Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 200501
ELIA, J.Defendant Adelberto Fausto appeals an order extending his state hospital commitment for an additional year pursuant to Penal Code section 2970. Defendant's counsel advises this court that her examination of the record reveals no arguable issues. (Anders v. California (1967) 386 U.S. 738 (Anders); People v. Wende (1979) 25 Cal.3d 436 (Wende).) Counsel advised her client in writing that a Wende brief was filed and that he had the right to personally file a supplemental brief in this case within 30 days. Defendant sent two letters addressed to his appellate counsel. Counsel then filed defendant's letters with this court. We conclude, consistent with Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.) recommitment proceedings pursuant to section 2970 are not subject to Wende review. However, because in his letters defendant indirectly attacks his commitment, we have reviewed the record and find that substantial evidence supports the court's order extending defendant's hospital commitment for another term.
In his letters, defendant states that he wants "an appeal –for my deportation." On closer examination of the record, it appears that defendant wants to be deported to Mexico. Our Supreme Court has instructed that individuals in civil commitment appeals should be treated "in a considerate and compassionate manner rather than summarily informing them that their appeals are frivolous and have been abandoned." (Ben C., supra, 40 Cal.4th at p. 557 (dis. opn. of George, C.J.).) Accordingly, because defendant has submitted letters to this court, which in essence challenge his commitment, we have conducted a review in this case.
Background
On September 28, 1998, defendant pleaded guilty to one count of assault with a deadly weapon. (§ 245, subd. (a)(1).) Defendant admitted that he personally used a deadly weapon (§§ 667, 1192.7) and personally inflicted great bodily injury on the victim. (§ 12022.7, subd. (e).)
On December 16, 1998, the court struck the great bodily injury enhancement. The court imposed the mitigated prison term of two years. The court awarded defendant 532 days credit for time served. The court advised defendant of a three-year parole period. There is nothing in the record to show that defendant appealed his conviction.
On March 16, 1999, defendant underwent a section 2962 evaluation after which he was found to meet all six criteria for mentally disordered offender (MDO) status.
Relevant here, at the time defendant was due to be released from prison on parole section 2962 was as follows: "As a condition of parole, a prisoner who meets the following criteria shall be required to be treated by the State Department of Mental Health, and the State Department of Mental Health shall provide the necessary treatment: [¶] (a) The prisoner has a severe mental disorder that is not in remission or cannot be kept in remission without treatment. . . . [¶] (b) The severe mental disorder was one of the causes of or was an aggravating factor in the commission of a crime for which the prisoner was sentenced to prison. [¶] (c) The prisoner has been in treatment for the severe mental disorder for 90 days or more within the year prior to the prisoner's parole or release. [¶] (d)(1) Prior to release on parole, the person in charge of treating the prisoner and a practicing psychiatrist or psychologist from the State Department of Mental Health have evaluated the prisoner at a facility of the Department of Corrections, and a chief psychiatrist of the Department of Corrections has certified to the Board of Prison Terms that the prisoner has a severe mental disorder, that the disorder is not in remission, or cannot be kept in remission without treatment, that the severe mental disorder was one of the causes or was an aggravating factor in the prisoner's criminal behavior, that the prisoner has been in treatment for the severe mental disorder for 90 days or more within the year prior to his or her parole release day, and that by reason of his or her severe mental disorder the prisoner represents a substantial danger of physical harm to others. . . ." (Stats.1998, c. 936 (A.B.105), § 16, eff. Sept. 28, 1998, effective to April 21, 1999.)
On May 5, 1999, defendant was hospitalized at Atascadero State Hospital (ASH). Over the next few years, defendant was placed at various prisons and psychiatric hospitals. On February 27, 2003, he was returned to ASH.
Defendant's commitment to ASH was due to expire on April 17, 2003. On March 6, 2003, the Chief Psychiatrist at the California Medical Facility (CMF) at Vacaville sent a letter to the Santa Clara County District Attorney informing him that defendant was due to be released on April 17, 2003; that the treatment staff at CMF had good cause to believe that defendant's severe mental disorder was not in remission and could not be kept in remission if treatment was not continued. Accordingly, on March 19, 2003, the Santa Clara County District Attorney filed a petition pursuant to section 2970, to extend defendant's commitment for one year. Defendant demanded a jury trial. Following a two-day jury trial, on April 16, 2003, a jury found that defendant suffers from a mental disorder; that his mental disorder cannot be kept in remission without treatment; and as a result of the severe mental disorder defendant represented a substantial danger of physical harm to others. The court ordered that defendant be committed pursuant to section 2970 for one year, i.e. until April 17, 2004. Thereafter, the court ordered that defendant be transported to ASH.
Section 2970 states in relevant part: "Not later than 180 days prior to the termination of parole, or release from prison if the prisoner refused to agree to treatment as a condition of parole as required by Section 2962, unless good cause is shown for the reduction of that 180-day period, if the prisoner's severe mental disorder is not in remission or cannot be kept in remission without treatment, the medical director of the state hospital which is treating the parolee, or the community program director in charge of the parolee's outpatient program, or the Director of Corrections, shall submit to the district attorney of the county in which the parolee is receiving outpatient treatment, or for those in prison or in a state mental hospital, the district attorney of the county of commitment, his or her written evaluation on remission. If requested by the district attorney, the written evaluation shall be accompanied by supporting affidavits." (Added by Stats.1985, c. 1418, § 1, operative July 1, 1986)
On August 13, 2003, the Acting Medical Director at ASH sent a letter to the Santa Clara County District Attorney stating that treating physicians had evaluated defendant on August 11, 2003. The treatment staff's decision was not to recommend a civil commitment or involuntary treatment. On August 14, 2003, defendant was transferred to Napa State Hospital (NSH).
On October 21, 2003, the Santa Clara County District Attorney filed a second petition to compel involuntary commitment pursuant to section 2970, extending defendant's commitment, which was due to expire on April 17, 2004, to April 17, 2005. On December 5, 2003, defendant demanded a jury trial. It appears thereafter that defendant was not transported to the Santa Clara County Superior Court until May 7, 2004, when the court ordered that defendant be transported back to NSH because court proceedings had been continued to a later date.
It was not until February 25, 2005, that defendant waived his rights and admitted the allegations of the October 21, 2003 section 2970 petition. The court ordered that defendant's commitment be extended to April 17, 2005. Accordingly, on February 28, 2005, the Santa Clara County District Attorney filed a third petition to compel involuntary commitment pursuant to section 2970 to extend defendant's commitment to April 17, 2006. Again, defendant waived his rights and admitted the allegations of the petition. The court ordered defendant's commitment be extended to April 17, 2006.
The court "shall conduct a hearing on the petition under Section 2970 for continued treatment." Normally, the trial "shall commence no later than 30 calendar days prior to the time the person would otherwise have been released." However, if "time is waived by the person" or "good cause is shown" the trial may commence later than 30 calendar days prior to the time the defendant would otherwise be released. (§ 2972.) "[T]he statute does not expressly set any deadline for completion of a trial, even if it begins more than 30 days before a release date. Nor does it limit continuances or otherwise prohibit a court from extending a trial beyond the release date if necessary. We further note that the waiver/good cause exception to the 30-day requirement does not expressly limit the amount of time an MDO may waive or that a court may excuse for good cause. And, under the exception, the statute does not expressly set any deadline for commencement or completion of a trial or prohibit either from occurring after an MDO's release date." (People v. Williams (1999) 77 Cal.App.4th 436, 452.)
On December 7, 2005, the Santa Clara County District Attorney filed a fourth petition pursuant to section 2970 to extend defendant's commitment to April 17, 2007. On May 17, 2006, the court found true the allegations in the section 2970 petition. The court ordered defendant's involuntary commitment continued to April 17, 2007.
On January 12, 2007, the Santa Clara County District Attorney filed a fifth petition pursuant to section 2970 to extend defendant's commitment to April 17, 2008. On May 31, 2007, the court heard the testimony of the staff psychiatrist at Napa State Hospital who had been treating defendant since February 2007. Dr. Carol Ann Kuchmak testified that defendant suffers from a severe mental disorder, which "alters his thought processes such that he does not perceive our reality." Dr. Kuchmak diagnosed defendant as suffering from "schizoaffective bipolar type," which was not in remission.
Although Dr. Kuchmak had been treating defendant only since February, she testified that she had known defendant for several years at NSH.
According to Dr. Kuchmak, although defendant was "doing much better than he has in the past," he would not qualify as being "in remission." Furthermore, even if defendant successfully reached a state where he qualified as being in remission, he "would not stay that way without intensive treatment." Dr Kuchmak testified that defendant continues to be a danger to others. She described defendant as being "repeatedly assaultive" within the confines of NSH.
Defendant did not present any witnesses, but he did address the court. Defendant told the court that he wanted to be deported. Judge Fernandez told defendant that he had listened to the testimony and considered what defendant had told the court. However, although Dr Kuchmak had "said some good things about" defendant, the court found the allegations in the section 2970 petition to be true. The court extended defendant's involuntary commitment to April 17, 2008.
Defendant filed a timely notice of appeal from the court's May 31, 2007 order on June 1, 2007.
Discussion
If this were the first appeal of right in a criminal matter, appointed counsel's opening brief would require us to independently review the record to determine if there are any legal points arguable on their merits. (Anders, supra,386 U.S. 738; Wende, supra,25 Cal.3d 436.) Anders explained, in the context of a criminal appeal by an indigent defendant, "[t]he constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, . . . Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous." (Anders, supra, 386 U.S. at p. 744, italics added.) Wende clarified that where counsel has not been disqualified by representing the appeal as frivolous, counsel need not seek leave to withdraw. (Wende, supra,25 Cal.3d at p. 442.)
Although Anders and Wende both involved an indigent criminal defendant's first appeal as of right, some courts have in the past found the procedure to be appropriate in other circumstances where the litigant is entitled to appointed counsel on appeal. (See In re Andrew B. (1995) 40 Cal.App.4th 825, 857 [Anders/Wende review required in juvenile dependency appeals], disapproved by In re Sade C. (1996)13 Cal.4th 952, 982, fn. 11, 983, fn. 12, 984, fn. 13 (Sade C.); In re Brian B. (1983) 141 Cal.App.3d 397 and In re Joyleaf W. (1984) 150 Cal.App.3d 865 [same], both abrogated by In re Angelica V. (1995) 39 Cal.App.4th 1007, 1012; Conservatorship of Margaret L. (2001) 89 Cal.App.4th 675 [Anders/Wende review required in conservatorship proceedings] and Conservatorship of Besoyan (1986) 181 Cal.App.3d 34 [same], both overruled by Ben C., supra,40 Cal.4th at p. 544.)
In Sade C., supra, 13 Cal.4th at page 959, our Supreme Court held that Anders and Wendedo not extend to an indigent parent's appeal of an order adversely affecting custody rights or parental status. After concluding that those procedures apply only as a matter of right to criminal appeals, the court found no reason to extend those procedures to indigent parent appeals. The Supreme Court conducted a three-part analysis of the private interests at stake, the state's interests, and the risk that the absence of the review procedures would result in erroneous resolution of the appeal. (Id. at pp. 986-987 following Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27.) The private interests at stake in Sade C., supra, 13 Cal.4th were the interests of the parent and the child, a relationship the court recognized is implicit in the concept of liberty protected by the due process clause of the Fourteenth Amendment. (Id. at pp. 987-988.) The Supreme Court identified the state's interests as the parens patriae interest in preserving and promoting child welfare, the "interest in an accurate and just resolution of the parent's appeal," and a " 'fiscal and administrative interest in reducing the cost and burden of [the] proceedings.' [Citations.]" (Id. at pp. 989-990.) In the third stage of the analysis, the court concluded that the risk that the absence of Anders review would lead to an erroneous determination of the parent's appeal was "negligible" because experience indicated that "appointed appellate counsel faithfully conduct themselves as active advocates in behalf of indigent parents." (Id. at p. 990.)
In Ben C., supra, 40 Cal.4th at pages 537, 543, our Supreme Court held that Wende review is inapplicable in a proceeding brought under the Lanterman-Petris-Short Act (LPSA) (Welf. & Inst.Code, § 5000 et seq.). Ben C. recognized that "the analogy between criminal proceedings and proceedings under the LPS Act is imperfect at best and that not all of the safeguards required in the former are appropriate to the latter." (Ben C., supra, 40 Cal.4th at p. 538.)
Ben C. concluded that, in addition to having no direct application in an LPS conservatorship, the Anders/Wende procedures are not required by state or federal due process guarantees. Ben C. applied the three-part analysis that was used in Sade C. Applying this three-part test, Ben C. noted that the LPS Act promotes both private and public interests. "Among its goals are 'ending the inappropriate and indefinite commitment of the mentally ill, providing prompt evaluation and treatment of persons with serious mental disorders, guaranteeing and protecting public safety, safeguarding the rights of the involuntarily committed through judicial review, and providing individualized treatment, supervision and placement services for the gravely disabled by means of a conservatorship program. (§ 5001.)' [Citation.] The Act also serves to protect the mentally ill from criminal victimization (§ 5001, subd. (g)) and from the myriad forms of suffering endured by those unable to care for themselves." (Ben C., supra,40 Cal.4th at p. 540.)
In Ben C., the salient question for the Supreme Court was whether the absence of an Anders/Wende review significantly increased the risk of erroneous results. (Ben C., supra,40 Cal.4th at p. 538.) Ben C. observed that the LPS Act establishes layers of protection to avoid erroneous commitments. The conservatee has the right to counsel, a jury trial, and proof beyond a reasonable doubt. (Id. at p. 541.) The conservatorship lasts only one year, during which a conservatee may twice petition for rehearing. (Welf. & Inst. Code, §§ 5361, 5364.) Any request for an extension of the conservatorship must include the opinion of "two physicians or licensed psychologists who have a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders that the conservatee is still gravely disabled . . . ." (Welf. & Inst. Code, § 5361 .) The conservatee is also entitled to the appointment of appellate counsel. (Ben C., supra,40 Cal.4th at p. 541.)
"These procedures reflect an extension of many safeguards also afforded to criminal defendants, while taking into account the essential differences between the two systems. Ordinarily, once a criminal judgment and sentence are final, the trial court loses jurisdiction to correct error. (But see Pen. Code, § 1170, subd. (d).) The criminal defendant's only recourse then is to the courts of review. The LPS scheme is quite different because of the one-year limit on commitments and the ability of the conservatee to return twice to the trial court for reconsideration during that 12-month period. [¶] As a result, the trial court's ongoing supervision remains focused on a conservatee's current needs and condition, in a manner quite different from that followed in a criminal context. Allowing continuing trial court attention ensures much more direct and appropriate intervention. . . . It provides the conservatee with a more immediate avenue for modification than that afforded by the more cumbersome appellate review. And it keeps the focus primarily on the conservatee's current needs and progress, rather than on a retrospective consideration of conditions that may no longer exist." (Ben C., supra,40 Cal.4th at pp. 542-543.) Ben C. concluded that, in light of the "panoply of safeguards appropriately geared to the specific goals and interests involved" extension of Anders/Wende was not required. (Id. at p. 543.)
Recently in People v. Taylor (2008) 160 Cal.App.4th 304, 312 (Taylor), Division Six of the Second District concluded that in light of Sade C. and Ben C., Wende review procedures do not apply to post-conviction commitments under the Mentally Disordered Offender Act (§ 2960 et seq) (MDOA).
After noting that the MDOA is " 'a civil commitment scheme,' " and the purpose of the MDOA "is to provide treatment for those suffering from mental illness, not to punish them for their past crimes," the Taylor court went on to analyze the private and public interests at stake. The Taylor court concluded "the individual's obvious interest in remaining free from a civil commitment is no greater than his or her interest in obtaining treatment for a severe mental disorder in order to prevent the commission of other crimes leading to further imprisonment. The state also has a strong interest in protecting the public from MDO's who represent a substantial danger of harm. [Citation.]" (Taylor, supra, 160 Cal.App.4th at p. 312.)
Furthermore, in assessing the risk that the absence of Anders/Wende review would result in the erroneous resolution of MDOA appeals, the Taylor court recognized "there are numerous procedural protections against unwarranted commitments. In addition to the factors that must be established in order to sustain a commitment (§ 2962, subds. (c) & (d)), a prisoner who is certified for MDO treatment as a condition of parole has the right to a hearing before the BPH. At any such hearing, the person or agency who certified the prisoner for treatment bears the burden of proof. The prisoner is also entitled to the appointment of two independent mental health professionals who are experienced in the diagnosis and treatment of mental disorders. (§§ 2966, subd. (a), 2978.) The prisoner may thereafter petition for a hearing in the superior court in which he or she has the right to counsel, a jury trial, and a unanimous verdict by proof beyond a reasonable doubt. (§ 2966, subd. (b).) Not unlike LPSA commitments, the MDO's commitment period is for one year only, during which the Department of Mental Health can recommend discontinuing treatment if it is determined that the MDO's mental disorder is in remission and can be kept in remission without further treatment. (§ 2968.) If continued treatment is sought after the one-year commitment period has expired, the MDO is entitled to a new hearing with the same trial and appellate rights. (§ 2972.) '[T]he trial court's ongoing supervision' in this regard 'provides the [MDO] with a more immediate avenue for modification than that afforded by the more cumbersome appellate review.' [Citation.]" (Taylor, supra, 160 Cal.App.4th at pp. 312-313.)
Moreover, the Taylor court noted, "MDO's are also entitled to the appointment of counsel on appeal. As the court recognized in Ben C.: 'The Rules of Court also create safeguards to ensure active advocacy on appeal. A Court of Appeal must now evaluate an attorney's qualifications for appointment, divide its appointments list into at least two levels based on experience and qualifications, match an attorney with the demands of the case, and review and evaluate the performance of appointed counsel to determine whether they should remain on the list at the same level, be placed on a different level, or be deleted from the list. [Citation.]' [Citation.] In our experience, MDOA appeals are assigned to a relatively small pool of well-qualified attorneys who competently discharge their duties. Due process therefore does not require us to extend the Anders/Wende procedures to these appeals." (Taylor, supra, 160 Cal.App.4th at p. 313.)
We agree with the reasoning and rationale of the Taylor court that the Anders/Wende review procedure is not applicable in MDOA cases. Nevertheless, as noted, because defendant submitted letters to this court, which in effect challenge his commitment, we have reviewed the record.
Our review of sufficiency of the evidence questions in mentally disordered offender proceedings incorporates the criminal conviction standard of review. (People v. Miller (1994) 25 Cal.App.4th 913, 919-920.) Thus, " ' "On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge . . . to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. . . ." ' " (Id. at p. 919.)
Applying this standard of review we find that there was substantial evidence provided by Dr. Kuchmak that defendant suffers from a severe mental disorder that is not in remission and cannot be kept in remission without treatment. Further, that by reason of his mental disorder defendant represents a substantial danger of physical harm to others.
Accordingly, we affirm the trial court's commitment order of April 17, 2007.
Disposition
The commitment order is affirmed.
WE CONCUR: RUSHING, P. J., BAMATTRE-MANOUKIAN, J.