People v. Cowsar

Opinion

BROWN (H. C.), J.

Appellant was charged with murder (Pen. Code, § 187) on May 18, 1971. The criminal proceedings were suspended on June 17, 1971, on the court’s own motion and proceedings under Penal Code section 1368 were instituted for a determination of appellant’s sanity. On November 1, 1971, the court found appellant to be insane and committed him to the Atascadero State Hospital. On April 18, 1973, the court found that appellant had regained his sanity. Thereafter, appellant pled guilty to murder of the second degree. From the time appellant was arrested until the time he was sentenced, he spent approximately two years in custody. He received credit of 273 days for the period of pretrial custody. The sole contention on this appeal is that the court erred in not crediting on his sentence the time he spent at Atascadero. Appellant argues that to fail to construe Penal Code section 2900.5 to include this time would be a denial of equal protection and a violation of the prohibition against double jeopardy. We agree that he should receive credit for the time spent in the state hospital.

Section 2900.5, added to the Penal Code in 1971, provides for a mandatory credit to his sentence of all time spent by a defendant “in custody in any city, county, or city and county jail.” The question of

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whether a defendant must also be credited with time spent in a hospital upon a finding of insanity pursuant to Penal Code section 1368 has not been considered in California. The question, or one closely related, has been considered, however, in other jurisdictions and resolved in favor of the defendant. (See, e.g.,

People

v.

Noble

(1961) 28 Misc.2d 646 [216 N.Y.S.2d 541];

State

v.

Ewell

(1964) 234 Md. 56 [198 A.2d 275, 277];

In re Stearns’ Petition