Opinion
A156767
12-16-2019
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY S., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 41944123)
Anthony S. appeals from a judgment in a special proceeding finding that he was incompetent to stand trial and committing him to the State Department of State Hospitals (DSH) pursuant to Penal Code section 1367 et seq. Anthony S.'s court-appointed counsel has filed a brief raising no issues, and he seeks our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). If a review under Wende is not required, counsel requests that we conduct the review prescribed in Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.) for appeals from imposition of a conservatorship under the Lanterman-Petris-Short (LPS) Act.
We refer to the appellant by his first name and last initial to protect his privacy interests pursuant to rule 8.90 of the California Rules of Court.
All subsequent statutory references are to the Penal Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
Anthony S. was charged by complaint with a felony violation of section 21310, carrying a dirk or dagger concealed upon his person, and it was further alleged for purposes of section 1203, subdivision (e)(4), that he suffered three prior felony convictions. The charge stemmed from an incident in September 2018, in which police found him with a machete-type weapon.
Prior to his preliminary hearing, defense counsel declared a doubt as to Anthony S.'s competency to stand trial, and the trial court suspended the criminal proceedings and ordered Anthony S.'s examination by two doctors. Thereafter, the parties asked for a court trial on the issue of competency, and stipulated the court could decide the issue based on the doctors' filed reports. The court determined that Anthony S. was unable to understand the nature and purpose of the proceedings taken against him and unable to cooperate with counsel in presenting a defense. Finding Anthony S. incompetent to stand trial, the court ordered the Contra Costa County Conditional Release Program/MHM Services (MHM) to evaluate him and provide a placement recommendation. After receiving MHM's report and recommendation, the court committed Anthony S. to DSH pursuant to section 1370 for the maximum term of two years, and awarded him 108 days of actual time credit.
DISCUSSION
Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, supra, 25 Cal.3d 436, establish that "[i]n an indigent criminal defendant's first appeal as a matter of right, the Court of Appeal must independently review the record if appointed counsel represents he or she has found no arguable issues." (Ben C., supra, 40 Cal.4th at p. 535.) That said, case law has repeatedly held that this right to independent review does not extend to judgments that are civil in nature. (See, e.g., id. at p. 537 [no Wende review in appeals from the imposition of a conservatorship under the LPS Act (Welf. & Inst. Code, § 5000 et seq.)]; In re Sade C. (1996) 13 Cal.4th 952, 959 [no Wende review in appeals from orders affecting parental custody in juvenile dependency cases]; People v. Dobson (2008) 161 Cal.App.4th 1422, 1425 [no Wende review in appeals from orders denying outpatient status pursuant to petition to restore sanity under section 1026.2]; People v. Taylor (2008) 160 Cal.App.4th 304, 308, 313 [no Wende review in appeals from orders declaring the appellant a mentally disordered offender under the Mentally Disordered Offender Act (§ 2962 et seq.)].) " 'A proceeding to determine the mental competence of a criminal defendant to stand trial pursuant to . . . section 1368 is a special proceeding civil in nature.' " (People v. Stanley (1995) 10 Cal.4th 764, 807 (Stanley).) As such, and because the competency order here is akin to the civil judgments noted above, we conclude Anders/Wende review procedures do not apply.
Anthony S.'s appointed counsel suggests review of an incompetency commitment warrants application of the Anders/Wende procedure of independent review because "an appeal from an incompetency commitment is in fact the first appeal that can be taken in an ongoing-albeit suspended-criminal case." This ignores, however, that incompetency proceedings are special proceedings that are civil in nature as indicated. (See Stanley, supra, 10 Cal.4th at p. 807.) Additionally, it seems off the mark to suggest that the matter implicates the first appeal in a criminal case, because as counsel seems to acknowledge, the criminal proceeding itself is statutorily suspended from the moment the court orders a hearing into the present mental competence of a criminal defendant. (§§ 1368, subd. (c), 1370, subd. (a)(1)(B).)
In reaching this conclusion, we note that Anthony S.'s counsel points only to the dissenting opinion in Ben C. in urging us to conduct a Wende review, but provides no argument about Ben C.'s application of a balancing test to determine whether Anders/Wende should be extended. (See Ben. C., supra, 40 Cal.4th at pp. 538-543.) For example, counsel does not address whether there is any risk of erroneous resolutions without a Wende review in light of the procedural protections set out in the governing statutory scheme including the required appointment of counsel, expert evaluation of a defendant, periodic reviews of a defendant's competency, and the trial court's ongoing involvement and supervision of the commitment. (§§ 1368, subd. (a); § 1369, subd. (a)(1); § 1370, subds. (a)(1)(G), (b)(1).)
Anticipating this result, appointed counsel asks that if we conclude Wende procedures do not apply, we conduct the review prescribed for LPS conservatorships set out in Ben C. As Ben C. explained: "If appointed counsel in a conservatorship appeal finds no arguable issues, counsel need not and should not file a motion to withdraw. Instead, counsel should (1) inform the court he or she has found no arguable issues to be pursued on appeal; and (2) file a brief setting out the applicable facts and the law. Such a brief will provide an adequate basis for the court to dismiss the appeal on its own motion. Dismissal of an appeal raising no arguable issues is not inconsistent with article VI, section 14 of the California Constitution requiring that decisions determining causes 'be in writing with reasons stated.' Nothing is served by requiring a written opinion when the court does not actually decide any contested issues." (Ben C., supra, 40 Cal.4th at p. 544, fn. omitted.) Ben C. further held the appellant is to be provided a copy of the brief and informed of the right to file a supplemental brief, and the appellate court may find it is appropriate to retain the appeal. (Id. at p. 544, fns. 6, 7.)
In accord with the procedure set out in Ben C., appointed appellate counsel here filed a brief setting out the applicable facts and law, and indicated he found no arguable issues to be pursued on appeal. (Ben C., supra, 40 Cal.4th at p. 544.) In a declaration accompanying his opening brief, counsel asserts that he notified Anthony S. that a Wende brief would be filed in this case, and of his right to file a supplemental brief within 30 days. Counsel informed the court he served Anthony S. with a copy of the brief. The time for Anthony S. to file a supplemental brief has passed, and we did not receive any response from Anthony S. We therefore dismiss the appeal.
DISPOSITION
The appeal is dismissed.
/s/_________
Fujisaki, J. WE CONCUR: /s/_________
Siggins, P. J. /s/_________
Petrou, J.