P. v. Olvera

Filed 7/26/07 P. v. Olvera CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Following a jury trial in December 2004 on a petition filed to extend appellant's commitment as a sexually violent predator, the court committed appellant to the custody of the State Department of Mental Health pursuant to Welfare and Institutions Code section 6604 for a two-year term. We appointed counsel to represent appellant in this court. Appointed counsel filed an opening brief which states the case but raises no specific issues. Appellate counsel has asked that this court, pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, review the entire record to determine whether it may contain arguable issues on appeal. We conclude that Wende review is not required in civil commitment proceedings under the Sexually Violent Predator (SVP) Act. Accordingly, we dismiss the appeal.

Background

In 1997, appellant was committed to Atascadero State Hospital as a sexually violent predator under Welfare and Institutions Code section 6604. In December 2004, after the filing of a petition to extend his commitment for two years, a three-day jury trial was held in accordance with the SVP Act. (Welf. & Inst. Code,  6600 et seq.). The parties stipulated that appellant had two or more qualifying convictions under the Act. Witnesses testified as to whether appellant had a mental disorder and whether he was a danger to society. The jury found true the allegations in the petition. The trial court ordered that appellant be committed to the custody of the State Department of Mental Health for two years.

Discussion

Appellate counsel has asked that this court, pursuant to People v. Wende, supra, and Anders v. California, supra, review the entire record to determine whether it may contain arguable issues on appeal. Counsel does not cite to, and we are unaware of, a published California case which holds that the Anders/Wende procedure applies requiring the court to make a review of the entire record to an appeal by an SVP from an order of recommitment. This court requested supplemental briefing on the applicability of In re Conservatorship of Ben C. (2007) 40 Cal.4th 529.[1] In Ben C., our Supreme Court held that the Anders/Wende procedures were inapplicable in conservatorship proceedings conducted pursuant to Welfare and Institutions Code sections 5350 et seq. (Lanterman-Petris-Short (LPS) Act).

If this were the first appeal of right in a criminal matter, appointed counsel's opening brief would require us to independently review the record to determine if there are any legal points arguable on their merits. (Anders, supra,386 U.S. 738; Wende, supra,25 Cal.3d 436.) Anders explained, in the context of a criminal appeal by an indigent defendant, "[t]he constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, . . . Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the courtnot counselthen proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous." (Anders, supra, 386 U.S. at p. 744, italics added.)Wende clarified that, where counsel has not been disqualified by representing the appeal as frivolous, counsel need not seek leave to withdraw. (Wende, supra,25 Cal.3d at p. 442.)

Although Anders and Wende both involved an indigent criminal defendant's first appeal as of right, some courts have found the procedure to be appropriate in other circumstances where the litigant is entitled to appointed counsel on appeal. (See In re Andrew B. (1995) 40 Cal.App.4th 825, 857 [Anders/Wende review required in juvenile dependency appeals], disapproved by In re Sade C. (1996)13 Cal.4th 952, 982, fn. 11, 983, fn. 12, 984, fn. 13; In re Brian B. (1983) 141 Cal.App.3d 397 and In re Joyleaf W. (1984) 150 Cal.App.3d 865 [same], both abrogated by In re Angelica V. (1995) 39 Cal.App.4th 1007, 1012; Conservatorship of Margaret L. (2001) 89 Cal.App.4th 675 [Anders/Wende review required in conservatorship proceedings] and Conservatorship of Besoyan (1986) 181 Cal.App.3d 34 [same], both overruled by Ben C., supra,40 Cal.4th at p. 544.)

Ben C. recognized that "the analogy between criminal proceedings and proceedings under the LPS Act is imperfect at best and that not all of the safeguards required in the former are appropriate to the latter." (Ben C., supra, 40 Cal.4th at p. 538.) Appellant argues "that the factors militating against review in an LPS Act case do not occur in a commitment under the SVP Act, and that the close relationship between cases under the SVP Act and criminal prosecutions strongly supports the propriety of independent review under the procedures set out" in Anders and Wende. Appellant argues, "in the continuum that runs from criminal cases protected by Anders/Wende and dependency cases that are not, proceedings under the SVP Act fall closer to criminal cases and are subject to those protections."

It is settled that the Anders/Wende procedures are directly applicable only 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.) A proceeding under the SVP Act is not a criminal proceeding. Commitment as an SVP is a civil matter or a special proceeding of a civil nature. (People v. Hurtado (2002) 28 Cal.4th 1179, 1192.) Thus, where defendant has been civilly committed under the act, he is not a criminal defendant and the Anders/Wende procedures are not directly implicated. (Cf. Ben C., supra, 40 Cal.4th at p. 537.)

Ben C. concluded that, in addition to having no direct application in an LPS conservatorship, the Anders/Wende procedures are not required by state or federal due process guarantees. Ben C. applied the three‑part analysis that was used in Sade C., which held that due process did not require extending the Anders/Wende procedures to a parent's appeal in dependency proceedings. Sade C. balanced three factors: "(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." (Sade C., supra,13 Cal.4th at p. 987, following Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27.)

Applying this three‑part test, Ben C. 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.)

The salient question was whether the absence of an Anders/Wende review significantly increased the risk of erroneous results. (Ben C., supra,40 Cal.4th at p. 538.) Ben C. observed that the LPS Act establishes layers of protection to avoid erroneous commitments. The conservatee has the right to counsel, a jury trial, and proof beyond a reasonable doubt. (Id. at p. 541.) The conservatorship lasts only one year, during which a conservatee may twice petition for rehearing. (Welf. & Inst. Code, 5361, 5364.) Any request for an extension of 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 . . . ." (Welf. & Inst. Code, 5361.) The conservatee is also entitled to the appointment of appellate counsel. (Ben C., supra,40 Cal.4th at p. 541.)

"These 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. (But see Pen. Code, 1170, subd. (d).) 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,40 Cal.4th at pp. 542‑543.) Ben C. concluded that, in light of the "panoply of safeguards appropriately geared to the specific goals and interests involved" extension of Anders/Wende was not required. (Id. at p. 543.)

The same reasoning is applicable to civil commitments under the SVP Act. The primary private interest at issue in an SVP proceeding is the liberty interest of the person to be committed, a compelling interest implicitly protected by the Fourteenth Amendment's due process clause. (Sade C., supra,13 Cal.4th at p. 987.) The person also has important interests in the accuracy and justice of the appeal's resolution (id. at p. 988), and the proper diagnosis and treatment of his or her mental health condition. The very compelling public interest of the act is to prevent sexual predation. The public interest involved in deciding whether to accord a person subject to SVP commitment an additional review primarily involves concerns about delay and administrative costs. (Ben C., supra,40 Cal.4th at p. 548 (dis. opn. of George, C.J.).) Given the powerful interests weighing in favor of additional review, the pivotal question is whether the absence of Anders/Wende procedures increases the risk of an erroneous commitment. We do not believe that it does.

The SVP Act carefully balances the interests it is intended to protect against the person's individual liberty interest. The SVP Act holds the committing authority to the highest standard of proof. (Welf. & Inst. Code, 6604.) "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.) The SVP Act gives the person to be committed the same kind of procedural safeguards typically provided in criminal cases. The proceedings include the right to a probable cause hearing at which the person is entitled to the assistance of counsel (Welf. & Inst. Code, 6602), the right to a jury trial and a unanimous verdict, assistance of counsel, defense experts, and access to all records (Welf. & Inst. Code,  6603).

Furthermore, a commitment order is not immutable. "Commitment and treatment are proper under the [SVP] Act only for so long as the person is both mentally disordered and dangerous." (Hubbart v. Superior Court, supra,19 Cal.4th at p. 1166.) At all times pertinent to this matter, commitment under the SVP Act was for two years, extendable indefinitely so long as the above procedures were followed every two years. (Stats. 2000, ch. 420, 3, p. 94.)[2] Thus, the lower court does not lose jurisdiction to correct a commitment error when circumstances warrant. At the same time, the regular review requirement means that an SVP commitment, unlike a criminal conviction, allows the committed person recourse other than to courts of review and insures ongoing supervision focused upon the person's current condition and, as in an LPS conservatorship, ensures more direct and appropriate intervention than an appellate court can provide. (Ben C., supra,40 Cal.4th at p. 542.) We conclude, therefore, that due process does not require independent appellate review under the Anders/Wende procedures.

"A 'reviewing court has inherent power, on motion or its own motion, to dismiss an appeal which it cannot or should not hear and determine.' [Citation.] An appealed-from judgment or order is presumed correct. [Citation.] Hence, the appellant must make a challenge. In so doing, he must raise claims of reversible error or other defect [citation], and 'present argument and authority on each point made' [citations]. If he does not, he may, in the court's discretion, be deemed to have abandoned his appeal. [Citation.] In that event, it may order dismissal. [Citation.] Such a result is appropriate here. With no error or other defect claimed against the orders appealed from, the Court of Appeal was presented with no reason to proceed to the merits of any unraised 'points'--and, a fortiori, no reason to reverse or even modify the orders in question. [Citation.]" (In reSade C., supra, 13 Cal.4th at p. 994, fn. omitted.) Because we conclude that the Anders/Wende procedures are not applicable, we dismiss the appeal as abandoned.

DISPOSITION

The appeal is dismissed as abandoned.

_____________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

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[1]People v. Torres (2005) 59 Cal.Rptr.3d 439, [ review granted February 8, 2006, S139595] held that Wende procedure is not mandated in cases brought under the SVP Act. Torres was appealed to the Supreme Court, which granted review. A decision in that case was deferred pending the Supreme Court's review of and decision in Ben C., supra, 40 Cal.4th 529. The Ben. C. decision resulted in an order by our Supreme Court of May 9, 2007, dismissing review of Torres. We interpret this dismissal of review, entered pursuant to California Rules of Court, rule 8.528(b)(1), as meaning that our Supreme Court has concluded that the result in Torres--which remains in effect but unpublished (see Cal. Rules of Court, rule 8.528(b)(3))--is effectively controlled by the principles articulated in Ben C.

[2] Effective September 20, 2006, SVP commitment orders are for an "indeterminate" term. (Welf. & Inst. Code,  6604.) The revised procedure requires that the committed person be given a mental examination every year to determine whether he or she currently meets the definition of a sexually violent predator (Welf. & Inst. Code,  6605) and permits the person to bring a petition for conditional release or discharge at least annually. (Welf. & Inst. Code,  6605, subd. (b), 6608.) Appellant acknowledges that his commitment here was for two years, but argues that "[a]s the court's decision will affect future SVP cases with indeterminate commitments, the court should consider that fact in resolving the issue." We decide here only that Anders/Wende review is not compelled in this case, in which the commitment was for a two-year term.