Opinion
D072727
03-27-2018
THE PEOPLE, Plaintiff and Respondent, v. GEORGE YOUNG GALLEGOS, Defendant and Appellant.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD138172) APPEAL from an order of the Superior Court of San Diego County, Michael T. Smyth, Judge. Appeal dismissed. Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
Defendant George Young Gallegos appeals an order extending for an additional two years his civil commitment to the California Department of Mental Health (DMH) as a person who was previously found not guilty by reason of insanity (NGI) after he waived his right to a jury trial and agreed to the extension requested by the Penal Code section 1026.5 petition filed by the San Diego County District Attorney. On appeal his appointed counsel raises no arguable issues, but requests that we nevertheless exercise our discretion to conduct an independent review of the record. However, we agree with the reasoning and holding in People v. Martinez (2016) 246 Cal.App.4th 1226 (Martinez) that the procedures set forth in Anders v. California (1967) 386 U.S. 738 (Anders) and People v. Wende (1979) 25 Cal.3d 436 (Wende) do not apply to an extension of an NGI civil commitment. Accordingly, we dismiss this appeal without conducting an independent review of the record pursuant to Anders/Wende or otherwise.
All statutory references are to the Penal Code unless otherwise specified. --------
FACTUAL AND PROCEDURAL BACKGROUND
On July 14, 2017, the San Diego County District Attorney filed a petition for an order extending Gallegos's NGI civil commitment for an additional two years because he still suffers from a mental disease, defect, or disorder and by reason of such condition presents a substantial danger of physical harm to others. The petition alleged that in 2000 Gallegos was found not guilty by reason of insanity of the crime of attempted burglary and was thereafter committed to the DMH pursuant to section 1026. The petition further alleged that after his original NGI civil commitment, Gallegos's civil commitment had been periodically extended for additional two-year periods pursuant to section 1026.5, subdivision (b), and that his current two-year commitment was scheduled to expire on December 14, 2017. In support of the petition, the People attached the declaration of Nady Hanna, M.D., the medical director of the state hospital, who provided his opinion that Gallegos is still suffering from a mental disease, defect, or disorder and, as a result, continues to represent a substantial danger of physical harm to others. The trial court subsequently appointed two forensic mental health specialists to examine Gallegos pursuant to section 1026.2.
At the August 11 hearing on the petition, Gallegos was represented by counsel. After the trial court advised Gallegos of his right to a jury trial and other constitutional rights, he waived those rights. He then submitted on, and agreed to, the petition. The court found Gallegos knowingly, intelligently, and voluntarily waived his constitutional rights and then agreed to an extension of his civil commitment. The court issued an order granting the section 1026.5 petition and extended Gallegos's civil commitment for an additional two years through December 14, 2019. Gallegos timely filed a notice of appeal.
DISCUSSION
We appointed counsel to represent Gallegos on appeal. His counsel filed a brief summarizing the facts and proceedings below. He informed this court that he found no arguable issues, but nevertheless requested that we exercise our discretion to independently review the record on appeal. He notes that in Martinez, supra, 246 Cal.App.4th 1226, the court held that the Anders/Wende independent review procedures do not apply to section 1026.5 NGI civil commitment extension proceedings. Martinez followed Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.), which reached a similar conclusion regarding civil commitments pursuant to the Lanterman- Petris-Short (LPS) Act (Welf. & Inst. Code, §§ 5000 et seq.). (Martinez, at p. 1236.) Ben C. noted that a reviewing court "may, of course, find it appropriate to retain the appeal" despite the absence of a constitutional requirement to conduct an independent review of the record. (Ben C., at p. 544, fn. 7.) On this basis, Gallegos's counsel requests that if we choose to follow Martinez, we should nevertheless exercise our discretion to conduct an independent review of the record on appeal under Ben C. We granted Gallegos permission to file a supplemental brief on his own behalf, but he has not timely responded.
Martinez reviewed Ben C. and other relevant cases and held that "due process does not require an appellate court to conduct an independent review of the appellate record [applying Anders/Wende procedures] for possible issues in an appeal from an extension of an NGI's civil commitment." (Martinez, supra, 246 Cal.App.4th at p. 1230.) We agree with Martinez's reasoning and holding and decline to exercise our Ben C. discretion to conduct an independent review of the record in this case pursuant to Anders/Wende or otherwise. Accordingly, because appointed counsel has not raised any arguable issues on appeal and Gallegos has not filed a supplemental brief on his own behalf, we dismiss the appeal. (Martinez, at p. 1240.)
DISPOSITION
The appeal is dismissed.
DATO, J. WE CONCUR: O'ROURKE, Acting P. J. IRION, J.