People v. SUPERIOR COURT (HENRY)

Opinion

GILBERT. J.

Here we hold that where a person has been committed as a mentally disordered sex offender (MDSO), the maximum term of commitment under Welfare and Institutions Code

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section 6316.1 does not run while the person is on outpatient status. We grant the People’s petition for a writ of mandate.

Facts

Charles Edward Henry was convicted of one count of child molestation (Pen. Code, § 288, subd. (a)), and committed to Atascadero State Hospital as

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a mentally disordered sex offender on May 19, 1977. The maximum term of commitment was four years. (§ 6316.1.)

Henry had served all but five months and eighteen days of the maximum term in actual custody, when he was released from Atascadero as an outpatient on July 17, 1980, on the conditional release program. (Pen. Code, § 1600 et seq.) Since that date there have been annual review hearings at which Henry’s outpatient status had been renewed. (Pen. Code, § 1606.) The last annual review hearing was held in February of 1992.

A progress report hearing was held on September 1 and 10 of 1992. At that hearing Henry made a motion to terminate his commitment on the ground that the court had lost jurisdiction. Henry’s theory was that the four-year maximum term of commitment had long since run (former § 6316.1), and the People had failed to petition the court to extend the commitment pursuant to section 6316.2.

The trial court granted the motion to terminate the commitment. The court stated its view that the maximum period of incarceration runs while the MDSO is on outpatient status as well as while he is incarcerated. The court also noted the substantial difference between a renewal of outpatient status pursuant to Penal Code section 1606 and an extension of the MDSO commitment pursuant to section 6316.2.

The People seek review by writ of mandate or prohibition.

Discussion