1

Filed 12/31/19 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. BRYAN JACK BLANCHARD, Defendant and Appellant. A156720
(Contra Costa County Super. Ct. No. 5

- 171905

- 3)

Bryan J ack Blanchard appeals from a n order that adjudicat ed him incompetent to stand trial for a probation revocation charge and committ ed him to the Department of State Hospitals

. His court

- appointed counsel has filed a brief seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 ( Wende ) to determine whether there are any arguable issues on appeal. After considering whether
Wende requires our independent review of the record in this circumstance, we conclude it does not. Instead, we follow and appl y the process for rev iew identified by our Supreme
Court in Conservatorship of Ben C. (2007) 40 Cal.4th 529 ( Ben C. )

. We have reviewed the brief provided by appointed counsel . It contains a summary
of the relevant facts and law , and there appear to be no arguable issues to be pursued on appeal. Accordingly, this appeal is dismissed.
BACKGROUND
Blanchard was arrested after he was seen carrying a backpack and running away
from a home that was not his own

. The homeowners identifi ed it ems in the backpack as theirs

. Blanchard entered a no contest plea to second degree burglary. The court suspended the imposition of sentence and placed Blanchard on behavioral health2

probation for three years. Between January and November 2018, Blan chard was twice charged with violating the terms of his probation, and each time probation was reinstated.
On November 29, 2018
, he was charged with a third violation for a possible commercial burglary. That charge was quickly supplemented with two other charged violations.
On December 11, 2018, his counsel on the probation violation charges declared a
doubt regarding Blanchard’s competence to stand trial. Blanchard objected to any finding of his incompetence
, and the court appointed experts to evaluate him. With the agreement of all counsel, the expert reports were admitted into evidence , and the matter
was submitted. O n the basis of the reports, Blanchard was found incompetent to stand
trial. The court referred Blanchard to the Contra Costa Condition al Release Program (CONREP) for a recommendation regarding his proper placement. Based on the CONREP recommendation, the court committed Blanchard to a state hospital for two years. He appealed the finding of incompetency and his hospital commitment.
DISCUSSION
“In [ Anders v. State of California (1967) 386 U.S. 738 ( Anders ) ]
, the United States Supreme Court held that when appointed counsel in a criminal defendant ’ s first appeal is unable to find any arguable issues for briefing, counsel should submit a brief referring to any matters in the record that might arguably support the appeal, provide the defendant a copy, and request permission to withdraw. [Citation.] After the defendant is given the opportunity to raise any points he or she wants the appellate court to consider, the court independently reviews the proceedings to determine whether the appeal is ‘ wholly
frivolous. ’ [Citation.] In Wende
, the California Supreme Court concluded that Anders required the Courts of Appeal ‘ 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. This obligation is triggered by the receipt of such a brief from couns el and does not depend on the subsequent receipt of a brief from the defendant personally. ’ [Citation.] The court further recognized that ‘ counsel may properly remain in the case so long as he has not described the appeal as frivolous and has informed th e defendant that he may request the court to have counsel relieved if he so desires. ’ [Citation.] ” ( People3

v. Taylor (2008) 160 Cal.App.4th 304, 309.) This process is commonly referred to as an
Anders/Wende review. ( Id . at p. 312.)
In In re Sade C. (1996) 13 Cal.4th 952 , 959 ( Sade C .) , our Supreme Court held
that Anders/Wende review does not apply to an indigent parent’s appeal of an order terminating parental rights or a custody determination. Sade C. began by recognizing the obvious qualification for Anders/Wende review. By its very terms, the Anders/Wende procedures apply to appointed counsel’s representation of an indigent criminal defendant in the defendant’s first appeal as of right. ( Id

. at p. 982.) Beyond this obvious distinction from a dependency case , the Sade C. c ourt considered whether due process required
Anders/Wende review as a matter of fundamental fairness. The Court balanced three elements in reaching its conclusion that it does not. They are: “(1) the priv ate interests at stake; (2) the state’s interests involved; and (3) the risk that absence of the procedures in question will lead to an erroneous resolution of the appeal.” ( Id . at p. 987.)
In Ben C.
, supra , 40 Cal.4th 529 , the court applied the Sade C. f actors to a request
for Anders/Wende review of a conservatorship imposed under the Lanterman

– Petris

– Short Act (Welf

. & Inst. Code, § 5000 et seq.) (LPS) . In rejecting the necessity for such a review, the court first focused on the private and public interests at stake under the LPS
scheme. It recognized that among the LPS Act’s goals are the prompt evaluation and treatment of persons with serious mental disorders; individualized treatment supervision and placement services for the gravely disabled; judicial review to safeguard the rights of those involuntarily committed; and the guarantee and protect ion of public safety through implementation of the com mitment scheme

. ( Ben C.
, supra , 40 Cal.4th at p. 540.) The public and private interests at stake in competency proceedings are strikingly
similar to LPS commitments

. Concern for prompt evaluation and treatment of mentally incompetent defendants, their in dividualized treatment and supervision, protection of the public, and a comprehensive system of judicial review to protect the rights of such defendants are all attributes of the statutory scheme. (See Pen

. Code § 1370.0 1 .) 1

1 Further statutory references are to the Penal Code.4

Just as in the case of an LPS conservatorship, the liberty interest at stake for a
defendant found incompetent to proceed is significant. A defendant who , like Blanchard,
is facing probation revocation charges may be confined for treatment for up to one year. ( § 1370.01 , subd. (c) (1).) During such time the criminal proceedings are suspended, and at the end of the period of commitment, the criminal proceedings may resume or long

term civil commitment proceeding s may begin. ( § 1370.01
, subd. (c).) “Moreover, a person suffering f

r om a grave mental disorder is obviously in a poor position to influence
or monitor counsel’s efforts on his behalf. ” ( Ben C.
, supra , 40 Cal.4th at p. 540.) But, just as in the case of LPS commitments, the scheme for mentally incompetent defendants has “several layers of important safeguards.” ( Ben C.
, supra , 40 Cal.4th at

p. 540 .) Within 15 court days following a declaration of incompetence, the county mental health director or designee must file a report with the court regarding the defendant’s possible suitability for outpatient treatment. ( § 1370.01
, subd. (a)(3)(A).)
Placement i n a state hosp ital is not permitted unless there is no “less restrictive appropriate placement. ” ( I bi d .) Within 90 days of the defendant’s placement, the medical director of the facility providing treatment must report to the court on the defendant’s progress toward r ecovery of competence. ( § 1370.01
, subd. (b).) If the defendant has not regained competence, but there is a substantial likelihood he will do so in the foreseeable future, he may be retained in a treatment program and the director must report to the cour t at six

- month intervals. ( § 1370.01
, subd. (b).) Any transfer of a defendant to a different treatment facility must be authorized by the court and notice of the proposed transfer provided to the defendant’s counsel. ( § 1370.01
, subd. (a)(6).) These safeguards c onsidered in light of the facts that criminal proceedings are suspended during the defendant’s period of incompetence and the commitment process is a special proceeding of a civil nature ( People v. Lawley ( 2002 ) 27 Cal.4th 102, 131)
, not a criminal defendant’s first appeal of right
, lead us to conclude that Anders/Wende review is not required. Instead, we will employ the process identified in Ben C

. Blanchard’s
counsel has filed a brief stating that he has found no arguable issue to be p ursued on appeal, and the brief sets out the relevant facts and law. We consider counsel’s brief to5

provide an adequate basis for th is court to dismiss th e appeal on our own motion. ( Ben C.
, supra , 40 Cal.4th at p. 544.) Counsel has advised that Blanchard has been provided a copy of the opening brief and advised of his right to file a supplemental brief
on his behalf. The time for Blanchard to file a supplemental brief has passed, and we did not receive any brief or resp onse from him. ( Id. at p. 544, fn. 6.)
Our determination to apply Ben C. is consistent with the cases that have
considered whether Anders/Wende review is required in a variety of civil commitment proceedings. All employ the procedure identified in Ben C. (See People v. Martinez (2016) 246 Cal.App.4th 1226 ; People v. Kisling (2015) 239 Cal.App.4th 289; People v. Taylor
, supra , 160 Cal.App.4th 304; People v. Dobson (2008) 161 Cal.App.4th 1422 .)
DISPOSITION The appeal is dismissed.6 _________________________ Siggins, P.J.

WE CONCUR:

_________________________ Fujisaki, J.

_________________________ Petrou, J.

People v. Blanchard , A1567207

A156720/People v. Bryan Jack Blanchard

Trial Court: Superior Court of Contra Costa County
Trial Judge: Lewis A. Davis, J.

Counsel: First District Appellate Project, Jonathan Soglin and Jeremy Price for

Defendant and Appellant

. Xavier Becerra, Attorney General, Lance E. Winters and Jeffrey M. Laurence , A ssistant Attorney s General, Seth K. Schalit and Lisa Ashley Ott , Deputy Attorneys General, for Plaintiff and Respondent.