Jobinger

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…