Opinion
H032192
8-5-2008
THE PEOPLE, Plaintiff and Respondent, v. RAPHAEL DAVID HUNTER, Jr., Defendant and Appellant.
Not to be Published
Defendant Raphael Hunter appeals an order extending his state hospital commitment for an additional year pursuant to Penal Code section 2970. Defendants counsel advises this court that his examination of the record reveals no arguable issues. (Anders v. California (1967) 386 U.S. 738 (Anders) ; People v. Wende (1979) 25 Cal.3d 436 (Wende).) Counsel advised his client in writing that a Wende brief was filed and that he had the right to personally file a supplemental brief in this case within 30 days. We have received no response from appellant. We conclude, consistent with Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.) recommitment proceedings pursuant to section 2970 are not subject to Wende review. Accordingly, we dismiss the appeal.
In April 2001, appellant pleaded guilty to one count of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) He was placed on probation. In August 2002, he admitted a probation violation and was sentenced to two years in state prison. In November 2005, the prosecutor filed a petition to have appellant committed to the Department of Mental Health as a mentally disordered offender (MDO) under Penal Code section 2970 et seq. After a jury trial, the trial court ordered appellants commitment to April 20, 2007.
On October 20, 2006, the prosecutor filed a petition to extend appellants commitment under Penal Code section 2972, subdivision (e). Through counsel, appellant waived his right to a jury trial on the petition and, on October 16, 2007, a court trial on the petition commenced. Appellants mother, Theron Carter, and appellant testified at an Evidence Code section 402 hearing. Carter had investigated psychiatric services that would be available to appellant if he moved to New Mexico where much of his family lived. Materials describing those services were introduced as Respondents Exhibit A. Appellant testified that if he were released form Atascadero State Hospital, he would like to move to New Mexico and planned to seek psychiatric assistance there. He said he would take whatever medication the doctors advised him to take. The testimony from this section 402 hearing was admitted at trial as to the substantive issues raised by the petition.
Dr. Lev Iofis, a psychiatrist employed at Atascadero State Hospital, testified as an expert in the areas of psychological diagnosis and risk assessment. He said that he had been appellants treating psychiatrist. He said appellant suffered from schizophrenia, that appellants mental illness was not in remission, and that, he would "present a danger to others out in the unsupervised world outside the hospital." In Dr. Iofiss opinion, appellant could not be safely treated on an outpatient basis.
Dr. Douglas Johnson testified as an expert in psychological diagnosis and risk assessment. He said that he was the director of the Harper Medical Group South Bay Regional Release Group. That program works with the State Department of Mental Health and makes recommendations to the courts as to whether a patient is appropriate for outpatient treatment. Dr. Johnson had known appellant for several years. He said that appellant had been unsuccessful in the conditional release program and had to be rehospitalized. He testified that appellant had a mental disorder and that appellant represented "a substantial danger of physical harm if released on an unsupervised capacity to the community." Dr. Johnson described appellant as a "friendly and cooperative guy" and said, "I dont think that Mr. Hunter has any intention of causing harm to anyone. I do believe, however, that there are parts of his history and parts of his symptomatology that hes unable to recognize in the level that I would like to see. That lack of recognition puts him in situations that I believe could be dangerous to him and dangerous to other people."
At the conclusion of the trial, the court found the allegations of the petition true. The court encouraged appellant to "work towards outpatient treatment right now" and told him, "If you keep working, you will eventually wind up with your family."
Discussion
If this were the first appeal of right in a criminal matter, appointed counsels opening brief would require us to independently review the record to determine if there are any legal points arguable on their merits. (Anders, supra, 386 U.S. 738; Wende, supra, 25 Cal.3d 436.) Anders explained, in the context of a criminal appeal by an indigent defendant, "[t]he constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client . . . . Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsels brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous." (Anders, supra, 386 U.S. at p. 744, italics added.) Wende clarified that where counsel has not been disqualified by representing the appeal as frivolous, counsel need not seek leave to withdraw. (Wende, supra, 25 Cal.3d at p. 442.)
Although Anders and Wende both involved an indigent criminal defendants first appeal as of right, some courts have in the past found the procedure to be appropriate in other circumstances where the litigant is entitled to appointed counsel on appeal. (See In re Andrew B. (1995) 40 Cal.App.4th 825, 857 [Anders/Wende review required in juvenile dependency appeals], disapproved by In re Sade C. (1996) 13 Cal.4th 952, 982, fn. 11, 983, fn. 12, 984, fn. 13 (Sade C.); In re Brian B. (1983) 141 Cal.App.3d 397 and In re Joyleaf W. (1984) 150 Cal.App.3d 865 [same], both abrogated by In re Angelica V. (1995) 39 Cal.App.4th 1007, 1012; Conservatorship of Margaret L. (2001) 89 Cal.App.4th 675 [Anders/Wende review required in conservatorship proceedings] and Conservatorship of Besoyan (1986) 181 Cal.App.3d 34 [same], both overruled by Ben C., supra, 40 Cal.4th at p. 544.)
In Sade C., supra, 13 Cal.4th at page 959, our Supreme Court held that Anders and Wende do not extend to an indigent parents appeal of an order adversely affecting custody rights or parental status. After concluding that those procedures apply only as a matter of right to criminal appeals, the court found no reason to extend those procedures to indigent parent appeals. The Supreme Court conducted a three-part analysis of the private interests at stake, the states interests, and the risk that the absence of the review procedures would result in erroneous resolution of the appeal. (Id. at pp. 986-987 following Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27 .) 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 Supreme Court identified the states interests as the parens patriae interest in preserving and promoting child welfare, the "interest in an accurate and just resolution of the parents 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 parents 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., 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.). Ben C. 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.)
Ben C. concluded that, in addition to having no direct application in an LPS conservatorship, the Anders/Wende procedures are not required by state or federal due process guarantees. Ben C. applied the three-part analysis that was used in Sade C. Applying this three-part test, Ben C. noted 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 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.) Ben C. observed that the LPS Act establishes layers of protection to avoid erroneous commitments. 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. 541.)
"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 defendants 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 courts ongoing supervision remains focused on a conservatees 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 conservatees 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.) Ben C. 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. (Id. at p. 543.)
In People v. Taylor (2008) 160 Cal.App.4th 304, 312 (rev. denied May 21, 2008) (Taylor), Division Six of the Second District concluded that in light of Sade C. and Ben C., Wende review procedures do not apply to post-conviction commitments under the Mentally Disordered Offender Act (Pen. Code, § 2960 et seq) (MDOA).
After noting that the MDOA is " `a civil commitment scheme, " and the purpose of the MDOA "is to provide treatment for those suffering from mental illness, not to punish them for their past crimes" (Taylor, supra, 160 Cal.App.4th at p. 312), the Taylor court went on to analyze the private and public interests at stake. The Taylor court concluded "the individuals 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 MDOs who represent a substantial danger of harm. [Citation.]" (Ibid.)
Furthermore, 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 BPH. 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 MDOs commitment period is for one year only, during which the Department of Mental Health can recommend discontinuing treatment if it is determined that the MDOs 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 courts 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.)
Moreover, the Taylor court noted, "MDOs 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 attorneys 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/Wende procedures to these appeals." (Taylor, supra, 160 Cal.App.4th at p. 313.)
We agree with the reasoning and rationale of the Taylor court that the Anders/Wende review procedure is not applicable in MDOA cases.
Disposition
The appeal is dismissed as abandoned.
WE CONCUR:
RUSHING, P. J.
PREMO, J. --------------- Notes: All further unspecified statutory references are to the Penal Code.