People v. Martinez

• Citation: 201 Cal.Rptr.3d 381,246 Cal.App.4th 1226
• Decision Date: 26 April 2016
• Docket Number: G052440
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jose MARTINEZ, Defendant and Appellant.

246 Cal.App.4th 1226

201 Cal.Rptr.3d 381

The PEOPLE, Plaintiff and Respondent,

v.Jose MARTINEZ, Defendant and Appellant.

G052440

Court of Appeal, Fourth District, Division 3, California.

Filed April 26, 2016

Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

OPINION

MOORE, J.

The issue presented herein is whether an appellate court is required to independently review the appellate record for the existence of meritorious issues in a matter where the superior court extended the civil commitment of an individual previously found not guilty by reason of insanity (NGI), when the individual's appointed counsel informs the court he or she has found no arguable issues on appeal, the client has been notified of that fact, and was given the chance to file a brief, but did not raise any issues on appeal. While appellate courts have such an obligation in a first appeal of right in a criminal matter (Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (Anders ); People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (Wende )), California courts have found no such obligation on an appeal from the establishment of a conservatorship (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 53 Cal.Rptr.3d 856, 150 P.3d 738 ), from the denial of a petition for outpatient treatment of an NGI (People v. Dobson (2008) 161 Cal.App.4th 1422, 75 Cal.Rptr.3d 238 (Dobson )), and from an order committing an individual as a mentally disordered offender (People v. Taylor (2008) 160 Cal.App.4th 304, 72 Cal.Rptr.3d 740 (Taylor )). We hold due process does not require an appellate court to conduct an independent review of the appellate record for possible issues in an appeal from an extension of an NGI's civil commitment.

IFACTS

In 2004, defendant Jose Martinez was found not guilty by reason of insanity on one count each of first degree burglary (Pen.Code,¹§§ 459, 460, subd. (a) ) and attempted burglary (§§ 459, 664, subd. (a) ). Martinez, who has been diagnosed with schizophrenia with cannabis dependence and alcohol abuse, was committed to a state hospital. In 2011, he stipulated to an extension of his civil commitment, and the court signed an order granting Martinez outpatient status (CONREP). He was on CONREP for approximately two years, but his outpatient status was eventually revoked when he went missing from CONREP for a two-day period in which he smoked marijuana and drank alcohol.

On March 5, 2015, the district attorney filed a petition to extend Martinez's commitment pursuant to section 1025.5, subdivision (b). The jury found "Martinez suffers from a mental disease, defect, or disorder, he now poses a substantial danger of physical harm to others and has serious difficulty in controlling his dangerous behavior, within the meaning of section 1026.5." The court ordered Martinez's commitment extended for two years, to July 25, 2017. Martinez filed a timely notice of appeal.

IIDISCUSSION

We appointed counsel to represent Martinez on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on Martinez's behalf. Martinez was given 30 days to file a supplemental brief on his own behalf. That period has passed, and we have received no communication from Martinez.

Martinez's counsel argued that due process requires this court to undertake an independent review of the appellate record for arguable issues as is the rule in first criminal appeals of right. (Anders v. California, supra, 386 U.S. 738, 87 S.Ct. 1396 ; People v. Wende, supra, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071.)

Under the Fourteenth Amendment, a criminal defendant has a constitutional right to counsel on his or her first appeal as of right. (Evitts v. Lucey (1985) 469 U.S. 387, 388, 105 S.Ct. 830, 83 L.Ed.2d 821, citing Douglas v. California (1963) 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811.) In Anders v. California, supra, 386 U.S. 738, 87 S.Ct. 1396, a criminal defendant appealed his felony conviction to the Court of Appeal. The appellate court appointed counsel to represent the defendant. Counsel reviewed the record and consulted with the defendant, but concluded the appeal was meritless. (Id. at p. 739, 87 S.Ct. 1396.) Counsel advised the appellate court in a letter of his conclusion and of the fact that his client desired to file a brief on his own behalf. (Id. at pp. 739–740, 87 S.Ct. 1396.) The United States Supreme Court granted certiorari out of a concern "with the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal." (Id. at p. 739, 87 S.Ct. 1396.)

The decision in Anders was based on a criminal defendant's right to counsel under the Sixth Amendment and made applicable to the states through the Fourteenth Amendment. (Anders v. California, supra, 386 U.S. at p. 742, 87 S.Ct. 1396.) The high court held the procedure whereby appointed counsel merely informs the court through a letter that the attorney has concluded the appeal lacks merit is not an adequate substitute for the right to a fully litigated appeal available to all criminal defendants. (Id. at pp. 742–743, 87 S.Ct. 1396.) The court then spelled out the procedure that should be taken by appointed counsel who, upon reviewing the record and consulting with the client has determined the appeal lacks merit: "Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if 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, fn.omitted.)

The issue in People v. Wende, supra, 25 Cal.3d at page 440, 158 Cal.Rptr. 839, 600 P.2d 1071, was whether once the Court of Appeal has been informed by appointed counsel that no arguable issue was found, it is required to review the entire appellate record before determining the appeal to be frivolous. Our Supreme Court found "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." (Id. at p. 441, 158 Cal.Rptr. 839, 600 P.2d 1071.)

The decision in Anders"did not set down an independent constitutional command that all lawyers, in all proceedings, must follow these particular procedures. Rather, Anders established a prophylactic framework that is relevant when, and only when, a litigant has a previously established constitutional right to counsel." (Pennsylvania v. Finley (1987) 481 U.S. 551, 554–555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (Finley ).) Finley involved a collateral review of a conviction by a defendant with appointed counsel. Appointed counsel concluded the collateral attack on the defendant's conviction lacked merit and so advised the superior court. (Id. at p. 553, 107 S.Ct. 1990.) The state appellate court concluded counsel's conduct violated the holding in Anders. (Id. at pp. 553–554, 107 S.Ct. 1990.) The Supreme Court granted certiorari. (Id. at p. 554, 107 S.Ct. 1990.)

The high court stated an individual does not have a constitutional right to appointed counsel on a collateral attack of a conviction, and "that the right to appointed counsel extends to the first appeal of right, and no further." (Pennsylvania v. Finley, supra, 481 U.S. at p. 555, 107 S.Ct. 1990.) The court reasoned that because a criminal defendant "has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction," the defendant has no such right to counsel in a collateral attack on a conviction that has become final after the initial appeal of right. (Ibid. ) Whether the Anders procedure is required depends not on the mere fact that a defendant has been afforded assistance of counsel; it is "the source of that right to a lawyer's assistance, combined with the nature of the proceedings, that controls the constitutional question." (Id. at p. 556, 107 S.Ct. 1990.) To trigger the right to the Anders procedure, the source of the appointment of counsel must be the federal Constitution. (Ibid. )

The court found counsel's conduct in Finley did not violate the attorney's duty as spelled out in Anders and "fully comported with fundamental fairness." (Pennsylvania v. Finley, supra, 481 U.S. at p. 556, 107 S.Ct. 1990.) The court stated postconviction collateral attack proceedings are not part of criminal proceedings, are themselves "civil in nature," and states are not obligated to provide the procedure. (Id. at p. 557, 107 S.Ct. 1990.) Moreover, when states do provide this "avenue of relief," the due process clause of the Fourteenth Amendment does not require the state to supply the indigent with an attorney. (Ibid. ) The court concluded, "Since respondent has no underlying constitutional right to appointed counsel in state postconviction...