P. v. Kelly

Filed 10/18/07 P. v. Kelly CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant is a state prison inmate who was involuntarily committed as a mentally disordered offender (MDO) for an additional year pursuant to Penal Code section 2970.[1] In this appeal, his appointed counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436 (Wende).) In the alternative, defendant requests that at the very least, we conduct the level of review prescribed for LPS conservatees articulated by the California Supreme Court in Conservatorship of Ben C. (2007) 40 Cal.4th 529.) Counsel has advised defendant that he could file a supplemental brief with this court raising any issues he wishes to call to our attention. Defendant has not filed a supplemental brief. Upon independent review of the record, we conclude that no arguable issues are presented for review, and affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

A petition to extend defendants involuntary MDO commitment ( 2970) was filed on October 23, 2006. Defendant waived his right to a jury trial on the petition, and after continuances the case was tried before the court on April 24, 2007.

The prosecution offered evidence of defendants record of criminal and violent conduct prior to the MDO hearing. His commitment offense was assault with intent to commit rape in April of 1993, which occurred when he accosted a woman on the street, knocked her down, and attempted to disrobe her. Prior to that, he was convicted of attempted manslaughter in the state of Louisiana in October of 1985. He has been arrested for auto theft, kidnapping, armed robbery, and possession of stolen property. He has a history of alcohol, cannabis and cocaine abuse.

In the eight months preceding the hearing, defendant committed several assaultive acts while in custody in Napa State Hospital: in September of 2006, he struck a fellow inmate with a sock with batteries inside it, causing a gash to the victims head, and ended up in five-point restraints to calm him down; in December, he engaged in a fight on the floor with another inmate; in January of 2007, he attempted to assault a hospital staff member, then took a swing at the facility police when they arrived to get him to calm down, and was again placed in restraints; he kicked the door of the nurses station on two occasions; eleven incidences of inappropriate sexual behavior occurred, ranging from exposing his genitals to female staff to making sexually inappropriate comments. He had also twice been placed on observation as a danger to himself or others, and on one occasion refused to submit to a drug test. He recently complained of hearing voices and experiencing disturbing thoughts.

Defendants history indicated several suicide attempts by various means between March of 2003 and April of 2005. Evidence was also adduced that he failed to attend or participate in assigned group sex offender therapy sessions, and denied that he suffered from mental illness or needed the psychotropic medication prescribed for him. He continues to deny that he suffers from mental illness or that he is guilty of his commitment offense.

Expert opinion testimony was received from Dr. Genevieve Monks, a unit psychologist at Napa State Hospital who treated defendant for the past two years. She diagnosed defendant as currently suffering from schizoaffective disorder, bipolar type, with paranoid symptoms, substance abuse, exhibitionism, identity disorder, and adult antisocial behavior, all severe Axis I disorders. He is treated with antipsychotic medication, and periodically with PRN medication to calm him down when he becomes very agitated. He continues to be placed in a locked unit at the hospital due to his assaultive and sexually inappropriate behavior. Dr. Monks offered the opinion that defendants mental illness is not in remission, and he still shows signs and symptoms of his mental illness even though hes on psychotropic medication. According to the actuarial risk assessment instruments Dr. Monks performed on defendant to evaluate his psychopathic personality traits, his score indicates partial possible psychopathy, which is still a risk factor for future sex offenses. The Violence Risk Appraisal Guide administered to defendant also indicated a medium high risk of violent behavior. Her opinion was that defendant represents a substantial danger to the community if he is released.

Defendant testified at the hearing that he was not going to rape the woman who was the victim of the commitment offense. He was also never the aggressor in the physical altercations at the hospital, but rather just defended himself from aggression and homosexual activity by others. He does not know why he is incarcerated in Napa State Hospital, and asserted that he is not a danger to others if released. Defendant complained he has been shoved into a homosexual world at the hospital. He denied that he needs medication.

At the conclusion of the hearing the trial court found that the People proved defendant continues to suffer from a severe mental disorder, in this case schizoaffective disorder bipolar in nature, that is not in remission. The court further found that defendant represents a substantial risk of harm to others. The petition was therefore granted and defendant was recommitted to Napa State Hospital. This appeal followed.

DISCUSSION

Recently, the California Supreme Court concluded that the Anders^[[2]]/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. (Conservatorship of Ben C., supra, 40 Cal.4th 529, 537.)[3]

The issue of the necessity of a Wende review in appeals from judgments in MDO proceedings has not been definitively resolved. Pending resolution of the issue, we will continue to independently review the record in MDO cases where counsel submits a Wende brief. We recognize that a hearing under the MDO Act is a postconviction proceeding that is civil in nature. The statute requires first a hearing before the Board of Prison Terms on whether the prisoner has a severe mental disorder. ( 2962, 2966.) If the prisoner disagrees with the boards determination, the prisoner may request a hearing in superior court. The hearing shall be a civil hearing . . . . ( 2966, subd. (b).) A petition for a one-year extension is made by the district attorney to the superior court. ( 2970.) Again, the hearing is a civil proceeding. ( 2972, subd. (a).)

Nevertheless, the Legislature has recognized that a proceeding on an MDO has the characteristics of a criminal proceeding. Under the MDO Act, the prisoner has the right to appointed counsel and the right to a jury trial; the rules of criminal discovery apply; the district attorney must prove the allegations of the petition beyond a reasonable doubt; and the jurys verdict must be unanimous. ( 2972, subds. (a) & (b).) As a result, a prisoner committed for treatment as an MDO stands on parallel footing with a defendant in a criminal proceeding and should be afforded the same due process rights and protections, including the right to the assistance of appointed counsel on appeal and the right to effective representation. Because the procedures established by Wende are designed to ensure effective representation by appointed counsel on appeal, we will apply those procedures to the present appeal.

Proceeding to our review, we find no errors in the notice or hearing procedures in the present case. Defendant was properly advised of his statutory right to a jury trial, and was at all times represented by counsel. ( 2972, subd. (a).) Defendant voluntarily waived his statutory right to trial on the petition within 30 calendar days prior to the time he would otherwise have been released. ( 2972.) We also find no defect in defendants personal waiver of the right to a jury trial, in which his counsel concurred.

Upon review of the trial transcript we have not discovered any objections or disputes over the admission or exclusion of evidence which require our consideration on appeal. The prosecution did not present any improper argument.

The trial court made the requisite findings that defendant has a severe mental disorder, the disorder is not in remission, or cannot be kept in remission if his treatment is not continued, and that by reason of his mental disorder he represents a substantial danger of physical harm to others. ( 2972, subd. (c).) The findings are supported by substantial evidence in the record in the form of defendants history of criminal behavior and recent misconduct at the hospital, along with Dr. Monkss expert opinion testimony based upon her examination and treatment of defendant and her personal observations of his behavior. Nothing in the record casts doubt upon Dr. Monkss testimony.

Defendant was represented by counsel at all stages of the proceedings. There were no errors during the proceedings. There are no issues that require further briefing.

Accordingly, the judgment is affirmed.

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2]Anders v. California (1967) 386 U.S. 738.

[3] In appeals from decisions in LPS proceedings, the following guidance was offered to the Courts of Appeal. 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. (Conservatorship of Ben C., supra, 40 Cal.4th 529, 544, fns. omitted.)