People v. Lucas

• Decision Date: 11 August 2021
• Docket Number: C092922
• Parties: THE PEOPLE, Plaintiff and Respondent, v. DAVID LEE LUCAS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. DAVID LEE LUCAS, Defendant and Appellant.

C092922

California Court of Appeals, Third District, Placer

August 11, 2021

NOT TO BE PUBLISHED

Super Ct. No. SCV0023989

RAYE P. J.

Defendant David Lee Lucas appeals from a trial court order dismissing his petition for unconditional discharge from the custody of the Department of State Hospitals (DSH) under the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq).^[1] We appointed counsel to represent defendant on appeal. Appointed counsel filed an opening brief invoking the independent judicial review procedures set forth in Anders v. California (1967) 386 U.S. 738 and People v. Wende (1979) 25 Cal.3d 436. For the reasons discussed in People v. Kisling (2015) 239 Cal.App.4th 288, we conclude that Anders/Wende review on appeal is not available to defendant in the SVPA proceedings involved here, and we dismiss the appeal.

BACKGROUND

In 2013, the trial court found defendant to be a sexually violent predator within the meaning of the SVPA and committed him to the custody of DSH at Coalinga State Hospital. In 2019, consistent with section 6604.9, DSH conducted an annual review of defendant's mental condition and concluded neither conditional nor unconditional release would be appropriate. In 2020, defendant filed a document entitled “Petition for 6605 Unconditional Discharge; Hearing Judicial Review of Commitment, ” which contained the text of section 6605. The court appointed counsel and set a hearing on the matter.

At the hearing, the court considered whether defendant was entitled to petition for unconditional discharge under section 6605. Defense counsel argued defendant did not require a recommendation from DSH to apply for unconditional discharge. The prosecutor argued defendant's only avenue to apply for release without a recommendation from DSH was to apply first for conditional release and then later apply for unconditional release. Citing People v. Smith (2020) 49 Cal.App.5th 445, the court reasoned, “the legislature determined that before SVPs are unconditionally discharged on their own petitions they must spend time or they must spend at least one year on conditional release.

“That language, although I understand how it's applied in that case, is consistent with this Court's reading with respect to how to interpret [section] 6605 as requiring as a precondition for unconditional release and filing the petition the concurrence from the doctor or the -- a favorable opinion from the Department of State Hospitals.” The court thus dismissed the petition saying defendant could not seek unconditional discharge under section 6605. Defendant timely appealed.

DISCUSSION

Appointed counsel filed an opening brief citing Anders and Wende. Counsel acknowledged that the Courts of Appeal have concluded Wende/Anders procedures do not apply to SVP proceedings. Accordingly counsel cited Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544, and set forth the basic facts and procedural history of the case, as well as applicable law related to the SVPA. Counsel further asserted that, should defendant file a supplemental brief, this court would have an obligation to consider any issues raised in the brief. Counsel declared that he advised defendant of his right to file a supplemental brief or letter containing any issues he wishes this court to consider.

In People v. Kisling, supra, 239 Cal.App.4th 288, we considered whether Wende applies to an appeal from the denial of a defendant's petition for release from commitment as a sexually violent predator. We concluded Wende review applies only to appointed counsel's representation of an indigent criminal defendant in a first appeal of right; because proceedings under the SVPA are civil matters, it follows that an appeal from an SVPA proceeding does not directly implicate Wende. (Kisling, at p. 290.) Applying the three-part test articulated in Conservatorship of Ben C., supra, 40 Cal.4th 529, Kisling determined that such review is not required on appeal from a SVPA proceeding. (Kisling, at pp. 290-292.) Here, appointed counsel filed an opening brief raising no arguable issues on appeal and the case is thus subject to dismissal under Kisling.

Defendant filed a supplemental brief, asserting two claims of error. First, he asserts the court erred when it failed to consider his advanced age and treatment efforts before it dismissed his petition. Second, defendant contends he received ineffective assistance of counsel because his attorney failed to present his treatment records or his age to the court. Defendant's contentions do not raise any arguable error. The trial court determined defendant, who was neither on conditional release nor had received a recommendation for unconditional release from DSH, was ineligible for a hearing on his petition for unconditional discharge. (People v Smith, supra, 49 Cal.App.5th at 453 [“before SVPs are unconditionally discharged on their own petitions, they must spend at least a year on conditional release”]; People v. LaBlanc (2015) 238 Cal.App.4th 1059, 1069, fn. 7 [same].) Thus, it need not have conducted such a hearing to consider the evidence supporting unconditional discharge, including the...