LEWIS, J. 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 Code1 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, intermediate appellate decision, or Supreme Court action overcoming the precedential force of those cases.
On the matter of legislative changes since Saffell and Sage, it has been postulated indicia of legislative intent to grant the conduct credit to MDSOs emerged from a statute setting up a voluntary experimental treatment program for child molesters and violent sex offenders during their last two years in prison (§ 1364) and from a change in the law pertaining to narcotic addict civil commitments to the California Rehabilitation Center (CRC). (Welf. & Inst. Code, § 3201, subd. (c).) Both legislative enactments included provisions enabling persons in the particular program to earn conduct credits. People v. Jobinger (1984) 153 Cal.App.3d 689 [200 Cal.Rptr. 546], followed by People v. Richard (1984) 161 Cal.App.3d 559 [207 Cal.Rptr. 715], in essence considered such law changes as having the effect of putting MDSOs in the same class as narcotic addicts in CRC. Thus, Jobinger and Richard concluded MDSOs get the conduct credit based on principles of equal protection. Because the law changes pertain to persons who are not “by reason of mental defect, disease, or disorder . . . predisposed to the commission of sexual offenses to such a degree that [they are] dangerous to the health and safety of others” (Welf. & Inst. Code, § 6300), i.e., persons who are not MDSOs, I submit those changes have no significance to MDSOs who are in a class by themselves.
It is readily apparent Jobinger (and Richard) holds directly to the contrary of Saffell and Sage. Jobinger, moreover, reached a result exactly the opposite to a decision of the same court in People v. Brunner (1983) 145 Cal.App.3d 761 [195 Cal.Rptr. 361], which denied the conduct credit on Brunner’s prison sentence after he spent about two years in hospital treatment as an MDSO. Brunner argued for the credit based on equal protection principles formulated from the Legislature’s original enactment of section 1364 in the same statute by which it repealed the MDSO law. While Jobinger followed the Brunner rationale pertaining to an equal protection argument based on the original version of section 1364, it nevertheless held contrary to Brunner that Jobinger gets the conduct credit under essentially [654]identical presentencing MDSO treatment circumstances. Brunner and Jobinger are not reconcilable. Brunner is in prison without the benefit of the conduct credit for his MDSO treatment time while Jobinger is there with the conduct credit. Brunner represents precedent for denying the conduct credit to those who were committed and treated as MDSOs before January 1, 1982, and sentenced to prison láter. I would follow Brunner.2
This court, in People v. Jennings (1983) 143 Cal.App.3d 148, 150 [191 Cal.Rptr. 592] (hg. den. Aug. 24, 1983), furnishes additional precedent for withholding the conduct credit from those who have been hospitalized for treatment, then returned to court and sentenced to prison. Jennings, involving sentencing after a treatment program for one found to be not presently sane, followed Saffell and disallowed the conduct credit. In Jennings, this court correctly likened the mentally incompetent defendant committed indeterminately for treatment to an MDSO for purposes of applying the Saffell rationale that the extension or withdrawal of credit as reward or punishment is inconsistent with the goals of a hospital treatment facility. (Ibid.) If the majority now is saying Jobinger is right because of its theory the MDSO, Jobinger, was similarly situated to a narcotic addict committed to CRC, then the majority should explain why the same view did not apply to Jennings’ situation. The principles and results of the two cases are in conflict. The continuing vitality or lack of ongoing validity of Jennings should be discussed. Until Jennings is demonstrated to be wrong, I choose to follow that decision of this court which is consistent with Saffell and Sage. The same goes for Brunner.
The majority’s emphasis on the depublication action of the Supreme Court is interesting. Is the majority saying, in effect, the Supreme Court has cast a judgment the depublished cases are wrong and Jobinger is right? This seems a shaky conclusion in light of the fact the Supreme Court had no petition for hearing before it in Jobinger and denied hearing in both conflicting cases of Richard and Brunner. It is also questionable in view of rule 977(a) of the California Rules of Court which forbids both citing and relying on unpublished opinions. If the Supreme Court believed the opinions which it depublished were wrong, would it not have granted a hearing in at least one of them?
Former Chief Justice Donald R. Wright has been quoted as saying, “ ‘[w]ith few exceptions, the only opinions which are ordered to be non-published are those in which the correct result has been reached by the court [655]of appeal but the opinion contains language which is an erroneous statement of the law and if left on the books would not only disturb the pattern of the law but would be likely to mislead judges, attorneys and other interested individuals.’” (Note (1977) 50 So.Cal.L.Rev. 1181, 1185, fn. 20.)
More recently, Associate Justice Joseph R. Grodin of the California Supreme Court has written “[t]he only consequence of a depublication order is that the opinion is not published in the Official Reports, and is therefore not citable as precedent.” (Grodin, The Depublication Practice in the California Supreme Court (1984) 72 Cal.L.Rev. 514, 522-523.)
Considering the uncertainty of meaning attending an order of depublication, it is difficult to accept the majority’s view there is stare decisis effect to be given to the depublication orders. The fact remains, defendants in the cases depublished with hearing denied are in prison without the benefit of the conduct credit, a result entirely consistent with Saffell, Sage and Brunner. How can we say the depublication orders have a stare decisis effect going the other way?
I share the unspoken concern of my colleagues for evenhanded justice, particularly where the liberty interest is concerned. However, the fact one or two other courts grant a benefit, here the conduct credit, in contravention to what I perceive to be binding Supreme Court precedent, does not justify our following the erroneous rulings. This is a matter of particular concern here because we are dealing with persons adjudicated as dangerous to others.
I would deny the conduct credit to Cruz.
Respondent’s petition for review by the Supreme Court was denied May 16, 1985. Mosk, J., and Lucas, J., were of the opinion that the petition should be granted.
All statutory references are to the Penal Code unless otherwise specified.
In light of the majority’s emphasis upon Supreme Court action short of filing opinions, I point out a petition for hearing before the Supreme Court in the Brunner case was denied September 29, 1983. There was no petition for hearing in Jobinger and petition for hearing in Richard was denied January 30, 1985.