People v. Kisling, C076047

• Court: California Court of Appeals
• Writing for the Court: ROBIE, J.
• Citation: 239 Cal.App.4th 288,190 Cal.Rptr.3d 800
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard KISLING, Defendant and Appellant.
• Decision Date: 06 August 2015
• Docket Number: C076047

239 Cal.App.4th 288
190 Cal.Rptr.3d 800

The PEOPLE, Plaintiff and Respondent
v.
Richard KISLING, Defendant and Appellant.

C076047

Court of Appeal, Third District, California.

Filed August 6, 2015

Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.

Opinion

ROBIE, J.

239 Cal.App.4th 290

In this case, we address whether People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 review applies to an appeal from the denial of a defendant's petition for release from his commitment as a sexually violent predator. Defendant Richard Kisling appeals from the trial court's denial of his petitions for unconditional and conditional release from his commitment as a sexually violent predator. (Welf. & Inst. Code,¹ §§ 6605, 6608.) Appointed counsel for defendant has asked this court to review the record pursuant to Wende to determine whether there exist any arguable issues in defendant's appeal from the trial court's order. We asked for supplemental briefing from the parties on whether Wende review applies to appeals from denials of petitions for release from a sexually violent predator commitment. Finding Wende review is inapplicable here, we shall dismiss the appeal.

Wende applies only to “appointed appellate counsel's representation of an indigent criminal defendant in his first appeal as of right.” (In re Sade C. (1996) 13 Cal.4th 952, 978, 55 Cal.Rptr.2d 771, 920 P.2d 716.) Since proceedings under the Sexually Violent Predator Act (SVPA) (§ 6600 et seq.) are civil matters (People v. Hurtado (2002) 28 Cal.4th 1179, 1192, 124 Cal.Rptr.2d 186, 52 P.3d 116 ), it follows that the proceeding in this appeal does not directly implicate Wende.

Defendant raises two arguments in support of his contention that Wende review applies to his appeal. Admitting that SVPA proceedings are not criminal, defendant nonetheless asserts that they are sufficiently similar to criminal proceedings to warrant the protections of Wende review. This argument cannot stand in light of the statement from the California Supreme Court in Sade C. limiting Wende to first appeals of right from criminal convictions.²

190 Cal.Rptr.3d 802

Defendant's other contention, that Wende review is required as a matter of federal and state due process, requires more attention.

In Conservatorship of Ben C. (2007) 40 Cal.4th 529, 53 Cal.Rptr.3d 856, 150 P.3d 738, our Supreme Court applied a three-part test in determining whether Wende review applied as a matter of due process to appeals from conservatorship proceedings conducted under the Lanterman–Petris–Short Act (LPS) (§§ 5000, 5350 et seq.): “ ‘(1) the private interests at stake; (2) the

239 Cal.App.4th 291

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.’ ” (Conservatorship of Ben C., at p. 539, 53 Cal.Rptr.3d 856, 150 P.3d 738.) The high court found the LPS served significant public and private interests including the prompt treatment of those with serious mental disorders and protecting public safety. (Id. at p. 540, 53 Cal.Rptr.3d 856, 150 P.3d 738.) While LPS conservatees had important liberty interests at stake (ibid. ), protections from them in the LPS, such as the right to trial and appellate counsel, and the proof beyond a reasonable doubt standard mitigated the prospect of improper...