People v. Dobson

• Citation: 161 Cal.App.4th 1422,75 Cal.Rptr.3d 238
• Decision Date: 16 April 2008
• Docket Number: No. F053531.,F053531.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Steven Jay DOBSON, Defendant and Appellant.

75 Cal.Rptr.3d 238

161 Cal.App.4th 1422

The PEOPLE, Plaintiff and Respondent, v. Steven Jay DOBSON, Defendant and Appellant.

No. F053531.

Court of Appeal, Fifth District.

April 16, 2008.

Paul Bernstein, under appointment by the Court of Appeal, Los Angeles, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

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 § 1026.2), if appointed appellate counsel represents he or she has found no arguable issues, and that this court is not required to independently review the record pursuant to the Anders/Wende procedures.

FACTUAL AND PROCEDURAL HISTORY

In 1998, appellant Steven Jay Dobson pleaded guilty to vehicle theft (Veh.Code, § 10851, subd. (a)) and admitted four prior strike convictions. He also pleaded not guilty by reason of insanity. The trial court found him not guilty by reason of insanity (§ 1026), based on psychiatric evaluations that he suffered from auditory hallucinations, and heard voices telling him to drive away with another person's car and to kill his wife and son. The court ordered him committed to Patton State Hospital for a maximum term of confinement of 25 years to life. Appellant was subsequently transferred to Napa State Hospital.² (See People v. Dobson, supra, F048015.)

In December 2004, appellant was placed on outpatient status. In January 2005, appellant absconded from the program.

In March 2005, the trial court granted a petition to revoke outpatient status (§ 1608), and found that he violated the terms of the conditional release program, attempted to obtain illegal drugs while on outpatient status, and he refused to take medications, accept the mental health diagnosis, or cooperate with his therapist. In December 2005, this court affirmed the trial court's ruling. (See People v. Dobson, supra, F048015.)

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 section 1026.2. The court granted his motion for a hearing. On May 9 and June 19, 2007, the court conducted the hearing on the matter. Appellant was represented by the public defender's office.

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 proceedings to decide whether the appeal is "wholly frivolous." (Ibid.)

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 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.)

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,...