IN RE: Billy Ray HUFFMAN on Habeas Corpus. (1985)

OPINION

The sole issue presented by the instant petition for habeas corpus is whether petitioner (defendant), who was committed to a state hospital as a mentally disordered sex offender (MDSO) before January 1, 1982, is entitled to good behavior and participation credits (hereafter conduct credits) for the period of time he spent in the state hospital.

Facts

Defendant pleaded guilty to one count of forcible rape with great bodily injury upon a 10-year-old girl (Pen.Code, §§ 261, subd. (2), 12022.7).   On July 19, 1979, defendant was adjudged a mentally disordered sex offender (MDSO).   Pursuant to former Welfare and Institutions Code section 6300 et seq. defendant was committed to Patton State Hospital for an indeterminate time not to exceed 11 years.   Early in 1982, defendant believed he had exhausted all therapeutic possibilities in the hospital setting and withdrew from his group programs.   Following his withdrawal, the hospital recommended a return to the court for further sentencing proceedings.  (Former Welf. & Inst.Code, § 6325.)   On November 15, 1982, defendant was sentenced.   He was given credit for the actual time he spent in the state hospital but was not given conduct credits for that time.   Defendant appealed, contending the denial of the conduct credits deprived him of equal protection of the laws.   In an unpublished decision, this court affirmed the trial court's sentence denying the conduct credits.  (People v. Huffman (Nov. 14, 1983) 4 Crim. 14894.)

On March 26, 1984, the Court of Appeal for the Fifth Appellate District held in People v. Jobinger (1984) 153 Cal.App.3d 689, 200 Cal.Rptr. 546, in a partially published opinion, that a person committed as an MDSO before January 1, 1982, was entitled to conduct credits for time spent in a state hospital.   Thereafter on May 18, 1984, defendant petitioned this court for relief by way of habeas corpus.  (In re Huffman, No. E001030, no opn.)   This court denied the petition for writ of habeas corpus on May 23, 1984, without opinion.

On May 31, 1984, defendant filed a petition for writ of habeas corpus in the California Supreme Court.   The Supreme Court denied the petition for habeas corpus without prejudice to the filing of a new petition in the superior court requesting relief pursuant to People v. Jobinger, supra, 153 Cal.App.3d 689, 200 Cal.Rptr. 546.   On October 5, 1984, the superior court denied defendant's petition for a writ of habeas corpus, citing In re Van Renselaar (1984) 158 Cal.App.3d 527, 204 Cal.Rptr. 782.   This court denied defendant's renewed request for habeas corpus relief on the same grounds on October 23, 1984.   On October 19, 1984, the Supreme Court ordered In re Van Renselaar depublished.   On November 21, 1984, the Supreme Court issued an order to show cause for hearing before this court why the relief prayed for should not be granted, referring to People v. Jobinger, supra, 153 Cal.App.3d 689, 200 Cal.Rptr. 546.

Discussion

 In the first instance, the reason why the relief prayed for should not be granted is that the identical issue, whether defendant is similarly situated to addicts committed to the California Rehabilitation Center (CRC), was raised and decided, adversely to defendant, by this court on defendant's appeal in case number 4 Criminal 14894, decided on November 14, 1983.   We held with respect to this precise question that the denial of conduct credits to defendant did not violate his right to equal protection.   (Part II, p. 529.)

The issue, once decided on a direct appeal, may not be raised on a petition for writ of habeas corpus.  “Habeas corpus ordinarily cannot serve as a second appeal (In re Eli, 71 Cal.2d 214, 219 [77 Cal.Rptr. 665, 454 P.2d 337];  In re Waltreus, 62 Cal.2d 218, 225 [42 Cal.Rptr. 9, 397 P.2d 1001] ), or as a substitute for an appeal (In re Streeter, 66 Cal.2d 47, 52 [56 Cal.Rptr. 824, 423 P.2d 976];  In re Shipp, supra, 62 Cal.2d 547, 552 [43 Cal.Rptr. 3, 399 P.2d 571] ).”  (In re Terry (1971) 4 Cal.3d 911, 927, 95 Cal.Rptr. 31, 484 P.2d 1375.)   Rather, “ ‘[i]t is only where the facts alleged indicate that the accused had no opportunity to present his contentions at the trial, or on appeal, that he may resort to the writ of habeas corpus.’  (People v. Lempia (1956) 144 Cal.App.2d 393, 398 [301 P.2d 40].)”  (In re Gomez (1973) 31 Cal.App.3d 728, 732, 107 Cal.Rptr. 609.)   Defendant here had a full hearing on the issue in his appeal.   He may not use the application for a writ of habeas corpus to obtain a second review of the same matter.

Moreover, we note that defendant did not petition for hearing in the California Supreme Court following his appeal, and our decision thereupon became final on January 19, 1984.   Thus, defendant's failure to exhaust available remedies constitutes a further reason for denying the petition for a writ of habeas corpus.  “If the decision of the District Court of Appeal affirming the conviction of the defendant was error in the particulars claimed in the petition for the writ before us, the remedy was to file an application for hearing upon such grounds in the Supreme Court, rather than by petition for the writ of habeas corpus addressed to this court.  (In re Northcott, 71 Cal.App. 281, 283 [235 Pac. 458].)”  In re West (1935) 9 Cal.App.2d 125, 127, 48 P.2d 983.)

Thus, even if our decision on the appeal was erroneous, defendant is foreclosed from seeking relief by way of habeas corpus.   In view, however, of the Supreme Court's reference to the Jobinger decision and its issuance of an order to show cause returnable before this court, discretion dictates that we address the merits of defendant's claim for conduct credits, so we now turn to that.

 In People v. Jobinger, supra, 153 Cal.App.3d 689, 200 Cal.Rptr. 546, the Fifth Appellate District 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, because those credits are allowed to narcotics addicts committed to the California Rehabilitation Center (CRC) under Welfare and Institutions Code section 3201, subdivision (c).   We adhere to the view, however, that persons committed under the MDSO program before January 1, 1982, are not entitled to receive conduct credits and that Jobinger was incorrectly decided.

To establish a violation of the equal protection clause of the Fourteenth Amendment, or of the California Constitution, a defendant must demonstrate that he is being treated differently from similarly situated persons.   At the time defendant was found to be an MDSO, the MDSO commitment provisions reflected a legislative policy that that particular class of sex offenders should be treated rather than punished.   Under the treatment model, credits under section 2931 of the Penal Code were not available to MDSOs.   The California Supreme Court upheld the denial of credits to MDSOs against an equal protection challenge, stating, “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.”   (People v. Saffell (1979) 25 Cal.3d 223, 233–234, 157 Cal.Rptr. 897, 599 P.2d 92, reaffirmed in People v. Sage (1980) 26 Cal.3d 498, 506–507, 165 Cal.Rptr. 280, 611 P.2d 874.)

In People v. Saffell, supra, 25 Cal.3d 223, 157 Cal.Rptr. 897, 599 P.2d 92, 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 regular 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 worktime opportunities;  that hospitals do not 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.   Thus, persons committed as MDSOs are differently situated from ordinary prisoners.   It is no violation of equal protection to deny credits to MDSOs being treated under a therapeutic model while allowing credits to inmates in a prison setting.  (Id., at pp. 234–235, 157 Cal.Rptr. 897, 599 P.2d 92.)

The MDSO scheme was revamped effective January 1, 1982.   The Legislature repealed the MDSO Act (Welf. & Inst.Code, § 6300 et seq.) and replaced it with Penal Code sections 1364 and 1365.  (Stats.1981, ch. 928, §§ 1–2.)   The new provisions, as suggested by the movement of the MDSO provisions from the Welfare and Institutions Code to the Penal Code, did away with the “treatment model” for MDSO commitments and “substituted a ‘punishment model.’ ”  (People v. Brunner (1983) 145 Cal.App.3d 761, 766, 195 Cal.Rptr. 367.)   In Brunner, also decided by the Fifth District Court of Appeal, the court held that MDSOs committed under the former treatment model were not similarly situated to and did not qualify for the same credits as persons found to be MDSOs under the new punishment model.   Under the new statutory scheme, “[T]he defendant was not to receive an immediate, presentence hearing on whether he was an MDSO.   Second, the trial court had no discretion to suspend criminal proceedings and civilly commit the defendant for treatment.   Third, if and when the defendant received treatment, it would be at the state level and would not involve out-patient status.   Fourth, no matter what progress (or lack thereof) the defendant made in the state hospital, he would not be released before (or held beyond) the end of his DSL term.   Fifth, the defendant was entitled to in-hospital conduct credits.  [¶] Appellant [who was by contrast committed under the treatment model] was eligible for and in fact received many of the benefits of the treatment model:  immediate hearing on MDSO status and amenability;  immediate suspension of criminal proceedings and civil commitment for treatment, with the potential for early release;  and immediate treatment.   He avoided the ‘disadvantages' or ‘burdens' of the punishment model.   In 1982, he did not stand before the trial court in the same position as a defendant who was never eligible for—and, needless to say, never received—the benefits of the treatment model.  [¶] 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.”  (Brunner, supra, 145 Cal.App.3d 761, 766, 195 Cal.Rptr. 367.)

It should be noted that in People v. Jobinger, supra, 153 Cal.App.3d 689, 200 Cal.Rptr. 546, the Fifth District Court of Appeal followed its holding in Brunner that the repeal of the former MDSO provisions and the enactment of Penal Code section 1364, “represented a legislative change from a ‘rehabilitative model’ to a ‘punishment model’ and that the defendant could not demand the benefits of each on an equal protection theory.  ․  [A]ppellant has reaped the benefits of former Welfare and Institutions Code section 6316.1 so he cannot now argue that he has been denied equal protection by the trial court's failure to grant him conduct credits under Penal Code section 1364.”  (People v. Jobinger, supra, 153 Cal.App.3d 689, 694, 200 Cal.Rptr. 546.)

The Jobinger court nevertheless went on to hold that MDSOs committed under the treatment model were similarly situated to narcotics addicts committed to CRC pursuant to Welfare and Institutions Code section 3201, subdivision (c).  (People v. Jobinger, supra, 153 Cal.App.3d 689, 694ff, 200 Cal.Rptr. 546.)   First, the Jobinger court reasoned that, even though the defendant in that case was not similarly situated to MDSOs under the punishment model, and that the new MDSO provisions were not retroactive, “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.)   The difference between MDSO commitments under the treatment model and time served as a prison inmate were found to 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.”   (Ibid.)  Thus, the reasons justifying a denial of credits to MDSOs in a treatment setting, as compared with persons doing prison time, were of no import because of the enactment of Penal Code section 1364.   The Jobinger court found both the former MDSO commitments and CRC commitments to be involuntary and that both CRC addicts and MDSOs are equally able to conform their conduct so as to earn credits.  (Id., at p. 696, 200 Cal.Rptr. 546.)

 We remain unconvinced that MDSOs committed under the treatment model are similarly situated to narcotics addicts committed to CRC.   Extension of conduct credits to CRC inmates simply recognizes that CRC addicts are really in a mode which more closely resembles that of punishment than treatment, and that CRC inmates are subject to effective control by a credit system.¹  Addicts subject to a narcotics commitment are not treated in a state hospital, but rather are treated in a security setting under the control of the Department of Corrections.   Moreover, the term for a CRC commitment is tied in with a determinate sentence.  (Welf. & Inst.Code, § 3201.)   In this respect, CRC addicts are similarly situated to MDSOs subject to the punishment model:  “[S]ince 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.”  (People v. Brunner, supra, 145 Cal.App.3d 761, 766–767, 195 Cal.Rptr. 367, orig. emphasis.)  “In adopting Welfare and Institutions Code section 3201, subdivision (c), the Legislature has determined that the treatment period [for CRC addicts] should be equivalent to the potential punishment and has established an administratively convenient method of providing credit.   Thus, the justifications found persuasive in Saffell cannot be asserted in relation to CRC credits.”  (In re Martin (1981) 125 Cal.App.3d 896, 902, 178 Cal.Rptr. 445.)   An MDSO committed under the treatment model, however, had the potential for an early release if treatment were successful, or could be subject to a commitment for a term longer than the corresponding prison term to which he or she would have been subject had he or she been sentenced criminally.

Contrary to the holding of the Jobinger court, the factors of distinction enumerated in Saffell pointing out the theoretical and practical inconsistencies of applying credits in a therapeutic setting are still cogent and are still applicable in comparing the situations of an MDSO committed under the treatment model and a CRC inmate.

During the term of his state hospital commitment, defendant received the benefits of the “treatment” program and philosophy in effect at that time.   Defendant has failed to show that he is similarly situated to ordinary prison inmates, CRC addicts, or post-1981 MDSOs.   The denial of credits to defendant thus does not offend the equal protection clause.

Disposition

Writ denied.

FOOTNOTES

1.   See Welf. & Inst.Code, § 3201, subd. (c), which provides:  “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] ․ shall, upon reaching such accumulation of time, be released on parole ․”  (Emphasis added.)   The time “in confinement or in custody” is obviously in contrast to time spent in prison and refers to time spent at CRC other than on an outpatient basis.

KAUFMAN, Acting Presiding Justice.

McDANIEL and RICKLES, JJ., concur.