People v. Richard

Opinion

KINGSLEY, J.

—Darrell Ray Richard appeals from the judgment entered upon his conviction by plea of guilty to assault with intent to commit rape

[561]

(Pen. Code, § 220, count IV) and assault with a deadly weapon (Pen. Code, § 245, subd. (a), count VI), and upon his admission that he personally used a knife in the commission of count IV (Pen. Code, § 12022, subd. (b)). He was sentenced to eight years in state prison upon resumption of criminal proceedings following return from a commitment as a mentally disordered sex oífender (MDSO), and contends: “[I.] The appellant has been denied due process of law, in that the court abused its discretion in the imposition of sentence. [II.] The appellant is entitled to good conduct and participation credits for the presentence time he spent in the state hospital as a mentally disordered sex offender.”

The record establishes that on October 5, 1980, appellant followed Paula F. to the laundry room of her apartment building, where he shut the door, turned off the lights, pulled down his pants, held a knife to her neck and threatened to kill her if she did not remove her clothing. He permitted her to return to her apartment when she told him she would give him money so he could go to a prostitute. On October 7, 1980, appellant followed Barbara F. into the elevator at her apartment building. He pushed a button to stop the elevator and approached Ms. F., who screamed and kicked him. He then pulled a knife. After Ms. F. struggled with him and grabbed the knife, appellant left the elevator. Ms. F. sustained three lacerations on her hand which required stitches. The probation report indicated that appellant identified himself as “Roger Hansen” upon his apprehension by police.

Following appellant’s plea of guilty on March 19, 1981, pursuant to a negotiated settlement, criminal proceedings were adjourned and MDSO proceedings were initiated. Upon a finding that appellant was an MDSO who would benefit from care and treatment in a state hospital, he was ordered placed in such hospital pursuant to former Welfare and Institutions Code section 6316 for a maximum period of eight years.

On July 15, 1983, appellant waived his rights to contest his return under Welfare and Institutions Code section 6325, and criminal proceedings were resumed. Following an evaluation pursuant to Penal Code section 1203.03 and the preparation of two supplemental probation reports, the court, also taking into consideration a report from the Pleasant Run School which appellant had attended, sentenced appellant to eight years in state prison, stating: “For Count [IV], 220 P.C., the defendant will be sentenced to the State Prison for the base term of 72 months, six years, high term.