Sanderson

Appellant Sanderson was charged in the superior court with burglary (Pen. Code, § 459) and forcible rape (Pen. Code, § 261, subd. (2)). In the course of a plea bargain he pleaded guilty to the rape charge; as a condition of the bargain, the burglary charge was dismissed. Criminal proceedings were then adjourned and two psychiatrists were appointed to examine appellant for the purpose of determining whether or not he was a mentally disordered sex offender (MDSO) and amenable to treatment.

At the hearing on the reports, the matter was submitted on the two written commentaries after appellant waived his right to examine the physicians. The court indicated it had read the reports, which were in conflict, and found them inconclusive. The court agreed that appellant had serious problems and found that he constituted a substantial danger to the community. However, the court determined that appellant was not an MDSO and ordered criminal proceedings be resumed.

*823 At the subsequent sentencing, appellant was sentenced to state prison for the upper base term of eight years (Pen. Code, § 264).

Appellant now argues that his sentence to state prison must be reversed because the…