In re Conservatorship of Ben C.

• Decision Date: 05 February 2007
• Docket Number: No. S126664.,S126664.
• Citation: 40 Cal.4th 529,53 Cal.Rptr.3d 856,150 P.3d 738
• Court: California Supreme Court
• Parties: CONSERVATORSHIP OF the Person of BEN C. San Diego County Health and Human Services Agency, Petitioner and Respondent, v. Ben C, Objector and Appellant.

53 Cal.Rptr.3d 856

40 Cal.4th 529

150 P.3d 738

CONSERVATORSHIP OF the Person of BEN C. San Diego County Health and Human Services Agency, Petitioner and Respondent, v. Ben C, Objector and Appellant.

No. S126664.

Supreme Court of California.

February 5, 2007.

Diane Nichols, under appointment by the Supreme Court, San Diego, and Robert L. Visnick, under appointment by the Court of Appeal, for Objector and Appellant.

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

John J. Sansome, County Counsel, Thomas E. Montgomery, Assistant County Counsel, Leonard W. Pollard II and William A. Johnson, Jr., Deputy County Counsel, for Petitioner and Respondent.

CORRIGAN, J.

In an indigent criminal defendant's first appeal as a matter of right, the Court of Appeal must independently review the record if appointed counsel represents he or she has found no arguable issues. (Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.E d.2d 493 (Anders); People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (Wende).) We here consider whether the federal or California Constitution requires Anders/Wende procedures in an appeal from the imposition of a conservatorship under the Lanterman-Petris-Short Act (LPS Act) (Welf. & Inst.Code § 5000 et seq.).¹ We conclude neither constitution so requires and we decline to extend the procedures under our inherent authority.

I. FACTUAL AND PROCEDURAL BACKGROUND

It is undisputed that appellant Ben C. suffers from a bipolar schizoaffective disorder. Evidence below established that he believed his food was being poisoned, causing his mental problems. As a consequence, he refused to eat and lost 21 pounds in a month. He also refused to take his antipsychotic medications, assaulted his father and grandmother, experienced hallucinations, masturbated publicly, and sexually assaulted female staff and patients.

After a bench trial, the court found that appellant was gravely disabled by a mental disorder and thus unable to provide for his basic needs. A conservatorship of his person was reestablished, and the least restrictive level of placement available was found to be a closed, locked treatment facility. (§§ 5008, subd. (h)(1)(A), 5350.)

Appointed counsel advised the Court of Appeal he found no issues to raise. Citing Anders, supra, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 and Wende, supra, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, he asked the court to independently review the record. The Court of Appeal appointed new counsel and requested briefing on the applicability of the Anders/Wende procedures to conservatorship proceedings under the LPS Act.

The Court of Appeal held the Anders/Wende procedures inapplicable, declined independent review, and affirmed the judgment. We affirm the judgment of the Court of Appeal.

II. DISCUSSION

In Anders, supra, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, the United States Supreme Court addressed the responsibilities of court and counsel when counsel concludes there are no meritorious issues in a criminal defendant's first appeal as a matter of right. "[I]f 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 court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal." (Id. at p. 744, 87 S.Ct. 1396.)²

Wende, supra, 25 Cal.3d 436, 158 Cal. Rptr. 839, 600 P.2d 1071 provided a gloss on Anders, supra, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. "The Wende court ... stated its view that, even if counsel believes the appeal to lack any basis in law or fact, he need not move to withdraw so long as he (1) does not advise the court of his belief and thereby disqualify himself, and (2) informs the defendant that he may request the court to relieve him if he so desires." (Sade C, supra, 13 Cal.4th at p. 980, 55 Cal.Rptr.2d 771, 920 P.2d 716.)

First, we turn to the question whether Anders, supra, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 is directly applicable in LPS Act conservatorship appeals. In Pennsylvania v. Finley (1987) 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (Finley), the high court declined to extend Anders to collateral attacks upon criminal convictions. The court noted that its cases "establish that the right to appointed counsel extends to the first appeal of right, and no further." (Finley, at p. 555, 107 S.Ct. 1990.) If a defendant "has no underlying constitutional right to appointed counsel," the defendant cannot "insist on the Anders procedures which were designed solely to protect that underlying constitutional right." (Id. at p. 557, 107 S.Ct. 1990.)

Following the reasoning of Finley, supra, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539, we held in Sade C., supra, 13 Cal.4th 952, 55 Cal.Rptr.2d 771, 920 P.2d 716 that the Anders procedures do not apply to an indigent parent's appeal from a juvenile court decision affecting child custody or parental status. (Id., at p. 959, 55 Cal.Rptr.2d 771, 920 P.2d 716.) "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." (Id. at p. 982, 55 Cal.Rptr.2d 771, 920 P.2d 716.)

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. (Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1008, 36 Cal.Rptr.2d 40, 884 P.2d 988 (Susan T.))

Relying primarily on Conservatorship of Roulet (1979) 23 Cal.3d 219, 152 Cal.Rptr. 425, 590 P.2d 1 (Roulet), appellant argues that Anders, supra, 386 U.S. 738, 87 S.Ct. 1396 should nevertheless be extended to such appeals. In Roulet, this court held that "[t]he due process clause of the California Constitution requires that proof beyond a reasonable; doubt and a unanimous jury verdict be applied to conservatorship proceedings under the LPS Act." (Roulet, at p. 235, 152 Cal.Rptr. 425, 590 P.2d 1.) The rationale for the decision was that "[t]he appointment of a conservator for appellant and her subsequent confinement in a mental hospital against her will deprived appellant of freedom in its most basic aspects and placed a lasting stigma on her reputation." (Id. at p. 223, 152 Cal.Rptr. 425, 590 P.2d 1.) The court rejected the respondent's "reliance on a civil label." (Id. at p.. 225, 152 Cal.Rptr. 425, 590 P.2d 1.) "[Respondent takes false comfort in the fact that appellant's commitment is only a `civil' confinement for remedial purposes. However, these are mere labels. Appellant's stay in Camarillo State Hospital was not any less involuntary because the state called her incarceration by one name rather than another. As the United States Supreme Court has authoritatively written, `commitment is a deprivation of liberty. It is incarceration against one's will, whether it is called "criminal" or "civil."' (In re Gault (1967) 387 U.S. 1, 50[, 87 S.Ct. 1428, 18 L.Ed.2d 527].) In a subsequent opinion, the Supreme Court reiterated that `civil labels and good intentions do not themselves obviate the need for criminal due process safeguards....' (In re Winship (1970) 397 U.S. 358, 365-366[, 90 S.Ct. 1068, 25 L.Ed.2d 368].)" (Roulet, at pp. 224-225, 152 Cal.Rptr. 425, 590 P.2d 1.)

More recently this court has recognized, however, 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. In Susan T., supra, 8 Cal.4th 1005, 36 Cal. Rptr.2d 40, 884 P.2d 988, we held that the exclusionary rule does not apply in LPS proceedings. "We find no similarity between the aims and objectives of the act and those of the criminal law. What we have said of commitment proceedings for the mentally retarded (§ 6500-6513) is equally true of conservatorship proceedings under the act: `The commitment is not initiated in response, or necessarily related, to any criminal acts; it is of limited duration, expiring at the end of one year and any new petition is subject to the same procedures as an original commitment [citation]; the petitioner need not be a public prosecutor.... The sole state interest, legislatively expressed, is the custodial care, diagnosis, treatment, and protection of persons who are unable to take care of themselves and who for their own well being and the safety of others cannot be left adrift in the community. The commitment may not reasonably be deemed punishment either in its design or purpose. It is not analogous to criminal proceedings.' [Citations.]" (Susan T., at p. 1015, 36 Cal.Rptr.2d 40, 884 P.2d 988.) As the United States Supreme Court has observed: "`[T]he mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment.' [Citation.].... If detention...