Filed 11/13/18 P. v. Gutierrez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Bambi J. Moyer, Judge. Dismissed.

Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

The court denied defendant and appellant, Leodegario Gutierrez’s, motion for compassionate release pursuant to Welfare and Institutions Code section 4146.[1] After defendant filed a notice of appeal, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the facts and a statement of the case. The appeal is dismissed.

I. FACTUAL AND PROCEDURAL BACKGROUND[2]

Defendant illegally entered the United States in 1988. In 1990, he was convicted of committing lewd acts upon a three-year-old boy (Pen. Code, § 288, subd. (a)) and sentenced to six years in prison. He was deported to El Salvador in 1992 and, at some point thereafter, illegally reentered the United States. In 1998, he was convicted of committing lewd acts upon a five-year-old boy (ibid.) and was sentenced to three years in prison.

In May 2001, shortly before his release on parole, the People filed a petition to commit defendant as an SVP. A jury determined defendant was an SVP, and the trial court ordered defendant committed for two years beginning July 15, 2003.

On December 7, 2017, defense counsel orally moved for preparation of a report regarding defendant’s medical condition as it would pertain to whether defendant would qualify for compassionate release pursuant to section 4146. The court granted the motion.

On January 11, 2018, a physician who interviewed defendant and reviewed his medical file, filed a confidential medical report with the court. The court released copies of the report to counsel. At a hearing on February 6, 2018, defense counsel requested that the court release defendant pursuant to section 4146. Defense counsel argued that if released, defendant was likely to be deported to El Salvador where he would receive better medical treatment.

The court first found that section 4146 did not apply to SVP’s like defendant. The court then found that defendant was not “terminally ill with an incurable condition caused by an illness or disease that would likely produce death within six months, as determined by a physician . . . .” (§ 4146, subd. (b)(5)(A).) The court found defendant would pose a threat to public safety under any conditions of relief because even if defendant was deported he would pose a danger to other individuals being subjected to sex offenses. (Id., subd. (b)(5)(B).) Finally, the court found that defendant was not “permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living . . . .” (Id., subd. (b)(5)(C).) Thus, the court found defendant did not qualify for relief under section 4146 and denied his request.

II. DISCUSSION

We offered defendant an opportunity to file a personal supplemental brief, which he has not done. Pursuant to People v. Kisling (2015) 239 Cal.App.4th 288, the appeal must be dismissed without our review of the record because Wende review applies only to a criminal defendant’s first appeal of right. (People v. Kisling, supra, at p. 290.) Wende review does not apply to proceedings under the Sexually Violent Predator Act (§ 6600, et seq.). (People v. Kisling, supra, at pp. 290-292.) Since defendant is not a criminal defendant and this is not his first appeal of right, the appeal must be and is dismissed. (Ibid.)

III. DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

MILLER

J.

SLOUGH

J.