People v. Jobinger

• Decision Date: 26 March 1984
• Docket Number: Cr. F001890
• Citation: 200 Cal.Rptr. 546,153 Cal.App.3d 689
• Parties: The PEOPLE, Plaintiff and Respondent, v. Herman L. JOBINGER, Jr., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 546

200 Cal.Rptr. 546

153 Cal.App.3d 689

The PEOPLE, Plaintiff and Respondent, v. Herman L. JOBINGER, Jr., Defendant and Appellant.

Cr. F001890.

Court of Appeal, Fifth District, California.

March 26, 1984.

As Modified on Denial of Rehearing April 20, 1984.

Certified for Partial Publication. ¹

[153 Cal.App.3d 691] Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Harvey R. Zall and Eric J. Coffill, Deputy State Public Defenders, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., and Robert D. Marshall, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

FRANSON, Acting Presiding Justice.

STATEMENT OF THE CASE

Two issues are presented in this appeal: (1) whether the trial court erred in considering certain factors in aggravation in sentencing appellant to prison and (2) whether appellant is entitled to good conduct and participation credits (conduct credits) for the presentence time he spent at Atascadero State Hospital as a mentally disordered sex offender (MDSO).

We hold that although the trial court erred in considering certain factors in imposing the aggravated sentence on the principal term (count 8--rape), the error does not compel a remand since there is no reasonable probability that a different term would have been imposed. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

We also hold as a matter of equal protection of the laws that appellant is entitled to conduct credits for the time spent at the state hospital. We remand for the trial court to determine the specific number of days for which appellant is entitled to credit pursuant to Penal Code section 2931 calculated from July 29, 1980.

Appellant pleaded guilty to four counts of rape, three counts of burglary, three counts of assault with intent to commit rape and one count of false imprisonment as a reasonably related offense of assault with intent to commit rape. Criminal proceedings were suspended pursuant to Welfare and Institutions Code section 6300, and MDSO proceedings were instituted. The court thereafter found appellant to be an MDSO.

Appellant was committed to the Atascadero State Hospital on March 21, 1980, for a period of 18 years and 4 months with credit for time served of 205 days.

About two and one-half years later, the medical director of Atascadero State Hospital found that although appellant was still an MDSO, he was unamenable to further treatment. Appellant was referred back to the superior court, and criminal proceedings were reinstated.

Appellant was sentenced to prison for a total term of 17 years and 8 months. ² The sentences were to run consecutively because the court found that all the crimes were "separate and distinct." Appellant was given a total of 1,273 days' credit which included 223 days' actual local time 111 days' local conduct credits and 939 actual institutional days' credits. No conduct credits were given for these institutional days. The court set forth aggravating and mitigating circumstances at length, and it found that the aggravating circumstances significantly outweighed those in mitigation.

Appellant filed a timely notice of appeal.

STATEMENT OF THE FACTS

Appellant, nicknamed the "East Fresno Rapist" by the local media, was apprehended after three years of rapes, burglaries and assaults. He would typically isolate a woman who was home alone, remove a screen from her window in the middle of the night, enter and commit the rape or sexual assault while covering the victim's head with a blanket or pillow. No harm was inflicted upon the victims aside from that inherent in the crimes themselves.

During his two and one-half year stay at Atascadero following his apprehension, appellant developed a "relationship" with a female staff member. His inability to break off this relationship after repeatedly stating he would do so indicated to his doctors that he was unable to control his compulsions and appears to be the primary reason for his referral back to the superior court for resentencing.

DISCUSSION

I ³

II Conduct Credits for Time Spent at Atascadero State Hospital as an MDSO

Appellant contends he was denied equal protection of the laws when the trial court failed to grant him conduct credits for time spent at the state hospital under an MDSO commitment. Appellant advances two theories to support his argument: (1) that the enactment of Penal Code section 1364 extending conduct credits under Penal Code section 2931 to persons committed as MDSO's after January 1, 1982, must be given retroactive effect so as to apply to appellant who was committed to the state hospital on March 21, 1980; and (2) the amendments to Welfare and Institutions Code section 3201, subdivision (c), effective July 29, 1980, extending conduct credits to narcotics addicts committed for rehabilitation and protective purposes to the California Rehabilitation Center (CRC) remove any rational basis for denying the credits to those like appellant who have been committed as MDSO's. Appellant's first contention is answered by this court's decision in People v. Brunner (1983) 145 Cal.App.3d 761, 195 Cal.Rptr. 367 where we held:

"... 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. The theory of the law has changed. Section 1364's award of conduct credits is part and parcel of the punishment model: since 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." (Id., at pp. 766-767, 195 Cal.Rptr. 367.)

We found in Brunner, supra, that the repeal of Welfare and Institutions Code section 6316.1 which provided for no conduct credits for time spent as an MDSO and enactment of Penal Code section 1364 granting conduct credits in the same situation 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. Since appellant, like Brunner, was committed to Atascadero State Hospital before the enactment of Penal Code section 1364 on January 1, 1982, appellant 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.

Appellant's second theory is that he is entitled to credits from July 29, 1980, to the end of his hospitalization because since that time narcotics addicts committed to CRC pursuant to Welfare and Institutions Code section 3201, subdivision (c), ⁴ are entitled to such credits. In essence, appellant argues that MDSO's and CRC addicts are now similarly situated so as to require equal treatment of them for conduct credit purposes. The argument is persuasive.

The policy reasons which have justified disparate treatment of MDSO's and CRC addicts vis-a-vis prisoners in custody have been greatly eroded by recent changes in the law. For example, both CRC addicts under Welfare and Institutions Code section 3201, subdivision (c), and MDSO's under Penal Code section 1364 ⁵ are now entitled to have good behavior and participation credits taken into consideration in the calculation of their maximum term of commitment. Even though appellant cannot directly benefit from present MDSO legislation (People v. Brunner, supra, 145 Cal.App.3d 761, 195 Cal.Rptr. 367), the mere enactment of Penal Code section 1364 reflects a legislative policy favoring conduct credits for MDSO commitment time.

Furthermore, there appears to be no persuasive rationale in case law for maintaining any distinction between MDSO's and CRC addicts, at least for conduct credit purposes. In People v. Saffell (1979) 25 Cal.3d 223, 157 Cal.Rptr. 897, 599 P.2d 92 (reaffirmed in People v. Sage (1980) 26 Cal.3d 498, 506, 165 Cal.Rptr. 280, 611 P.2d 874), 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 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 work-time opportunities; that hospitals don't 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. While these factors may have been persuasive prior to the enactment of Penal Code section 1364, they 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.

We recognize the dicta in People v. Hankins (1982) 137 Cal.App.3d 694, 187 Cal.Rptr. 210, suggesting that MDSO's and CRC addicts are not similarly situated for equal protection purposes:

"In deciding whether Hankins is entitled to conduct credit under equal protection principles, we are cognizant of one fundamental difference between MDSO and narcotic addict confinement. In practice, an MDSO commitment is involuntary; the CRC commitment is largely voluntary. What compelling state interest is there in deterring narcotic addicts guilty of crimes from seeking treatment and rehabilitation while in custody? Few, if any, addicts are going to volunteer for CRC commitment knowing that if they are found ...