People v. Feagley

But a far worse fate awaited Feagley. Investigation disclosed—as he freely admitted, moreover—that the incident was not the first of its kind. Throughout his life Feagley has periodically experienced a compulsive need to stroke a woman’s hair. On such occasions he has satisfied that need by discreetly approaching girls or young women in public places and caressing or combing their hair, sometimes snipping off a lock with a pair of scissors. Although he has acted without permission, at no time has he used force or threat of force to accomplish his purpose. Yet because of that state of mind and his nonviolent conduct associated with it, Feagley has been confined in California mental hospitals and state prisons for approximately 19 out of the last 33 years of his life.

Only the most recent of these commitments, of course, is before us now. On the basis of the foregoing investigation the court adjourned the criminal proceedings prior to sentencing and instituted the statutory procedure for determining if Feagley was a “mentally disordered sex offender,” and if so, what should be done with him. (Welf. & Inst. Code, § 6300 et seq.)^[36] For present purposes it is not necessary to review the many steps in that procedure.^[37] Nor need we review the evidence in detail. It is enough to observe that at the several court hearings and the jury trial on this issue the expert testimony was closely balanced and in

On one important issue, however, the experts were in full agreement—that in the present state of medical knowledge there is no treatment that will cure or even ameliorate Feagley’s condition. Thus one of the two physicians who examined Feagley at the outset of the proceedings reported to the court, “This man has spent many years in institutions for similar offenses and I doubt very much whether he is amenable to psychiatric treatment.” The other examining physician concurred, stating that “I further doubt the possibility of permanent change at this point in Mr. Feagley’s life.” At the first court hearing on the question both doctors testified unequivocally that Feagley was not amenable to treatment. This prognostication was confirmed by the medical director of Atascadero State Hospital, to whose institution Feagley was thereafter temporarily committed for observation and diagnosis (former § 6316): the Atascadero report advised the court, inter alia, that Feagley “will not benefit by care or treatment in a state hospital” and “This man cannot utilize treatment. ...”

On the basis of the foregoing testimony and reports the court found “that the defendant is a mentally disordered sex offender who will not benefit by care or treatment in a state hospital and that the defendant is a danger to the health and safety of others. ...” The court thereupon ordered that Feagley be committed for an indefinite period to the Department of Mental Hygiene^[38] “pursuant to Sections 6316 and 6326, Welfare & Institutions Code,” and specifically directed that he be delivered into the custody of thé superintendent of the California Medical Facility at Vacaville. It is from this order that Feagley prosecutes the present appeal. (Pen. Code, § 1237, subd. 1.)

We therefore address the merits of the appeal.

We first reaffirm our holding in People v. Burnick, supra, ante, page 306, that the standard of proof beyond a reasonable doubt is required in mentally disordered sex offender proceedings by the California and federal due process clauses. (Cal. Const., art. I, § 7, subd. (a); U.S. Const., 14th Amend.) We shall not repeat that analysis here, but shall show that it applies even more compellingly to a person in Feagley’s class.

A “state hospital” is not further defined in the mentally disordered sex offender law, but elsewhere in the code a number of such hospitals are listed and their function is stated to be “the care and treatment of the mentally disordered.” (§ 7200.) They are, in short, the traditional state mental health hospitals. Of these, it is to Atascadero State Hospital in San Luis Obispo County that virtually all persons found to be mentally disordered sex offenders amenable to treatment are committed. Such a person was the defendant in People v. Burnick, supra, ante, page 306.

A “state institution or institutional unit,” by contrast, is not a hospital. As used in the mentally disordered sex offender law, it is a term of art. An “institutional unit” is defined in broad terms by paragraph 3 of section 6326: “The Director of Mental Hygiene, with the approval of the Director of Corrections and the Director of Finance, may provide on the grounds of,a state institution or institutions under the jurisdiction of the Department of Corrections or the Department of Mental Hygiene one or more institutional units to be used for the custodial care and treatment of mentally disordered sex offenders.” In practice, mentally disordered sex offenders who are committed or recommitted to an “institutional unit” are confined on the grounds of a prison facility under the jurisdiction of the Director of Corrections. Although a number of such facilities exist (Pen. Code, § 5003), the majority of persons found to be mentally disordered sex offenders not amenable to treatment are confined in the California Men’s Colony in San Luis Obispo County.^[40] The California

Surely the loss of freedom suffered by confinement in a unit within the walls of a state prison is even greater than the restrictions accompanying placement in a state hospital. Surely also the odium resulting from imprisonment in the California Men’s Colony is even graver than the impairment of “good name” following commitment to Atascadero. The rationale of Burnick therefore applies a fortiori to the case at bar: the dual consequences of curtailment of liberty and moral stigma which attached to Feagley’s commitment were so serious that he was entitled to the due process safeguard of proof beyond a reasonable doubt of each of the two operative facts resulting in his confinement in the California Men’s Colony, i.e., that he was a mentally disordered sex offender and that he could not “benefit by treatment in a state hospital.” (See In re Winship (1970) 397 U.S. 358 , 363-367 [ 25 L.Ed.2d 368 , 374-377, 90 S.Ct. 1068 ]; Specht v. Patterson (1967) 386 U.S. 605 , 608-610 [ 18 L.Ed.2d 326 , 329-330, 87 S.Ct. 1209 ].)

Contrary to the assumption of the People throughout these proceedings, a person in Feagley’s class—i.e., who is committed to an “institutional unit” on the grounds of a state prison—has no statutory right to a jury trial as a means of reviewing the original order of commitment. Section 6318, the sole provision authorizing such trials, applies by its terms only to a person who is found to be a treatable mentally disordered sex offender and hence is placed “in a state hospital,” thus excluding by negative implication all those who are committed instead to an “institutional unit.”^[6] Nor is there any chance the limitation written into section 6318 is a legislative oversight, as its companion sections are identically limited. Thus pending the trial section 6319 authorizes a stay of all commitment proceedings for placement “in a state hospital.” Section 6321 prescribes the conduct of the trial, and provides that if the jury finds the person is a mentally disordered sex offender the court shall make “an order similar to the

This selective denial of a jury trial is perhaps the most glaring example of legislative discrimination against those mentally disordered sex offenders who are committed to an “institutional unit” rather than a state hospital.^[7] Nevertheless, the unconstitutionality of the jury trial distinction under both the California and federal equal protection clauses is so obvious (see e.g., In re Gary W. (1971) 5 Cal.3d 296 , 304-307 [ 96 Cal.Rptr. 1 , 486 P.2d 1201 ]; Baxstrom v. Herold (1966) 383 U.S. 107 [ 15 L.Ed.2d 620 , 86 S.Ct. 760 ]) that the People do not attempt to defend or enforce it. Feagley was therefore given such a trial despite section 6318 and in obedience to the constitutional mandate of equal protection of the law. (People v. Washington (1969) 269 Cal.App.2d 246 , 251 [ 74 Cal.Rptr. 823 ].)

Some protection, however, is more equal than others. Under the Legislature’s rules of the game, two strikes were called against Feagley before the jury even began to deliberate. At the outset of the trial the prosecutor stressed that the sole question to be submitted to the jury under the terms of section 6318 was whether Feagley was a mentally disordered sex offender.^[8] The court agreed, and ruled that no evidence would be admitted on the issue of whether Feagley could “benefit by treatment in state hospital.” Feagley’s counsel called this ruling “unduly restrictive,” but objected in vain. Thus although Feagley’s initial commitment to an “institutional unit” was predicated under section 6316 on .the court’s findings on two distinct issues—was he a mentally disordered sex offender? If so, could he benefit by treatment in a state hospital?—he was permitted to challenge only one of those equally crucial determinations at his jury trial.

The second setback came at the close of the trial. Feagley submitted an instruction which would have informed the jury that in order to reach a verdict “all twelve jurors must agree to the decision.” The court refused to give the instruction, and instead told the jury that “As this proceeding is governed by the laws relating to civil actions, a verdict may be delivered upon agreement of three-fourths of your number. . . As noted above, the verdict finding Feagley to be a mentally disordered sex offender was agreed to by the bare minimum vote of nine jurors to three.

The court’s authorization for its instruction was section 6321, which provides in relevant part that “if tried before a jury the person shall be discharged unless a verdict that he is a mentally disordered sex offender is found by at least three-fourths of the jury.” We hold that the

First, it violates the provisions of the California Constitution guaranteeing due process of law (art. I, § 7, subd. (a)) and a unanimous jury verdict (art. I, § 16).^[10] It is true that neither of the cited provisions applies by its terms to “civil” actions. But “the California Legislature has recognized that the interests involved in civil commitment proceedings are no less fundamental than those in criminal proceedings and that liberty is no less precious because forfeited in a civil proceeding than when taken as a consequence of a criminal conviction.” (In re Gary W. (1971) supra, 5 Cal.3d 296 , 307.) Moreover, the mentally disordered sex offender proceeding here challenged has all the trappings of a criminal prosecution, together with the worst consequences of the latter.

Thus at the trial level the proceeding was entitled “The People of the State of California vs. Chester Cummings Feagley, Defendant”; it was assigned to the criminal docket, and was heard.by a judge of the criminal division of the superior court. The case against Feagley was presented by the district attorney. (§§ 6320, 6329.) Feagley was entitled to be present at the hearing (§ 6314), to have court-appointed counsel or the services of the public defender (id; see also § 6305), and to compel the attendance of witnesses by subpoena (§ 6313); all such witnesses were “entitled to the same fees and expenses as in criminal cases, to be paid upon the same conditions and in like manner.” (Id.) And pending determination of the issue Feagley had the right to be released on bail. (In re Keddy (1951) 105 Cal.App.2d 215 , 21,8-221 [ 233 P.2d 159 ].)

Similar indicia of the true nature of this proceeding appeared at the appellate level. Both in the Court of Appeal and in this court the case retained its “criminal” title and was given new “criminal” docket numbers. At Feagley’s request, counsel was appointed to represent him on appeal, to be paid by the courts. And the entire cost of the transcripts of the proceedings below was paid by the county.

Having declared a new right to jury trial, however, we felt impelled to add a brief directive concerning its implementation. Finding at hand a convenient analogy to the commitment of mentally disordered sex offenders and civil narcotics addicts, we suggested that the three-fourths verdict procedure prescribed by statute in those programs also be followed injury trials thereafter held under section 1800. (Id. at p. 308.) But we did not decide the question whether that procedure violates the equal protection clauses of the California and federal Constitutions on the ground that unanimous verdicts are required in trials under the LPS Act. Indeed, the question was not even presented to us: it was not raised at the trial level, and was neither briefed nor argued on appeal. It is not our practice to decide constitutional issues by indirection and inference.

Far more important for present purposes is the reasoning of Gary W. Citing leading cases on the law of equal protection, we said (at p. 306 of 5 Cal.3d): “The necessity for a rational distinction among persons whom the law treats differently is of particular importance in the area of involuntary commitment. Although normally any rational connection between distinctions drawn by a statute and the legitimate purpose thereof will suffice to uphold the statute’s constitutionality [citation], closer scrutiny is afforded a statute which affects fundamental interests or employs a suspect classification. [Citations.][^[11] ]In such cases the state bears the burden of establishing both that the state has a compelling interest which justifies the law and that the distinction is necessary to further that purpose. [Citations.]

As noted above, we have likewise characterized the right to a unanimous verdict under the California Constitution as “fundamental.” (People v. Superior Court (1967) supra, 61 Cal.2d 929 , 932.) It follows that under the rule of Gary W. (see also People v. Smith (1971) 5 Cal.3d 313 , 318-319 [ 96 Cal.Rptr. 13 , 486 P.2d 1213 ]) the state must bear the burden of demonstrating there is a compelling interest which justifies this significant distinction between the rights of mentally disordered sex offenders and those of persons committed under the LPS Act, and that the distinction is necessary to further such purpose.

The People make no effort to comply with this rule. At most they attempt to show a “rational basis” for the distinction, and even that venture fails. The People emphasize that the commitment of a mentally disordered sex offender is “first triggered by a criminal conviction,” while a commitment under the LPS Act is not. But as we observed in People v. Burnick, supra, ante, pages 329-330, the criminal offense of which the defendant was convicted need have no relevance at all to the issues subsequently adjudicated in the mentally disordered sex offender proceedings. Moreover, it is clear from Baxstrom and Humphrey that an individual’s status as a prior criminal offender cannot of itself justify a classification denying him the fundamental right of trial by jury in subsequent civil commitment proceedings. For similar reasons it cannot support a denial of his right, no less fundamental under the California Constitution, to a unanimous verdict.

Nor is it relevant that Feagley had already been adjudged a mentally disordered sex offender at the initial commitment hearing. (Cf. In re Franklin (1972) 7 Cal.3d 126 [ 101 Cal.Rptr. 553 , 496 P.2d 465 ].) At that stage of the proceedings Feagley had no statutory right to a jury trial of any kind. (See §§ 6302-6316.) The trial here in issue was therefore his first and only opportunity to present to a juiy the evidence supporting his assertion that he was not a mentally disordered sex offender. At that trial the contrary finding of the judge at the commitment hearing was not

Finally, insofar as commitment procedures under the LPS Act and the mentally disordered sex offender law differ, it would appear that the latter should be encompassed by greater, not lesser, procedural safeguards than the former. The statutes may be contrasted in two principal respects.

First, the standards for commitment are such that it is significantly easier for the state to obtain custody of a person under the mentally disordered sex offender law than under the LPS Act. In the first case the trier of fact need be persuaded only that by reason of mental disorder the person is “predisposed” to commit “sexual offenses” to the extent that he is “dangerous” to others. (§ 6300.) To commit a person for postcertification treatment under the LPS Act, however, it must be established that he “attempted, or inflicted physical harm upon the person of another,” and by reason of mental disorder presents “an imminent threat of substantial physical harm” to others. (§ 5304.) Commitment for a mere “predisposition” to cause harm is obviously a more lenient standard than an actual “attempt” or “infliction” of that harm; and a general showing of “dangerousness” is simpler to make than proof of an “imminent” threat of “substantial” physical injuiy.

Secondly, the standards for release are such that it is much more difficult for a mentally disordered sex offender to obtain his freedom

It follows that in comparison with the procedure under the LPS Act, it is easier to commit a man as a mentally disordered sex offender and harder for him to secure his release. One would therefore expect the procedural safeguards in the latter proceeding to be commensurately greater. Instead, they are substantially lesser, in that the Legislature denies the mentally disordered sex offender the right to a unanimous jury verdict which it grants to a person committed under the LPS Act. This is common sense turned upside down, a discrimination without semblance of rational basis—let alone a compelling state interest, and a wholesale denial of equal protection of the laws under both the California and federal Constitutions.^[15]

Turning from deficiencies in the procedure of adjudication to the substance of the ensuing commitment, we confront grave questions

“The sexual psychopath law was passed by the Legislature because experience had shown that persons who came within the classification of sexual psychopaths were unable to benefit from ordinary penal confinement and were in need of medical treatment.” (People v. McCracken (1952) 39 Cal.2d 336 , 345 [ 246 P.2d 913 ].) Not only is medical treatment the raison d’etre of the mentally disordered sex offender law, it is its sole constitutional justification. It is settled that “A person committed as a mentally disordered sex offender is not confined for the criminal offense but because of his status as a mentally disordered sex offender.” (Italics added.) (In re Bevill (1968) supra, 68 Cal.2d 854 , 858.) It is this very fact which has been held to save the mentally disordered sex offender law from violation of the double jeopardy clause. (In re Keddy (1951) supra, 105 Cal.App.2d 215 , 217.)

But involuntary confinement for the “status” of having a mental or physical illness or disorder constitutes a violation of the cruel and unusual punishment clauses of both the state and federal Constitutions (Cal. Const., art. I, § 17; U.S. Const., 8th & 14th Amends.) unless it is accompanied by adequate treatment. (Robinson v. California (1962) 370 U.S. 660 , 665-667 [ 8 L.Ed.2d 758 , 762-763, 82 S.Ct. 1417 ]; In re Gary W. (1971) supra, 5 Cal.3d 296 , 301; In re De La O (1963) 59 Cal.2d 128 , 136 [ 28 Cal.Rptr. 489 , 378 P.2d 793 , 98 A.L.R.2d 705 ]; Martarella v. Kelley (S.D.N.Y. 1972) 349 F.Supp. 575 , 585, 598-600; People ex rel. Kaganovitch v. Wilkins (1965) 23 App.Div.2d 178 [ 259 N.Y.S.2d 462 , 465-466].) “When patients are so committed for treatment purposes they unquestionably have a constitutional right to receive such individual treatment as will give each of them a realistic opportunity to be cured or to improve his or her mental condition. [Citations.] Adequate and effective treatment is constitutionally required because, absent treatment, the hospital is transformed ‘into a penitentiary where one could be held indefinitely for no convicted offense.’ [Citation.] The purpose of involuntary hospitalization for treatment purposes is treatment and not mere custodial care or punishment. This is the only justification, from a constitutional standpoint, that allows civil commitments to mental institutions . . . .” (Wyatt v. Stickney (M.D.Ala. 1971) 325 F.Supp. 781 , 784, affd. sub nom. Wyatt v. Aderholt (5th Cir. 1974) 503 F.2d 1305 .)^[16]

By contrast, the California cases have made it plain that the mentally disordered sex offender law is designed to serve both such legislative aims, and although confinement thereunder is not “solely” for the protection of society, that is nevertheless its “primary purpose” (In re Bevill (1968) supra, 68 Cal.2d 854 , 858); rehabilitative treatment of the mentally disordered sex offender is, at best, its “secondary purpose” (People v. Levy (1957) 151 Cal.App.2d 460 , 468 [ 311 P.2d 897 ]). To say that confinement is for the “protection of society,” of course, does not insulate it from constitutional inquiry: “One of the reasons society imprisons those convicted of crimes is to keep them from inflicting future harm, but that does not make imprisonment any the less punishment.” (Italics added.) (United States v. Brown (1965) 381 U.S. 437 , 458 [ 14 L.Ed.2d 484 , 497, 85 S.Ct. 1707 ].) The constitutional issue recognized in Gary W. must therefore be confronted.

We find guidance in the succeeding portions of the Gary W. opinion. After pointing out the statutory duty of the Youth Authority to provide treatment for the underlying cause of the ward’s dangerousness, we explained (5 Cal.3d at p. 302): “If the cause is not a physical or mental condition or the condition is not amenable to treatment, the Youth Authority may not extend its control over the ward pursuant to sections 1800-1803.” (Italics added; fn. omitted.) Feagley’s condition, it will be remembered, was specifically found to be “not amenable to treatment” in a state hospital; yet in the very same order he was committed to an institution for custodial care “and treatment.”^[17] It is evident that if the

The appropriateness of this inquiry is further indicated by Gary W. We there concluded (at p. 302) that the statutory scheme for potential long-term confinement of dangerous Youth Authority wards in facilities of the Department of Corrections did not constitute cruel and unusual punishment under Robinson v. California (1962) supra, 370 U.S. 660 , “in the absence of any evidence that persons committed thereunder are incarcerated in penal institutions among the general prison population, or are customarily detained without treatment. . . ,”^[18] The clear two-fold implication of this language is (1) that the effect of a statutory declaration of the right to treatment may be negated by evidence that such treatment is not in fact provided and (2) that in such case the confinement will run afoul of the cruel and unusual punishment clause. In short, “the mere characterization of an act as ‘treatment’ does not insulate it from eighth amendment scrutiny.” (Knecht v. Gillman (8th Cir. 1973) 488 F.2d 1136 , 1139, citing Trop v. Dulles (1958) 356 U.S. 86 , 95 [ 2 L.Ed.2d 630 , 639, 78 S.Ct. 590 ]; Vann v. Scott (7th Cir. 1972) 467 F.2d 1235 , 1240; Inmates of Boys’ Training School v. Affleck (D.R.I. 1972) 346 F.Supp. 1354 , 1366.) Rather, “to be sustained as a nonpenal statute, in its application to the defendant, it is necessary that the remedial aspect of confinement thereunder have foundation in fact. It is not sufficient that the Legislature announce a remedial purpose if the consequences to the individual are penal.” (Commonwealth v. Page (1959) 339 Mass. 313 [ 159 N.E.2d 82 , 85].)

This inquiry is but a specific application of the broader principle that constitutional issues are to be resolved by considerations of substance rather than form. In the first case to reach the United States Supreme Court challenging a sexual psychopath statute the high court admonished that such a law “though ‘fair on its face and impartial in appearance’ may be open to serious abuses in administration” (Minneso

We begin with the first question suggested by Gary W., i.e., whether mentally disordered sex offenders committed to institutional units are “incarcerated in penal institutions among the general prison population.” In response to our request for supplemental briefing of the issue whether such confinement is penal in nature, Feagley advised the court that he was housed in a cell in “D Quad” of the California Men’s Colony, East Facility; that he mingled freely with the general prison population, wore standard prison clothing, worked for wages of a few cents an hour in the prison shop, submitted to full censorship of his mail, and was subject to all prison regulations concerning security. In his reply brief, however, the Attorney General declines to join the issue, neither conceding nor disputing the truth of these assertions; rather, he adopts the position that they involve matters outside the record and hence cannot be considered by us in this proceeding.

Nevertheless, we are certainly not foreclosed from considering the language and effect of a number of statutory provisions bearing directly

The contrast with the penal circumstances surrounding a mentally disordered sex offender committed to an “institutional unit” of a state prison, listed above, is stark indeed. Accordingly, the statutes fully support counsel’s appraisal of the realities of the situation—that under the conditions of confinement which prevail by law at the California Men’s Colony, Feagley was in fact “part and parcel of the mainstream of prison life.”^[21]

On the national level a number of commentators have called attention to the lack of any effective institutional treatment for mentally disordered sex offenders.^[22] The views of only two need be quoted, as they are typical of this consensus. Professor Paul W. Tappan, whose in-depth research on habitual sex offenders led to the enactment of landmark New Jersey legislation on the subject, has summarized his experience as follows: “As compared with other types of psychological and constitutional abnormality, we are peculiarly at a loss in the handling of abnormal sex offenders. Methods of effective treatment have not yet been worked out. The states that have passed special laws on the sex deviate do not even attempt treatment. The ‘patients’ are kept in bare custodial confinement. This point is central to the atrocious policy of those jurisdictions that commit noncriminals and minor deviates for indefinite periods to mental hospitals where no therapy is offered. Most psychiatrists indicate that psychotherapy of some sort should be given to sex offenders, but they are in agreement that professional staffing is not

A recent large-scale study of the problem sponsored by the American Bar Foundation is no less pessimistic: “Sex psychopathy legislation appears to be an example of an. area where the law has assumed a state of medical (and perhaps social) advancement that has not yet been attained, particularly in relation to the question of treatment of the sexual psychopath. At present there is insufficient scientific knowledge to assure meaningful diagnosis and effective treatment—a medical problem greatly aggravated by the sociological one that personnel resources and physical facilities for sexual psychopathic patients are lacking.... In part such failure may be attributed to the lack of an adequate number of trained personnel in these facilities. But the problem appears to go deeper than that: even assuming total adequacy of staff and space resources, serious questions remain about the ability of medical science to cure or substantially improve the vast majority of sexual psychopaths.” (The Mentally Disabled and the Law (Brakel & Rock ed. 1971) p. 352.) In language particularly relevant to the constitutional issue now engaging our attention, the American Bar Foundation study concluded {id. at p. 353) that “certainly in this country, treatment of the sexual psychopath represents an ideal which is not attained in practice. Instances of successful rehabilitation are few and are purchased at the high cost of subjecting certain groups of individuals labeled as sexual psychopaths to prolonged detention without meaningful treatment and hence limited, perhaps questionable, impact on the general public safety. [¶] The lack of treatment constitutes a basic condemnation of the sexual psychopathy laws, since the very philosophy behind, and justification for, such legislation is that sex offenders should be treated rather than punished. Lack of treatment destroys any otherwise valid reason for differential consideration of the sexual psychopath.” (Fns. omitted.)^[23]

A California legislative body has made similar findings. The Subcommittee on Sex Crimes of the Assembly Interim Committee on Judicial System and Judicial Process conducted a thorough investigation of the

With this background we may now focus more sharply on current institutional practices in California. We are fortunate to have recent formal statements of policy by two responsible officials explaining the nature and purpose of the confinement of mentally disordered sex offenders in the California Men’s Colony. The statements are by Dr. Sterling W. Morgan, then medical director of Atascadero State Hospital, and Harold V. Field, then superintendent of the California Men’s Colony.^[26] Dr. Morgan advises (at p. 4) that “A person determined to be a mentally disordered sex offender is considered to be amenable to treatment within the facilities of the Department of Mental Hygiene if he recognizes that he has a problem, indicates a desire for help, and cooperates in treatment programs offered at Atascadero. Such persons are retained at Atascadero State Hospital for treatment of their disorder.

“Conversely, someone who does not think that he has a problem, or who does not want help, or who cannot participate in or benefit from our treatment program because his predisposition towards violence renders him primarily a custodial problem,^[27] is not considered amenable. He is sent back to the superior court as a person who is a mentally disordered sex offender but not amenable to treatment in order that he may either be sentenced as a felony offender or placed in a treatment unit within some facility of the Department of Corrections[^[28] ]as a mentally disordered sex offender.” (Italics added.)

The policy behind this apparent inconsistency is exposed in the diagnostic report on Feagley prepared by Atascadero: after certifying him to be a mentally disordered sex offender, the document recites that “This man cannot utilize treatment but is still a danger to society and should not be provided additional opportunity to victimize others. He should be returned to the criminal court for action. We recommend that he be sentenced for the criminal act if sentencing is mandatory or if he is charged with a felony. [¶] If he is charged with a misdemeanor, I recommend that he be committed to the Department of Mental Hygiene for an indeterminate period and sent to the Reception and Guidance Center, California Medical Facility, Vacaville, California, in compliance with Section 6316 of the Welfare and Institutions Code. . . .” (Italics added.)

This language, which is consistent with the statement of the medical director of Atascadero quoted hereinabove, is revealing in two respects. First, it draws a sharp distinction between two classes of mentally disordered sex offenders: those whose underlying crime was a felony, and those—including Feagley—who were merely misdemeanants. As to the former it recommends sentencing on the criminal charge as an adequate disposition, but as to the latter it does not. The clear implication is that a misdemeanor sentence is deemed too brief, i.e., that it would not keep Feagley behind bars long enough to insure that he never again have an “opportunity to victimize others.” Instead, therefore, the report recommends that he be committed “for an indeterminate period” to an institutional unit provided by section 6316—despite the announced fact that “This man cannot utilize treatment.” The only

The second significant aspect of this portion of the Atascadero report is that apart from the specification of the particular reception-guidance center to which the subject should be delivered, the entire passage quoted above is a printed form,^[31] It follows that the recommendation in Feagley’s case must have been a routine application of a settled institutional policy.^[32] If that policy is likewise followed by the trial courts, one would expect to find a greater proportion of misdemeanants than felons committed to “institutional units” under sections 6316 and 6326. And that is precisely what the official statistics show: during the years 1966 to 1970, 23.9 percent of the mentally disordered sex offenders originating from the lower courts were committed to the California Medical Facility, compared with only 10.6 percent of the superior court cases. (The Mentally Disordered Sex Offender in California (Bureau Crim. Statistics) p. 34.)^[33] That misdemeanant mentally disordered sex offenders are being confined in prison units at more than double the percentage rate of felon mentally disordered sex offenders speaks eloquently of the true nature and purpose of this commitment.^[34]

In April 1970 defendant was convicted of misdemeanor battery (Pen. Code, § 242) following his plea of guilty to that charge. Pursuant to law (Welf. & Inst. Code, § 6302 et seq.)^[36] defendant was certified to the superior court for a hearing to determine whether he was a mentally disordered sex offender (“MDSO”). In May 1970, acting on the basis of psychiatric testimony, the court found that defendant was an MDSO and ordered him committed to Atascadero State Hospital for a period of not more than 90 days, for the purpose of observation, diagnosis and recommendation to the court. (See former § 6316; under a 1970 amendment, the 90-day diagnostic period was deleted from the section.)

Subsequently, in July 1970, Atascadero officials advised the court that defendant was a mentally disordered sex offender who was a danger to the health and safety of others, and that defendant was not amenable to treatment in a state hospital. These officials recommended that defendant be sentenced and, if he were convicted of a misdemeanor, that he be committed for an indeterminate period to the California Medical Facility at Vacaville, for custodial care and treatment at an institutional unit under the jurisdiction of the Department of Corrections. (See §§6316, 6326.)

Thereafter, in October 1970, the court held a second hearing and found that defendant was an MDSO who was a danger to the health and safety of others and who was not amenable to treatment at state hospital. The court, acknowledging defendant’s need for “active involvement” in an institutional treatment program, accepted the recommendation of Atascadero officials that defendant be committed to the California Medical Facility. Thereupon, defendant demanded a jury trial of the question of his status as an MDSO, as provided in section 6318. At the trial of this issue the jury, by a nine to three verdict, found that defendant was an MDSO and once again the trial court ordered defendant committed indefinitely to the California Medical Facility. The record indicates that defendant was retained at this facility for a short time and then transferred to California Men’s Colony in San Luis Obispo County, a state prison

Thus, in the absence of proof that defendant has not received the “care and treatment” to which he is entitled, we must assume that his commitment was, and remained, “civil” in nature.^[37] Accordingly, I would hold that defendant was not entitled to the benefit of the “beyond a reasonable doubt” standard of proof.

2. Lack of Treatment

As I indicate above, a major justification for the indefinite commitment of MDSOs is to provide opportunities for their treatment. The majority maintain that since Feagley was found unamenable to treatment, and has received no treatment, his commitment is in fact a “penal” one. (See Robinson v. California, supra, 370 U.S. 660 , 667, prohibiting punishment of persons solely by reason of their status as addicts.)

First of all, it is clear that defendant has never been found incurable or permanently unamenable to treatment. The trial court’s finding, based upon the report and recommendation of Atascadero officials, was that he was presently unamenable to treatment at a state hospital. As I noted above, the trial court expressly acknowledged the availability of, and need for, treatment at an institutional facility under the jurisdiction of the Department of Corrections. A finding of unamenability at Atascadero, a minimum security hospital, does not preclude a finding of amenability at an institutional facility. (See In re Cruz, supra, 62 Cal.2d 307 ; In re Cathey, supra, 55 Cal.2d 679 .) It should also be noted that an MDSO committed for treatment at an institutional facility might so

Moreover, the present record fails to establish that defendant failed to receive the treatment which, under the law (§§ 6316, 6326), must be provided to him. We must keep in mind that the instant case involves a direct appeal from a judgment of commitment; the facts regarding defendant’s subsequent treatment are not a part of the record. In the absence of facts of record disclosing the invalidity of defendant’s initial commitment, the proper remedy for one asserting a failure to receive adequate treatment is to seek habeas corpus. As we stated in In re Gary W., supra, 5 Cal.3d 296 , 303, involving an indefinite commitment of a juvenile to the Youth Authority, “. . . the Youth Authority is under an affirmative obligation to provide treatment for the ward’s mental or physical abnormality when he is committed pursuant to [§§ 1800-1803]. Detention of such wards without treatment is unauthorized by statute. Accordingly, any person confined pursuant to a section 1800 commitment, but who is not receiving treatment may seek his release through appropriate habeas corpus procedures. [Citations.]”

It is uncontradicted that defendant and other MDSOs committed to an institutional unit at California Men’s Colony do receive group counseling and therapy by psychiatric and correctional staff.^[38] In view of the fact that defendant’s own commitment has terminated, I see no purpose in speculating regarding the effectiveness of the treatment presently received by others in his position. As indicated above, such persons may

3. Unanimous Jury Verdict

Under section 6321, the concurrence of three-fourths of the jurors is sufficient to determine a defendant’s status as an MDSO. The majority point out that ordinary civil commitments under the Lanterman-Petris-Short Act (§ 5000 et seq.) require a unanimous jury verdict. (§ 5303.) They rely upon Baxstrom v. Herold, 383 U.S. 107 [ 15 L.Ed.2d 620 , 86 S.Ct. 760 ], and Humphrey v. Cady, 405 U.S. 504 [ 31 L.Ed.2d 394 , 92 S.Ct. 1048 ], and contend that the failure to provide Feagley with the protection of a unanimous verdict is arbitrary and denies him equal protection of the laws. I disagree.

First of all, neither the Baxstrom nor Humphrey case is on point. Baxstrom held that a convicted prisoner who had completed his sentence could not be held in confinement for additional, compulsory treatment without affording him a jury trial. Humphrey held that Wisconsin’s sex offender commitment statutes offended equal protection principles by denying defendant a pre-commitment jury trial. Both cases agree that a person’s status as a prior criminal offender does not of itself justify denying him the fundamental right of trial by jury, a right provided to other persons sought to be committed as dangerous to society. Neither case, however, touches upon the question whether the state may, in bestowing that right, require less than a unanimous verdict to commit an MDSO.

On the other hand, this court has recently made it clear that the three-fourths verdict procedure (which is now applicable to several specialized commitments, . including MDSO, narcotics addict, and juvenile court ward commitments) does not offend equal protection principles. We stated that “although the procedures leading to the

It must be kept in mind that, unlike the person sought to be civilly committed under the general provisions of the Lanterman-Petris-Short Act, defendant had already been convicted of a criminal offense, and had (following a full judicial hearing) been adjudged an MDSO by the trial court. As we recently pointed out in In re Franklin, 7 Cal.3d 126 , 137-144 [ 101 Cal.Rptr. 553 , 496 P.2d 465 ], persons who have already demonstrated criminal behavior may fall within a “special class,” thereby affording a rational basis for treating them differently from other persons. Although principles of equal protection may require that a jury trial be provided to all persons sought to be committed, defendant’s special status justified the three-fourths verdict procedure, a procedure which formerly was employed in every civil commitment.^[40]

I would affirm the order of commitment.

McComb, J., and Clark, J., concurred.

Respondent’s petition for a rehearing was denied June 11, 1975. Clark, J., and Richardson, J., were of the opinion that the petition should be granted.