Filed 10/25/99
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F028684 & F031054
Plaintiff and Respondent,
(Super. Ct. No. 294016-1)
v.
JONATHAN MICHAEL RAINS,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Lawrence
Jones, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant
Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Robert P.
Whitlock and Leah Ann Alcazar, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
*
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is
certified for publication as to Part II only.
A jury found appellant Jonathan Michael Rains to be a sexually violent predator
within the meaning of California's Sexually Violent Predators Act (SVPA) (Welf. & Ins.
Code, § 6600 et seq.). On the day the jury reached its verdict (April 22, 1997), the court
ordered appellant committed to Atascadero State Hospital. The court further ordered that
the commitment expire on September 20, 1998. The court's written order, filed on April
23, 1997, described the commitment as "a two (2) year commitment" and as having been
imposed pursuant to the provisions "of section 6604 of the Welfare and Institutions
Code[.]" September of 1998 is of course much less than two years from April of 1997,
but appellant was given credit for time he spent in custody in a secure facility prior to his
SVPA trial. In F028684 Rains appeals from this order. He contends that (1) the SVPA
violates various provisions of the Constitution of the United States ("U.S. Constitution")
and of the Constitution of the State of California ("California Constitution"); (2) the court
committed error warranting reversal by admitting evidence of the effect of a "true"
finding on an allegation that a defendant is a sexually violent predator (i.e., that he would
be committed to a hospital for a period of two years and would receive treatment); and (3)
he was denied due process of law by the court's instruction (patterned after CALJIC No.
2.90) on the meaning of "reasonable doubt."
In May of 1998 the court amended its commitment order to declare that appellant's
commitment would expire on April 22, 1999, i.e., exactly two years after the court's order
declaring him to be a sexually violent predator. In F031054 Rains has appealed from this
amended order. He contends that the two-year commitment period should include, as the
original commitment order did, the time he spent in custody in a secure facility prior to
his trial. We ordered his F031054 appeal consolidated with his F028684 appeal. As we
shall explain, we find no error warranting reversal of the "true" finding, and will affirm
the May 1998 amended order. In the published portion of our decision we hold that, in an
SVPA trial, evidence of the consequences of the jury's finding as to whether the
2.
defendant is or is not a sexually violent predator is not relevant and therefore not
admissible.
FACTS
At the outset we note that a "sexually violent predator" is defined in section 6600,
subdivision (a) of the Welfare and Institutions Code as "a person who has been convicted
of a sexually violent offense against two or more victims for which he or she received a
determinate sentence and who has a diagnosed mental disorder that makes the person a
danger to the health and safety of others in that it is likely that he or she will engage in
sexually violent criminal behavior."1 In an SVPA trial, "[t]he court or jury shall
determine whether, beyond a reasonable doubt, the person is a sexually violent
predator.…" (§ 6604.) In the present case, there was a stipulation that appellant had been
convicted of a sexually violent offense against two or more victims for which he received
a determinate sentence. He expressly made this admission to the court and out of the
presence of the jury. The jury was told of the stipulation. The jury's task was therefore to
decide whether appellant (1) "has a diagnosed mental disorder" and (2) if so, whether that
disorder "makes the person a danger to the health and safety of others in that it is likely
that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a).) On
these issues the People presented two witnesses, Dr. L.C. Miccio-Fonseca and Dr.
Michael Malone. The defense called no witnesses.
Dr. Miccio-Fonseca, a clinical psychologist, met with appellant to assess his status
as a sexually violent predator, to determine whether he presented a danger to the health
and safety of others and to assess whether he was likely to reoffend.
1
All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
3.
With respect to appellant's personal and physical history, Dr. Miccio-Fonseca
testified that as a child appellant's mother attempted to kill him by suffocation and his
father sexually molested and physically abused him. Additionally, appellant was
molested by another adolescent and another male adult. Appellant was born with a
diagnosis of minimal brain damage and suffered seizures resulting from an accidental,
self-inflicted gunshot wound to the temporal lobe of his brain. As an adolescent appellant
underwent a double mastectomy due to abnormal male breast development.
Appellant had a history of extensive drug abuse, and had attempted suicide on
numerous occasions.
As to his criminal history, appellant had a history of sexually molesting young
boys from the time he was 15 or 16 years old. In 1967 appellant was placed at
Atascadero State Hospital for a period of observation. He was found to be a mentally
disordered sex offender who was not amenable to treatment, and who posed a risk to the
health and safety of others. Dr. Miccio-Fonseca stated that appellant's records showed
that he had been committed to the Atascadero Hospital again in 1970 and in 1980.
Dr. Miccio-Fonseca testified that, during her interviews with appellant, he stated
he did not feel he needed to do anything to prevent future incidents of sexual behavior
with children because he did not feel he was harming children. Appellant stated that he
felt he was "giving" something to the children he had molested and he thought of them as
his sons. In Dr. Miccio-Fonseca's opinion, appellant was a pedophile and posed a high
risk of reoffending.
Dr. Malone, a licensed psychologist, interviewed appellant and reviewed records
regarding appellant's history. He also provided testimony regarding appellant's mental,
physical, social and criminal history. Dr. Malone was of the opinion that appellant was a
pedophile and posed a "very high" risk of reoffending.
4.
I.
CONSTITUTIONALITY ISSUES
Appellant contends that the SVPA violates the ex post facto, equal protection,
double jeopardy and due process clauses of the U. S. and California Constitutions. The
California Supreme Court case of Hubbart v. Superior Court (1999) 19 Cal.4th 1138
[Hubbart] addressed and rejected the ex post facto, due process and equal protection
arguments. "[T]he Act was crafted with relevant constitutional concerns in mind. We
find no merit in Hubbart's claim that the scheme conflicts, on its face, with due process,
equal protection, and ex post facto principles.…" (19 Cal.4th at pp. 1142-1143.)
A.
The SVPA Is Not Ex Post Facto Legislation
Hubbart addressed and rejected the contention that "to the extent the statutory
scheme permits the commitment determination to be based on sexually violent offenses
'committed … before [its] effective date,' it offends the ex post facto clauses of the
federal and state Constitutions by altering the consequences of criminal behavior after the
fact. [Citation.]" (Hubbart, supra, 19 Cal.4th at p. 1170.) "Hubbart has not
demonstrated that the SVPA imposes punishment or otherwise implicates ex post facto
concerns. We therefore decline to invalidate the statutory scheme insofar as it permits use
in the civil commitment determination of sexually violent offenses committed before the
effective date of the Act." (Id. at p. 1179.)
B.
The SVPA Does Not Deprive a Defendant of Due Process of Law
In order to be a sexually violent predator, one must have a "diagnosed mental
disorder." (§ 6600, subd. (a).) Appellant argues that a civil commitment deprives the
committed person of due process of law unless the committed person suffers from a
"mental illness." This same argument was made and rejected in Kansas v. Hendricks
(1997) 521 U.S. 346, and again in Hubbart, supra, 19 Cal.4th at page 1170. The Hubbart
court stated: "According to Hendricks, civil commitment is permissible as long as the
5.
triggering condition consists of a 'volitional impairment rendering [the person] dangerous
beyond their control.' [Citation.] The court made clear that due process does not dictate
the precise manner in which this 'volitional impairment' is statutorily described. 'Indeed,
we have never required state legislatures to adopt any particular nomenclature in drafting
civil commitment statutes.' [Citation.] [¶ ]…[¶ ] Following the lead of the United States
Supreme Court, we reject Hubbart's challenge to the SVPA based on the lack of an
express 'mental illness' requirement. Section 6600, subdivision (a) requires a 'diagnosed
mental disorder,' whereas the Kansas law refers interchangeably to 'mental abnormality'
and 'personality disorder' as conditions triggering commitment as a sexually violent
predator. [Citation.]" (Hubbart, supra, 19 Cal.4th at pp. 1156-1157.)
C.
The SVPA Does Not Deprive a Defendant of Equal Protection of the
Laws
Appellant contends that the SVPA violates the equal protection clauses of the U. S.
and California Constitutions because it subjects incarcerated persons to civil commitment
on the basis of a personality or adjustment disorder, whereas a non-incarcerated
individual cannot be committed on this basis under another California civil commitment
law, the Mentally Disordered Offenders law ("MDO law"; Pen. Code, § 2960 et seq.).
This argument was addressed and rejected in People v. Buffington (1999) 74 Cal.App.4th
1149, and we reject it again here.
D.
The SVPA Noes Not Put a Defendant Twice in Jeopardy
The Fifth Amendment to the U. S. Constitution states in pertinent part "nor shall
any person be subject for the same offense to be twice put in jeopardy of life or limb …."
This constitutional protection has been held to be applicable to the states through the due
process clause of the Fourteenth Amendment. (Benton v. Maryland (1969) 395 U.S. 784,
794; in accord, see also People v. Fields (1996) 13 Cal.4th 289, 297.) Article 1, section
15 of the California Constitution similarly provides that "[p]ersons may not twice be put
6.
in jeopardy for the same offense …." Appellant correctly concedes that these
constitutional provisions protect against "a second prosecution for the same offense
following an acquittal or conviction" and against "multiple punishment for the same
offense." (People v. Bright (1996) 12 Cal.4th 652, 660.) He argues that "like the ex post
facto issue, the double jeopardy issue turns on the punitive nature of the Act." As the
U.S. Supreme Court said in Kansas v. Hendricks, supra, about the Kansas Sexually
Violent Predator Act, "commitment under the Act is not tantamount to 'punishment,'" and
thus "Hendrick's involuntary detention does not violate the Double Jeopardy Clause, even
though that confinement may follow a prison term." (Kansas v. Hendricks, supra, 117
S.Ct. at p. 2086.) In Hubbart, our own California Supreme Court concluded that
California's SVPA "does not impose liability or punishment for criminal conduct .…"
(Hubbart, supra, 19 Cal.4th at p. 1175.) Hubbart was addressing the ex post facto issue
and not the double jeopardy issue but, as appellant concedes, a determination that the
SVPA does not impose "punishment" dooms his double jeopardy argument as well.
California's SVPA "cannot be meaningfully distinguished for ex post facto purposes from
the Kansas scheme considered in Hendricks." (Hubbart, supra, 19 Cal.4th at p. 1175.) It
thus cannot be meaningfully distinguished for double jeopardy purposes either.
II.*
EVIDENCE OF THE CONSEQUENCES OF A "TRUE" FINDING
Appellant contends the court erred in permitting Dr. Micco-Fonseca and Dr.
Maloney to testify about the consequences of a jury's "true" finding on the issue of
whether a defendant in an SVPA case is a sexually violent predator. We agree.
Under the SVPA "[t]he court or jury shall determine whether, beyond a reasonable
*
See footnote ante, page 1.
7.
doubt, the person is a sexually violent predator." (§ 6604.) "'Sexually violent predator'
means a person who has been convicted of a sexually violent offense against two or more
victims for which he or she received a determinate sentence and who has a diagnosed
mental disorder that makes the person a danger to the health and safety of others in that it
is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd.
(a).) In the present case the parties stipulated that appellant was a person who had been
convicted of a sexually violent offense against two or more victims for which he received
a determinate sentence. The jury was advised of this stipulation. The court therefore
instructed the jury: "It is the People's burden to prove that: one, the Defendant has a
diagnosed mental disorder and, two, such disorder makes Defendant a danger to the
health and safety of others in that it is likely that he will engage in sexually violent
criminal behavior." The consequences of a "true" finding have no relevance to either of
these issues.
Respondent does not attempt to explain how this evidence was relevant to any
issue in the case. Instead, respondent argues that because SVPA proceedings are civil and
not criminal in nature, the "rules of evidence in criminal cases" do not apply. However
the rule as stated in Evidence Code section 351, that only relevant evidence is admissible,
applies to all cases, not just in criminal cases where "evidence of punishment is generally
irrelevant to the question of guilt …." (People v. Alvarez (1996) 49 Cal.App.4th 679,
687.)
The more important issue, however, is whether this error requires reversal of the
judgment. In our view, it does not. "A verdict or finding shall not be set aside, nor shall
the judgment or decision based thereon be reversed, by reason of the erroneous admission
of evidence unless: … the error or errors complained of resulted in a miscarriage of
justice." (Evid. Code, § 353.) "No judgment shall be set aside, or new trial granted, in
any cause, on the ground … of the improper admission or rejection of evidence, …
8.
unless, after an examination of the entire cause, including the evidence, the court shall be
of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal.
Const., Art. 6, § 13.) In civil cases, a miscarriage of justice should be declared only when
the court, after an examination of the entire cause, including the evidence, is of the
opinion that it is reasonably probable that a result more favorable to the appealing party
would have been reached in the absence of the error. (Pool v. City of Oakland (1986) 42
Cal.3d 1051, 1069.) This is the same standard of review utilized for reviewing the
erroneous admission of evidence in a criminal case. (See People v. Watson (1956) 46
Cal.2d 818, 836; People v. Cahill (1993) 5 Cal.4th 478, 501; and People v. Breverman
(1998) 19 Cal.4th 142, 173-174.) In the present case, we see no such reasonable
probability of a more favorable result to appellant, and thus no miscarriage of justice.
First, and foremost, the evidence that appellant was a sexually violent predator was
undisputed. Two experts testified that he had a diagnosed mental disorder of pedophilia
and that he was likely to reoffend.
Second, the testimony about the consequences of a "true" finding was relatively
brief and was presented as a result of a juror's expressed concern that a "true" finding
would result in sending the defendant not to a hospital but to prison even though appellant
was not charged with any crime. Dr. Micco-Fonseca was asked what would happen if the
jury found appellant to be a sexually violent predator. She responded “He will receive a
civil commitment to a psychiatric facility and receive treatment there.” She added that
“[I]t’s my understanding that it’s subject to review every two years.” She also testified
briefly about the type of treatment she would expect appellant to receive at the psychiatric
facility. Dr. Malone gave similar testimony.
Third, the court instructed the jury: "In your deliberations do not discuss or
consider the subject of penalty or punishment. That subject must not in any way affect
your verdict." The prosecutor did mention in his closing argument that a true finding
would result in the defendant being "placed in a locked facility where he is to receive
9.
treatment." But he also stated in his argument: "You are not being asked to conclude
what is going to happen to Mr. Rains. You are not being asked to conclude what should
happen to Mr. Rains. And as soon as you begin to think that you are being asked to decide
what should happen to him, you have stepped out of your function as jurors. Maintain
your function as jurors to determine whether or not Mr. Rains is a sexually violent
predator. That is your sole function. It is not your function to decide what should happen
to him."
Fourth, appellant presented virtually no defense. He called no witnesses. His trial
counsel’s closing argument consisted of an argument that the jury could not make a “true”
finding unless the jury found beyond a reasonable doubt that appellant would in fact
reoffend (i.e., a misstatement of the standard of proof to be applied by the jury), and an
argument that the defendant should not be “detained” in a hospital because he hadn’t
“done anything wrong.”
Appellant relies on this court's opinion in People v. Allen (1973) 29 Cal.App.3d
932. In Allen the trial court erroneously permitted the introduction of evidence of the
treatment defendant Allen would receive if the jury found him to be a mentally disordered
sex offender ("MDSO"). However, the court pointed out that "the evidence on the issue
of whether appellant was an [MDSO] is close" and "[t]wo psychiatrists testified that he fit
the definition, and two testified that he did not." (29 Cal.App.3d at p. 934.) Furthermore,
in Allen the district attorney utilized the improper evidence in his argument to argue that
if the defendant were not found to be an M.D.S.O., he would go to jail, then come out and
possibly reoffend and that "'the only way we can give him help is by this proceeding.'" (29
Cal.App.3d at p. 934.) This was done even though "[n]owhere do the statutory provisions
refer to the question of whether the person could benefit by treatment in a state hospital as
being one for the jury's determination …." (29 Cal.App.3d at p. 935.) In contrast, the
deputy district attorney in the present case told the jurors "[I]t is not your function to
10.
decide what should happen to" appellant. Under these circumstances, we cannot
conclude that there was a miscarriage of justice.
III.
THE "REASONABLE DOUBT" INSTRUCTION DID NOT
DEPRIVE APPELLANT OF DUE PROCESS OF LAW
The court instructed the jury as follows: "It is the People's burden to prove that the
Defendant is a sexually violent predator beyond a reasonable doubt. The definition of a
sexually violent predator will be given in these instructions. In a case of reasonable doubt
the Defendant is entitled to a verdict that the allegation that he is a sexually violent
predator is not true.
Reasonable doubt is defined as follows: It is not a mere possible doubt because
everything relating to human affairs is open to some possible or imaginary doubt. It is
that state of the case which, after the entire comparison and consideration of all the
evidence, leaves the minds of the jurors in that condition that they cannot say they feel an
abiding conviction of the truth of the allegation that the Defendant is a sexually violent
predator." The court gave this instruction because the SVPA states "[t]he court or jury
shall determine whether, beyond a reasonable doubt, the person is a sexually violent
predator.…" (§ 6604.) The instruction was patterned after CALJIC No. 2.90 (1994
Revision), the instruction utilized in criminal cases. The only difference here was that the
instruction ended with the words "of the truth of the allegation that the Defendant is a
sexually violent predator," whereas in criminal cases the instruction ends with "of the
truth of the charge." Appellant argues that this instruction "is insufficient to sustain a
criminal conviction" and that the instruction "permitted the jury to convict appellant on a
standard lower than that compelled by federal constitutional due process." The short
answer to this argument is that there has been no criminal conviction. Appellant was
civilly committed.
11.
Even if we assume that proof beyond a reasonable doubt is constitutionally
required in a civil commitment matter such as this one, this court held in People v. Light
(1996) 44 Cal.App.4th 879, that CALJIC 2.90 (1994 Revision) adequately conveys the
requisite level of certainty a jury must reach when finding allegations to have been proven
beyond a reasonable doubt. Light is dispositive here. We also note that many other
published opinions are in accord. (See People v. Torres (1996) 43 Cal.App.4th 1073,
1077-1078; People v. Tran (1996) 47 Cal.App.4th 253, 262-263; People v. Hurtado
(1996) 47 Cal.App.4th 805, 815-186; People v. Carroll (1996) 47 Cal.App.4th 892, 895896; People v. Barillas (1996) 49 Cal.App.4th 1012, 1022; People v. Godwin (1996) 50
Cal.App.4th 1562, 1571-1572; People v. Sanchez (1997) 58 Cal.App.4th 1435, 1451;
People v. Haynes (1998) 61 Cal.App.4th 1282, 1298-1300; People v. Cochran (1998) 62
Cal.App.4th 826, 833; People v. Gonzalez (1998) 64 Cal.App.4th 432, 451; People v.
Craig (1998) 65 Cal.App.4th 1082, 1093; People v. Miller (1999) 69 Cal.App.4th 190,
213-214.)
IV.
A CIVIL COMMITMENT UNDER THE SVPA LASTS
FOR TWO YEARS FROM THE DATE OF COMMITMENT
The trial court's May 1998 order amended its April 1997 commitment order. The
April 1997 order had stated in pertinent part that "[t]he commitment is a two (2) year
commitment to expire on September 20, 1998."
The May 1998 amended order stated instead that "[t]he commitment is a two (2)
year commitment to expire on April 22, 1999." The April 1997 order had given appellant
what the court described as "credit for time served."2 The May 1998 amended order did
2
The record on appeal does not explain how the court calculated what it called
“credit for time served.” We do not know when appellant’s term of incarceration for his
most recent crime expired.
12.
not. The May 1998 amended order issued after a hearing on the question of the correct
length of the commitment. The hearing apparently resulted from an April 23, 1998, letter
the court received from a Mr. or Dr. Bukowski, the Chief of the Sexually Violent Predator
Unit of the Department of Health. That letter is not part of the record on appeal, although
the court mentioned it at the May 18, 1998, hearing which immediately preceded the
issuance of the amended order. The court stated that about a week prior to the May
hearing, the court had called both counsel into chambers and had called Bukowski.
Bukowski referred the court to a Mr. Slavin in the Attorney General's office. Mr. Slavin
called their attention to section 6604.1, an amendment to the SVPA. Section 6604.1 took
effect on April 14, 1998, and states in pertinent part:
"(a) The two-year term of commitment provided for in Section 6604
shall commence on the date upon which the court issues the initial order of
commitment pursuant to that section. The two-year term shall not be
reduced by any time spent in a secure facility prior to the order of
commitment. For subsequent extended commitments, the term of
commitment shall be from the date of the termination of the previous
commitment."
Section 6604.1 was enacted as section 5 of Statutes of 1998, chapter 19 (Sen. Bill
536). Section 10 of that same legislation stated:
"The Legislature finds and declares that the provisions of Article 4
(commencing with Section 6600) of Chapter 2 of Part 2 of Division 6 of the
Welfare and Institutions Code establish a civil mental health commitment
for a period of two years for persons found to be sexually violent predators
and that, consistent with a civil mental health commitment, credits that may
reduce a term of imprisonment are not applicable. Accordingly, the
legislature finds and declares that Section 5 of this act, which adds Section
6604.1 to the Welfare and Institutions Code, does not constitute a change
in, but is declaratory of existing law."
The "existing law" referred to in Statutes 1998, chapter19, section 10, is found in
section 6604, which states:
13.
"The court or jury shall determine whether, beyond a reasonable
doubt, the person is a sexually violent predator. If the court or jury is not
satisfied beyond a reasonable doubt that the person is a sexually violent
predator, the court shall direct that the person be released at the conclusion
of the term for which he or she was initially sentenced, or that the person be
unconditionally released at the end of parole, whichever is applicable. If
the court or jury determines that the person is a sexually violent predator,
the person shall be committed for two years to the custody of the State
Department of Mental Health for appropriate treatment and confinement in
a secure facility designated by the Director of Mental Health, and the person
shall not be kept in actual custody longer than two years unless a
subsequent extended commitment is obtained from the court incident to the
filing of a new petition for commitment under this article or unless the term
of commitment changes pursuant to subdivision (e) of Section 6605. Time
spent on conditional release shall not count toward the two-year term of
commitment, unless the person is placed in a locked facility by the
conditional release program, in which case the time in a locked facility shall
count toward the two-year term of commitment. The facility shall be
located on the grounds of an institution under the jurisdiction of the
Department of Corrections."
Appellant's argument to the trial court was "I think the  the issue of whether or
not this statute is declaratory or, in fact, does  does change the law as it was  existed,
in April of '97, I think is something for the appellate court to determine and not just letter
writing by the Department of Mental Health or the Attorney General's office." On this
appeal he contends that the words "actual custody" in section 6604 include precommitment time spent in actual custody, and not just the time spent in "actual custody"
following the two-year commitment referred to earlier in the same sentence. An appellate
court, specifically the Fourth District, Division Two, of the Court of Appeal, has
determined the issue. In People v. Ward (1999) 71 Cal.App.4th 368, the court concluded
that the Legislature meant what the Legislature has now said it meant  that the "actual
custody" of "two years" referred to in section 6604 does not include any precommitment
time in custody. We agree with Ward.
The construction given by appellant to the section 6604 words "actual custody"
and the construction given by respondent to those same words were both plausible, at
14.
least prior to the 1998 legislation. But with the 1998 legislation the Legislature clarified
what its intent had been in enacting section 6604. It is perfectly permissible for the
Legislature to amend the SVPA, or any other law, to clarify what was intended when the
original legislation was enacted. Often this is done by amending the statute being
clarified. "While an intention to change the law is usually inferred from a material
change in the language of the statute [citations], a consideration of the surrounding
circumstances may indicate, on the other hand, that the amendment was merely the result
of a legislative attempt to clarify the true meaning of the statute." (Martin v. California
Mut .B. & L. Assn. (1941) 18 Cal.2d 478, 484; in accord, see also Williams v. Garcetti
(1993) 5 Cal.4th 561, 568, and American Psychometric Consultants, Inc. v. Workers'
Comp. Appeals Bd. (1995) 36 Cal.App.4th 1626, 1643.) "Theoretically, changes of this
sort do not result in retroactive application at all, but merely clarify what is already in
existence.…" (Id. at p. 1643.) In the present case the Legislature clarified the meaning of
the words "actual custody" in section 6604 not by amending section 6604, but by enacting
new section 6604.1. The result is the same.
Appellant's argument that he has a due process right to credit for time served prior
to the commitment order is without merit. None of the authorities he cites so holds. One
of them, Wolff v. McDonnell (1974) 418 U.S. 539, comes close to saying just the
opposite. "[T]he Constitution itself does not guarantee good-time credit for satisfactory
behavior while in prison." (Id. at p. 557.) Wolff held that when a state has created a
statutory right to good time credit for prisoners, that credit cannot be taken away from a
prisoner as punishment for misconduct without providing him due process of law. "But
here the State itself has not only provided a statutory right to good time but also specifies
that it is to be forfeited only for serious misbehavior. Nebraska may have the authority to
create, or not, a right to a shortened prison sentence through the accumulation of credits
for good behavior, and it is true that the Due Process Clause does not require a hearing 'in
every conceivable case of government impairment of private interest.' [Citation.]" (Ibid.)
15.
Thus, there was no right for him to be deprived of either with or without due process of
law.
DISPOSITION
The judgment is affirmed.
_____________________
Cornell, J.*
WE CONCUR:
_____________________
Thaxter, Acting P.J.
_____________________
Harris, J.
*
Assigned by the Chairperson of the Judicial Council.
16.