People v. L.W. CA4/2

Filed 10/9/20 P. v. L.W. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E074619

v. (Super.Ct.No. FELJS19000224)

L.W.,
OPINION
Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Lorenzo R.

Balderrama, Judge. Dismissed.

Michelle D. Peña, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

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I

INTRODUCTION

Defendant and appellant L.W. appeals from an order denying her petition

challenging her status as a mentally disordered offender (MDO). (Pen. Code,1 § 2960, et

seq.) After counsel filed the notice of appeal, this court appointed counsel to represent

defendant. Counsel has filed a brief under the authority of People v. Wende (1979) 25

Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), requesting

this court to undertake a review of the entire record. We conclude that Anders/Wende

procedures do not apply to appeals in MDO commitment cases, and thus dismiss the

appeal.

FACTUAL AND PROCEDURAL BACKGROUND

On April 6, 2018, defendant resisted arrest, causing injury to an officer, as she was

being escorted out of a Planned Parenthood for creating a disturbance.

On April 10, 2018, a felony complaint was filed charging defendant with two

counts of felony resisting an executive officer by means of threat and violence (§ 69;

counts 1 & 2). The complaint also alleged that defendant had suffered a prior serious

and/or violent strike conviction (§§ 667, subds. (b)-(j), 1170.12, subd. (b)). On that same

day, the trial court, on its own motion and over defense counsel’s objection, declared a

1 All future statutory references are to the Penal Code unless otherwise stated.

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doubt as to defendant’s mental competency, ordered defendant to undergo a competency

evaluation under section 1368, and suspended the proceedings.

On July 2, 2018, Dr. B.R. Rubenstein evaluated defendant and found defendant

incompetent to stand trial. Dr. Rubenstein concluded defendant was “‘“highly unstable

and uncooperative with treatment while incarcerated”’” and observed defendant to be

“‘“snapping her fingers, irritable, labile, disorganized[,] and uncooperative.”’”

On July 10, 2018, the trial court found defendant incompetent to stand trial under

section 1368. Defendant was thereafter transferred to Patton State Hospital (Patton) for

restoration of competence.

On November 19, 2018, defendant was discharged from Patton.

On November 27, 2018, defendant was found mentally competent to stand trial

under section 1368 and criminal proceedings were reinstated.

On December 10, 2018, defendant pleaded nolo contendere to one count of felony

resisting arrest (§ 69; count 1) with threat or violence. In return, the remaining

allegations were dismissed, imposition of a two-year sentence was suspended, and

defendant was placed on formal probation for a period of three years on various terms

and conditions. One of defendant’s probationary terms required defendant to participate

in a mental health treatment program.

On March 12, 2019, the trial court revoked defendant’s probation after it found

defendant failed to comply with her mental health treatment program.

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On April 3, 2019, after waiving her rights to a formal probation revocation

hearing, defendant admitted to violating her probation. The trial court thereafter

terminated defendant’s probation and sentenced her to two years in state prison with

521 days’ credit for time served. Defendant’s parole release date was July 17, 2019.

Upon her arrival at the California Department of Corrections and Rehabilitation

(CDCR) on April 30, 2019, defendant was placed in the Mental Health Services Delivery

System at the Enhanced Outpatient Program.

On May 31, 2019, Dr. Eric V. Roth, a CDCR MDO evaluator and psychologist,

evaluated defendant. Dr. Roth found defendant met the criteria as an MDO under

section 2962 and recommended defendant be hospitalized within the California

Department of State Hospitals (DSH).2

On June 13, 2019, Dr. Robert E. Record, a DSH evaluator and psychologist, also

conducted an MDO evaluation of defendant. Dr. Record concluded defendant met all six

criteria for treatment pursuant to section 2962.

On July 1, 2019, CDCR’s Chief Psychiatrist, Dr. Nir Lorant, certified defendant’s

continued treatment by DSH under section 2962. Dr. Lorant stated that he had reviewed

the psychological evaluations conducted by Dr. Record on June 13, 2019, and Dr. Roth

on May 31, 2019, in concluding defendant met all six section 2962 criteria for a civil

2 The Mentally Disordered Offender Act (§§ 2960 et seq.) provides for
involuntary civil commitment as a condition of parole for prisoners who are found to
have a “‘severe mental health disorder’” if certain conditions are met. (§ 2962,
subds. (a)-(f).) The commitment is for a term of one year, and the district attorney may
petition to extend an MDO’s commitment annually for additional one-year terms.
(§§ 2970, 2972, subds. (a), (c), (e).)

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commitment certification. Dr. Lorant also filed a document entitled “Certification of

Mentally Disordered Offender” indicating that defendant met the criteria of section 2962.

Dr. Lorant noted, among others, that (1) defendant had a severe mental disorder,

specifically schizophrenia, paranoid type, chronic; (2) defendant had ongoing symptoms

of anxiety, fear, irritability, varied eye contact, loose associations, paranoid delusions,

and disorganized thought; (3) defendant was not in remission; (4) defendant had refused

treatment; (5) defendant had been in treatment 90 days or more for a severe mental

disorder within a year prior to her parole release date; and (6) defendant continued to

present a substantial danger of physical harm to others due to being non-compliant with

her medication, history of substance abuse, and lack of insight into her severe mental

disorder.

On July 1, 2019, the Board of Prison Terms (BPT) reviewed the certification and

reaffirmed defendant’s continued treatment under section 2962. The BPT found

defendant was a parolee who met all six criteria for certification as an MDO by a

preponderance of the evidence.

On October 24, 2019, defendant filed a petition for a hearing with the superior

court, challenging the BPT’s determination she met the criteria as an MDO under

section 2962, and order for appointment of counsel.

On November 21, 2019, the trial court appointed counsel for defendant.

On December 19, 2019, defendant waived her right to a jury trial and a court trial

commenced. Defendant testified that she was housed at Patton as a “mentally disordered

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offender,” and that she had been diagnosed as a “[p]aranoid schizophrenic.” She

believed her diagnosis was correct. Defendant also stated that her “sickness . . . could be

kept in remission if [she] treat[ed] [her]self . . . with the right medications . . . .” She

understood she had to take her medication if she was released on parole. Defendant

admitted that she did not take her medication while she was in prison, prior to being

transferred to Patton. She explained that she did not take her medication in prison

because she had medical concerns and communicated her concerns to her doctors. She

asserted that she was taking her medication at Patton and at the time of the hearing.

After defendant testified, the People introduced 11 exhibits into evidence. The

trial court admitted those exhibits into evidence without any objections by defense

counsel, including objections pursuant to People v. Sanchez (2016) 63 Cal.4th 665. The

exhibits consisted of the following documents: a Board of Parole Hearings packet; a

police report concerning defendant’s resisting arrest conviction; a prior packet as to

defendant’s resisting arrest conviction; defendant’s mental health records from CDCR;

notes from defendant’s treating psychiatrist; notes from defendant’s psychologist; nurse’s

notes; interdisciplinary notes; defendant’s section 969b packet; defendant’s criminal rap

sheet; and interdisciplinary notes from October through December 2019.

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On January 22, 2020, the trial court denied defendant’s petition and found

defendant met the criteria of an MDO under sections 2962 and 2966, subdivision (c).

Defendant was thus ordered to remain committed to the DSH as a mentally disordered

offender at Patton.

On January 29, 2020, defendant filed a timely notice of appeal from the civil

commitment order under the Mentally Disordered Offender Act (§ 2960, et seq.).

III

DISCUSSION

As previously noted, after defendant appealed, upon her request, this court

appointed counsel to represent her. Counsel has filed a brief under the authority of

Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a statement

of the case, a summary of the facts and potential arguable issues, and requesting this

court to conduct an independent review of the record.

We offered defendant an opportunity to file a personal supplemental brief, and she

has not done so.

Counsel acknowledges authorities holding that MDO commitment cases such as

defendant’s are exempt from Anders/Wende procedures (People v. Taylor (2008) 160

Cal.App.4th 304 (Taylor)), and, that such procedures do not apply to orders extending the

civil commitment of an individual previously found not guilty by reason of insanity

where counsel finds no arguable appellate issues and the client is given an opportunity to

file a brief but does not. (People v. Martinez (2016) 246 Cal.App.4th 1226 (Martinez).)

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Counsel also acknowledges these decisions rely in part on Conservatorship of Ben C.

(2007) 40 Cal.4th 529, 538, in which the California Supreme Court held that appeals

from Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.) conservatorship

proceedings are not subject to Anders/Wende review. The Anders/Wende procedures

apply only to an indigent criminal defendant’s first appeal as a matter of right. (Taylor, at

p. 312; Martinez, at pp. 1230, 1233, 1236; see In re Phoenix H. (2009) 47 Cal.4th 835,

838 [reiterating Ben C. holding]; In re Sade C. (1996) 13 Cal.4th 952, 959

[Anders/Wende do not extend to indigent parent’s appeal of an order adversely affecting

custody or parental status].)

Counsel nevertheless urges us to conduct an independent review of the record

here, because “[t]hese issues have not been directly decided by the California Supreme

Court.” This argument does not convince us. We follow Taylor, supra, 160 Cal.App.4th

304, in which the prisoner there was also certified for MDO treatment as a condition of

parole. (Id. at p. 312.) As Taylor pointed out, this court is bound by the high court’s

characterization of the MDO Act as a “‘civil commitment scheme.’” (Ibid., quoting In re

Howard N. (2005) 35 Cal.4th 117, 127.) Here, as in Taylor, defendant was informed of

her right to file a supplemental brief identifying any issues she wanted us to consider, but

did not do so. (Taylor, at p. 313.) We agree with Taylor and decline to apply

Wende/Anders procedures to this MDO case and decline to exercise our discretion to

conduct such a review.

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Accordingly, for the reasons expressed in Taylor, dismissal is appropriate.

(Taylor, supra, 160 Cal.App.4th at p. 313.)

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.
We concur:

MILLER
Acting P. J.

MENETREZ
J.