Brunner

In 1979, appellant was convicted on his guilty plea of one count of lewd and lascivious acts upon the body of a child under age 14 (Pen. Code, § 288). In 1980, criminal proceedings were suspended and appellant was committed to Atascadero State Hospital as a mentally disordered sex offender (MDSO) under former Welfare and Institutions Code section 6300 et seq. In 1982, appellant was returned from Atascadero and the trial court found he remained dangerous but was unamenable to further treatment. Criminal proceedings were reinstated and appellant was sentenced to prison for the four-year middle base term, with actual time credits, but not conduct credits, for the period spent in state hospital.

In People v. Sage (1980) 26 Cal.3d 498 [ 165 Cal.Rptr. 280 , 611 P.2d 874 ], the Supreme Court held no equal protection violation occurred in the denial of conduct credits to a person in appellant’s position for the period of his treatment as an MDSO. (Id., pp. 506-507.) Sage relied on People v. Saffell (1979) 25 Cal.3d 223 [ 157 Cal.Rptr. 897 , 599 P.2d 92 ], which found no equal protection violation in the denial of in-hospital conduct credits to reduce an MDSO’s maximum term of…