People v. Smith, B175297.

Citation127 Cal.App.4th 896,26 Cal.Rptr.3d 50
Decision Date23 March 2004
Docket NumberNo. B175297.,B175297.
CourtCalifornia Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Tom SMITH, Defendant and Appellant.

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

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

KRIEGLER, J.*

The issue in this case is whether the procedures constitutionally required in an appeal by a indigent criminal defendant under 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) also apply to the appeal from an order of commitment under the Mentally Disordered Offender statute ("MDO") pursuant to Penal Code section 2962 et seq.1 Based upon relevant authority from the United States Supreme Court and the California Supreme Court, we conclude Anders and Wende do not apply to an appeal under the MDO statutes.

PROCEDURAL HISTORY

The District Attorney of Los Angeles County filed a petition to extend the involuntary commitment of appellant Tom Smith ("appellant") pursuant to section 2970. The petition alleged that appellant was previously committed pursuant to section 2962 as severely mentally disordered after having been found guilty of assault with intent to commit rape in violation of section 220. The petition further alleged that appellant has a severe mental disorder, that the severe mental disorder is not in remission, or cannot be kept in remission if appellant's treatment is not continued and that by reason of appellant's severe mental disorder, appellant represents a substantial danger of physical harm to others.

A jury found the allegations of the petition to be true. The trial court ordered appellant recommitted to Patton State Hospital for a period of one year beyond the previous commitment order. Patton State Hospital was ordered to provide appropriate treatment and confinement.

Following the filing of a timely notice of appeal, we appointed counsel to represent appellant before this court. Counsel filed an opening brief setting forth an accurate statement of the case and statement of facts, followed by an argument pursuant to Wende, requesting this court to independently review the entire record on appeal. Counsel indicated he had reviewed the entire record and remained available to brief any additional issues upon the court's request. Counsel advised appellant of his right to file a supplemental brief. The opening brief included a declaration from counsel consistent with the requirements of Wende.

In response to appellant's Wende brief, this court issued an order observing that an appeal from an MDO commitment constituted a postjudgment civil proceeding. Noting that the California Supreme Court in In re Sade C. (1996) 13 Cal.4th 952, 978-983, 55 Cal.Rptr.2d 771, 920 P.2d 716 (Sade C.) held that the Anders and Wende procedures are not applicable to a civil appeal, we directed counsel for appellant to file a supplemental opening brief on the applicability of Wende to the initial appeal of an MDO commitment. After counsel for appellant filed a supplemental opening brief addressing the Wende issue, the Attorney General filed a respondent's brief, to which appellant has filed a reply brief.

DISCUSSION

The Opinion in Sade C.

In Sade C., the California Supreme Court granted review "to address the question whether Anders ..., which has been considered in decisions including ... Wende ..., applies, or must or should be extended, to an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting his custody of a child or his status as the child's parent. As will appear, our answer is no." (Sade C., supra, 13 Cal.4th at p. 959, 55 Cal.Rptr.2d 771, 920 P.2d 716.)

In defining the constitutional role of an appointed attorney for an indigent defendant, Anders held that the "constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. 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 to 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." (Anders, supra, 386 U.S. at p. 744, 87 S.Ct. 1396, fn. omitted.)

California expanded on the demands of Anders in Wende. "Wende reaches somewhat beyond Anders. It does so in its statement that appointed appellate counsel is not required to move to withdraw if he believes the appeal to lack any basis in law or fact." (Sade C., supra, 13 Cal.4th at pp. 980-981, 55 Cal.Rptr.2d 771, 920 P.2d 716.) The United States Supreme Court upheld the constitutionality of the Wende procedure in Smith v. Robbins (2000) 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756.

The court in Sade C., an opinion by Justice Stanley Mosk, undertook an exhaustive analysis of Anders and other relevant United States Supreme Court authority before concluding that Anders and Wende do not apply to civil appeals, such as termination of a parent's rights to custody of a child. The court noted that, in general, Wende had been limited to criminal appeals, although there was some inconsistency:

"Generally, the Courts of Appeal have confined Anders and Wende to criminal appeals. (See, e.g., In re Olsen (1986) 176 Cal.App.3d 386, 389-392 [holding that Anders and Wende are applicable to criminal appeals of misdemeanors as well as felonies].) They have generally declined to reach into civil appeals. (See, e.g., Berger v. Godden (1985) 163 Cal.App.3d 1113, 1117, fn. 2 [distinguishing Wende in the area of civil appeals]; Grillo v. Smith (1983) 144 Cal.App.3d 868, 873, fn. 3 [same]; see also Adoption of Chad T. (1995) 39 Cal.App.4th 1107, 1108-1109 [declining to extend Wende to appeals from a termination of parental rights under the Family Code, which is obtained by a private party and not the state]; cf. Ronald S. v. Superior Court (1995) 34 Cal.App.4th 1467, 1468-1469 [declining to extend Wende to proceedings on a petition for `extraordinary relief' challenging a (presumably) adverse order under the juvenile court law].) Exceptions, however, are apparent. (See County of Madera v. Jacobson (1987) 194 Cal.App.3d 569, 570-573 (per curiam) [purporting to extend Wende to paternity appeals]; Conservatorship of Besoyan (1986) 181 Cal.App.3d 34, 36-38 (per curiam) [same as to conservatorship appeals]; Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1023[, 36 Cal.Rptr.2d 40, 884 P.2d 988] (conc. and dis. opn. of Mosk, J.) [following Besoyan]; see also In re Adrian O. (1984) 155 Cal. App.3d 631, 635 [appearing to assume that Wende is applicable to appeals from a termination of parental rights under the juvenile court law]; In re Edward S. (1982) 133 Cal.App.3d 154, 157-158 [same as to appeals from an adjudication of juvenile delinquency under the juvenile court law]; In re Laylah K. (1991) 229 Cal.App.3d 1496, 1498, fn. 1 [same]; In re Deon D. (1989) 208 Cal.App.3d 953, 955-956 [same].)" (Sade C., supra, 13 Cal.4th at p. 962, fn. 2, 55 Cal.Rptr.2d 771, 920 P.2d 716.)

The opinion in Sade C. first looked to determine whether Anders applied to an indigent parent's appeal of an order adversely affecting custody rights of a child or status as a parent. (Sade C., supra, 13 Cal.4th at p. 965, 55 Cal.Rptr.2d 771, 920 P.2d 716.) The court distilled four conclusions from its review of Anders and its progeny. "First, Anders establishes certain procedures for state appellate courts that are `prophylactic' in nature. (Pennsylvania v. Finley [(1987) 481 U.S. 551,] 555[, 107 S.Ct. 1990, 95 L.Ed.2d 539]; see Penson v. Ohio [(1988) 488 U.S. 75,] 80[, 109 S.Ct. 346, 102 L.Ed.2d 300] [speaking of Anders's `safeguards'].) It does not, however, `set down' any `independent ... command' derived from the United States Constitution itself. (Pennsylvania v. Finley, supra, 481 U.S. at p. 555; see Penson v. Ohio, supra, 488 U.S. at p. 80.)" (Sade C., supra, 13 Cal.4th at p. 977, 55 Cal.Rptr.2d 771, 920 P.2d 716.) "Second, Anders's `prophylactic' procedures are limited in their applicability to appointed appellate counsel's representation of an indigent criminal defendant in his first appeal as of right. (Pennsylvania v. Finley, supra, 481 U.S. at pp. 554-559; see Anders ..., supra, 386 U.S. at pp. 739, 741-742, 744-745; see also Austin v. U.S., [(1994)] 513 U.S. 5, ___[, 115 S.Ct. 380, 130 L.Ed.2d 219].) They do not extend to an appeal, even on direct review, that is discretionary. (See Austin v. U.S., supra, 513 U.S. at p. ___.) A fortiori, they do not reach collateral...

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2 cases
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    • United States
    • California Court of Appeals
    • November 8, 2005
    ...review in Ben C. and the case is currently pending (review granted September 15, 2004, S126664). On March 23, 2005, in People v. Smith (2005) 127 Cal.App.4th 896, Division Five of the Second Appellate District of the Court of Appeal, decided that the Anders/Wende procedures were inapplicabl......
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    ...of appeal decision is now unreported, we have doubts that cases such as the instant one are subject to Wende review. In People v. Smith (2005) 26 Cal.Rptr.3d 50 (Smith), review granted July 13, 2005, S133593, our colleagues in Division Five of the Second District addressed precisely this is......

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