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Filed 9 / 2 2 /22 P. v. Jackson CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. BAKARI BILAL JACKSON, Defendant and Appellant. A162659
(Contra Costa County Super. Ct. Nos. 5

- 191723

- 6; 2

- 330678

- 4; 2

- 331222

- 0)

Defendant Bakari Bilal Jackson appeals from orders finding him not competent to stand trial and committing him to the Department of State Hospitals pursuant to Penal Code section 1367 et seq

. 1 His appointed counsel has filed a brief raising no issues, asking us to independently review the
record pursuant to People v. Wende (1979) 25 Cal. 3 d 436 ( Wende ) , or, alternatively, to exercise our discretion to retain the appeal as prescribed in Conservatorship of Ben C. (2007) 40 Cal.4th 529 ( Ben C. ). Although Wende review is not mandated, our discretionary review of the record reveals no meritorious issues for briefing. We affirm. BACKGROUND In October 2017, Jackson was convicted of assault by means of force

1 U ndesignated statutory references are to the Penal Code.2

likely to produce great bodily injury (§ 245, subd. (a)(4) ) and sentenced to three years in prison. Jackson was released on postrelease community supervision (PRCS) under various terms an d conditions, including that he report to the probation department as directed and refrain from criminal
conduct. Jackson allegedly violated PRCS on several occasions. On September 5, 2019, the District Attorney filed a complaint under c ase No. 2

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- 4 charging Jackson with assault with a deadly weapon (§ 245, subd. (a)( 1 ) ) , with sentence enhancements and other sentencing allegations. On that same day, the probation department petitioned to revoke Jackson’s PRCS, alleging
he had violated the terms of his PRCS by committing the assault charged in

c ase No. 2

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- 4 and doing so as a “ hate crime ” (§ 422.7 ) , as well as by repeatedly failing to report to probation. The petition proceedings were
docketed under c ase No. 5

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- 6. The above two matters had not been formally consolidated but were being litigated together

. 2 In th o se matters, the trial court twice conducted

2 Along with two other criminal cases : No s

. 2

- 322711

- 3 and 2

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- 0. Jackson has filed a separate notice of appeal from incompetency and commitment orders in case N o. 2

- 331222

- 0. However, the prosecution later reported at a December 1, 2021 hearing that both cases Nos. 2

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- 3 and 2

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- 0 ha d been dismissed. In any event, we have no jurisdiction to consider the appeal in c ase N o. 2

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- 0, since it was filed as a misdemeanor case

. (See People v. Nickerson (2005) 128 Cal.App.4th 33 , 36 [ the Court s of Appeal ha ve jurisdiction over appealable orders in a “felo ny
case , ” while the appellate divisions of the superior courts have jurisdiction

over appealable orders in “misdemeanor case[s]”], citing §§ 1235, subd. (a), 1466; Cal. Const., art. VI, § 11.) Accordingly, we will transfer the appeal in that case to the appellate division of the superior court

. (See Nickerson , supra , at pp. 39

– 41; Gov. Code, § 68915.) Ou r decision here therefore governs only the appeals in c ases Nos. 2

- 3 3 0678

- 4 and 5

- 191723

- 6 , both of which involve felony charges and are thus properly before us

. ( See § 1235, subd. (a) .)3

competency proceedings under section 136 7 et seq. , first in late 2019 , and second in early 2021

. 3 At issue here is the second round of competency proceedings. These are the pertinent facts. On February 3, 2021, the court declared a doubt regarding Jackson’s competence to stand trial . It appointed Shoko Kokubun, Ph.D. and Donald Siggins, Ed.D. to evalu ate Jackson. Jackson did not request a jury trial on the issue of competency. On March 17, the court held a competency hearing. With the agreement of all counsel, the court admitted the reports of Dr. Siggins and
Dr. Kokubun into evidence. The parties agreed that of the two reports, Dr. Kokubun’s report was “more persuasive” and “more thorough , ” and thus they
both submitted on that report. On the basis of Dr. Kokubun’s report, Jackson was found incompetent to stand trial. The court referred Jackson to the Contra Costa Conditional Release Program (CONREP) for a recommendation regarding his proper placement. Based on the CONREP recommendat ion, the court committed Jackson to the Department of State Hospitals. Jackson filed timely notices of appeal in c ases Nos. 2

- 3 3 0678

- 4 and 5

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- 6 , which were assigned the same appellate case number, A 162659. Jackson’s appointed counsel has fil ed a brief raising no issues and asks us to independently review the record pursuant to Wende , supra , 25 Cal.3d
436

. Counsel states that after filing the appeals , Jackson was restored to competency and criminal proceedings resumed , during which he entered a

3 The trial court sealed many documents and some transcripts relevant to the competency proceedings. In accordance with the California Rules of Court, the sealed documents and transcripts were filed under seal in this court. (Cal. Rules of Court, rule 8.46(b).)4

plea and was granted probation on December 1, 2021

. Since then, he has been released from probation. Jackson was advised of his right to file a supplemental brief but has not filed such a brief

. DISCUSSION Jackson’s counsel initially asserts this court “must” conduct a Wende
review , but later acknowledges our Supreme Court’s decision in Ben C. , which held that Wende review is inapplicable to appeals of Lanterman

- Petris

Short Act conservatorship proceedings (Welf. & Inst. Code, § 5 000 e t seq.). ( Ben C. , supra , 40 Cal.4th at pp. 53 8

– 543 .) Counsel also points us to People v. Blanchard (2019) 43 Cal.App.5th 1020 ( Blanchard ), in which Division Three of this court, relying on Ben C. and other relevant cases, concluded that due process does not require independent review in incompetency commitment proceedings such as these. ( Blanchard , supra , 43 Cal.App.5th at pp. 1024

– 1025.) The Blanchard court explained that in appeals in such proceedings, appointed counsel should follow the process identified in Ben C. by filing a brief setting forth the relevant facts and law and informing the court that he or she has found no arguable issue to be pursued on appeal. Such a brief, the court st ated, provides an adequate basis for dismissal. ( Blanchard , at pp. 1025

– 1026.) C ounsel , however, notes that under Ben C. we retain the discretion to
conduct a Wende review . (See Ben C. , supra , 40 Cal.4th at p. 544, fn. 7 .) Given the “private interest s at stake” and the “restraints upon physical freedom and personal autonomy” at issue, as described by the forceful dissent
in Ben C. , we elect to proceed with a Wende review. ( Ben C. , at p. 545 (dis. opn. of George, C.J.) .) Having examined the entire record, we conclude the appeals are moot. Counsel states that while the appeals were pending , Jackson was restored to5

competency, entered a plea and was granted probation, and subsequently was released from probation. Once a de fendant has been restored to competency and criminal proceedings are reinstated, the appeal from the incompetency finding and commitment becomes moot. ( See People v. Lindsey (1971)
20 Cal.App.3d 742, 743

– 744.) But even if the appeals are not moot, our review of the record discloses no arguable issues. The finding that Jackson was not competent to stand trial is supported by substantial evidence. The commitment ordered by the court is authorized by law. Jackson was at all times represented by able

cou nsel. DISPOSITION
The orders in c ases Nos. 2

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- 4 and 5

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- 6 finding Jackson incompetent to stand trial and committing him to the Department of State Hospitals are affirmed. The appeal for c ase No. 2

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- 0 is transferred to the appellate di vision of the superior court.6 _________________________ Richman, Acting P. J.

We concur:

_________________________ Miller, J.

_________________________ Mayfield, J. *

People v. Jackson (A 162659 )
*Superior Court of Mendocino County, Judge Cindee Mayfield, sitting as assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.