Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. 153966, 154018
Bamattre-Manoukian, ACTING P.J.
After a court trial, defendant Manuel R. Garcia’s commitment for involuntary treatment as a mentally disordered offender (MDO) was extended for one year pursuant to Penal Code section 2972. Defendant filed a timely notice of appeal and we appointed counsel to represent him in this court. Appointed counsel has filed an opening brief that states the case and facts but which raises no issues, and requests that this court review the entire record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). Appointed counsel advised his client in writing of the nature of the opening brief, that he would serve a copy of the brief on his client, and that his client may file a supplemental brief in this case within 30 days. We also notified defendant on April 15, 2011, of his right to submit written argument in his own behalf within 30 days. Thirty days have elapsed and we have received no written argument from defendant.
Defendant is referred to in the record as “Manuel Garcia, ” “Manuel R. Garcia, ” “Manuel Ronald Garcia, ” “Manuel Ruano Garcia, ” and “Emanuel Ruano Garcia.”
Further unspecified statutory references are to the Penal Code.
We determine that recommitment proceedings under section 2972 are not subject to Anders/Wende review. Accordingly, we will dismiss the appeal.
BACKGROUND
In June 2010, the district attorney filed a petition to extend defendant’s involuntary treatment as an MDO for one year. (§ 2972.) According to the petition, defendant had been convicted of violating section 288, subdivision (a) in superior court case No. 153966, and convicted of violating section 245, subdivision (a)(1) in superior court case No. 154018. In 1992, defendant was sentenced to a total of four years in prison for both cases. In November 1993, he was admitted to Atascadero State Hospital as an MDO. Defendant was later discharged to a conditional release program (CONREP) but was recommitted to Atascadero a short time later, following a violation of both parole and CONREP conditions. Defendant’s commitment for involuntary treatment was periodically extended by the court and, according to the district attorney’s petition, defendant was currently at Napa State Hospital.
In October 2010, a court trial was held on the petition. Dr. Fouad Wadie Saddik, a staff psychiatrist at Napa State Hospital, testified that he has been defendant’s treating psychiatrist since mid-May 2010. He has reviewed defendant’s file, including staff and psychiatric notes, as well as a letter signed by defendant’s former treating psychiatrist recommending the extension of defendant’s commitment for involuntary treatment.
According to Dr. Saddik, the records reflected that defendant had multiple convictions for lewd and lascivious acts against his niece, who was between the ages of four and six at the time of the crimes. Defendant also had a conviction for assault with a deadly weapon after defendant “attacked somebody in a van with a stick without any provocation or apparent reason.”
Dr. Saddik diagnosed defendant with schizophrenia paranoid type, pedophilia, exhibitionism, and polysubstance abuse in a controlled environment. He also diagnosed defendant with antisocial personality disorder and borderline intellectual functioning. Dr. Saddik believes that defendant understands the disorders to a certain extent. For example, defendant understands the symptoms of paranoid schizophrenia, but he does not understand the underlying “triggers” that he needs to look for in order to “gaug[e]” the disorder. He also understands that he has some polysubstance abuse issues, but he does not acknowledge that he has pedophilia or exhibitionism. Although defendant is fully compliant with his medication regime, he does not understand why he is taking medication.
Dr. Saddik testified that defendant must satisfy a wellness recovery plan in order to be discharged. Of the five major items, defendant has not met two items and has only partially met three items. Defendant is actively working on the component of the plan concerning relapse prevention for substance abuse, and he attends group therapy for substance abuse. However, he is not actively working on the rest of the plan, including the sex offender treatment program. For example, defendant is not regularly attending group therapy in the sex offender treatment program and when he does attend, he is not an active participant. Further, one of the elements of the sex offender treatment program is to acknowledge responsibility for the underlying assaults. Defendant has not acknowledged responsibility for his underlying crimes, nor has he expressed empathy for the victims. According to Dr. Saddik, remorse, understanding, and acknowledgment of triggers are important to “prophylactically prevent future” incidents.
Regarding defendant’s mental diagnoses, Dr. Saddik stated that defendant’s “symptoms are under control while medicated.” Specifically, defendant’s symptoms of paranoid schizophrenia are “under control while medicated in [a] controlled environment.” He is “not currently having delusions” and he is “not currently psychotic, ” although he occasionally has “paranoid ideations.” Dr. Saddik did not want to use the word “remission.” He explained that the “positive psychotic symptoms” of schizophrenia may, to a great extent, be successfully treated with current medications. However, there are other symptoms, including “negative symptoms, ” such as the lack of motivation, that may still be exhibited, and he was not sure whether defendant’s failure to attend meetings was because of the lack of motivation due to the schizophrenia.
Dr. Saddik explained that defendant’s diagnosis of pedophilia was based on “actual facts happening in the past, ” as defendant does not currently verbalize any fantasies or impulses and he does not currently acknowledge any attraction to children. Defendant has not yet started treatment for pedophilia. With respect to exhibitionism, it is “still active” and not in remission. Regarding polysubstance abuse, defendant had not had a positive drug screening within the five months before trial.
Dr. Saddik testified about defendant’s behavior at Napa State Hospital in the months prior to trial. In December 2009, defendant assaulted a peer and caused lacerations. Dr. Saddik did not know the details of the assault, including whether defendant was the aggressor or whether he was acting in self-defense. Within the 12 months prior to trial, defendant repeatedly masturbated in front of, or exposed his “private parts” to, others. This behavior occurred as recently as March 2010. Since May of 2010, defendant had been “behaving himself” except on one occasion approximately one month before trial when he came out of his room without a shirt, stated that it was hot, and touched his chest and groin area in front of the nurses.
Dr. Saddik believed that by reason of defendant’s mental disorder, he would pose a substantial risk of physical harm to others if he was released into the community at this time. Dr. Saddik explained that schizophrenia “is subject to remissions and relapses” and that relapses “can happen any time.” If defendant does not have the ability to identify the triggers or warning signs of his symptoms, he might stop taking his medications and “there is a high likelihood that he might become symptomatic again.” Once symptomatic, impulse control becomes an issue and the likelihood of reoffending is high. Dr. Saddik agrees with defendant’s former treating psychiatrist that defendant’s commitment for involuntary treatment should be extended for another year.
Following argument from counsel, the trial court found the allegations in the petition true and determined that defendant’s commitment would be extended for another year. In a written order filed October 21, 2010, the court found that defendant “suffer[s] from a severe mental disorder, that said mental disorder is not in remission, and that by reason of his mental disorder, [defendant] represents a substantial danger of physical harm to others.” The court ordered defendant’s commitment extended until November 25, 2011, pursuant to section 2972.
DISCUSSION
As we stated above, appointed counsel has filed an opening brief requesting Anders/Wende review.
“In an indigent criminal defendant’s first appeal as a matter of right, the Court of Appeal must independently review the record if appointed counsel represents he or she has found no arguable issues. (Anders[, supra, ] 386 U.S. 738; People v. Wende[, supra, ] 25 Cal.3d 436.)” (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535 (Ben C.).) The issue of whether to extend Anders/Wende review to appeals in other types of cases has been carefully considered by the California Supreme Court in In re Sade C. (1996) 13 Cal.4th 952 (Sade C.) and Ben C., supra, 40 Cal.4th 529. Based on these two opinions, Division Six of the Second District Court of Appeal in People v. Taylor (2008) 160 Cal.App.4th 304 (Taylor), concluded that appeals from civil commitments under the Mentally Disordered Offender Act (MDOA) (§ 2960 et seq.) are exempt from Anders/Wende review. We agree with Taylor, and we discuss Sade C. and Ben C. before turning to that opinion.
In Sade C., the California Supreme Court held that the Anders procedures do not apply to an indigent parent’s appeal of an order adversely affecting child custody rights or parental status. (Sade C., supra, 13 Cal.4th at p. 959.) After concluding that those procedures apply only as a matter of right to criminal appeals, our Supreme Court found no reason to extend those procedures to indigent parent appeals. The court conducted a three-part analysis of the private interests at stake, the state’s interests, and the risk that the absence of the review procedures would result in erroneous resolution of the appeal. (Id. at pp. 986-987.) The private interests at stake in Sade C., supra, 13 Cal.4th 952 were the interests of the parent and the child, a relationship the court recognized is implicit in the concept of liberty protected by the due process clause of the Fourteenth Amendment. (Id. at pp. 987-988.) The court identified the state’s interests as the parens patriae interest in preserving and promoting child welfare, the interest in an “accurate and just resolution of the parent’s appeal, ” and a “ ‘fiscal and administrative interest in reducing the cost and burden of [the] proceedings.’ [Citations.]” (Id. at pp. 989-990.) In the third stage of the analysis, the court concluded that the risk that the absence of Anders review would lead to an erroneous determination of the parent’s appeal was “negligible” because experience indicated that “appointed appellate counsel faithfully conduct themselves as active advocates in behalf of indigent parents.” (Id. at p. 990.)
In Ben C., the California Supreme Court held that Anders/Wende procedures are not required in an appeal from the imposition of a conservatorship under the Lanterman-Petris-Short Act (LPS Act) (Welf. & Inst. Code, § 5000 et seq.). (Ben C., supra, 40 Cal.4th at p. 535.) The Ben C. court concluded that Anders/Wende procedures have no direct application in an LPS conservatorship and that such procedures are not required by state or federal due process guarantees. In reaching the latter conclusion, the Ben C. court recognized that “the analogy between criminal proceedings and proceedings under the LPS Act is imperfect at best and that not all of the safeguards required in the former are appropriate to the latter.” (Ben C., supra, 40 Cal.4th at p. 538.) To determine whether Anders/Wende procedures should be extended to LPS conservatorship proceedings, the Ben C. court applied the three-part analysis that was used in Sade C. The Ben C. courtnoted that the LPS Act promotes both private and public interests. “Among its goals are ‘ending the inappropriate and indefinite commitment of the mentally ill, providing prompt evaluation and treatment of persons with serious mental disorders, guaranteeing and protecting public safety, safeguarding the rights of the involuntarily committed through judicial review, and providing individualized treatment, supervision and placement services for the gravely disabled by means of a conservatorship program. (§ 5001.)’ [Citation.] The Act also serves to protect the mentally ill from criminal victimization (§ 5001, subd. (g)) and from the myriad forms of suffering endured by those unable to care for themselves.” (Ben C., supra, 40 Cal.4th at p. 540.)
In Ben C., the “salient question” for the California Supreme Court was whether the absence of an Anders/Wende review significantly increased the risk of erroneous results. (Ben C., supra, 40 Cal.4th at p. 538.) The Ben C. court observed that the LPS Act establishes layers of protection to avoid erroneous commitments. Among other things, the conservatee has the right to counsel, a jury trial, and proof beyond a reasonable doubt. (Id. at p. 541.) The conservatorship lasts only one year, during which a conservatee may twice petition for rehearing. (Welf. & Inst. Code, §§ 5361, 5364.) Any request for an extension of the conservatorship must include the opinion of “two physicians or licensed psychologists who have a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders that the conservatee is still gravely disabled....” (Welf. & Inst. Code, § 5361 .) The conservatee is also entitled to the appointment of appellate counsel. (Ben C., supra, 40 Cal.4th at p. 542.)
“These procedures reflect an extension of many safeguards also afforded to criminal defendants, while taking into account the essential differences between the two systems. Ordinarily, once a criminal judgment and sentence are final, the trial court loses jurisdiction to correct error. (But see Pen. Code, § 1170, subd. (d).) The criminal defendant’s only recourse then is to the courts of review. The LPS scheme is quite different because of the one-year limit on commitments and the ability of the conservatee to return twice to the trial court for reconsideration during that 12-month period. [¶] As a result, the trial court’s ongoing supervision remains focused on a conservatee’s current needs and condition, in a manner quite different from that followed in a criminal context. Allowing continuing trial court attention ensures much more direct and appropriate intervention.... It provides the conservatee with a more immediate avenue for modification than that afforded by the more cumbersome appellate review. And it keeps the focus primarily on the conservatee’s current needs and progress, rather than on a retrospective consideration of conditions that may no longer exist.” (Ben C., supra, 40 Cal.4th at pp. 542-543.) The Ben C. court concluded that, in light of the “panoply of safeguards appropriately geared to the specific goals and interests involved” extension of Anders/Wende was not required. (Ben C., supra, 40 Cal.4th at p. 543.)
The Ben C. court also declined to extend Anders/Wende procedures under its inherent power to declare rules of California appellate procedure. (Ben C., supra, 40 Cal.4th at p. 543.) However, the Ben C. court instructed that appointed appellate counsel in a conservatorship appeal may file a brief that states there are no arguable issues and must provide the brief to the appellant, who must also be informed of the right to file a supplemental brief. (Id. at p. 544.) The court further instructed that the appellate court may find it appropriate to retain the appeal, rather than dismiss on its own motion an appeal that raises no arguable issues. (Id. at p. 544, fn. 6.)
In Taylor, Division Six of the Second District Court of Appeal concluded that in light of Sade C. and Ben C., “appeals from civil commitments under the Mentally Disordered Offender Act (MDOA) (Pen. Code, § 2962 et seq.) are also exempt from the Anders/Wende review requirements.” (Taylor, supra, 160 Cal.App.4th at p. 308, fn. omitted.) The Taylor court observed that the MDOA is “ ‘a civil commitment scheme, ’ ” and that the purpose of the MDOA “is to provide treatment for those suffering from mental illness, not to punish them for their past crimes. [Citations.]” (Taylor, supra, at p. 312.)
The Taylor court next analyzed the private and public interests at stake. The Taylor court determined that “the individual’s obvious interest in remaining free from a civil commitment is no greater than his or her interest in obtaining treatment for a severe mental disorder in order to prevent the commission of other crimes leading to further imprisonment. The state also has a strong interest in protecting the public from MDO’s who represent a substantial danger of harm. [Citation.]” (Taylor, supra, 160 Cal.App.4th at p. 312.)
In assessing the risk that the absence of Anders/Wende review would result in the erroneous resolution of MDOA appeals, the Taylor court recognized “there are numerous procedural protections against unwarranted commitments. In addition to the factors that must be established in order to sustain a commitment (§ 2962, subds. (c), (d)), a prisoner who is certified for MDO treatment as a condition of parole has the right to a hearing before the [Board of Parole Hearings]. At any such hearing, the person or agency who certified the prisoner for treatment bears the burden of proof. The prisoner is also entitled to the appointment of two independent mental health professionals who are experienced in the diagnosis and treatment of mental disorders. (§§ 2966, subd. (a), 2978.) The prisoner may thereafter petition for a hearing in the superior court in which he or she has the right to counsel, a jury trial, and a unanimous verdict by proof beyond a reasonable doubt. (§ 2966, subd. (b).) Not unlike LPSA commitments, the MDO’s commitment period is for one year only, during which the Department of Mental Health can recommend discontinuing treatment if it is determined that the MDO’s mental disorder is in remission and can be kept in remission without further treatment. (§ 2968.) If continued treatment is sought after the one-year commitment period has expired, the MDO is entitled to a new hearing with the same trial and appellate rights. (§ 2972.) ‘[T]he trial court’s ongoing supervision’ in this regard ‘provides the [MDO] with a more immediate avenue for modification than that afforded by the more cumbersome appellate review.’ [Citation.]” (Taylor, supra, 160 Cal.App.4th at pp. 312-313.)
The Taylor court further noted that “MDO’s are also entitled to the appointment of counsel on appeal. As the court recognized in Ben C.: ‘The Rules of Court also create safeguards to ensure active advocacy on appeal. A Court of Appeal must now evaluate an attorney’s qualifications for appointment, divide its appointments list into at least two levels based on experience and qualifications, match an attorney with the demands of the case, and review and evaluate the performance of appointed counsel to determine whether they should remain on the list at the same level, be placed on a different level, or be deleted from the list. [Citation.]’ [Citation.] In our experience, MDOA appeals are assigned to a relatively small pool of well-qualified attorneys who competently discharge their duties. Due process therefore does not require us to extend the Anders/Wendeprocedures to these appeals.” (Taylor, supra, 160 Cal.App.4th at p. 313.)
We agree with the reasoning and conclusion of Taylor and determine that the Anders/Wende review procedure is not applicable in MDOA cases.
In defendant’s opening brief on appeal, appellate counsel contends that the Court of Appeal’s opinion in Taylor “was wrongly decided.” Appellate counsel argues that MDO cases “are sufficiently similar to criminal cases to justify the use of Wende/Anders.” Appellate counsel also argues that Anders/Wende review is required under the due process clauses of the state and federal constitutions and that the “differences between MDO cases and LPS Act cases change the balance of the correct analysis” of the three factors discussed in Ben C. We observe that some of the asserted differences between the MDOA and the LPS Act are without factual or legal support, and the other asserted differences do not persuade us that the reasoning or conclusion in Taylor was incorrect.
Accordingly, we conclude that recommitment proceedings under section 2972 are not subject to Anders/Wende review. As no issue has been raised by defendant or appointed counsel, we will dismiss the appeal on our own motion. (Ben C., supra, 40 Cal.4th at p. 544.)
DISPOSITION
The appeal is dismissed.
WE CONCUR: DUFFY, J., WALSH, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.