Opinion
E080334
09-25-2023
THE PEOPLE, Plaintiff and Respondent, v. D.D., Defendant and Appellant.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County (Super.Ct.No. FELJS20000153) . Lorenzo R. Balderrama, Judge. Dismissed.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MCKINSTER ACTING P. J.
Defendant and appellant D.D. was convicted of the controlling offense of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) for an offense that occurred on July 31, 2007. On May 10, 2012, the court committed defendant to the Department of State Hospitals (DSH) as an Offender with a Mental Disorder (OMD) pursuant to section 2962, which was renewed annually. Defendant had been diagnosed with schizoaffective disorder, bipolar type, and alcohol use disorder; he suffered from auditory hallucinations, paranoia, grandiose delusions, disorganized speech, aggression, and polydipsia.
All further statutory references will be to the Penal Code.
On October 28, 2016, the court released defendant from the hospital and placed him in a Conditional Release Program (CONREP). On May 10, 2019, defendant's CONREP status was revoked; he was remanded to DSH. The People filed several petitions to extend defendant's commitment to DSH. On November 18, 2022, the court found defendant "was in violation of his terms and conditions and that he became psychiatrically decompensated." Thus, the court ruled defendant could no longer be safely treated in the community by CONREP and that the revocation of defendant's CONREP was warranted.
Compared to DSH, CONREP is a less restrictive, outpatient program, where administrators make "an assessment of the community resources and benefits the person will need, and CONREP will walk the person 'through every day until they can navigate pretty much on their own.'" (People v. McDonough (2011) 196 Cal.App.4th 1472, 1479, 1481 (McDonough).)
If a client is not abiding by the protocols of CONREP, he may be "immediately remanded into custody to await transfer to the state hospital." (McDonough, supra. 196 Cal.App.4th at p. 1481.) A hold is then placed on the client for a medical reevaluation so the court can determine whether revocation was warranted. (Id. at pp. 1481-1482.)
In case No. E080291, defendant appeals the court's order determining that revocation of defendant's CONREP was warranted.
The court further found the People had proven beyond a reasonable doubt that defendant was suffering from a severe mental illness, was not in remission, represented a substantial danger of physical harm to himself and others, and did not meet the criteria for CONREP. Therefore, the court granted the People's petitions and remanded defendant to DSH as an OMD.
On appeal, defendant's appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), setting forth a statement of the case, a statement of the facts, requesting that we exercise our discretion to independently review the record for error, and identifying two potentially arguable issues: (1) whether sufficient evidence supported the court's determination that defendant qualified as an OMD; and (2) whether the court committed prejudicial error pursuant to People v. Sanchez (2016) 63 Cal.4th 665, in permitting expert witnesses to testify as to case specific hearsay. We gave defendant the opportunity to file a personal supplemental brief.
Appellate counsel concedes that the court in People v. Taylor (2008) 160 Cal.App.4th 304, determined that Wende and Anders procedures do not apply in appeals from orders committing mentally disordered offenders. (Taylor, at pp. 312-314; see People v. Martinez (2016) 246 Cal.App.4th 1226, 1240 [Wende review not applicable to appeals extending NGI commitments]; accord People v. Luper (2022) 73 Cal.App.5th 1077, 1082; see also Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544 [Wende procedures do not apply to LPS conservatorship proceedings]; People v. Delgadillo (2022) 14 Cal.5th 216 [Wende review not required in appeals from the denial of section 1172.6 petitions].) Nonetheless, appellate counsel contends that since no case specifically bars Wende and Anders procedures to the revocation of CONREP, this court should apply those procedures in this case, or issue a published opinion explaining why those procedures should not apply. However, that is the issue in case No. E080291, not the issue in this case. The appeal in this case is from the order committing defendant as an OMD to DSH; thus, Taylor squarely applies.
Nevertheless, he has not filed one. Under these circumstances, we have no obligation to independently review the record for error. (People v. Taylor, supra, 160 Cal.App.4th at pp. 312-314; People v. Martinez, supra, 246 Cal.App.4th at p. 1240; People v. Luper, supra, 73 Cal.App.5th at p. 1082; Conservatorship of Ben C., supra, 40 Cal.4th at p. 544; People v. Delgadillo, supra, 14 Cal.5th at pp. 224-231.) Rather, we dismiss the appeal. (People v. Taylor, at pp. 313-314.)
DISPOSITION
The appeal is dismissed.
We concur: MILLER J. CODRINGTON J.