Opinion
A163501
06-15-2022
THE PEOPLE, Plaintiff and Respondent, v. CALEB FOX, Defendant and Appellant.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. H53418
BROWN, J.
Defendant Caleb Fox entered pleas of no contest and not guilty by reason of insanity (NGI) to one felony count of false imprisonment to avoid arrest (Pen. Code, § 210.5), and he admitted personally using a weapon during the commission of the offense (§ 12022, subd. (b)(1)). He was found not guilty by reason of insanity (§ 1026, subd. (a)). Pursuant to that finding, he was committed to the Department of State Hospitals on January 28, 2014, with a maximum commitment date of April 23, 2021.
All further undesignated statutory references are to the Penal Code.
On November 17, 2020, the District Attorney filed a petition to extend Mr. Fox's commitment for two years pursuant to section 1026.5. Mr. Fox personally waived his right to a jury trial, and the trial court conducted a bench trial on three days in August 2021. On August 30, 2021, the court granted the petition and extended Mr. Fox's commitment to April 23, 2023.
Appointed counsel has filed an opening brief setting forth the relevant law and facts but raising no specific issues. In the brief, counsel acknowledges that People v. Martinez (2016) 246 Cal.App.4th 1226, 1230 (Martinez) held that "due process does not require an appellate court to conduct an independent review of the appellate record for possible issues in an appeal from an extension of an NGI's civil commitment." Counsel nonetheless asks this court to conduct, "at a minimum," the level of review prescribed for Lanterman-Petris-Short Act (Welf. & Inst. Code, §§ 5000 et seq.) (LPS Act) conservatees in Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.), including affording defendant the opportunity to file a supplemental brief. Counsel has notified defendant of his ability to file a supplemental brief within 30 days. That time has passed, and defendant has not done so.
The California Supreme Court has held that independent review pursuant to People v. Wende (1979) 25 Cal.3d 436 is not necessary in an appeal from a conservatorship order under the LPS Act. (Ben C., supra, 40 Cal.4th at p. 544 [no right to independent review]; id. at pp. 555-556 (dis. opn. of George, C.J.) [even if Constitution does not require independent review, Court of Appeal retains discretion to review record independently].) The right to independent review does not extend to judgments that are civil in nature, even if the judgment results in the deprivation of one's liberty. Courts have thus found no right to Wende review in appeals from an order in a juvenile dependency proceeding affecting parental rights (In re Sade C. (1996) 13 Cal.4th 952, 959), an order declaring a convicted person a mentally disordered offender (People v. Taylor (2008) 160 Cal.App.4th 304, 308), and an order in a proceeding under section 1026.2 denying outpatient placement to a person who had been found not guilty by reason of insanity and had later petitioned for an order declaring his sanity restored (People v. Dobson (2008) 161 Cal.App.4th 1422, 1425). And as counsel recognizes, Martinez-which discussed all the aforementioned cases-is directly on point and holds that independent review is not required in an appeal from an order extending an NGI's commitment. (Martinez, supra, 246 Cal.App.4th at pp. 1236- 1240.)
We note that we recently affirmed an order denying defendant's petition for restoration of sanity pursuant to section 1026.2. (People v. Fox (August 12, 2021, A161196 [nonpub. opn.].) Counsel having advised defendant of his right to file a supplemental brief and defendant not having done so, we decline to exercise our discretion to conduct an independent review of the order extending defendant's NGI commitment, and we dismiss the appeal as abandoned. (Martinez, supra, 246 Cal.App.4th at p. 1240.)
DISPOSITION
The appeal is dismissed.
WE CONCUR: STREETER, ACTING P. J., NADLER, J. [*]
[*] Judge of the Superior Court of California, County of Sonoma, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.