Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RM07317858
Lambden, J.
Appellant appeals from a judgment granting a petition for recommitment as a mentally disordered offender (MDO) under Penal Code sections 2970 and 1237, subdivision (b). His counsel raises no issues and asks this court for an independent review of the record under People v. Wende (1979) 25 Cal.3d 436 (Wende).
Following our Supreme Court’s opinion in Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535 (Ben C.), we conclude that Wende review is unnecessary in civil MDO proceedings, since neither the federal nor the California Constitution so requires, and because the California Supreme Court has declined to extend the Wende procedure to proceedings that are essentially civil in nature even though they may involve crimes and include characteristics ordinarily found in criminal proceedings.
Nonetheless, we have conducted a Wende review in this case against the possibility that Ben C. is later held only to apply to conservatorship issues arising under the Lanterman-Petris-Short Act (LPS) (Welf. & Inst. Code, § 5000 et seq.). We also reiterate the importance of treating the individuals involved in MDO appeals “in a considerate and compassionate manner rather than summarily informing them that their appeals are frivolous and have been abandoned.” (Ben C., supra, 40 Cal.4th at p. 557 (dis. opn. of George, C.J.).)
BACKGROUND
In 2004, at the end of his prison sentence for violating Penal Code section 243, subdivision (c)(1) (battery against a custodial officer), appellant Carl McCoy was civilly committed to Atascadero State Hospital pursuant to Penal Code section 2962. On March 28, 2007, the Alameda County District Attorney filed a petition under Penal Code section 2970 to extend appellant’s MDO commitment for an additional year beyond its May 17, 2007 expiration.
Counsel for appellant waived appellant’s right to a jury trial, citing People v. Montoya (2001) 86 Cal.App.4th 825. At trial, the court found “beyond a reasonable doubt” that appellant met the criteria laid out in Penal Code section 2972, subdivision (c). The court recommitted appellant to Atascadero State Hospital for an additional year, to end on May 17, 2008. Appellant filed this timely appeal.
The opening Wende brief was filed on September 25, 2007. Appellant himself has filed no supplemental brief at this time.
DISCUSSION
Wende appeals are required during an indigent criminal defendant’s first appeal as a matter of right. (Anders v. California (1967) 386 U.S. 738 (Anders), Wende, supra, 25 Cal.3d 436.) In In re Sade C. (1996) 13 Cal.4th 952, 978, the California Supreme Court held that “Anders’s ‘prophylactic’ procedures are limited in their applicability to appointed appellate counsel’s representation of an indigent criminal defendant in his first appeal as of right. [Citations.]” (Italics added.)
Building on this reasoning, in Ben C., supra, 40 Cal.4th at page 537, four justices of the Supreme Court held that “Anders/Wende procedures are not required in appeals from LPS conservatorship proceedings. The conservatee is not a criminal defendant and the proceedings are civil in nature.” One key distinction is punishment, notes the court in Ben C., supra, at page 538, observing that the United States Supreme Court has said, “If detention for the purpose of protecting the community from harm necessarily constituted punishment, then all involuntary civil commitments would have to be considered punishment. But we have never so held.” (Kansas v. Hendricks (1997) 521 U.S. 346, 363.)
Continuing their analysis of LPS conservatorship proceedings, which have safeguards similar to MDO commitment proceedings, the court goes on to say that “the Legislature and this court have built several layers of important safeguards into conservatorship procedure.” (Ben C., supra, 40 Cal.4th at p. 540.) The court continues, “By establishing the layers of protection described, the Legislature, this court, and the Judicial Council have vigilantly guarded against erroneous conclusions.” (Id. at p. 542.) Finally, the court considered the issue of equal protection, saying that criminal defendants are not similarly situated to LPS conservatees because “[c]riminal defendants face punishment, but an LPS commitment ‘ “may not reasonably be deemed punishment either in its design or purpose.” ’ [Citation.]” (Ben C., at p. 543.)
Applying the holding of Ben C. to the present case convinces us that the reasoning used by the majority in Ben C. to bar Wende review in LPS Act conservatorship cases must also necessarily apply to Wende appeals filed in MDO cases. Both types of proceedings are civil, not criminal, in nature, despite the Legislature having gone beyond the usual constitutional requirements in such proceedings by granting defendants court-appointed counsel and other protections ordinarily reserved to criminal trials. Unlike criminal proceedings, neither is ostensibly concerned with punishment.
Accordingly, the majority’s holding in Ben C. makes Wende review unnecessary in MDO appeals. Pursuant to Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, we must reiterate their guidance: “If appointed counsel . . . finds no arguable issues, counsel need not and should not file a motion to withdraw. Instead, counsel should (1) inform the court he or she has found no arguable issues to be pursued on appeal; and (2) file a brief setting out the applicable facts and the law. Such a brief will provide an adequate basis for the court to dismiss the appeal on its own motion.” (Ben C., supra, 40 Cal.4th at p. 544.) In addition, the MDO should “be provided a copy of the brief and informed of the right to file a supplemental brief.” (Id. at p. 544, fn. 6.)
To this we add that the holding in Ben C. does not prohibit an appellate court’s careful scrutiny of court appointed counsel’s representation that no arguable issues are presented. Although MDO appellants are “ ‘confined in a hospital rather than a prison,’ ” this fact “ ‘does not eliminate the need to protect . . . against false confinement.’ [Citation.]” (Ben C., supra, 40 Cal.4th at p. 547, fn. 1 (dis. opn. of George, C.J.).) We also note that MDO proceedings, like the LPS proceedings in Ben C., “build upon past adjudications.” (Id. at p. 554.) Thus, “it is important that errors in earlier proceedings be corrected on appeal so that erroneous prior fact finding or procedures are not repeated and do not affect future adjudications.” (Ibid.) In addition, we agree with the dissent in Ben C. that an important part of review during an LPS or MDO appeal “is to communicate to the trial court any concerns the Court of Appeal may have, even if those concerns do not rise to the level of an arguable issue.” (Ben C., at p. 556.)
Our Supreme Court “has recognized ‘the important due process interest in recognizing the dignity and worth of the individual by treating him as an equal, fully participating and responsible member of society. [Citations.]’ ” (Ben C., supra, 40 Cal.4th at p. 555 (dis. opn. of George, C.J.).) Thus, we also join the dissenters in Ben C. in encouraging all Courts of Appeal involved in these proceedings “to treat these individuals in a considerate and compassionate manner rather than summarily informing them that their appeals are frivolous and have been abandoned.” (Id. at p. 557.)
Therefore, even though we are required to follow the precedent set in Ben C. we have independently reviewed the record in this case, and found no arguable issues.
Accordingly, the judgment is affirmed.
We concur: Kline, P.J. Haerle, J.