Opinion
E074217
07-30-2020
THE PEOPLE, Plaintiff and Respondent, v. J.B., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FELJS19000140) OPINION APPEAL from the Superior Court of San Bernardino County. Lorenzo R. Balderrama, Judge. Affirmed. Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant J.B. appeals from an order denying her petition challenging her status as a mentally disordered offender (MDO). (Pen. Code, § 2962 et seq.) Her counsel on appeal has filed an opening brief asking this court to conduct an independent review of the record under People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). We affirm.
All further statutory references will be to the Penal Code, unless otherwise noted. --------
PROCEDURAL BACKGROUND
Defendant was convicted of elder abuse under circumstances likely to cause great bodily harm or death (§ 368, subd. (b)(1)) on August 15, 2017. She was sentenced to two years and, after applicable credits, was released to parole on June 2, 2018. She was admitted to Patton State Hospital on June 8, 2018, under section 2962. On June 21, 2019, the Board of Prison Terms (BPT) determined that defendant had a severe mental disorder that was not in remission or could not be kept in remission without treatment.
On July 12, 2019, defendant filed a petition challenging the BPT's finding. She waived her right to a jury trial and agreed to a court trial, where the case would be decided based upon evidence submitted by the district attorney. On October 30, 2019, the court denied her petition and confirmed the BPT's finding of June 21, 2019.
DISCUSSION
Defendant appealed, and upon her request, this court appointed counsel to represent her. Counsel has submitted an opening brief stating that he has found a few potential arguable issues and asking this court to conduct an independent Wende/Anders review of the record. He raises the following issues: (1) whether the evidence was sufficient to find defendant met the MDO criteria; (2) whether the court improperly admitted case-specific hearsay evidence, in violation of People v. Sanchez (2016) 63 Cal.4th 665; and (3) whether defendant personally waived her right to a jury trial. In requesting this court to apply the Wende/Anders independent review procedures, counsel notes the Supreme Court's decision in Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.), which held the Wende/Anders procedures do not apply to civil commitments under the Lanterman-Petris-Short (LPS) Act (Welf. & Inst. Code, § 5000 et seq.). (Ben C., at p. 537.) Furthermore, counsel acknowledges that, in People v. Taylor (2008) 160 Cal.App.4th 304 (Taylor), the Second District considered whether the Wende/Anders procedures apply to MDO commitment cases and concluded they do not. (Id. at pp. 307-308.)
Counsel notes that this court still retains discretion to conduct a Wende/Anders review. (See Ben C., supra, 40 Cal.4th at p. 544, fn. 7 ["The court may, of course, find it appropriate to retain the appeal."].) He asserts that, "[g]iven the serious consequences to [defendant] of the MDO finding and the relatively limited burden this review would place on this court, it would seem only fair and reasonable for this court to exercise its discretion and review the record." We are mindful of the dissent in Ben C. emphasizing the fundamental nature of the private interests at stake in that case, which are comparable to those at stake in this case. The dissent also observes that the majority's holding "in no way prevents the Courts of Appeal from expending the minimal effort required to provide these appeals with a second look and to provide an opinion that briefly notes the court has reviewed the record and that identifies the findings and evidence supporting the order." (Ben C., supra, 40 Cal.4th at p. 556 (dis. opn. of George, C.J.).) For those reasons, we shall undertake review of the record—although we recognize that we are not required to do so and may order the appeal dismissed
We offered defendant an opportunity to file a personal supplemental brief, which she has not done.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: MILLER
J. CODRINGTON
J.