PEOPLE v. WATERMAN (1985)

The sole issue in this appeal is whether Mario Alfonso Waterman is entitled to Penal Code 1 section 4019 conduct credit for the time he was confined for treatment at Patton State Hospital between his commitment in September 1983, after being found mentally incompetent to stand trial pursuant to section 1370, and his release from Patton in May 1984, when he was found competent to stand trial.   We conclude he is entitled to conduct credits for his period of confinement pursuant to section 1370 before sentencing.   Accordingly, we affirm the judgment with directions.

In People v. Jennings, 143 Cal.App.3d 148, 149–150, 191 Cal.Rptr. 592, this court held a defendant is not entitled to conduct credit for preconviction custody while being treated at a state hospital pursuant to a section 1370 commitment.   However, in People v. Cramp, 162 Cal.App.3d 632, 633, footnote 2, 208 Cal.Rptr. 675, we noted our opinion in People v. Jennings, supra, was patently inconsistent with the holding of People v. Jobinger, 153 Cal.App.3d 689, 693–698, 200 Cal.Rptr. 546 (as modified 154 Cal.App.3d 603 c), which held a mentally disordered sex offender (MDSO) was entitled to behavioral conduct credit as a matter of equal protection because they are similarly situated with defendants confined in the California Rehabilitation Center who, by statute, have been afforded custody credits while receiving treatment for narcotics addiction.  (Welf. & Inst.Code, § 3201.) ²  Within this treatment context, this court in People v. Cruz, 165 Cal.App.3d 648, 652, 211 Cal.Rptr. 512, followed the lead of People v. Jobinger, supra, and People v. Richard, 161 Cal.App.3d 559, 563, 207 Cal.Rptr. 715, and extended conduct credit for time Cruz spent at Patton as an MDSO.   Finding no rational basis for denying presentence conduct credits to persons confined for treatment pursuant to section 1370 while granting such conduct credits to MDSOs and California Rehabilitation Center (CRC) inmates (People v. Talton, 145 Cal.App.3d 729, 193 Cal.Rptr. 660), we conclude the holding of People v. Jennings, supra, does not state the correct rule for this case in light of the foregoing, more recent authority, and equal protection, common sense and basic fairness mandate defendants confined pursuant to section 1370 receive conduct credits.³

The judgment is affirmed and the trial court is directed to modify the judgment to give Waterman conduct credit for his period of commitment in Patton pursuant to section 1370.

CERTIFIED FOR PUBLICATION.

I respectfully dissent because I believe People v. Jennings (1983) 143 Cal.App.3d 148, 191 Cal.Rptr. 592, represents correctly reasoned precedent on the identical issue and should be followed until the Supreme Court instructs otherwise.  (See my dissent in People v. Cruz (1985) 165 Cal.App.3d 648, 652–655, 211 Cal.Rptr. 512.)   I would deny the conduct credit to Waterman.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   In People v. Cramp, supra, 162 Cal.App.3d 632, 633, 208 Cal.Rptr. 675, we held a trial court properly granted defendant presentence conduct credits under section 4019 for the time he spent in confinement in a state hospital for a determination of his competency to stand trial pursuant to section 1370.   Cramp was found to be competent and received no treatment.

3.   In addition to People v. Cramp, supra, presentence conduct credits have been extended in the diagnostic context to juveniles sent to the California Youth Authority and found unamenable to treatment in People v. Saldivar, 154 Cal.App.3d 111, 201 Cal.Rptr. 60.

WORK, Associate Justice.

WIENER, Acting P.J., concurs.