Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. ZM011363, Clifford L. Klein, 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, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Afano Segi appeals from judgment granting a petition for recommitment as a mentally disordered offender under Penal Code section 2970. His appointed counsel raised no issues and asked this court for 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).
Unless otherwise noted, all statutory references pertain to the Penal Code.
Respondent moved for dismissal of the appeal under the authority of Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.), in which the Supreme Court decided that the appellate review procedures established in Anders and Wende do not apply to conservatorship proceedings under the Lanterman-Petris-Short Act (LPSA) (Welf. & Inst. Code, § 5000 et seq.). We conclude that the rationale of Ben C. extends to appeals from civil commitments under the Mentally Disordered Offender Act (MDOA) (§ 2962 et seq.) and therefore dismiss this appeal.
BACKGROUND
Segi was convicted in 1999 of assault with a deadly weapon and sentenced to prison. He was released on parole, but his parole was revoked after he assaulted a man in a public park. The Board of Parole Hearings certified Segi as meeting the MDO criteria on January 24, 2005. In May 2007, the District Attorney filed a petition to extend Segi’s MDO commitment for one year beyond its May 8, 2007 expiration date. The petition was supported by a report from Atascadero staff psychiatrist Dr. Lisa Scott.
The trial court appointed Drs. Kory Knapke and Sanjay Sahgal to evaluate Segi and file reports. Dr. Knapke, whose written report is contained in the appellate record, testified at the court trial on the petition. He determined that Segi suffered from a chronic psychotic illness, characteristic of schizoaffective disorder, bipolar type, and that Segi was not in remission at that time. He noted that Segi had “not been doing well” in recent months, as hospital staff had observed him responding to internal stimuli, he stopped going to group therapy, and he had demonstrated paranoia and hyper-vigilance. Knapke found Segi to be delusional during their interview. Specifically, Segi claimed that he had thrown bricks at a driver because the driver was sending shock waves into Segi’s brain. Segi also appeared to be responding to internal stimuli during his interview with Knapke. In addition, Knapke noted that Segi had a history of not taking his medications, and Segi said during the interview that if he were released into the community he might be able to stop taking his medications, depending on his mood. Knapke found Segi to be “very, very ill . . . very psychotic,” and unstable. He opined that Segi represented a substantial danger of physical harm to others.
Segi testified on his own behalf. He initially denied that he had ever harmed anyone, then admitted he had hurt a person by throwing a brick at a car. He claimed he had been going to group therapy and doing everything they told him to at Atascadero. Segi denied that he was dangerous.
The trial court found the petition true and extended Segi’s commitment to October 8, 2008.
Segi filed a timely appeal, and this court appointed counsel to represent him. Counsel raised no issues and asked this court to independently review the record for error. On January 9, 2008, we advised appellant he had 30 days within which to personally submit any contentions or issues he wished us to consider. Segi responded with a note stating he had never been in a fight at Atascadero, he took all of his medication and attended all of his “groups” and A.A. meetings, and could keep his mental illness in remission with the help of medication.
DISCUSSION
In In re Sade C. (1996) 13 Cal.4th 952 (Sade C.), the California Supreme Court held that the “prophylactic procedures” of Anders and Wende “are limited in their applicability to appointed appellate counsel’s representation of an indigent criminal defendant in his first appeal as of right.” (Sade C., supra, 13 Cal.4th at p. 978.) The court refused to extend Anders and Wende to an indigent parent’s appeal of an order adversely affecting custody rights or parental status. (Sade C., supra, 13 Cal.4th at p. 959.)
In Ben C., the Supreme Court extended the rationale of Sade C. by holding that Anders/Wende procedures are not required in appeals from LPS conservatorship proceedings. (Ben C., supra, 40 Cal.4th at p. 537.) The court began by recognizing that an LPS conservatee is not a criminal defendant and LPSA proceedings are civil in nature. (Ibid.) The court then applied the same three-part analysis it used in Sade C.: a consideration and balancing of the private interests at stake, the state’s interests, and the risk that the absence of the review procedures in issue would result in erroneous resolution of the appeal. (Ben C., supra, 40 Cal.4th at p. 539.) The court noted that the LPSA promoted private and public interests in “ ‘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.’ ” (Id. at p. 540.) In addition, the court noted that the LPSA protects “the mentally ill from criminal victimization [citation] and from the myriad forms of suffering endured by those unable to care for themselves.” (Ibid.)
The court acknowledged that significant liberty interests are at stake in a conservatorship proceeding, but found that “the Legislature and this court have built several layers of important safeguards into conservatorship procedure. These safeguards are extensive and designed to serve all three of the Lassiter [v. Department of Social Services (1981) 452 U.S. 18]/Sade C. considerations.” (Ben C., supra, 40 Cal.4th at p. 540.) These layers of safeguards include “a carefully calibrated series of temporary detentions for evaluation and treatment.” (Id. at p. 541.) For commitment beyond the temporary detentions, the proposed conservatee is thereafter entitled to appointed counsel and a trial in which a unanimous jury must find beyond a reasonable doubt that he or she is gravely disabled. During the course of a resulting one-year LPS conservatorship, the conservatee may twice petition for rehearing. Upon rehearing, the conservatee is entitled to appointed counsel and need only prove by a preponderance of the evidence that he or she is no longer gravely disabled. (Ibid.) An LPS conservatorship automatically terminates at the end of one year, and a petition by the conservator to extend it must include the opinions of two physicians or licensed psychologists that the conservatee is still gravely disabled. (Id. at p. 542.) At the hearing to reestablish the conservatorship, the conservatee has all of the rights afforded in the initial commitment proceeding, including appointed counsel. Finally, the conservatee has a right to appointed counsel on appeal. (Ibid.)
The court in Ben C. concluded that these procedural safeguards served to “vigilantly guard[] against erroneous conclusions in conservatorship proceedings” in a fashion that extended “many safeguards also afforded to criminal defendants, while taking into account the essential differences between the two systems.” (Ben C., supra, 40 Cal.4th at pp. 542-543.) The court noted that, generally, a criminal defendant’s only recourse to correct errors is appeal because the trial court generally loses jurisdiction after the judgment and sentence are final. (Id. at p. 543.) However, the LPSA allows the trial court to exercise ongoing supervision, which “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.” (Id. at p. 543.) The court therefore concluded that Anders/Wende review is not required in LPSA proceedings. (Ibid.)
Ben C., 40 Cal.4th 529, has been extended to appeals in MDOA proceedings by Division Six of this court in People v. Taylor (2008) 160 Cal.App.4th 304 (Taylor). Citing Sade C., supra, 13 Cal.4th at p. 978, the Taylor court noted that Anders/Wende review is required only for representation of an indigent criminal defendant by appointed counsel in his first appeal as of right. (Taylor, supra, 160 Cal.App.4th at p. 312.) In contrast, MDOA proceedings are by definition civil in nature, and their purpose is not punishment, but providing treatment for those suffering from mental illness. (Ibid.)
The Taylor court concluded 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.” (Taylor, supra, 160 Cal.App.4th at p. 312.) The court found that numerous procedural aspects of the MDOA protect 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.’ (Ben C., supra, 40 Cal.4th at p. 543.) [¶] MDO’s are also entitled to the appointment of counsel on appeal.” (Taylor, supra, 160 Cal.App.4th at pp. 312-313.)
We agree with the analysis and conclusions of Taylor. Segi was not entitled to Anders/Wende review. Because neither he nor appointed counsel raised any issues on appeal, we dismiss.
DISPOSITION
The appeal is dismissed.
We concur: RUBIN, Acting P. J., FLIER, J.