IN RE: James Robert BOSACKI (1985)

 Petitioner seeks a writ of habeas corpus following his conviction on two counts of indecent exposure.  (Pen.Code, § 314, subd. (1).)  He asserts that he is entitled to good time/work time conduct credits (Pen.Code, § 2931) for the period of time that he was incarcerated at Atascadero State Hospital as a mentally disordered sex offender (MDSO).   We agree.

On January 6, 1981, petitioner was found to be an MDSO and was ordered placed at Atascadero State Hospital.  (Former Welf. & Inst.Code, § 6316.)   He remained at Atascadero State Hospital until January 24, 1983.   Criminal proceedings were reinstituted on February 23, 1983.   Imposition of sentence was suspended and probation was granted.

On April 19, 1984, petitioner pled guilty to a new charge of indecent exposure.  (Pen.Code, § 314, subd. (1).)  On May 18, 1984, he was found to be in violation of probation and sentenced to state prison.   Petitioner requested that the sentencing court allow him conduct credits against the term on violation of probation for the period in which he was incarcerated as an MDSO.   His request was denied.

At the outset, the Attorney General argues that review of this petition is precluded by the doctrine of law of the case.   We take judicial notice of petitioner's previous petition for habeas corpus and the minute order denial of the writ previously filed by petitioner.  (Evid.Code, §§ 452, subd. (d), 459, subd. (a).)  On September 17, 1984, petitioner filed a petition for a writ of habeas corpus raising essentially the same arguments as tendered in the present petition.   This court declined to issue an order to show cause (Pen.Code, § 1484) and summarily denied the petition on December 14, 1984.

 The summary denial of a petition for a writ of habeas corpus by an appellate court is not a decision upon the merits and does not constitute law of the case.  (People v. Pacini (1981) 120 Cal.App.3d 877, 887, 174 Cal.Rptr. 820.)   There are sound policy reasons that support the above rule.   “․ [A]pplication of the law of the case doctrine to a summary denial would permit appellate courts to ‘evade the state constitutional requirement of written opinions' and discourage ‘well-advised’ defendants from seeking relief by writ for fear of losing these ‘[i]mportant incidents of the right to appeal ․’  [Citations.].”  (People v. Pacini, supra, 120 Cal.App.3d at p. 885, 174 Cal.Rptr. 820.)   To hold otherwise would impair the right of litigants to present oral argument on appeal.  (People v. Brigham (1979) 25 Cal.3d 283, 157 Cal.Rptr. 905, 599 P.2d 100.)

Our Supreme Court addressed the issue of whether one may earn conduct credits for the period of confinement while classified as an MDSO in People v. Saffell (1979) 25 Cal.3d 223, 157 Cal.Rptr. 897, 599 P.2d 92.   The court ruled that the refusal of the Department of Corrections to allow conduct credits to MDSO alumni did not violate the MDSO inmate's right to equal protection of laws.

Petitioner contends that Saffell has been supplanted by recent changes in the law.   In particular, he calls our attention to People v. Jobinger (1984) 153 Cal.App.3d 689, 200 Cal.Rptr. 546, and People v. Richard (1984) 161 Cal.App.3d 559, 207 Cal.Rptr. 715 (hearing denied).

In Jobinger the court attempted to distinguish Saffell upon the ground that legislation enacted in 1980 afforded conduct credit to inmates at the California Rehabilitation Center.  (Welf. & Inst.Code, § 3201, subd. (c);  People v. Mobley (1983) 139 Cal.App.3d 320, 323–324, 188 Cal.Rptr. 583.)   The court concluded that “it is a denial of equal protection for [defendant] to be denied pre-sentence conduct credits for time spent at Atascadero State Hospital as an MDSO when such credits are afforded CRC addicts.”  (People v. Jobinger, supra, 153 Cal.App.3d at p. 698, 200 Cal.Rptr. 546.)

The Attorney General asserts that Saffell remains good authority.   He argues that the rationale cited by the court in Jobinger and Richard is seriously flawed.   There are a number of significant distinctions between MDSO and CRC inmates.   The length of the term of imprisonment served by a CRC inmate is the same as he would have served had he been sentenced to state prison.  (Welf. & Inst.Code, § 3201, subd. (c);  People v. Hankins (1982) 137 Cal.App.3d 694, 187 Cal.Rptr. 210.)   An MDSO term of incarceration, on the other hand, may be extended.  (Former Welf. & Inst.Code, § 6316.2.)   The distinction between fixed and indeterminate sentences was at the heart of the Saffell court's reasoning.  “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.)   This rationale seemingly remains as true today as it was when Saffell was decided.

We find the Attorney General's position to be of considerable merit.   Nevertheless, we believe that petitioner is being subjected to a de facto unequal application of law, and therefore hold that he must be afforded appropriate conduct credit.

We begin our analysis in the judicial twilight zone otherwise known as depublished cases.   There are found the now decaying remains of three well-reasoned cases—all of which were critical of the Jobinger court's logic.   They cogently concluded that former MDSO's were not entitled to conduct credit.  (In re Van Renselaar (1984) 158 Cal.App.3d 527, 204 Cal.Rptr. 782 (ordered depublished October 19, 1984);  People v. Lovedy (1984) 162 Cal.App.3d 499, 200 Cal.Rptr. 591 (ordered depublished January 3, 1985);  and People v. Abril (1984) 162 Cal.App.3d 1013, 209 Cal.Rptr. 378 (ordered depublished February 14, 1985).)   The disappearance of these cases has served to confound trial judges involved with sentencing former MDSO's.   Should the judge decide to deny credits, he then risks reversal on the basis of Jobinger and Richard.   On the other hand, should he grant credits, a reversal on the basis of Saffell continues to be a possibility.   The diversity of decisions on this issue has resulted in the creation of two classes of MDSO alumni housed in our penal institutions.   One group will receive conduct credit by courts relying on the Jobinger and Richard decisions.   The other group will be denied such credit by trial and appellate courts relying upon Saffell.

Although we believe Jobinger and Richard to be incorrectly decided, we reluctantly hold that MDSO alumni are entitled to conduct credit.   In so holding, we do not indicate our agreement with the reasoning in Jobinger and Richard;  but rather, our conclusion is premised upon concern that the operation of the present body of laws governing the award of conduct credits results in de facto unequal treatment of prisoners.

 “Although ‘the purpose of imprisonment for crime is punishment’ (§ 1170, subd. (a)(1)), rehabilitation remains an important consideration in the treatment of criminals.  [Citations.].”  (Ayala v. Superior Court (1983) 146 Cal.App.3d 938, 945, 194 Cal.Rptr. 665;  see also Pell v. Procunier (1974) 417 U.S. 817, 823, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495;  People v. Caruso (1984) 161 Cal.App.3d 13, 18, 207 Cal.Rptr. 221.)   The availability of conduct credits to inmates is an important component of the rehabilitative process.   (People v. Austin (1981) 30 Cal.3d 155, 163, 178 Cal.Rptr. 312, 636 P.2d 1;  People v. Caruso, supra, 161 Cal.App.3d at pp. 18–19, 207 Cal.Rptr. 221.)

 In Morrissey v. Brewer (1972) 408 U.S. 471, at page 484, 92 S.Ct. 2593, at page 2602, 33 L.Ed.2d 484, the United States Supreme Court acknowledged that “fair treatment in parole revocations will enhance the chance of rehabilitation by avoiding reactions to arbitrariness.”   The societal interest of treating the parolee fairly applies with equal force to inmates.   (In re Reyes (1984) 161 Cal.App.3d 655, 658–659, 207 Cal.Rptr. 763.)  “The goal is to reintegrate inmates into a society where men are supposed to be treated fairly by the government, not arbitrarily.”  (Wolff v. McDonnell (1974) 418 U.S. 539, 597, 94 S.Ct. 2963, 2994, 41 L.Ed.2d 935 (dis. opn. of Douglas, J.).)   Law which, because of unresolved conflicts in appellate decisions, grants conduct credits to one group of inmates and denies those credits to another identically situated group subverts the rehabilitation of inmates.

The following example is illustrative of the patent unfairness of the present state of the law.   Messrs. Jobinger and Richard, for example, were granted conduct credit.   Inmates Lovedy, Van Renselaar, and Abril, perhaps residing in adjacent cells, likewise having served time at Atascadero State Hospital, are denied conduct credit by virtue of the fact that the sentencing courts and appellate panels followed Saffell.   No longer must these arbitrary practices be allowed to infect the rights of inmates who formerly spent time in custody as MDSO's.

In conformance with the views expressed in this opinion, the Department of Corrections is directed to amend petitioner's commitment record to include conduct credit against his two previous counts of indecent exposure for the time that he was placed as an MDSO.   The writ is discharged.

STONE, Presiding Justice.

GILBERT and ABBE, J., concur.