People v. Cruz

165 Cal. App. 3d 648, 211 Cal. Rptr. 512, 1985 Cal. App. LEXIS 1754

• Court: California Court of Appeal
• Decided: March 13, 1985
• Docket: Crim. 15485
• Status: Published

Opinions

Opinion

WIENER, Acting P. J.

Jorge Alberto Cruz appeals after he was sentenced to prison for six years, four months, following his return from Patton State Hospital where he spent approximately 20 months under a commitment as a mentally disordered sex offender ((MDSO); former Welf. & Inst. Code, § 6300 et seq., repealed by Stats. 1981, ch. 928, § 2, p. 3485, eff. Jan. 1, 1982). Cruz challenges the trial court’s denial of probation and its refusal to grant conduct credit (Pen. Code, § 2931)¹ for the time he spent in Patton.

Cruz, bom May 22, 1960, committed the sex crimes in question on October 31, 1979, involving a 14-year-old female, on February 29, 1980, involving a 16-year-old female, and on July 9, 1980, involving a 22-year-old female. Each offense involved forced sexual activity at knife point after he used intimidating tactics to cause the victims to accompany him. In a plea bargain on March 17, 1981, Cruz pleaded guilty to lesser included offenses of unlawful sexual intercourse (§261.5), oral copulation with a person under 18 (§ 288a, subd. (b)(1)) and assault with intent to commit rape and with use of a knife (§§ 220, 12022, subd. (b)). Criminal proceedings were suspended and Cruz was found to be an MDSO and committed to Patton. Cruz remained in Patton for 606 days before criminal proceedings were resumed. On April 4, 1983, the trial court sentenced him under section 1170.1 to a principal term of four years, the middle term for the assault to rape count, one year for the knife use, and to subordinate terms of eight months each for the remaining two counts.

The trial court credited Cruz with 79 days of actual local time,² 606 days in Patton and 118 days of local conduct credit, for a total of 803 days of credit. The court, however, denied him the conduct credit provided for under section 2931, which would have amounted to 303 additional days of credit if it had been applied.

I

Cruz contends the trial court abused its discretion in not finding unusual circumstances existed and thus denying probation.³ He emphasizes his youth, lack of a prior record, his visibility and support within the community and his potential to contribute to society. He attaches a great deal of material from Patton reporting on his performance there.

The trial court considered this material before sentencing. It also considered a report of Patton’s medical director who described Cruz as unable to benefit from further treatment there and a danger to the health and safety of others. The report variously describes Cruz as defensive and immature, as one who displaces his anger and hostility onto others when confronted about his maladapted behavior, and as one who uses intimidating methods in dealing with his peers. The report reflected Cruz’ view he had received maximum benefit from hospitalization and no constructive purpose would be served by his remaining in a therapeutic environment.

The trial court also considered a January 13, 1983, medical evaluation which acknowledged Cruz has improved to a considerable extent and benefited from the therapy at Patton but agreed with reports from Patton that Cruz possibly could benefit from more treatment and is still a risk. This report said in part, “we . . . still must consider Mr. Cruz to be a danger to the health and safety of others.” The January 1983 report concluded, “This man continues to be a mentally disordered sex offender.”

The trial court heard testimony on the question of whether this was an unusual case and whether the interests of justice would be served by a grant of probation. Appropriate exercise of its discretion on these questions is reflected in the record of the trial court’s explanation of why this was not a case fitting within the exception.⁴ Cruz has shown no abuse of discretion in the denial of probation. (See People v. Axtell (1981) 118 Cal.App.3d 246, 257 [173 Cal.Rptr. 360].)

II

Cruz contends the court erred in denying him conduct credits under section 2931 amounting to 303 days for the time he spent at Patton as an MDSO.

There are now two cases People v. Jobinger (1984) 153 Cal.App.3d 689 [200 Cal.Rptr. 546] (mod. 154 Cal.App.3d 603c) and People v. Richard (1984) 161 Cal.App.3d 559 [207 Cal.Rptr. 715], which hold MDSO’s are entitled to conduct credits for the time spent in a hospital facility. (See also People v. Saldivar (1984) 154 Cal.App.3d 111, 116 [201 Cal.Rptr. 60].) We use the word “now” because there have been other cases since decertified by the California Supreme Court that held otherwise. (In re Van Renselaar (Cal.App.) (ordered depublished Oct. 19, 1984); People v. Lovedy (Cal.App.) (ordered depublished Jan. 3, 1985); and People v. Abril (Cal.App.) (ordered depublished Feb. 14, 1985.) Prompted by the disappearance of only those cases explaining why Jobinger was wrong we believe little will be gained by our contributing to the legal literature on this subject. Nudged toward firmer respect for the doctrine of stare decisis by the California Supreme Court’s selective depublication process we merely cite Jobinger and Richard and give Cruz the conduct credits for the time he spent at Patton State Hospital.

Disposition

Judgment affirmed. The sentence is modified to reflect additional conduct credits of 303 days. The superior court and the Department of Corrections are directed to modify their records accordingly.

Cowett, J.,

* concurred.

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

2 The “Abstract of Judgment-Commitment” reflects only 55 days of actual local time was credited to Cruz. It is apparent from the total 803 days and from the probation officer’s supplemental report that Cruz spent an additional 24 days in actual local custody. The abstract should be corrected accordingly and forwarded to the Department of Corrections.

3 Section 1203, subdivision (e)(2), states probation shall not be granted to any person who uses or attempts to use a deadly weapon in the crime, “[e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation . . . .”

4 The court explained, in part: “. . . I’m satisfied that Mr. Cruz has not presented to me through you a case by which I can decide that this is in the interests of justice, that the interests of justice would be best served by granting probation. I have gone through the criteria. The closest criterion that would seem to be applicable is that which Mr. Patrick referred to earlier which is that he is youthful, and prior to this offense had no significant record of prior criminal offenses rather than his reported admissions to the young ladies as he convinced them they ought to participate in those wrongful acts, unsettling and demeaning acts, which he said, T killed before and stabbed before,’ or whatever he said as I already referred to, intimidating.

“I think that Mr. Cruz has in the past been a greater intimidator than he has been in the most recent past. But still the word ‘intimidation’ doesn’t become a person’s jacket. The word ‘intimidation’ does appear in his staffing reports which have been received by the court as well.

“Perhaps Mr. Cruz is somewhat of a manipulative person which perhaps speaks well for his intelligence and perhaps speaks well for eventually what will occur to him when he gets out into the community. Hopefully that will be good things and we will hear good things from you.

“I am denying probation because I cannot find this to be the unusual case under 416 with which rule I have an intimate knowledge and I have gone through very carefully for the purposes of ascertaining whether there is a criterion warranting such a decision. Probation is denied.”

Assigned by the Chairperson of the Judicial Council.