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Filed 8/11/21 P. v. Lucas CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Placer)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID LEE LUCAS,

Defendant and Appellant.

C092922

(Super. Ct. No. SCV0023989)

Defendant David Lee Lucas appeals from a trial court order dismissing his petition 

for unconditional discharge from the custody of the Department of State Hospitals (DSH) 

under the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq).

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We appointed counsel to represent defendant on appeal. Appointed counsel filed an 

opening brief invoking the independent judicial review procedures set forth in Anders v. 

California (1967) 386 U.S. 738 [18 L.Ed.2d 493] and People v. Wende (1979) 25 Cal.3d 

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 Undesignated statutory references are to the Welfare and Institutions Code.
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436. For the reasons discussed in People v. Kisling (2015) 239 Cal.App.4th 288, we 

conclude that Anders/Wende review on appeal is not available to defendant in the SVPA 

proceedings involved here, and we dismiss the appeal.

BACKGROUND

In 2013, the trial court found defendant to be a sexually violent predator within the 

meaning of the SVPA and committed him to the custody of DSH at Coalinga State 

Hospital. In 2019, consistent with section 6604.9, DSH conducted an annual review of 

defendant’s mental condition and concluded neither conditional nor unconditional release 

would be appropriate. In 2020, defendant filed a document entitled “Petition for 6605 

Unconditional Discharge; Hearing, Judicial Review of Commitment,” which contained 

the text of section 6605. The court appointed counsel and set a hearing on the matter.

At the hearing, the court considered whether defendant was entitled to petition for 

unconditional discharge under section 6605. Defense counsel argued defendant did not 

require a recommendation from DSH to apply for unconditional discharge. The 

prosecutor argued defendant’s only avenue to apply for release without a 

recommendation from DSH was to apply first for conditional release and then later apply 

for unconditional release. Citing People v. Smith (2020) 49 Cal.App.5th 445, the court 

reasoned, “the legislature determined that before SVPs are unconditionally discharged on 

their own petitions they must spend time or they must spend at least one year on 

conditional release. 

“That language, although I understand how it’s applied in that case, is consistent 

with this Court’s reading with respect to how to interpret [section] 6605 as requiring as a 

precondition for unconditional release and filing the petition the concurrence from the 

doctor or the -- a favorable opinion from the Department of State Hospitals.” The court 

thus dismissed the petition, saying defendant could not seek unconditional discharge 

under section 6605. Defendant timely appealed.
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DISCUSSION

Appointed counsel filed an opening brief citing Anders and Wende. Counsel 

acknowledged that the Courts of Appeal have concluded Wende/Anders procedures do 

not apply to SVP proceedings. Accordingly, counsel cited Conservatorship of Ben C.

(2007) 40 Cal.4th 529, 544, and set forth the basic facts and procedural history of the 

case, as well as applicable law related to the SVPA. Counsel further asserted that, should 

defendant file a supplemental brief, this court would have an obligation to consider any 

issues raised in the brief. Counsel declared that he advised defendant of his right to file a 

supplemental brief or letter containing any issues he wishes this court to consider.

In People v. Kisling, supra, 239 Cal.App.4th 288, we considered whether Wende

applies to an appeal from the denial of a defendant’s petition for release from 

commitment as a sexually violent predator. We concluded Wende review applies only to 

appointed counsel’s representation of an indigent criminal defendant in a first appeal of 

right; because proceedings under the SVPA are civil matters, it follows that an appeal 

from an SVPA proceeding does not directly implicate Wende. (Kisling, at p. 290.) 

Applying the three-part test articulated in Conservatorship of Ben C., supra, 40 Cal.4th 

529, Kisling determined that such review is not required on appeal from a SVPA 

proceeding. (Kisling, at pp. 290-292.) Here, appointed counsel filed an opening brief 

raising no arguable issues on appeal, and the case is thus subject to dismissal under 

Kisling.

Defendant filed a supplemental brief, asserting two claims of error. First, he 

asserts the court erred when it failed to consider his advanced age and treatment efforts 

before it dismissed his petition. Second, defendant contends he received ineffective 

assistance of counsel because his attorney failed to present his treatment records or his 

age to the court. Defendant’s contentions do not raise any arguable error. The trial court 

determined defendant, who was neither on conditional release nor had received a 

recommendation for unconditional release from DSH, was ineligible for a hearing on his 
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petition for unconditional discharge. (People v. Smith, supra, 49 Cal.App.5th at 453 

[“before SVPs are unconditionally discharged on their own petitions, they must spend at 

least a year on conditional release”]; People v. LaBlanc (2015) 238 Cal.App.4th 1059, 

1069, fn. 7 [same].) Thus, it need not have conducted such a hearing to consider the 

evidence supporting unconditional discharge, including the evidence defendant now 

asserts.

Neither defendant’s supplemental brief nor the record demonstrates that defense 

counsel’s performance was deficient or that defendant was prejudiced by any failure to 

present such evidence. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 

[80 L.Ed.2d 674] [to prevail on a claim of ineffective assistance of counsel, a defendant 

must demonstrate that counsel’s representation fell below an objective standard of 

reasonableness and, but for counsel’s errors, there is a reasonable probability that the 

result of the proceeding would have been different].) Evidence of defendant’s age or 

treatment activities would not alter the legal conclusion that defendant was ineligible for 

a hearing on his petition, and counsel’s failure to present this evidence could not cause 

any prejudice to defendant.

Accordingly, there is no arguable error that would result in a disposition more 

favorable to defendant.

DISPOSITION

The appeal is dismissed.

 /s/

RAYE, P. J.

We concur:

 /s/

ROBIE, J.

 /s/

DUARTE, J.