BAKER v. COUCH (1982)

Petitioners Douglas E. Couch and Peter A. Lamport seek writs of habeas corpus complaining they are illegally confined because their commitments as mentally disordered sex offenders (MDSO) have, in each instance, been extended for two years under Welfare and Institutions Code section 6316.2 which was repealed as of January 1, 1982.   Donald E. Baker raises the same issue from a slightly different vantage point asking this court to prevent, by a writ of prohibition, the Superior Court of San Diego County from proceeding in any further hearings on the petition to extend his commitment.

We do not need to cite specific facts for each petitioner, since all of them are in essentially the same position.   All were convicted of child molesting under Penal Code section 288;  all were found to be MDSOs;  all have served sufficient time that if the petition to extend commitment is illegal, they must be released.   Because they all raise essentially the same issue, the cases were consolidated for briefing and argument.

The common question here is whether MDSO commitments may be extended in proceedings after January 1, 1982, by authority of former Welfare and Institutions Code section 6316.2 ¹ which was repealed along with the remainder of the MDSO laws by statutes 1981, chapter 928, section 2, effective January 1, 1982.   The parties concede commitments extended before January 1, 1982, are valid.

When Couch was committed, the indeterminate sentencing law was in effect and the possible sentence that could be imposed for a violation of Penal Code section 288 was life and a commitment as an MDSO for an indefinite term (Welf. & Inst. Code, § 6316).   With the enactment of the determinate sentencing law, the sentence associated with Penal Code section 288 became three, four or five years;  in 1978 the sentence was increased to three, five or seven years and in 1981 to three, six or eight years.   In 1977 Welfare and Institutions Code section 6316.1 ² was adopted which provided that a person could not be committed as an MDSO for a period longer than the maximum time he could have been imprisoned for committing the crime.   The limitation could be overcome, however, by a showing under Welfare and Institutions Code section 6316.2 that the person had a mental condition which made him predisposed to committing sexual offenses and presented a substantial danger of bodily harm.   There could be an unlimited number of extensions, assuming the criteria of Welfare and Institutions Code section 6316.2 continued to be met, each for two years.

However, effective January 1, 1982, the MDSO statutes (Welf. & Inst. Code, §§ 6300–6330), including the procedure for extensions, were repealed.   Mandatory prison terms for certain sex crimes were increased (see Pen.Code, §§ 288, 1364, 1203.065, 1203.066).   Instead of a hearing to determine if a person is an MDSO, the person is sent to the Department of Corrections where he will be told about the voluntary hospital programs which are available during the last two years of incarceration (stats. 1982, ch. 1549, § 4).

Since Welfare and Institutions Code section 6316.2 was repealed on January 1, 1982, the petitioners argue the superior court did not have jurisdiction to hear or grant petitions filed or heard after January 1 to extend their commitments.   In repealing Welfare and Institutions Code sections 6300 to 6330, the Legislature expressed the following intent:

“Sec. 3. Nothing in this act shall be construed to affect any person under commitment under Article 1 (commencing with Section 6300) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code prior to the effective date of this act.   It is the Legislature's intent that persons committed as Mentally Disordered Sex Offenders and persons whose terms of commitment are extended under the provisions of Section 6316 of the Welfare and Institutions Code shall remain under these provisions until the commitments are terminated and the persons are returned to the Court for resumption of the criminal proceedings.

“The Legislature finds and declares that the purposes of the Mentally Disordered Sex Offender commitment have been to provide adequate treatment of these offenders, adequate controls over these persons by isolating them from a free society, and protect the public from repeated commission of sex crimes.   In making the repeal of the Mentally Disordered Sex Offender commitment procedures prospective only, the Legislature finds and declares that it is necessary to retain persons under this commitment who committed their crimes before the effective date of this enactment in order to have proper control over these persons and to protect society against repeated commission of sex crimes and that other enactments of the 1979–1980 Regular Session of the Legislature and the 1981–1982 Regular Session of the Legislature would yield prison terms which would provide this protection to society without the need to retain the Mentally Disordered Sex Offender commitment.

“Sec. 4. In repealing the Mentally Disordered Sex Offender commitment, the Legislature recognizes and declares that the commission of sex offenses is not in itself the product of mental diseases.   It is the intent of the Legislature that persons convicted of a sex offense after the effective date of this session, who are believed to have a serious, substantial and treatable mental illness, shall be transferred to a state hospital for treatment under the provisions of section 2684 of the Penal Code.”  (Italics added.)

Petitioners say this clearly shows that the new law applies to those committed and those on extensions.   That is, MDSO commitments can continue until the person has served the maximum sentence or there is a judicial determination the person is no longer amenable to treatment.   This is the argument which was made and rejected in People v. Superior Court (Martin), 132 Cal.App.3d 658, 183 Cal.Rptr. 563, petn. den. Aug. 4, 1982.   There the court held the Legislature clearly intended the opposite.   In examining the words of the statute, which are set out above, the court focused on the language in section 3 where it refers to “persons whose terms of commitment are extended.”   Had the Legislature not intended future extensions under Welfare and Institutions Code section 6316.2, the court suggests, the statute would have talked about “persons whose terms have been extended.”

Again in section 3, where the Legislature declares its reasons for making the repeal prospective, Martin points out that the statute speaks in terms of retaining persons under previously ordered commitments, which the court then infers authorizes continued recommitments.   The court opined the Legislature had declared that persons convicted before January 1, 1982, should remain subject to commitment under Welfare and Institutions Code section 6316.2 to make sure those MDSOs who were still dangerous could not be released immediately (People v. Superior Court (Martin), supra, 132 Cal.App.3d 658, 663–664, 183 Cal.Rptr. 563).

However, Martin does not deal convincingly with whether the continuation of an MDSO commitment authorizes the recommitment procedures of Welfare and Institutions Code section 6316.2.   There is no doubt the Legislature intended for those persons who had been committed as MDSOs before January 1, 1982, to remain under the provisions of Welfare and Institutions Code section 6316 even after it had been repealed.   That is, the repeal of the MDSO statutes was not intended to trigger the wholesale resumption of criminal proceedings or the immediate release of all MDSOs on January 1, 1982.   Indeed, according to the statute, those persons under commitment, whether original or extended, are all to be retained under the old law “until the commitments are terminated.”   Does this then include an unlimited number of extensions as part of the termination?   By its own words the new statute describes those serving extensions as “persons whose terms of commitment are extended under the provisions of section 6316 of the Welfare and Institutions Code․”  This can only refer to those persons who were extended before January 1, 1982, since section 6316 did not exist after that date.   Thus, the persons who are not affected by the repeal of the MDSO laws are those committed and those extended before January 1, 1982.   Petitioners here are required to serve out the time extended for them before January 1, 1982, but they are not subject to having their commitments reextended in proceedings after January 1, 1982.

In addition, since section 6316 did not exist at the time the petitioners' hearings were held, there was nothing to authorize the court's acts;  it lacked jurisdiction to hear these matters.

The analysis here rests on the wording of the statute itself.   However, the People raise another point deserving of mention.   In suggesting the Legislature intended to have MDSOs extended and reextended indefinitely, it points to recently chaptered AB 3388 (1982, ch. 650, § 2) which provides anew for extended commitments.   The People argue this is but a restatement and clarification of the already existing statute which repeals the MDSO laws;  petitioners argue this shows there was a gap in the legislation with regard to recommitment and the purpose of the remedial bill is to fill that gap.

In evaluating these opposing arguments a look at SB 1574 (1982, Chap. 1549, §§ 4, 35) regarding the housing and work opportunities for prisoners is helpful.   This new statute directs that security of patients at Patton under Welfare and Institutions Code sections 6316 and 6321 (§ 6316.2 is not mentioned) is to be the responsibility of the Department of Corrections;  it mandates the transfer of all patients from Patton by January 1, 1986;  it declares Atascadero State Hospital is the preferred location for housing patients committed under Welfare and Institutions Code sections 6316 and 6321 (§ 6316.2 is not mentioned).   The fact that persons recommitted under section 6316.2 are not mentioned with regard to housing gives rise to the clear inference there will no longer be any such persons needing housing in the prison system.   Elementary arithmetic tells us that by 1986 all persons currently on extended commitments will be out of the prison system unless they have again been extended.   Since no housing is to be provided for MDSO recommitments after 1986 and all currently extended MDSOs will be out of the system by that time, the Legislature could not have intended for section 6316.2 to apply.   That is, had the Legislature intended for indefinite commitments of MDSOs, it would have made provisions for housing these persons.   Thus, AB 3388 must be an addition to the original statute repealing the MDSO laws and passed to fill a gap which was belatedly perceived by the Legislature.   It does not support any alleged intent of the Legislature to reextend MDSOs indefinitely.

In light of the above, it is unnecessary to consider the remaining contentions presented by petitioners.

The petitions for writ of habeas corpus and prohibition are granted.

FOOTNOTES

1.   Section 6316.2 reads in pertinent part:“A person may be committed beyond the term prescribed by Section 6316.1 only under the procedure set forth in this section and only if such person meets all of the following:“(1) The ‘sex offense’ ․ of which the person has been convicted is a felony․“(2) Suffers from a mental disease, defect, or disorder, and as a result ․ is predisposed to the commission of sexual offenses to such a degree that he presents a substantial danger of bodily harm to others.“(b) If during a commitment under this part, the Director of Mental Health has good cause to believe that a patient is a person described in subdivision (a), the director may submit such supporting evaluations and case file to the prosecuting attorney who may file a petition for extended commitment in the superior court which issued the original commitment.   Such petition shall be filed no later than 90 days before the expiration of the original commitment.   Such petition shall state the reasons for the extended commitment, with accompanying affidavits specifying the factual basis for believing that the person meets each of the requirements set forth in subdivision (a)․”

2.   Section 6316.1 reads in part as follows:“In the case of any person found to be a mentally disordered sex offender who committed a felony on or about 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․”

GERALD BROWN, Presiding Justice.

COLOGNE and STANIFORTH, JJ., concur.