Banks, In re

• Decision Date: 26 January 1979
• Docket Number: Cr. 10103
• Citation: 152 Cal.Rptr. 111,88 Cal.App.3d 864
• Parties: In re Gordon BANKS on Habeas Corpus.
• Court: California Court of Appeals Court of Appeals

Page 111

152 Cal.Rptr. 111

88 Cal.App.3d 864

In re Gordon BANKS on Habeas Corpus.

Cr. 10103.

Court of Appeal, Fourth District, Division 2, California.

Jan. 26, 1979.

Charles E. Ward, Public Defender of San Bernardino County, and Littleton M. Gunn and Andrew E. Rubin, Deputy Public Defenders, for petitioner

James M. Cramer, Dist. Atty. of San Bernardino County, and Joseph A. Burns, Deputy Dist. Atty., for real party in interest.

Evelle J. Younger, Atty. Gen., and Michael D. Wellington, Deputy Atty. Gen., for respondent.

OPINION

GARDNER, Presiding Justice.

In this case we hold that constitutional principles of equal protection and due process of law mandate that in calculating the maximum duration of an incompetency commitment under Penal Code §§ 1368-1370, credit must be given for precommitment confinement attributable to the same criminal prosecution.

Petitioner, charged with a misdemeanor brandishing a deadly weapon, Penal Code § 417(a) pleaded not guilty and not guilty by reason of insanity. After a guilty verdict on the guilt phase and before the sanity phase could begin, he was found to be mentally incompetent to stand trial. (Penal Code § 1368.) Criminal proceedings were suspended and he was committed to a state hospital. At the time of the commitment, he had already spent over 60 days in confinement as a result of this prosecution. We infer that this confinement was based on his inability to make bail, i. e., indigency. ¹ When the petitioner had been in the state hospital for 6 months from the date of his original confinement, he filed a petition for writ of habeas corpus. The prosecution resisted based on the following language from Penal Code § 1370: "If, at the end of . . . a Period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the . . . misdemeanor complaint . . . the defendant has not recovered his mental competence, he shall be returned to the committing court." (Emphasis added.) The prosecution contended that the plain language of this section indicated that the time of commitment started the clock running. We must agree. Under the plain language of Penal Code § 1370, the petitioner could remain in the state hospital for 6 months from the date of commitment (the maximum period of punishment under Penal Code § 417(a)).

The petitioner next contends that, under Penal Code § 2900.5, he is entitled to credit for his initial period of incarceration prior to commitment. To this contention the prosecution argues that Penal Code § 2900.5 provides for credit only after a defendant has been convicted of a criminal offense. Here, the petitioner has never been convicted since proceedings have been suspended, ergo Penal Code § 2900.5 affords him no comfort. Again, we must agree. Under the plain language of the statute Penal Code § 2900.5 refers to convictions and there has never been a conviction.

So far, on elementary principles of statutory construction, i. e., the plain language of the statute, the prosecution is far ahead. The box score prosecution two, the petitioner zero. However, as we all know, simple principles of statutory construction are not necessarily the answer. The courts, under constitutional principles, have often made mincemeat of some seemingly clear-cut statutory schemes. Thus, although the statute clearly gave the petitioner no credit for precommitment custody, principles of equal protection and due process of law mandate that credit. The application of these principles has a devastating effect on the prosecution's position and the statutory scheme. The reasons fall, generally, into two categories.

I.

Denial of credit for precommitment confinement results in discrimination on the basis of wealth in violation of state and federal equal protection guaranties because indigent defendants who are unable to obtain release on bail will serve precommitment jail time and so will be confined longer than wealthier defendants who are released on bail prior to their incompetency commitments. (Williams v. Illinois (1970), 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586; In re Young, 32 Cal.App.3d 68, 71, 107 Cal.Rptr. 915.)

The leading case is Williams v. Illinois, supra. There, the petitioner was sentenced to a one-year term and a $500 fine. Under Illinois law, a prisoner who had not paid his fine by the end of his term could be required to remain in confinement until the fine was worked off at the rate of $5 for each additional day served. The Supreme Court held this procedure to be constitutionally defective, stating: ". . . once the State has defined the outer limits of incarceration necessary to satisfy its penological interests and policies, it may not then subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximums solely by reason of their indigency." (Id., 399 U.S. at pp. 241-242, 90 S.Ct. at p. 2022. See also, Tate v. Short (1971), 401 U.S. 395, 398-399, 91 S.Ct. 668, 28 L.Ed.2d 130, 133-134.

The relevance of this decision to the issue of a convicted defendant's right to credit for presentence confinement was quickly perceived by lower federal courts. In case after case, state laws denying or restricting such credits were struck down. (E. g., Johnson v. Prast (7th Cir. 1977) 548 F.2d 699, 702; King v. Wyrick (8th Cir. 1975) 516 F.2d 321, 323; Hart v. Henderson (5th Cir. 1971) 449 F.2d 183, 185; White v. Gilligan (S.D.Ohio 1972) 351 F.Supp. 1012, 1013.) Similar conclusions were reached by state courts. (E. g., Klimas v. State (1977) 75 Wis.2d 244, 249 N.W.2d 285, 287; State v. Sutton (1974) 21 Ariz.App. 550, 521 P.2d 1008, 1009.) Reviewing this line of authority, a federal court recently stated: "It seems recognized that the right to credit for jail time awaiting trial on a bailable offense and pending appeal is not a matter of legislative grace but is a right constitutionally mandated, available to state prisoners as well as federal prisoners." (Durkin v. Davis (4th Cir. 1976) 538 F.2d 1037, 1039-1040.)

Prior to 1972, there was no statutory authority in California for an award of credit for presentence confinement. (See People v. Rose, 41 Cal.App.2d 445, 446, 106 P.2d 930.) In 1971, the Legislature enacted two statutes, Penal Code §§ 2900.5 and 2900.6, mandating presentence credit for convicted felons and misdemeanants, respectively, effective in March 1972. (Stats.1971, ch. 1732.) Later these statutes were revised and combined into the present section 2900.5. (Stats.1976, ch. 1045.) In 1973, it was held that prisoners who began serving their sentences prior to the effective date of section 2900.5 were nonetheless entitled to credit for presentence incarceration upon a showing that the confinement resulted from indigency. (In re Young, supra, 32 Cal.App.3d 68, 75, 107 Cal.Rptr. 915.) Shortly thereafter, our Supreme Court held the nonretroactivity provisions of section 2900.5 unconstitutional on equal protection grounds. (In re Kapperman, 11 Cal.3d 542, 545-550, 114 Cal.Rptr. 97, 522 P.2d 657.)

For purposes of equal protection, we can perceive no logical distinction between the application of credit against an actual sentence and the application of credit against a sentence term used to measure the maximum permissible duration of an incompetency commitment. In either case, the denial of credit necessarily results in longer confinement for indigents unable to post bail bonds. ² This discriminatory treatment is constitutionally forbidden.

II.

Pretrial confinement of incompetent defendants beyond the maximum period for the charged offense violates basic notions of fairness and due process because the state has no legitimate interest in continued confinement of an incompetent accused beyond the maximum sentence term for the charged offense. (In re Davis, 8 Cal.3d 798, 106 Cal.Rptr. 178, 505 P.2d 1018.)

"The due process clauses, federal and state, are the most basic substantive checks on government's power to act unfairly or oppressively. As such, they protect against infringements by the state upon those 'fundamental' rights 'implicit in the concept of ordered liberty.' (Palko v. Connecticut (1937) 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288, 292.)" (Hale v. Morgan, 22 Cal.3d 388, 398, 149 Cal.Rptr. 375, 381, 584 P.2d 512, 518.) "Substantive due process . . . deals with protection from arbitrary legislative action . . . i. e., the law must not be unreasonable, arbitrary or capricious but must have a real and substantial relation to the object sought to be attained." (Gray v. Whitmore, 17 Cal.App.3d 1, 21, 94 Cal.Rptr. 904, 915.) "Due process forbids the arbitrary deprivation of liberty (Goss v. Lopez, supra, 419 U.S. 565, 574, 95 S.Ct. 729, 42 L.Ed.2d 725 (734-735)) and, in the context of commitment to a mental hospital requires at least 'that the nature And duration of commitment bear some reasonable relation to the purpose for which the individual is committed.' (Jackson v. Indiana (1972) 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (451).)" (In re Roger S., 19 Cal.3d 921, 935, 141 Cal.Rptr. 298, 307, 569 P.2d 1286, 1295.) (Emphasis added.)

It is undisputed that if petitioner were to recover his competency and to be convicted of the charged offense, any sentence he received would have to be reduced by allowing credit both for the precommitment time spent in jail and for the commitment period in a state hospital. (Penal Code § 2900.5; In re Jordan, 50 Cal.App.3d 155, 158, 123 Cal.Rptr. 268; People v. Cowsar, 40 Cal.App.3d 578, 579, 115 Cal.Rptr. 160.) If the sum of these two periods of confinement equalled six months, the sentencing court could not require any further confinement. (See Penal Code § 1170, subd. (a)(2).) Thus, petitioner became immune from postsentence confinement when he had been confined for a total of six months on the pending charge even though his incompetency commitment was then less than six months.

The first question...