In re Conservatorship of Person of Ben C., D042702.

Citation14 Cal.Rptr.3d 631,119 Cal.App.4th 710
Decision Date18 June 2004
Docket NumberNo. D042702.,D042702.
CourtCalifornia Court of Appeals
PartiesCONSERVATORSHIP OF the PERSON OF BEN C. San Diego County Health and Human Services Agency, Petitioner and Respondent, v. Ben C., Objector and Appellant.

Robert L. Visnick, under appointment by the Court of Appeal, Boston, MA, for Objector and Appellant.

Cheryl A. Geyerman, San Diego, for Appellate Defenders, Inc., as Amicus Curiae on behalf of Objector and Appellant.

John J. Sansone, County Counsel, Thomas E. Montgomery, Assistant County Counsel, and Leonard W. Pollard II, Deputy County Counsel, for Petitioner and Respondent.

McCONNELL, P.J.

The question here is whether in light of our high court's opinion in In re Sade C. (1996) 13 Cal.4th 952, 55 Cal.Rptr.2d 771, 920 P.2d 716 (Sade C.), the procedural safeguards established by 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), apply on appeal of an order for conservatorship of the person under the Lanterman-Petris-Short (LPS) Act (Welf. & Inst.Code,1 § 5350 et seq.). In Conservatorship of Margaret L. (2001) 89 Cal.App.4th 675, 107 Cal.Rptr.2d 542 (Margaret L.), a majority of the Fourth District Court of Appeal, Division Three, answered the question affirmatively. We respectfully disagree and hold our independent review of the record is unavailable in such cases to determine whether there is any arguable appellate issue.

BACKGROUND

A petition for the reestablishment of a conservatorship of the person of Ben C. under the LPS Act was filed on May 29, 2003. At a bench trial the court found Ben C. gravely disabled by a mental disorder. The court ordered the reestablishment of a conservatorship of Ben C. for one year and ordered him placed in a closed locked treatment facility.

Ben C.'s appointed counsel on appeal advises us he is unable to find any issue to raise on appeal, and, citing Anders, supra, 386 U.S. 738, 87 S.Ct. 1396, and Wende, supra, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, he asks that we independently review the record to determine whether any arguable appellate issue exists. Counsel mentions insufficiency of the evidence as a possible issue. In a declaration counsel states he provided Ben C. a copy of the appellate brief and advised him that he may file a brief raising any points he chooses. We have not received a brief from Ben C.

DISCUSSION
I

In Anders, 386 U.S. 738, 87 S.Ct. 1396, the United States Supreme Court held that in a criminal defendant's first appeal as of right, when appointed counsel conducts a conscientious examination of the proceedings but finds no meritorious ground of appeal he or she should advise the court and request permission to withdraw. Further, 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 counsel's brief should be furnished the indigent and time allowed him [or her] to raise any points that he [or she] chooses." (Id. at p. 744, 87 S.Ct. 1396.) The appellate court "then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous." (Ibid.)

The Anders court rejected the "no-merit letter" procedure approved in In re Nash (1964) 61 Cal.2d 491, 39 Cal.Rptr. 205, 393 P.2d 405. (Anders, supra, 386 U.S. at pp. 742-744, 87 S.Ct. 1396.) In In re Nash, the court held the requirement of Douglas v. State of California (1963) 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 — that an indigent criminal defendant be represented by appointed counsel on appeal — is met when appointed counsel thoroughly studies the record, consults with the defendant and trial counsel, and conscientiously concludes there are no meritorious grounds of appeal, and the appellate court is satisfied from its independent review of the record "in the light of any points raised by the defendant personally that counsel's assessment of the record is correct." (In re Nash, supra, at p. 495, 39 Cal.Rptr. 205, 393 P.2d 405.) In Anders, the court explained the "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 [or her] client, as opposed to that of amicus curiae," and the "no-merit letter and the procedure it triggers do not reach that dignity." (Anders, supra, 386 U.S. at p. 744, 87 S.Ct. 1396, italics omitted.)

In Wende, supra, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, the California Supreme Court held that in a criminal defendant's appeal "Anders requires the court to conduct a review of the entire record whenever appointed counsel submits a brief which raises no specific issues or describes the appeal as frivolous," and the "obligation is triggered by the receipt of such a brief from counsel and does not depend on the subsequent receipt of a brief from the defendant personally." (Id. at pp. 441-442, 158 Cal.Rptr. 839, 600 P.2d 1071.) "Wende reaches somewhat beyond Anders" (Sade C., supra, 13 Cal.4th at p. 980, 55 Cal.Rptr.2d 771, 920 P.2d 716), by stating that appointed appellate counsel following the Anders procedure need not seek the court's permission to withdraw from the case "so long as he [or she] has not described the appeal as frivolous and has informed the defendant that he [or she] may request the court to have counsel relieved if he [or she] so desires." (Wende, at p. 442, 158 Cal.Rptr. 839, 600 P.2d 1071.)

The question in Sade C. was whether the procedures of Anders and Wende are applicable or should be extended to juvenile dependency proceedings. The court answered the question negatively, explaining that "[b]y 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 [or her] 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 [or she] 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.)

The court further explained in Sade C.:"Anders's `prophylactic' procedures are dependent for their applicability on the existence of the indigent criminal defendant's right, under the Fourteenth Amendment's due process and equal protection clauses, to the assistance of appellate counsel appointed by the state — and there again, only in his [or her] first appeal as of right. That right of the indigent criminal defendant, however, does not exist for the indigent parent adversely affected by a state-obtained decision on child custody or parental status.... [¶] Lastly, Anders's `prophylactic' procedures are designed solely to protect the indigent criminal defendant's right, under the Fourteenth Amendment's due process and equal protection clauses, to the assistance of appellate counsel appointed by the state — and there yet again, only in his [or her] first appeal as of right. Since that right of the indigent criminal defendant, by its very terms, does not exist for the indigent parent adversely affected by a state-obtained decision on child custody or parental status, any protection of that nonexistent `right' — whether in the form of the procedures in question or otherwise — fails at bottom for lack of an object." (Sade C., supra, 13 Cal.4th at pp. 983-982, 55 Cal.Rptr.2d 771, 920 P.2d 716.)

In Sade C., the court disapproved of In re Andrew B. (1995) 40 Cal.App.4th 825, 830, 47 Cal.Rptr.2d 604, in which the court "broadly" concluded "`Anders/Wende procedures are required' whenever `there is a right to appointed [appellate] counsel,' apparently no matter what its source, at least when a `fundamental interest' is implicated." (Sade C., supra, 13 Cal.4th at p. 983, fn. 13, 55 Cal.Rptr.2d 771, 920 P.2d 716.)

II

Before the Sade C. decision, the court in Conservatorship of Besoyan (1986) 181 Cal.App.3d 34, 36, 226 Cal.Rptr. 196 (Besoyan), held the Wende procedure applied to an appeal of the imposition of a conservatorship under the LPS Act. In Sade C. the court noted that "[g]enerally, the Courts of Appeal have confined Anders and Wende to criminal appeals," but cited Besoyan and other cases to show "[e]xceptions, however, are apparent." (Sade C., supra, 13 Cal.4th at p. 962, fn. 2, 55 Cal.Rptr.2d 771, 920 P.2d 716.) The court did not expressly disapprove of Besoyan, however, it declared "[t]o the extent that any decision of ours or of the Courts of Appeal states or implies that the applicability of Anders goes beyond what is described in the text, it is disapproved." (Id. at p. 984, fn. 13, 55 Cal.Rptr.2d 771, 920 P.2d 716, italics added.) The court repeated the admonition later in the opinion. (Id. at p. 994, fn. 21, 55 Cal.Rptr.2d 771, 920 P.2d 716.) The text of Sade C. repeatedly states Anders's "prophylactic" procedures apply only to appointed appellate counsel's representation of an indigent criminal defendant in his or her first appeal. (Id. at pp. 977-979, 982-983, 985-986, 991, 55 Cal.Rptr.2d 771, 920 P.2d 716.)2

In Margaret L., the majority concluded that after Sade C., Anders and Wende remain...

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2 cases
  • People v. Torres
    • United States
    • California Court of Appeals Court of Appeals
    • November 8, 2005
    ... ... in criminal appeals, not civil appeals, but there have been exceptions including paternity appeals, termination of parental rights, conservatorship appeals, and juvenile delinquency appeals. 2 ( Sade C., supra, 13 Cal.4th at p. 962, fn. 2, 55 Cal.Rptr.2d 771, 920 P.2d 716, and cases cited ... ), the court concluded, over a strong dissent, that Wende review continued to be required in conservatorships of the person appeals, finding that Sade C. did not directly disapprove of Conservatorship of Besoyan (1986) 181 Cal.App.3d 34 at page 38, 226 Cal.Rptr. 196 ... ...
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    • United States
    • California Supreme Court
    • March 23, 2005
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