Opinion
A156725
09-27-2019
THE PEOPLE, Plaintiff and Respondent, v. PETER GERGIS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 11869478, 11864370, 11872860, 11870195)
Defendant Peter Gergis appeals from an order committing him to the State Department of State Hospitals (DSH) after a finding of incompetency to stand trial under Penal Code section 1368 et seq. Appointed counsel filed an opening brief setting forth the relevant law and facts but raising no specific issues. Counsel asks this court to undertake an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) or, in the alternative, to exercise our discretion to retain the appeal (see Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544 (Ben C.)). Counsel notified Gergis of his right to file a supplemental brief within 30 days. That time has passed, and we have not received any response from Gergis.
Statutory references are to the Penal Code unless otherwise stated. --------
On August 24, 2018, the Contra Costa County District Attorney charged Gergis in case No. 11869478 with one count of second degree robbery (§ 211) and one count of making criminal threats (§ 422, subd. (a)). Gergis was also alleged to have three prior prison convictions (§ 667.5, subd. (b)) and have limited eligibility for probation (§ 1203, subd. (e)(4)). Gergis was charged in four additional cases as follows: case No. 11864370, petty theft (§§ 484, subd. (a), 490.2) and trespass (§ 602, subd. (m)); case No. 11872860, assault with a deadly weapon (§ 245, subd. (a)(1)) and making criminal threats (§ 422, subd. (a)), along with two out-on-bail enhancements (§ 12022.1); case No. 11870328, theft (§ 484g, subd. (b)); case No. 11870195, trespass (§ 602, subd. (t)) and possessing a controlled substance (Health & Saf. Code, § 11377).
On September 25, 2018, trial counsel expressed doubt regarding Gergis' competence and criminal proceedings were suspended. The trial court appointed two experts to evaluate Gergis. On January 10, 2019, after the trial court denied Gergis's Marsden motion, trial counsel waived jury on behalf of Gergis and stipulated that the court could decide competency based on the experts' reports. The court found Gergis incompetent and ordered a report regarding recommended placement. Based on that report, the court committed Gergis to DSH for a maximum term of two years, with 126 days of actual credit. The court also found that Gergis had the ability to consent to psychotropic medication. Gergis filed a timely notice of appeal.
When an indigent defendant files his first appeal in a criminal case, as a matter of right, he is entitled to have the court independently review the record when appointed counsel files a brief indicating that he or she has found no arguable issues. (Anders v. California (1967) 386 U.S. 738, 739, 744; Wende, supra, 25 Cal.3d 436; Ben C., supra, 40 Cal.4th at p. 535.) This right to independent review by the appellate court does not extend to judgments that are civil in nature, even when those judgments result in the deprivation of a liberty interest. (See Ben C., at pp. 535, 537, 544 [no right to Wende in conservatorship appeals under the Lanterman-Petris-Short 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. Taylor (2008) 160 Cal.App.4th 304, 308 [Wende review not required in appeal from order declaring the appellant a mentally disordered offender]; People v. Dobson (2008) 161 Cal.App.4th 1422, 1425 [no Wende review of order denying outpatient status pursuant to petition to restore competency under § 1026.2].)
The underlying order declaring Gergis incompetent to stand trial is a judgment in a special proceeding. (People v. Lawley (2002) 27 Cal.4th 102, 131 [although it arises in the context of a criminal trial, a competency hearing is a special proceeding, governed generally by the rules applicable to civil proceedings]; People v. Stanley (1995) 10 Cal.4th 764, 807 ["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. Masterson (1994) 8 Cal.4th 965, 969-970 [a proceeding to determine competency to stand trial is neither a criminal action nor a civil action; rather, it is a special proceeding].) As such, the order here is akin to the civil judgments noted above, to which Wende does not apply.
In assessing the risk that the absence of Anders/Wende review would result in the erroneous resolution of competency appeals, we recognize there are numerous procedural protections against unwarranted commitments, including ongoing supervision by the trial court. (§ 1368 et seq.) The trial court's ongoing supervision of Gergis provides him with "a more immediate avenue for modification than that afforded by the more cumbersome appellate review." (Ben C., supra, 40 Cal.4th at p. 543.)
In this case, appointed counsel filed a brief setting out the applicable facts and law and informed the court that she found no arguable issues to be pursued on appeal. Counsel also invited Gergis to submit additional briefing and state any grounds of appeal he may wish this court to consider, but he has not done so.
Accordingly, we dismiss the appeal.
/s/_________
BROWN, J. WE CONCUR: /s/_________
POLLAK, P.J. /s/_________
TUCHER, J.