Cruz

*650 Opinion

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 Code, § 6300 et seq., repealed by Stats. 1981, ch. 928, § 2, p. 3485, eff.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…

I respectfully dissent from the views expressed in part II of the majority opinion and from the portion of this court’s order granting Cruz the 303 days of conduct credit under Penal Code 1 section 2931 for time he spent in Patton as an MDSO. In my view, this court is bound by California Supreme Court precedent to deny the credit. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456 [ 20 Cal.Rptr. 321 , 369 P.2d 937 ].)

*653 Persons such as Cruz, committed as MDSOs before the effective date of the repeal of the MDSO provisions, January 1, 1982, remain subject to continued application of the former MDSO law even after its repeal. (Stats. 1981, ch. 928, § 3; Baker v. Superior Court (1984) 35 Cal.3d 663, 666-668 [ 200 Cal.Rptr. 293 , 677 P.2d 219 ].) The Supreme Court has held former MDSO law does not permit, and principles of equal protection do not require, a court to grant conduct credits for time in the MDSO treatment program. (People v. Saffell (1979) 25 Cal.3d 223, 233-235 [ 157 Cal.Rptr. 897 , 599 P.2d 92 ]; People v. Sage (1980) 26 Cal.3d 498, 506-507 [ 165 Cal.Rptr. 280 , 611 P.2d 874 ].) Since Saffell and Sage , there has been no legislation,…

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, born 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…