People v. DobsonPeople v. Dobson
HARRIS, Acting P.J.
INTRODUCTION
Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (Anders) and People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (Wende) require an appellate court to independently review the record in a criminal defendant‘s first appeal as a matter of right if appointed appellate counsel represents he or she has found no arguable issues. In Conservatorship of Ben C. (2007) 40 Cal.4th 529, 53 Cal.Rptr.3d 856, 150 P.3d 738 (Ben G), the California Supreme Court held that Anders/Wende review is not required on an appeal from the imposition of a conservatorship under the Lanterman-Petris-Short Act (LPS Act). In this case, we find Ben C. compels a similar conclusion in an appeal from the denial of outpatient status pursuant to a petition for restoration of competency (Pen.Code,1
FACTUAL AND PROCEDURAL HISTORY
In 1998, appellant Steven Jay Dobson pleaded guilty to vehicle theft (
In December 2004, appellant was placed on outpatient status. In January 2005, appellant absconded from the program.
On January 31, 2007, appellant filed a petition for release in the Superior Court of Fresno County, based on restoration of sanity, and requested a hearing pursuant to
On June 19, 2007, the court denied the petition, and found appellant would pose a danger to the health and safety of others due to a mental defect, disease, or disorder, based on his continued refusal to accept the diagnosis and treatment of mental health professionals, his stated intent to use illegal drugs, and his previous history of noncompliance with the terms of the outpatient program. On June 20, 2007, the court filed the order denying the petition.
On August 2, 2007, appellant filed a timely notice of appeal.
On November 16, 2007, appellant‘s appointed appellate counsel filed an opening brief which adequately summarized the facts and cited to the record, which raised no issues, and asked this court to independently review the record pursuant to Anders/Wende. Appellate counsel further asserted that Ben C. did not foreclose Wende review, and this court should exercise its discretion to conduct an independent review of the record, and invite and accept supplemental briefing from appellant.
By letter of November 16, 2007, this court invited appellant to submit additional briefing and state any grounds of appeal he may wish this court to consider. Appellant has not done so. This court requested further briefing from the respondent as to whether we are required to conduct an independent review of the record pursuant to Anders/Wende.
DISCUSSION
Given appellate counsel‘s decision to file a Wende brief in this case, we are called upon to determine whether we must independently review the record pursuant to Anders/Wende in this appeal from the denial of a petition for restoration of sanity. In resolving this issue, we must review the holdings of Anders, Wende, and Ben C, and the statutory scheme for criminal commitments and petitions to restore sanity, to determine whether the instant appeal should be dismissed.
A. Anders, Wende, and Ben C.
In Anders, the United States Supreme Court held that when appointed counsel conducts a conscientious examination of the proceedings but finds no meritorious ground in a criminal defendant‘s first appeal as of right, counsel should advise the court and request permission to withdraw. (Anders, supra, 386 U.S. at pp. 741, 744, 87 S.Ct. 1396.) To protect the defendant‘s constitutional right to assistance of counsel, the “request must ... be accompanied by a brief referring to anything in the record that might arguably support the appeal,” and a copy of the brief should be provided to the indigent defendant and time given to enable he or she to “raise any points that he [or she] chooses.” (Id. at p. 744, 87 S.Ct. 1396.) The appellate court fully examines all the
In Wende, the California Supreme Court held that appointed counsel in a criminal appeal is not required to seek permission to withdraw if he or she finds no arguable issues. (Wende, supra, 25 Cal.3d at p. 442, 158 Cal.Rptr. 839, 600 P.2d 1071.) Wende held the appellate court must “conduct a review of the entire record whenever appointed counsel submits a brief which raises no specific issues or describes the appeal as frivolous.” (Id, at p. 441, 158 Cal.Rptr. 839, 600 P.2d 1071.)
In In re Sade C. (1996) 13 Cal.4th 952, 55 Cal.Rptr.2d 771, 920 P.2d 716 (Sade C), the California Supreme Court refused to extend Anders and Wende to appeals from juvenile dependency proceedings.
“By its very terms, Anders‘s `prophylactic’ procedures are limited in their applicability to appointed appellate counsel‘s representation of an indigent criminal defendant—and there only in his first appeal as of right. An indigent parent adversely affected by a state-obtained decision on child custody or parental status is simply not a criminal defendant. Indeed, the proceedings in which he is involved must be deemed to be civil in nature and not criminal. [Citation.] To quote Chief Justice Burger‘s concurring opinion in Lassiter v. Department of Social Services (1981) 452 U.S. 18, 34[, 101 S.Ct. 2153, 68 L.Ed.2d 640] they are simply `not “punitive.“’ That they may be said to `bear[ ] many of the indicia of a criminal trial’ [citation] goes to form and not to substance. As a consequence, they are far removed from the object of the Anders court‘s concern, which was the first appeal as of right in a criminal action.” (Sade C, supra, 13 Cal.4th at p. 982, 55 Cal.Rptr.2d 771, 920 P.2d 716, fn. omitted.)
Thus, the purpose of the Anders/Wende procedure is “to ensure that attorneys who are appointed to represent indigent defendants in the defendant‘s first appeal conscientiously scrutinize the record and actively assert those issues which may, in the attorney‘s professional judgment, result in a reversal of the judgment or in a reduction of the defendant‘s sentence. [Citations.] These procedures apply, as a matter of due process and equality of representation, only to a defendant‘s first appeal as of right, [Citations.]” (People v. Thunnan (2007) 157 Cal. App.4th 36, 45, 68 Cal.Rptr.3d 425, italics added.)
In Ben C, the California Supreme Court held the procedures of Anders/Wendes are not applicable in LPS Act conservatorship appeals. In determining this issue, Ben C. cited to Pennsylvania v. Finley (1987) 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539, where the United States Supreme Court declined to extend Anders to collateral attacks upon criminal convictions, and also to the analysis in Sade C, as set forth ante. (Ben C, supra, 40 Cal.4th at pp. 536-537, 53 Cal.Rptr.3d 856, 150 P.3d 738.) “By the same reasoning, the Anders/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.” (Id. at p. 537, 53 Cal.Rptr.3d 856, 150 P.3d 738.)
Ben C. further held that neither federal nor state due process guarantees required the extension of the Anders/Wende procedures to appeals from LPS Act conservatorships. In reviewing the due process considerations, Ben C. balanced the three factors it similarly employed in Sade C, as set forth in Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (Lassiter): “`(1) the private interests at stake; (2) the
In analyzing the three factors, Ben C. noted 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. [Citation.]’ [Citation.] The Act also serves to protect the mentally ill from criminal victimization [citation] and from the myriad forms of suffering endured by those unable to care for themselves.” (Ben C, supra, 40 Cal.4th at p. 540, 53 Cal.Rptr.3d 856, 150 P.3d 738.)
Ben C. acknowledged there were significant liberty interests at stake in a conservatorship proceeding, which could lead to a person being involuntarily confined for up to one year, with the conservatorship extended for additional one-year periods “so long as the person remains gravely disabled.” (Ben C, supra, 40 Cal.4th at p. 540, 53 Cal.Rptr.3d 856, 150 P.3d 738.) However, “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/Sade C. considerations. [Citation.]” (Ben C, supra, 40 Cal.4th at p. 540, 53 Cal.Rptr.3d 856, 150 P.3d 738.) Specifically, the conservatee in such proceedings has the right to trial and appellate counsel, a jury trial, a unanimous jury finding, and the party seeking imposition of the conservatorship has the burden of proof beyond a reasonable doubt. (Id. at p. 541, 53 Cal. Rptr.3d 856, 150 P.3d 738.) The period of conservatorship is only one year and the conservatee has two opportunities to petition for rehearing during that period. At the rehearing, the matter is tried to the court, the conservatee has the right to appointed counsel, and the conservatee need only prove by a preponderance of the evidence that he or she is no longer gravely disabled. (Ibid.) 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....’ [Citation.]” (Id, at p. 542, 53 Cal.Rptr.3d 856, 150 P.3d 738.)
Ben C. 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 strikes the Lassiter/Sade C. balance in a qualitatively different way. It provides
Ben C. also rejected the equal protection claim that criminal defendants and LPS conservatees are similarly situated. “Criminal defendants face punishment, but an LPS commitment‘“may not reasonably be deemed punishment either in its design or purpose.“’ [Citation.]” (Ben C, supra, 40 Cal.4th at p. 543, 53 Cal.Rptr.3d 856, 150 P.3d 738.) Ben C. further rejected the argument to extend Anders/Wende procedures “under our inherent power to declare rules of California appellate procedure.” (Id. at p. 543, 53 Cal.Rptr.3d 856, 150 P.3d 738.)
“... Both the individual and the community have a profound interest in the calibrated and appropriate treatment of those who suffer from grave mental impairment. While placement in a secure setting is a burden on freedom, it is imposed, on a time-limited basis, to protect both the patient and his neighbors. Society has an obligation to ensure that freedom is not impinged upon unnecessarily or for an inappropriate period. The extensive framework of modulated intervention, under the supervision of both mental health professionals and the courts, has been created to provide that assurance. Adding yet another layer of review would be an undue expansion in cases that have been so extensively supervised, under the full panoply of protections afforded by jury trial, proof, beyond a reasonable doubt, and the assistance of at least two appointed counsel. We decline to extend a system of review that is not constitutionally compelled and that we, ourselves, have recognized has been subject to `“consistent and severe criticism“’ from its inception. [Citation.]” (Ben C, supra, 40 Cal.4th at p. 543, 53 Cal.Rptr.3d 856, 150 P.3d 738.)
We are thus faced with the question of whether the Anders/Wende procedures must be followed in an appeal from the denial of a petition for restoration of competency, where appointed appellate counsel represents he or she has found no arguable issues, or whether Ben C. compels a different conclusion. As in Ben C, this question can only be answered by reviewing the underlying statutory scheme at issue, which, in this case, is
B. Section 1026 et seq.
“Insanity, under California law, means that at the time the offense was committed, the defendant was incapable of knowing or understanding the nature of his act or of distinguishing right from wrong. [Citations.]” (Hernandez, supra, 22 Cal.4th at p. 520, 93 Cal.Rptr.2d 509, 994 P.2d 354.) “The `sanity trial is but a part of the same criminal proceeding as the guilt phase’ [citation] but differs procedurally from the guilt phase of trial `in that the issue is confined to sanity and the burden is upon the defendant to prove by a preponderance of the evidence that he was insane at the time of the offense’ [citation]. As in the determination of guilt, the verdict of the jury must be unanimous. [Citation.]” (Id. at p. 521, 93 Cal.Rptr.2d 509, 994 P.2d 354.) The defense of not guilty by reason of insanity “shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.” (
If the jury finds the defendant was insane at the time of the offense, the trial court shall commit the defendant to a state hospital or other appropriate public or private facility for the care and treatment of the mentally disordered, or place the defendant on outpatient status pursuant to
A finding of insanity is dispositive only on the question of whether the accused is to be held criminally responsible for committing the charged offense. (Hernandez, supra, 22 Cal.4th at p. 529, 93 Cal.Rptr.2d 509, 994 P.2d 354 (cone. opn. of Brown, J.); People v. Severance (2006) 138 Cal.App.4th 305, 318, 41 Cal.Rptr.3d 397.) “[A]n insanity acquittee has demonstrated dangerousness by committing a criminal offense. The acquittee has raised his mental illness as a defense to his criminal conduct and there has been an adjudication that he committed a criminal act and was legally insane when he did so.” (People v. Wilder (1995) 33 Cal.App.4th 90, 105, 39 Cal.Rptr.2d 247 (Wilder).) “The plea of insanity is thus necessarily one of `confession and avoidance.’ [Citation.] `Commission of the overt act is conceded’ but punishment is avoided `upon the sole ground that at the time the overt act was committed the defendant was [insane].’ [Citation.]” (Hernandez, supra, 22) Cal.4th at p. 521, 93 Cal.Rptr.2d 509, 994 P.2d 354.)
A successful insanity plea relieves the defendant of all criminal responsibility. (People v. Jantz (2006) 137 Cal. App.4th 1283, 1295, 40 Cal.Rptr.3d 875.) The commitment of the defendant to a state hospital “is in lieu of criminal punishment and is for the purpose of treatment, not punishment. [Citation.]” (People v. Superior Court (Williams) (1991) 233 Cal. App.3d 477, 485, 284 Cal.Rptr. 601
A defendant found not guilty by reason of insanity may be released from a state hospital upon either (1) the restoration of sanity pursuant to the provisions of
The instant case involves a request for release based upon the filing of a petition for restoration of sanity pursuant to
At the outpatient placement hearing, which is the type of hearing that was held in this case, the applicant must demonstrate he or she will not “be a danger to the health and safety of others, due to mental defect, disease, or disorder, while under supervision and treatment in the community.” (
If the court finds the applicant would not be dangerous under supervision and treatment in the community, the person is placed in “an appropriate forensic
The second step in the
A person found not guilty by reason of insanity may not be kept in actual custody longer than the maximum state prison term to which he or she could have been sentenced for the underlying offense. (
The proceedings to extend commitments under
The United States Supreme Court has found state commitment procedures substantially similar to
We believe the reasoning of Ben C. is applicable to the instant case and that Anders/Wende review is not required in an appeal from the denial of a petition for restoration of competency. A hearing on a petition to restore competency pursuant to
As explained ante, a successful insanity plea relieves the defendant of all criminal responsibility, and the commitment of the insanity acquittee to a state hospital “is in lieu of criminal punishment and is for the purpose of treatment, not punishment. [Citation.]” (Williams, supra, 233 Cal. App.3d at p. 485, 284 Cal.Rptr. 601; People v. Jantz, supra, 137 Cal.App.4th at p. 1295, 40 Cal.Rptr.3d 875.) As a result of the insanity plea, “punishment is avoided ‘upon the sole ground that at the time the overt act was committed the defendant was [insane].’ [Citation.]” (Hernandez, supra, 22 Cal.4th at p. 521, 93 Cal.Rptr.2d 509, 994 P.2d 354.) Thus, by the time of a
As explained in Sade C, the Anders/Wende procedures apply, “as a matter of due process and equality of representation, only to a defendant‘s first appeal as of right. [Citation.]” (People v. Thurman, supra, 157 Cal.App.4th 36, 45, 68 Cal. Rptr.3d 425.) “An outpatient status hearing ... is not a criminal proceeding.” (Sword, supra, 29 Cal.App.4th at p. 635, 34 Cal.Rptr.2d 810.) A hearing on a
We further conclude that neither federal nor state due process principles require extension of Anders/Wende procedures in an appeal from the denial of a petition for restoration of competency. As in Ben C. and Sade C, we look to the three factors set forth by the United States Supreme Court in Lassiter to balance the due process considerations: “`(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’ [Citation.]” (Ben C, supra, 40 Cal.4th at p. 539, 53 Cal.Rptr.3d 856, 150 P.3d 738.)
A
The United States Supreme Court has recognized that “`commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.’ [Citation.]” (Jones, supra, 463 U.S. at p. 361, 103 S.Ct. 3043.) “[F]or the ordinary citizen, commitment to a mental hospital produces `a massive curtailment of liberty,’ [citation], and in consequence `requires due process protection.’ [Citations.]” (Vitek v. Jones (1980) 445 U.S. 480, 491-492, 100 S.Ct. 1254, 63 L.Ed.2d 552.) The court has further recognized, however, that “a finding of not guilty by reason of insanity is a sufficient foundation for commitment of an insanity acquittee for the purposes of treatment and the protection of society.” (Jones, supra, 463 U.S. at p. 366, 103 S.Ct. 3043.) “[W]hen a criminal defendant establishes by a preponderance of the evidence that he is not guilty of a crime by reason of insanity, the Constitution permits the Government, on the basis of the insanity judgment, to confine him to a mental institution until such time as he has regained his sanity or is no longer a danger to himself or society.” (Id. at p. 370, 103 S.Ct. 3043.)
Thus, the primary private issue at stake in a
In assessing the risk that the absence of Anders/Wende review would result in the erroneous resolution of an appeal from a
Finally, an equal protection argument that criminal defendants and insanity acquittees are similarly situated is not persuasive to require the extension of the Anders/Wende procedures to an appeal from the denial of a
We thus conclude that when appointed appellate counsel files a Wende brief in an appeal from a denial of petition for restoration of competency, the Anders/Wende procedures are not applicable since it does not involve a criminal defendant‘s first appeal as a matter of right, and neither due process nor equal protection principles compel extension of the Anders/Wende procedures to this situation.
While Ben C. declined to extend Anders/Wende procedures, it offered guidance for Courts of Appeal when an appointed appellate counsel in a conservatorship appeal finds no arguable issues:
“[C]ounsel 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, 53 Cal.Rptr.3d 856, 150 P.3d 738, fns. omitted.) Ben C. further held the appellant is to be provided a copy of the brief and informed of the right to file a supplemental brief, and the. appellate court may find it is appropriate to retain the appeal. (Ben C, supra, 40 Cal.4th at p. 544, fns. 6, 7, 53 Cal.Rptr.3d 856, 150 P.3d 738.)
In the instant case, appointed appellate counsel filed a brief setting out the applicable facts and law, and informed the court that he found no arguable issues to be
DISPOSITION
The appeal is dismissed.
WE CONCUR: LEVY, and GOMES, JJ.