People v. Robinson

74 Cal.Rptr.2d 52 (1998) 63 Cal.App.4th 348 The PEOPLE, Plaintiff and Respondent,

v.

Jesse ROBINSON, Defendant and Appellant.

No. B107563. Court of Appeal, Second District, Division Six.

April 20, 1998. Kent Douglas Baker, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General, Kent J. Bullard, Deputy Attorney General, for Plaintiff and Respondent.

STEVEN J. STONE, Presiding Justice.

Jesse Robinson appeals the trial court's judgment finding him to be a mentally disordered offender (MDO) pursuant to Penal Code section 2962 et seq.[1] We affirm on the ground the MDO statutory scheme is civil and does not violate the ex post facto clauses of the federal and state Constitutions.

Appellant was convicted of two counts of involuntary manslaughter. (§ 192, subd. (b).) He was sentenced to state prison and eventually paroled. After appellant violated his parole, the Board of Prison Terms (BPT) determined he met the statutory MDO criteria. (§ 2962.) He was remanded to Atascadero State Hospital. A court trial was conducted to review the BPT's determination. (§ 2966, subd. (b).) The court upheld the BPT's decision.

[53] Appellant contends the trial court erred by denying his motion, arguing that the application of the MDO law violated the federal and state ex post facto clauses. He bases his contention on the date of his underlying offenses—January 16, 1989—which was during the period after the MDO statutory scheme was declared unconstitutional in People v. Gibson (1988) 204 Cal.App.3d 1425, 252 Cal.Rptr. 56 (Gibson) and before the Legislature amended the statutes effective July 1989 to comply with Gibson. Appellant argues there was no valid MDO statute in existence at the time of his offenses. He states that retroactively applying the amended, post-Gibson statutory scheme increases the punishment for his offenses beyond the punishment available when his offenses were committed. (People v. McVickers (1992) 4 Cal.4th 81, 84, 13 Cal.Rptr.2d 850, 840 P.2d 955.)