Opinion
A169371
12-30-2024
THE PEOPLE, Plaintiff and Respondent, v. RICKY ALLEN AMOS, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 02-22-00591
Banke, J.
Defendant Ricky Allen Amos appeals from an order finding him incompetent to stand trial and committing him to the Department of State Hospitals. His appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Blanchard (2019) 43 Cal.App.5th 1020 (Blanchard), raising no issues and asking this court to review the record and determine whether there are any arguable issues on appeal. Defendant was notified of his right to file a supplemental brief, but has not done so. Accordingly, we dismiss the appeal.
In addition to Wende and Blanchard, appellate counsel also cites to Anders v. California (1967) 386 U.S. 738 and Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.).
Background
In July 2022, the Contra Costa District Attorney filed a complaint alleging one count of felony failure to register within five days of his birthday (Pen. Code, § 290.012, subd. (a)) and one count of misdemeanor possessing a controlled substance (Health &Saf. Code, § 11377) as well as several special allegations. Defendant pleaded no contest to felony failing to register, and the trial court dismissed the remaining count and sentenced defendant to 180 days in county jail, with 120 days' credit for time served and suspended the remaining 60-day sentence. The court placed defendant on two years' formal probation.
In May 2023, the court held a hearing in which defense counsel acknowledged receipt of a petition to revoke (case No. 01-23-01610), and the court released defendant on his own recognizance but ordered him to report to his parole officer. At an August 2023 hearing, the court noted there had been a new felony complaint filed (case No. 02-23-01206). Defendant denied the probation violation, and the court summarily revoked probation. Defendant pleaded not guilty in the criminal case, and the court set the matter for a preliminary hearing. At the preliminary hearing for the criminal case (case No. 02-23-01206), with the probation revocation case (case No. 02-22-00591) "trailing," defense counsel indicated the district attorney was "requesting to trail until tomorrow" and that tomorrow counsel would be "expressing a doubt."
This complaint is not a part of the record on appeal.
The following day, in camera, defense counsel expressed doubt as to defendant's competency. The court declared doubt, suspended criminal proceedings, and appointed two psychologists to evaluate defendant. After evaluation, the psychologists arrived at differing conclusions with one (Dr. Williams) determining defendant was not competent to stand trial and the other (Dr. Johnson) determining he was competent to stand trial. Counsel stipulated the court could decide competency based upon the two reports, and the trial court found by a preponderance of the evidence defendant was unable to understand the nature of the proceedings against him and unable to assist counsel in presenting a defense. The court requested the Contra Costa Conditional Release Program provide a recommendation as to placement. Based upon the recommendation, the court committed defendant to the Department of State Hospitals pursuant to Penal Code section 1370 for a maximum two-year term and ordered six-month status reports concerning defendant's progress toward restoration of competency. Additionally, the court found, based upon Dr. Williams's report, defendant lacked capacity to make decisions regarding antipsychotic medication and authorized the administration of medication as needed, including on an involuntary basis. Defendant appealed.
While defendant's appeal was pending, appellate counsel moved to augment the record and advised this court of events that occurred which "demonstrate that the underlying case in this appeal has ended." Counsel explained, defendant's probation was revoked (case No. 02-22-00591) based upon a new criminal case having been filed (case No. 02-23-01206). "Not long thereafter, [defendant] was determined not to be competent to stand trial in both cases and sent off for competency training. [¶] They were unable to restore my client to competency before the commitment time expired on both cases. The commitment time in the case in this appeal expired first and my client's probation was terminated unsuccessfully. [¶] After the time to restore my client to competency expired in the other case, my client was returned to court where they determined that he did not qualify for a Lanterman-Petris-Short (LPS) Act/Murphy conservatorship, the court dismissed the charges, and my client was released. [¶] Therefore, the case in the current appeal is over." The accompanying motion to augment included a declaration from counsel and two minute orders, one from case No. 02-22-00591 and the other from case No. 02-23-01206. The minute order in case No. 02-22-00591 indicates that in September 2024, 10 months after defendant's commitment, the court found defendant was gravely disabled and was not likely to be restored to competency. The court terminated probation as unsuccessful. Defendant moved for release, and the trial court granted the motion and ordered defendant released on his own recognizance.
The minute order in case No. 02-23-01206 showed, the following month, in October 2024, the court also dismissed the criminal case on which the probation violation was based. The court determined defendant, "does not meet criteria for an LPS conservatorship" and it "will not be filing." Defendant moved for dismissal, and the trial court granted the motion over the district attorney's objection. The district attorney then made a motion to dismiss the case, which the trial court granted. The court ordered defendant released on his own recognizance.
This court granted the motion to augment but expressed no view on whether "the appeal is moot or what further steps should be taken" at that time.
Appellate counsel subsequently filed a Wende-Blanchard brief urging us to conduct an independent review. Counsel took no stance on whether the appeal is moot, instead he asked this court to conduct an independent review of the record, "[g]iven the potentially serious consequences to appellant of the determination that he is not competent to stand trial." Counsel does not state what the "serious consequences" are.
However, we need not decide any issue of mootness, as we dismiss the appeal on separate grounds.
In Ben C., our Supreme Court held Wende-style review is inapplicable to appeals of Lanterman-Petris-Short Act conservatorship proceedings. (Ben C., supra, 40 Cal.4th at pp. 538-543.) In Blanchard, Division Three of this court, relying on Ben C., held there is no right to Wende-style review from orders committing defendants to the state hospital after they have been found incompetent to stand trial. (Blanchard, supra, 43 Cal.App.5th at pp. 1023, 1025.) The Blanchard court explained, appointed counsel should follow the procedures set forth in Ben C. by filing a brief setting forth the relevant facts and law and informing the court he or she has found no arguable issues. Such a brief, the court stated, provides an adequate basis for the court to dismiss the appeal on its own motion. (Blanchard, at p. 1026.) Additionally, we note both counsel and this court have notified defendant of his ability to file a supplemental brief, and defendant has not done so. Following Blanchard, we shall dismiss the appeal. (Ibid.)
Disposition
The appeal is dismissed.
WE CONCUR: Humes, P. J. Langhorne Wilson, J.