People v. Sage

BIRD, C. J., Concurring and Dissenting.

I must respectfully dissent from that portion of the majority opinion which endorses the government’s unequal handling of similarly situated individuals. The majority find there is no violation of the equal protection clause of the Constitution even though some mentally disordered prisoners are given credit for time served in state hospital custody and others are not.

Under the California Administrative and Penal Codes a “mentally ill, mentally deficient, or insane” prison inmate, who is transferred from prison to a state mental hospital for treatment, is eligible for behavior and participation credits for that portion of his term that is spent in a hospital. 1 Any prison inmate transferred under this procedure may be *511 sent to the same hospital to which appellant was committed 2 and may be required to participate in the same treatment program. Despite these similarities, appellant is denied participation and behavior credits while a similarly situated prison inmate is not.

Further, a “mentally disordered” person, who is in a county or city jail, is entitled to behavior and participation credits for time spent in an inpatient facility under the Lanterman-Petris-Short Act. (Pen. Code, § 4011.6. ) 3 The majority ignore these facts and hold that an individual, adjudged a mentally disordered sex offender (MDSO), cannot receive participation and behavior credits for any time spent in a state hospital prior to being sentenced and transferred to a state prison.

Citing People v. Saffell (1979) 25 Cal.3d 223 at pages 233 through 235 [ 157 Cal.Rptr. 897 , 599 P.2d 92 ], the majority claim they are “foreclosed” from dealing with these similarly situated individuals in the same fashion. However, Saffell is inapposite for it involved a state hospital patient found amenable to treatment while this case involves a state prison inmate found not amenable to treatment. Further, Mr. Saffell sought to apply behavior and participation credits to reduce his term of confinement in the hospital. Mr. Sage does not seek a reduction *512 in the time he had to spend in the hospital. He served his full term of hospital confinement and merely seeks to have the time he spent in the hospital fully credited to the remainder of his term in state prison. The discrimination here is not between MDSOs committed to state hospitals and inmates committed to state prison, but between inmates incarcerated in state prisons who have spent presentence time in state hospitals as MDSOs, and other mentally disordered inmates who have spent time in state hospitals or similar facilities during their terms of incarceration.

In Saffell , this court held that the length of an MDSO’s initial commitment period was justified by “a dual compelling state interest in providing effective treatment for those disposed to the commission of [sex offenses] while, at the same time, assuring the safety of the public.” (People v. Saffell, supra, 25 Cal.3d at pp. 232-233.) In particular, “the compelling state interest...[in] the effective treatment of MDSOs” justified the legislative determination not to apply behavior and participation credits to MDSO commitments. (Id., at p. 235.) However, that rationale does not apply to an MDSO, who is not amenable to treatment, is incarcerated in a state prison, and seeks reduction of his prison sentence.

The state can have no interest in the “treatment” of such a person since he is not amenable. The court in Saffell recognized this fact since it stated that “commitment as an MDSO is primarily for treatment,” for the law “contemplates that the only MDSOs who may be confined for the ‘maximum term of confinement’ [i.e., the longest term of imprisonment with no behavior and participation credits] are those whom the court finds ‘could benefit by treatment in a state hospital or other mental health facility.. ..’ (§ 6316, italics added.) The individual who is determined to be an MDSO but who is not amenable to treatment is to be returned to the criminal court for disposition of the charges against him.” (Id., at p. 229.)

This court in Saffell recognized that “‘[n]ot only is medical treatment the raison d’etre of the mentally disordered sex offender law, it is *513 its sole constitutional justification.’” (Id., at p. 229, quoting from People v. Feagley (1975) 14 Cal.3d 338, 359 [ 121 Cal.Rptr. 509 , 535 P.2d 373 ], italics added.) When the state cannot treat the individual, its asserted ^interest is “stripped away,” and “nothing remains but bare incarceration ‘for the protection of society.’” (People v. Feagley, supra, 14 Cal.3d at p. 373 .) Feagley teaches us that this interest, by itself, does not justify unequal handling of the MDSO who is not amenable to treatment. “[I]nasmuch as a well-known purpose of punishment is ‘to confine the offender so that he may not harm society’ [citation omitted], we must presume that the term of imprisonment prescribed by the Legislature for the underlying crime committed by... a mentally disordered sex offender [found not amenable to treatment and sentenced by the court] is adequate to protect society against a potential recurrence of his conduct.” (Id., at p. 376.)

Other mentally disordered inmates are not denied behavior and participation credits against their prison terms for postsentence time served in mental institutions. (Pen. Code, §§ 2684, 2685.) What compelling interest justifies such a distinction between presentence and postsentence time spent in state hospitals? Even prisoners in the county jail are statutorily entitled to behavior and participation credits for presentence time spent in mental health facilities under the Lanterman-Petris-Short Act. (Pen. Code, §§ 2900.5, 4019, 4011.6.) What possible justification is there for this disparity of treatment between inmates of the county jail and those in state prison?

What possible compelling state interest is there in giving special inducement to MDSOs transferred from state prison to a state hospital to behave, while withholding the same inducement from MDSOs transferred from a state hospital to a state prison? What possible compelling reason is there to grant participation credits to state prison inmates who are mentally unable to participate in specially designed “participation” programs, and to deny the same credits to MDSOs confined in state hospitals? Saffell does not provide the answers to these questions.

It is clear that there are no compelling state interests which would justify the disparate treatment of mentally disordered individuals who *514 are in custody. Therefore, the denial to a state prison inmate of behavior and participation credits for time served in a state hospital as an MDSO prior to his sentence to state prison violates the equal protection clause of the Constitution.

In practice, a state prison inmate is given credit for good behavior shortly after his arrival at prison. He forfeits these credits only if he commits specifically enumerated acts of misbehavior. (Cal. Admin. Code, tit. 15, §§ 3005, subd. (c), 3323.) There is no provision for forfeiture of behavior credits for transfer to a state hospital. Further, every inmate is given credit for participating in a work, vocational, therapeutic, or educational program. (Cal. Admin. Code, tit. 15, §§ 3040, subd. (c), 3042.) These credits are forfeited if an inmate refuses or fails to participate. (Cal. Admin. Code, tit. 15, § 3043, subd. (a).) Participation credits, however, are not forfeited if failure to participate is due to “reasons which are beyond the inmate’s control." This would include “mental inability to participate.” (Cal. Admin. Code, tit. 15, § 3043, subd. (c)(3).)

These credits for participation and good behávior are authorized by Penal Code section 2685, which provides that “[t]he time passed at the state hospital” by a prison *511 inmate “shall count as part of the prisoner’s sentence.” Under this statute, the prisoner is entitled to receive as much credit for time spent in the hospital as he would have earned if he had remained within the prison itself. ( 24 Ops.Cal.Atty.Gen. 3 (1954).) Section 2685 has been interpreted to permit credit for behavior and participation credits for time spent by the prisoner while in a hospital. (Ibid.)

Appellant was committed to Patton State Hospital. This is one of the hospitals to which a mentally disordered state prison inmate may be transferred. (See Pen. Code, § 2684; see also Cal. Dept. of Corrections, Classification Manual, § 3205.)

Penal Code section 4011.6 permits the transfer of an inmate of a county or city jail to a mental health facility when it appears he may be mentally disordered. The statute specifically provides that “the time passed therein shall count as part of the prisoner’s sentence.”

Since the quoted language of section 4011.6 is virtually identical to that in section 2685 (see ante, fn. 1), it follows that this section authorizes a county jail prisoner to receive as much credit for time spent in a mental health facility as he would have earned if he remained in the county jail where he does receive participation and behavior credits. (Pen. Code, §§ 2900.5, 4019; see also maj. opn., ante, at pp. 505-507.)