 P.2d 92.)

We conclude that withholding conduct credits from a terminated, sentenced MDSO for time spent in treatment does not deny equal protection and in fact does not raise an equal protection issue.   Accordingly we hold defendant was not entitled to conduct credits for the time he spent at Atascadero.

The sentence imposed is vacated and the matter is remanded to the trial court for resentencing in accordance with this opinion.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   The trial court imposed sentence on August 18, 1983, the same day Belmontes was decided.

PUGLIA, Presiding Justice.

REGAN and EVANS, JJ., concur.