Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo No. F327188 Charles S. Crandall, Judge
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kristofer Jorstad, Jason Tran, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
George Harrison Rowans appeals the order recommitting him to the Department of Mental Health pursuant to the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) We appointed counsel to represent Rowans in this court. After counsel's examination of the record, he filed an opening brief raising no issues and asking us to independently review the record pursuant to Anders v. California (1967) 386 U.S. 738, and People v. Wende (1979) 25 Cal.3d 436.
Further statutory references are to the Welfare and Institutions Code, unless otherwise noted.
We subsequently requested supplemental briefing on the issue whether the judicial review procedures established by those cases applies to SVPA proceedings, in light of the California Supreme Court's recent decision in Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.). We also granted Rowans's request to file a supplemental brief by August 10, 2007, but no brief was ever filed.
In light of Ben C., we conclude that Anders/Wende review is not required in SVPA proceedings. Accordingly, we dismiss the appeal.
BACKGROUND
In 1986, Rowans was convicted of forcible rape (former Pen. Code, § 261, subd. (2)) and was sentenced to three years in state prison. He was convicted of forcible rape again in 1995 (Pen. Code, § 261, subd. (a)(2)) and was sentenced to eight years in prison. On April 9, 2003, he was committed to the Department of Mental Health for two years. (Former § 6604.) On January 10, 2005, the district attorney filed a petition to extend his commitment for an additional two years. The trial court subsequently found that appellant was likely to engage in sexually violent predatory criminal behavior upon his release, and set the matter for trial. Appellant waived his right to a jury.
In September 2006, section 6604 was amended to provide for an indeterminate term of commitment. The committed person must be mentally examined every year to determine whether he or she currently meets the SVP definition (§ 6605), and is allowed to petition for conditional release and discharge at least annually (§§ 6605, subd. (b), 6608).
At the January 2006 court trial, three psychologists testified that Rowans currently met the SVP criteria. All three opined that Rowans suffers from paraphilia and antisocial personality disorder, and that he was thereby predisposed to commit sexual criminal acts and was likely to represent a substantial danger to the health and safety of others. The doctors recounted that both of the qualifying offenses involved Rowans forcibly raping young female Filipino women whom he had picked up in his car. Dr. Dawn Starr noted that Rowans was also convicted of sexual battery in 1992 after he attempted to sexually assault his female roommate.
Two other psychologists who evaluated Rowans testified for the defense. Both opined that Rowans did not suffer from paraphilia, and that he therefore did not qualify as an SVP. While one of the doctors acknowledged that Rowans suffers from antisocial personality disorder, the other testified to his belief that "[t]here is no such thing as antisocial personality disorder."
On February 16, 2006, the trial court found that Rowans qualified as an SVP and extended his commitment through April 9, 2007. This appeal followed.
DISCUSSION
It is well settled that the Anders/Wende procedures apply only to "appointed appellate counsel's representation of an indigent criminal defendant in his first appeal as of right." (In re Sade C. (1996) 13 Cal.4th 952, 978.) It is also well settled that SVPA proceedings are civil matters. (See, e.g., People v. Hurtado (2002) 28 Cal.4th 1179, 1192.) It logically follows that the Anders/Wende procedures are not directly implicated in such proceedings.
In Ben C., our Supreme Court applied the three-part analysis it employed in Sade C. in concluding that due process did not require application of the Anders/Wende procedures to conservatorship proceedings conducted under the Lanterman-Petris-Short Act (LPSA) (§ 5350 et seq.): "(1) the private interests at stake; (2) the state's interests involved; and (3) the risk that the absence of the procedures in question will lead to an erroneous resolution of the appeal." (In re Sade C., supra, 13 Cal.4th at p. 987.) In analyzing the first two factors, the court 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 evaluating the third factor, the court recognized that the LPSA contains several protections designed to prevent unwarranted commitments. Specifically, the conservatee in such proceedings has the right to trial and appellate counsel, a jury trial, and proof beyond a reasonable doubt. (Ben C., supra, 40 Cal.4th at p. 541.) The period of conservatorship is only one year and the conservatee has two opportunities to petition for rehearing during that period. (§§ 5361, 5364.) In addition, a request to extend 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 . . . ." (§ 5361.) The court reasoned that "[t]hese 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. [Citation.] 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, at pp. 542-543.) This "panoply of safeguards" in LPSA proceedings led the court to conclude that extension of the Anders/Wende procedures was not required. (Id., at p. 543.)
In SVPA proceedings, the primary private interest at issue is the liberty interest of the person to be committed. This interest plainly invokes due process concerns. (In re Sade C., supra, 13 Cal.4th at p. 987.) The SVP committee also has important interests in the accuracy and justice of the appeal's resolution (id., at p. 988), as well as the proper diagnosis and treatment of his or her mental disorder. On the other hand, the state has a strong interest in protecting the public from sexual predators. (People v. Martinez (2001) 88 Cal.App.4th 465, 484.)
The SVPA carefully balances the interests it is intended to protect against the person's individual liberty interest. "Commitment as an SVP cannot occur unless it is proven, beyond a reasonable doubt, that the person currently suffers from a clinically diagnosed mental disorder, is dangerous and likely to continue committing such crimes if released into the community, and has been found to have sexually victimized at least two people in prior criminal proceedings." (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1153, fn. 20.) Although the proceedings are civil in nature, the person to be committed enjoys many of the procedural safeguards provided in criminal cases. Specifically, the proceedings include the right to a probable cause hearing at which the person is entitled to the assistance of counsel (§ 6602), the right to a jury trial and a unanimous verdict, defense experts, and access to all records (§ 6603). In addition, "[c]ommitment and treatment are proper under the [SVPA] only for so long as the person is both mentally disordered and dangerous." (Hubbart, supra, at p. 1166.) At all times pertinent to this matter, commitment under the SVPA was for two years, extendable indefinitely so long as the above procedures are followed every two years. (Stats. 2000, ch. 420, § 3, p. 94.) This continued supervision and reevaluation of the committed person's condition provides the direct and appropriate intervention that reviewing courts cannot. (Ben C., supra, 40 Cal.4th at p. 543.) Accordingly, due process does not require us to independently review SVP commitment decisions under the Anders/Wende procedures.
Effective September 20, 2006, SVP commitment orders are for an "indeterminate" term. (§ 6604.) Because the commitment order Rowans appeals from is for a determinate term, we need not and do not decide whether, as Rowans asserts, indeterminate commitments are effectively criminal in nature and therefore subject to Anders/Wende review. While Rowans also suggests that his commitment might be automatically extended for an indeterminate term, he offers no authority for such a proposition.
In People v. Torres (2005) 59 Cal.Rptr.3d 439, review granted February 8, 2006, No. S139595, our colleagues in the Third District concluded that the Anders/Wende procedure is not required in proceedings brought under the SVPA. The California Supreme Court granted review in that case and the matter was deferred pending the court's decision in Ben C. The court subsequently issued its opinion in Ben C., holding that the Anders/Wende review procedures do not apply to conservatorship proceedings conducted pursuant to the LPSA. The court thereafter issued an order dismissing review in Torres "in light of" the Ben C. decision. This dismissal, which was entered pursuant to rule 8.528(b)(1) of California Rules of Court, supports the conclusion that the decision in Torres, although now unpublished, was correctly decided under the principles articulated in Ben C.
In Ben C., the Supreme Court dictated the following procedure for LPSA conservatorship proceedings. "If appointed counsel in a conservatorship appeal 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. Dismissal of an appeal raising no arguable issues is not inconsistent with article VI, section 14 of the California Constitution requiring that decisions determining causes 'be in writing with reasons stated.' Nothing is served by requiring a written opinion when the court does not actually decide any contested issues." (Ben C., supra, 40 Cal.4th at p. 544, fns. omitted.) "The conservatee is to be provided a copy of the brief and informed of the right to file a supplemental brief." (Id., at p. 544, fn. 6.) We follow the same procedure here. While Rowans notes that we may retain the appeal for review even though we are not required to do so (id., at p. 544, fn. 7), he fails to provide any legitimate reason why we should. We are confident that counsel fully complied with his duty to review the record and brief any arguable issues, and Rowans declined the opportunity to identify any issues he believed should have been raised. Dismissal of the appeal is therefore warranted.
The appeal is dismissed.
I concur: GILBERT, P.J.
YEGAN, J., dissenting.
I respectfully dissent. I believe that the appellate courts of this state should give independent review to an SVP trial court determination where appointed appellate counsel files an opening brief which raises no issues. (People v. Wende (1979) 25 Cal.3d 436.) The majority dismiss the appeal without independent review thus crediting the appointed appellate counsel's conclusion that there are no arguable issues. I do not denigrate the abilities of appointed appellate counsel but I would have much more confidence in dismissal of the appeal if we were to undertake Wende review. There is no question but that the SVP commitment is civil but, as former Justice Abbe declared in the analogous Mentally Disordered Offender scheme, these types of commitments have "overwhelming penal attributes." (People v. Gibson (1988) 204 Cal.ApP.3d 1425, 1432.) This is especially true now that an SVP has a potential life commitment and is no longer subject to trial on the issue every two years. (Welf. & Inst. Code §6604.)
If this rule withstands review in the California Supreme Court, I fear that our workload will be greater, not lesser. Experienced appellate counsel have heretofore filed Wende briefs knowing that we would undertake independent review and notify them if we found any arguable issues. In theory, this was a legitimate tactic which could reap a benefit for the client. Now there is little incentive to do so and I fear that counsel will now strive to file a brief on the merits to avoid peremptory dismissal.