Opinion
NOT TO BE PUBLISHED
Del Norte County Super. Ct. No. 97-068-X
SIMONS, J.
Defendant Robert Soto appeals an order extending his state hospital commitment for an additional two years pursuant to Penal Code section 1026.5. Defendant’s counsel advises this court that his examination of the record reveals no arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Counsel has advised his client in writing that a Wende brief was filed and that defendant had the right to personally file a supplemental brief in this case within 30 days. No such brief was filed by defendant. We conclude, consistent with Conservatorship of Ben C. (2007) 40 Cal.4th 529, that recommitment proceedings pursuant to section 1026.5 are not subject to Wende review. Alternatively, we conclude that if Wende review is appropriate, the record reveals no arguable issues.
All undesignated section references are to the Penal Code.
BACKGROUND
On April 29, 1999, defendant pled not guilty by reason of insanity (NGI) (§ 1026) to assault on an inmate with a deadly weapon or by means of force likely to cause great bodily injury (§ 4501). In June 1999, he was committed to Vacaville State Hospital for a term not to exceed six years. In August 1999, the commitment order was later amended committing defendant to Atascadero State Hospital (ASH). In October 2002, the court found that defendant had not been restored to sanity and remanded him to ASH for further treatment. (§ 1026.2.) In June 2005, the court extended defendant’s commitment for a term not to exceed two years pursuant to section 1026.5.
In February 2007, the People petitioned for another extension of defendant’s commitment, based on the opinion of the Patton State Hospital (PSH) medical director that defendant represented a substantial danger of physical harm to others by reason of his mental disease, defect or disorder (§ 1026.5, subd. (b)).
In March 2007, defendant’s counsel stated that defendant requested a court trial on the People’s petition and was mentally competent to do so, and after questioning by the court was determined to have made a knowing waiver of his right to jury trial.
At trial, Faye Owen, defendant’s treating psychiatrist at PSH, stated that, based on her review of defendant’s ASH records from 1999 to 2004, defendant suffered from schizoaffective disorder, bipolar type; polysubstance dependence, particularly with cocaine dependence; and adult antisocial behavior. Owen stated that defendant’s current diagnosis was schizoaffective disorder, bipolar type and he has ongoing paranoia. Owen said that defendant physically assaulted PSH personnel in December 2004 and March 2006, and in June 2006 had made threats to stab PSH staff members. In Owen’s opinion, defendant would become violent very quickly without routinely given medication. She opined that he could not be safely released to society because of his medication refusals and there was no facility that would be able to safely treat him. Owen also stated that defendant had not achieved sufficient substance abuse treatment to permit him to remain drug free out in the community. Owen concluded that if released defendant would still be a danger to the community. The court ordered defendant’s two-year recommitment after concluding that by reason of a mental disease, defect or disorder, defendant represented a substantial danger of physical harm to others.
DISCUSSION
Wende review is required only for “appointed appellate counsel’s representation of an indigent criminal defendant in his first appeal as of right.” (In re Sade C. (1996) 13 Cal.4th 952, 978.) The applicability of Wende review to section 1026.5 proceedings has not been conclusively decided.
In Conservatorship of 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.) Recently in People v. Taylor (Feb. 20, 2008, No. B194403) ___ Cal.App.4th ___ [2008 Cal.App. Lexis 245, *11-*12], Division Six of the Second District concluded that in light of In re Sade C. and Conservatorship of Ben C., Wende review procedures do not apply to postconviction commitments under the Mentally Disordered Offender Act (MDOA) (§ 2960 et seq). Like the LPSA and the MDOA, proceedings under section 1026.5, subdivision (b) are considered to be civil and not criminal in nature. (See People v. Powell (2004) 114 Cal.App.4th 1153, 1159.) Thus, we conclude that Wende review does not apply to section 1026.5 proceedings.
Even if this case were subject to Wende review, substantial evidence supports the court’s order extending defendant’s hospital commitment for another term not to exceed two years. Moreover, defendant was ably represented by counsel at the trial on the recommitment petition, and received a fair hearing. Thus, we would find no arguable issues.
DISPOSITION
The order is affirmed.
We concur. JONES, P.J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.