People v. Martinez

Filed 4/26/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G052440

v. (Super. Ct. No. M-14023)

JOSE MARTINEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Shiela F.
Hanson, Judge. Dismissed.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.

* * *
 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 (Anders); People v.
Wende (1979) 25 Cal.3d 436 (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), from the denial of a petition for outpatient treatment of an NGI
(People v. Dobson (2008) 161 Cal.App.4th 1422 (Dobson)), and from an order
committing an individual as a mentally disordered offender (People v. Taylor (2008) 160
Cal.App.4th 304 (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.
I
FACTS
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

1 All undesignated statutory references are to the Penal Code.

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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.
II
DISCUSSION
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; People v. Wende,
supra, 25 Cal.3d 436.)
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, citing Douglas v. California (1963) 372 U.S. 353.) In Anders v. California,
supra, 386 U.S. 738, 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.) 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-

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740.) 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.)
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. 742.) 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.)
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, fn. omitted.)

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 The issue in People v. Wende, supra, 25 Cal.3d at page 440, 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.)
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 (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.) The state appellate court concluded counsel‟s
conduct violated the holding in Anders. (Id. at pp. 553-554.) The Supreme Court granted
certiorari. (Id. at p. 554.)
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.) 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.”

5
(Id. at p. 556.) 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.) 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.) 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 proceedings, she has no constitutional right to
insist on the Anders procedures which were designed solely to protect that underlying
constitutional right. [¶] . . . [¶] . . . Since respondent has received exactly that which she
is entitled to receive under state law—an independent review of the record by competent
counsel—she cannot claim any deprivation without due process.” (Id. at pp. 557-558.)
The court rejected the argument that once the state appoints counsel on
appeal, even though the federal Constitution does not require such appointment, due
process requires compliance with Anders. (Pennsylvania v. Finley, supra, 481 U.S. at
p. 557.) After the decision in Finley, it was clear that Anders applied only when the
Constitution required appointment of counsel on appeal, and that is on a first appeal of
right from a criminal conviction. “[T]he right to appointed counsel extends to the first
appeal of right, and no further.” (Id. at p. 555.)
Our Supreme Court granted review in In re Sade C. (1996) 13 Cal.4th 952,
959 (Sade C.), to determine whether Anders applied, or should be extended to, an
indigent parent‟s appeal from a judgment or order of the superior court affecting his
custody of his child or his status as the parent of the child. The court noted that in Evitts
v. Lucey, supra, 469 U.S. at pages 396-397, the United States Supreme Court stated

6
Anders was based on the Fourteenth Amendment‟s due process guarantee of counsel for a
criminal defendant on a first appeal of right. (In re Sade C., supra, 13 Cal.4th at pp. 982-
983 [“Anders‟s „prophylactic‟ procedures are dependent for their applicability on the
existence of the indigent criminal defendant‟s right, under the Fourteenth Amendment‟s
due process and equal protection clauses, to the assistance of appellate counsel appointed
by the state—and there again, only in his first appeal of right”].) The court concluded
Anders did not apply to juvenile dependency appeals; it applies only to a first appeal of
right in a criminal matter, “and none other.” (Ibid., fn. omitted.)
The court rejected the argument that equal protection required extending
Anders, finding criminal defendants and indigent parents appealing an adverse decision
affecting their custody or parental status are not similarly situated for equal protection
purposes. (In re Sade C., supra, 13 Cal.4th at p. 991.)
The Sade C. court concluded the Anders procedure is not required and
should not be extended to juvenile dependency appeals. (In re Sade C., supra, 13 Cal.4th
at pp. 984, 992-993.) Unlike criminal prosecutions, which are specifically mentioned in
the United States Constitution, the interests at stake in a dependency action are private
interests—those of the parent and the child. (Id. at p. 987.) Even the state‟s interest is
that of protecting the welfare of the child. (Ibid.)
The court declined the request to extend Anders to juvenile dependency
matters. (In re Sade C., supra, 13 Cal.4th at pp. 992-993.) The court rejected arguments
“that Anders‟s „prophylactic‟ procedures must be extended to reach an indigent parent‟s
appeal from a state-obtained decision adversely affecting child custody or parental status
under direct compulsion of the due process clause of the Fourteenth Amendment and its
requirement of fundamental fairness.” (Id. at p. 985.) In rejecting the argument that the
Anders procedure should be extended to reach the appeal in Sade C., the court used the
balancing test announced in Lassiter v. Department of Social Services (1981) 452 U.S.
18, to determine the extent of protection required by the Fourteenth Amendment due

7
process clause: “(1) the private interest 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.” (In re Sade C., supra, 13 Cal.4th at p. 987.)
The private interests at stake in Sade C. were the father‟s fundamental
liberty interest in caring for his child (In re Sade C., supra, 13 Cal.4th at p. 987), and the
child‟s liberty interest “in a „normal family home‟” (id. at p. 988). The court noted either
interest “theorectical[ly]” may call for use of the Anders procedure. However, the court
found that while the procedure could benefit both the child and parent if their interests
were aligned, invocation of the Anders procedure could cause the child harm when the
parent and the child‟s interests are not aligned, and given a trial court determined their
interests were not aligned, the private interests involved do not compel finding due
process requires the procedure in appeals from orders adversely affecting the parent‟s
rights in such matters. (Id. at p. 989.)
The Sade C. court then examined the state‟s interest in the matter. The
state‟s initial interest is “a „parens patriae interest in preserving and promoting the
welfare of the child . . . .‟ [Citations.]” (In re Sade C., supra, 13 Cal.4th at p. 989.) But
the state has two other legitimate interests as well: “an accurate and just resolution of the
parent‟s appeal” (ibid.); and its “„fiscal and administrative interest in reducing the cost
and burden‟” of the appeal (ibid.). On this issue, the court reiterated the decision being
appealed was adverse to the father, but that was because the trial court necessarily found
he either caused or allowed his child to suffer, the trial court‟s decision was presumably
correct and established the child‟s best interest was with someone other than with the
father. (Id. at p. 990.)
Addressing the risk that absence of the procedures in question would lead
to an erroneous resolution of the appeal, the court stated its belief such risk was
“negligible.” (In re Sade C., supra, 13 Cal.4th at p. 990.) The court noted its experience
with attorneys handling such appeals showed “appellate counsel faithfully conduct

8
themselves as active advocates on behalf of indigent parents” and that at least one
appellate court that used the Anders procedure in such matters never found an unbriefed
issue “„warranting further action.‟” (Ibid.)
The Sade C. court balanced all three factors and concluded due process did
not require use of the Anders procedure in matters involving the custody of children or
parental status. (In re Sade C., supra, 13 Cal.4th at pp. 990-991.) Additionally, the court
declined to require the Anders procedure under its inherent power to declare rules of
appellate procedure in California. (Id. at p. 992.)
The issue presented in Conservatorship of Ben C., supra, 40 Cal.4th at page
535, was whether the Anders/Wende procedure applied in an appeal by a conservatee
under the Lanterman-Petis-Short Act of Welfare and Institutions Code. In that matter, a
conservatorship of the person was “reestablished, and the least restrictive level of
placement was found to be a closed, locked treatment facility. [Citation.]” (Ibid.) Citing
Pennsylvania v. Finley, supra, 481 U.S. at page 557, our Supreme Court concluded that
“[i]f a defendant „has no underlying constitutional right to appointed counsel,‟ the
defendant cannot „insist on the Anders procedures which were designed solely to protect
that underlying constitutional right.‟ [Citation.]” (Conservatorship of Ben C., supra, 40
Cal.4th at p. 537.)
Citing its earlier decision in In re Sade C., supra, 13 Cal.4th 952, the court
rejected an argument that Anders is directly applicable to conservatorship appeals.
(Conservatorship of Ben. C., supra, 40 Cal.4th at p. 537.) Nothwithstanding the fact the
liberty interests of a conservatee are “significant” (id. at p. 540), the court concluded that
neither the state or federal due process clause requires the extension of Anders to
conservatorship appeals (id. at p. 539).
Conservatorship proceedings have a number of protections built in. The
proposed conservatee has a right to a jury trial to determine whether a conservatorship
should be established. The individual also has the right to counsel, including appointed

9
counsel. Additionally, the party seeking the conservatorship must prove its necessity
beyond a reasonable doubt and the jury‟s verdict must be unanimous. The court
additionally noted the term of the conservatorship is limited (Conservatorship of Ben C.,
supra, 40 Cal.4th at pp. 541, 543), and the conservatee can petition the court in the
interim to reconsider its decision (id. at p. 543). This provides an “immediate avenue”
for reconsideration of the trial court‟s decision, a protection a criminal does not have.
(Ibid.) Another difference is that the commitment of a conservatee “„“may not
reasonably be deemed punishment either in its design or purpose.”‟ [Citation.]” (Ibid.)
In People v. Taylor, supra, 160 Cal.App.4th at page 308, the appellate court
found the “Anders/Wende review requirements” do not apply to appeals from orders
committing an indigent under the Mentally Disordered Offender Act (MDO Act) (§ 2960
et. seq.). Under the MDO Act, a criminal defendant who is a dangerous mentally ill
individual (MDO) can be civilly committed as a condition of parole. (§ 2960.) “„To
maintain a determinate system will inevitably cause the release of some mentally ill
inmates who constitute a significant threat to public safety. This commitment will
provide a mechanism for placing these mentally ill inmates in the mental health system
for appropriate treatment which will increase the protection of the public.‟ [Citation.]”
(People v. Allen (2007) 42 Cal.4th 91, 97.)
The Taylor court, after concluding the holdings in Sade C. and
Conservatorship of Ben C., compelled it to find Anders applies only in a first appeal of
right in a criminal matter (People v. Taylor, supra, 160 Cal.App.4th at p. 312), applied
the three-pronged test set forth in Sade C. to determine whether due process required
extending use of the Anders procedure in appeals in MDO Act matters (id. at pp. 312-
313). It found the civil committee‟s private interest is in remaining free from a civil
commitment, but that that interest is no greater than his or her interest in receiving
treatment for his or her “severe mental disorder.” (Id. at p. 312.) The state‟s interest in
protecting the public from a dangerous mentally ill individual who poses a substantial

10
danger to the public if released was characterized as “strong.” (Ibid.) We note the state
has an additional important interest in treating the individual with the severe mental
disorder. (Ibid.)
In assessing the risk involved in not applying the Anders procedures, the
court noted “numerous procedural protections against unwarranted commitments.”
(People v. Taylor, supra, 160 Cal.App.4th at p. 312.) These protections include the
MDO‟s right to a hearing before the parole board prior to imposition of any required
treatment, the burden of proof at such a hearing is not on the MDO, the MDO has the
right to have two independent mental health professionals appointed (ibid.), the MDO
may petition for a hearing in the superior court, and section 2966 gives the MDO the
right to counsel and a jury trial (People v. Taylor, supra, 160 Cal.App.4th at pp. 312-
313.) The party seeking the civil commitment must bear the burden of proving the
individual qualifies as an MDO beyond a reasonable doubt, and the jury determination
must be unanimous. (Ibid.) Additionally, the term of the civil commitment is limited
(one year), but the Department of Mental Health may request discontinuation of
treatment if the committee‟s “mental disorder is in remission and can be kept in remission
without further treatment.” (Ibid.) On the other hand, if an extension of the treatment
period is sought, the MDO again has a right to a trial and an appeal, with counsel, if
extension is granted. Lastly, the court noted appeals in MDO matters are “assigned to a
relatively small pool of well-qualified attorneys who competently discharge their duties.”
(Ibid.) After evaluating the factors enunciated in Sade C., the Taylor court concluded due
process did not require extending the Anders procedure in MDO appeals. (People v.
Taylor, supra, 160 Cal.App.4th at p. 313.)
Less than two months after Taylor was decided, another Court of Appeal
decided People v. Dobson, supra, 161 Cal.App.4th 1422. The defendant in Dobson had
been charged with vehicle theft and was found not guilty by reason of insanity. (Id. at
p. 1425.) Because the defendant had four “strike” convictions, his maximum term of

11
confinement was set at 25 years to life. (Id. at pp. 1425-1426.) The defendant
subsequently filed a petition in the superior court for release, contending his sanity had
been restored. The superior court denied the petition, finding the defendant “would pose
a danger to the health and safety of others due to a mental defect, disease, or disorder.”
(Id. at p. 1426.) The defendant appealed and appellate counsel asked the court to
independently review the record for errors after he was unable to find any meritorious
issues. (Ibid.)
The Dobson court found Anders did not require the relief requested because
Anders limits its procedure to a criminal defendant‟s first appeal as of right. (People v.
Dobson, supra, 161 Cal.App.4th at p. 1428.) Using the Sade. C. three-pronged test, the
court declined to extend the Anders procedure to the appeal in a restoration of sanity
proceeding. (People v. Dodson, supra, 161 Cal.App.4th at pp. 1436-1437.) The court
also rejected an equal protection argument that insanity acquitees are similarly situated
for purposes of requiring an extension of the Anders/Wende procedure. (Id. at p. 1438.)
We agree with these courts and find the Anders procedure does not apply to
an appeal from an extension of an NGI‟s commitment. Anders only requires its
procedure to be followed in a criminal defendant‟s first appeal as a matter of right.
(Anders v. California, supra, 368 U.S. 738; Pennsylvania v. Finley, supra, 481 U.S. at
p. 555.) The petition to extend an NGI‟s commitment is civil in nature and directed
toward treating the NGI, not punishing him or her. (People v. Wilder (1995) 33
Cal.App.4th 90, 99.) Indeed, the fact that an NGI‟s commitment has been extended
“places an affirmative obligation on the treatment facility to provide treatment for the
underlying causes of the person‟s mental disorder.” (§ 1026.5, subd. (b)(11).)
In addition, our Supreme Court‟s decision in Conservatorship of Ben. C., supra, 40
Cal.4th 529, that due process does not require applying the Anders procedure in a
conservatorship appeal, compels us to conclude due process does not require adoption of
the Anders procedure in an appeal from a judgment extending a NGI‟s civil commitment.

12
 Martinez‟s private interest in this matter is the avoidance of confinement
for his mental illness. Granted the civil commitment “constitutes a significant
deprivation of liberty” (Addington v. Texas (1979) 441 U.S. 418, 425), Martinez‟s
interest in avoiding the commitment is no greater than his interest in receiving treatment
for his “severe mental disorder.” (People v. Taylor, supra, 160 Cal.App.4th at p. 312.)
The state has a compelling interest in treating the mentally ill individual
and in protecting society from an individual who poses a danger to others because of his
mental illness. (People v. McKee (2010) 47 Cal.4th 1172, 1210.) The state‟s interest is
treating the mentally ill individual is parens patriae. (See Addington v. Texas, supra, 441
U.S. at p. 426 [parens patriae interest in providing care for those who cannot care for
themselves].) Additionally, the state has an interest in an accurate and just resolution of
Martinez‟s appeal, and in reducing the costs and burden of the appeal. (In re Sade C.,
supra, 13 Cal.4th at p. 989.)
Just as there are protections in place in conservatorship proceedings to
guard against an erroneous conclusion in conservator proceedings (Conservatorship of
Ben C., supra, 40 Cal.4th at p. 542), so too are there procedures in place to protect one
committed to a state hospital pursuant to section 1026.5. Consequently, the risk that
failure to adopt Anders‟s procedure in appeals from a civil judgment extending an NGI‟s
civil commitment will result in an erroneous resolution on appeal is negligible. When a
petition to extend an NGI‟s commitment is filed, the committee is notified of his or her
right to be represented by counsel and of the right to a jury trial. (§ 1026.5, subd. (b)(3).)
The same section provides the NGI is entitled to discovery. (Ibid.) By statute, but not by
constitutional mandate, the NGI is “entitled [in the extension proceeding] to the rights
guaranteed under the federal and State Constitutions for criminal proceedings.”
(§ 1026.5, subd. (b)(7).) This includes the right not to testify at the hearing. (Hudec v.
Superior Court (2015) 60 Cal.4th 815, 818.) The NGI also has the right to the
“[a]ppointment of necessary psychologists or psychiatrists” to assist in his or her

13
opposition to the petition. (§ 1026.5, subd. (b)(7).) Before an extension may be ordered,
the jury must unanimously find beyond a reasonable doubt the NGI meets the
requirements for an extension of his or her commitment. (Hudec v. Superior Court,
supra, 60 Cal.4th at p. 828.) Even then, the extension is for a limited period of time, two
years. (§ 1026.5, subd. (b)(8).) During the NGI‟s confinement, the medical director of
the state hospital in which the NGI is confined must file written reports with the court,
“setting forth the status and progress of the [NGI].” (§ 1026, subd, (f).) The record on
appeal in this matter is replete with quarterly reports on Martinez and filed with the
superior court. A favorable report may result in placement on outpatient status. (§ 1602,
subd. (a)(2).) The NGI or the medical director of the state hospital where the NGI is
committed may petition the court on a claim of restoration of sanity. (§ 1026.2, subd.
(a).) Finally, if the jury‟s verdict is adverse to the NGI, he or she may appeal and has the
right to appointed counsel on appeal. The appointed attorneys handling such cases are
experienced and faithfully execute their duties to their clients on appeal. Martinez‟s
extremely competent counsel is a prime example.
With all these protections in place, we conclude due process does not
require the adoption of the Anders procedure here. Accordingly, because the Anders
procedure is not required by due process, appointed counsel has been unable to find any
arguable issue on appeal and Martinez has not filed a supplemental brief on his own
behalf after having been given the opportunity to do so, we dismiss the appeal as
abandoned. (Cf. People v. Serrano (2012) 211 Cal.App.4th 496, 498 [dismissal after
finding Anders does not apply to appeal in a postconviction proceeding].)

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 III
DISPOSITION
The appeal is dismissed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

THOMPSON, J.

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