Filed 1/14/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

DONNELL LUPER,

Defendant and Appellant.

 B308095

 (Los Angeles County

 Super. Ct. No. ZM042755)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Robert S. Harrison, Judge. Dismissed.

Rudy Kraft, under appointment by the Court of Appeal, for 

Defendant and Appellant.

No appearance for Plaintiff and Respondent.

____________________________________
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BACKGROUND

Appellant Donnell Luper was committed to a state hospital 

in 2014 pursuant to section 1026 of the Penal Code1after he was 

found not guilty of felony vandalism (§ 594, subds. (a), (b)(1)) by

reason of insanity (NGI).

On August 27, 2020, pursuant to the People’s petition, the 

trial court ordered Appellant’s commitment extended for two 

years

2

pursuant to section 1026.5, subdivision (b).

In his brief, Appellant’s counsel advises that he has 

reviewed the record of the section 1026.5 proceedings and found 

no arguable issues to raise on appeal. Counsel has further 

notified Appellant of his right to file a supplemental brief within 

30 days of September 7, 2021, identifying any issues he believes 

warrant review and of his right to a copy of the record on appeal 

to facilitate such briefing. This court also notified Appellant of 

his right to file a supplemental brief. Appellant has not filed a 

supplemental brief. Counsel has taken these steps in accordance 

with the procedures articulated in People v. Wende (1979) 25 

Cal.3d 436 (Wende)

3

and requests that we independently review 

the record for error pursuant to those same procedures. We

1 Undesignated statutory references are to the Penal Code.

2 This was the second such extension of Appellant’s 

commitment. 

3 The Wende procedures were established in response to the 

U.S. Supreme Court’s holding in Anders v. California (1967) 386 

U.S. 738 (Anders) that an indigent criminal defendant in his first 

appeal of right is entitled to a full review of the record by the 

appellate court if counsel fails to identify any arguable issues for 

appeal. (Wende, supra, 25 Cal.3d at p. 441.)
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decline to do so.

DISCUSSION

As counsel acknowledges, his request for Wende review 

conflicts with published authority. Specifically, Division Three of 

the Fourth Appellate District held in People v. Martinez (2016) 

246 Cal.App.4th 1226, 1240 (Martinez) that Wende review is 

unavailable in appeals of orders pursuant to section 1026.5 

extending NGI commitments. Counsel urges us to disregard this 

authority, however, and read subdivision (b)(7) of section 1026.5, 

as interpreted in Hudec v. Superior Court (2015) 60 Cal.4th 815

(Hudec), as mandating Wende review of NGI commitment 

extensions. 

Subdivision (b) of section 1026.5 sets forth the procedures 

whereby an NGI commitment may be extended for two years by 

petition to the superior court. Among other things, these 

procedures afford the NGI respondent “the rights guaranteed 

under the federal and State Constitutions for criminal 

proceedings” and provide that “[a]ll proceedings shall be in 

accordance with applicable constitutional guarantees.” (§ 1026.5, 

subd. (b)(7).) It is this language that counsel contends requires 

us to conduct Wende review in this case.

The Supreme Court in Hudec found that subdivision (b)(7) 

affords NGI respondents the right to refuse to testify in 

section 1026.5 commitment extension hearings because such 

right is guaranteed to criminal defendants in criminal trials. 

(Hudec, supra, 60 Cal.4th at p. 826.) In reaching this conclusion, 

the Hudec court read the text of subdivision (b)(7) as effectively 

granting NGI extension respondents all of the rights of a 

criminal defendant in an NGI extension hearing. (Hudec, supra, 

at p. 826.) 
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Despite the “apparent clarity” of subdivision (b)(7)’s 

command, the Hudec court acknowledged the difficulty inherent 

in “translati[ng] or transposi[ng] of procedural rights from the 

criminal context to the noncriminal.” (Hudec, supra, 60 Cal.4th 

at p. 826.) Accordingly, the court allowed that “[w]here a right 

applicable in criminal proceedings cannot logically be provided 

within the framework of an NGI commitment extension hearing, 

we might infer the Legislature could not have meant for 

section 1026.5(b)(7) to encompass it.” (Hudec, at p. 828.) The 

court found no absurd consequences in affording section 1026.5 

extension hearing respondents the criminally accused’s right not

to testify. Doing so, it reasoned, would not require “nonstatutory 

procedures” to be “contrived” nor tend to prevent a section 1026.5

proceeding from going forward. (Hudec, at p. 829.) Based on this 

analysis, Appellant’s counsel contends that because

Wende/Anders review is practicable on NGI extension appeals,

Hudec makes such review mandatory. 

After carefully considering section 1026.5 and Hudec, 

we find that the correct question is not whether Wende/Anders

procedures could be applied in appeals from section 1026.5 

extension orders, but whether 1026.5, subdivision (b)(7), by its 

terms, applies to such appeals at all. It does not. The structure 

and text of section 1026.5, subdivision (b), compel the conclusion 

that subdivision (b)(7) applies only to extension proceedings 

before the superior court and not in any subsequent appeal.

Subsection (b)(1) states that commitments may be extended 

“only under the procedure set forth in this subdivision,” i.e., 

subdivision (b). (§ 1026.5, subd. (b)(1), italics added.) The 

subsequent numbered paragraphs go on to describe procedures 

that could have application only to the hearing before the 
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superior court. They describe the timing and form of the petition 

(subd. (b)(2)), require notice to the NGI respondent of his right to 

counsel and a jury trial (subd. (b)(3)), incorporate by reference the 

rules of discovery for criminal proceedings (ibid.), provide for the 

transfer of the respondent during the pendency of the hearing as 

necessary to bring him “within a reasonable distance from the 

court” (subd. (b)(5)), and require appointment of the county public 

defender or State Public Defender if the respondent is indigent 

(subd. (b)(7)). Nowhere does section 1026.5 refer to appeals from 

extension orders. As the entirety of subdivision (b) is directed to 

extension proceedings before the superior court, we read 

appellate proceedings commenced under section 1237—a 

procedure separate from “the procedure” referenced in section 

1026.5, subdivision (b)(1)—as outside the scope of

subdivision (b)(7).

Our conclusion finds support in Hudec. The Hudec court 

summarized its holding as follows: “By its terms, section

1026.5(b)(7) provides that NGI committees facing a commitment 

extension hearing enjoy the trial rights constitutionally 

guaranteed to criminal defendants . . . .” (Hudec, supra, 60 

Cal.4th at p. 832, italics added].) We read the reference to “trial

rights” rather than just “rights” as deliberate and limiting since 

the word “trial” does not appear in the actual “terms” of 

subdivision (b)(7). By interpreting subdivision (b)(7) as 

embracing only proceedings before the trial court, we also heed 

the Supreme Court’s unambiguous directive that Wende/Anders 

procedures are mandated solely in the context “of the indigent 

criminal defendant in his first appeal as of right . . . and none 

other.” (In re Sade C. (1996) 13 Cal.4th 952, 982–983, italics 

added.) Courts have reached this conclusion regarding several 
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types of proceedings that are analogous to NGI proceedings. 

(See Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544 (Ben 

C.) [Wende procedures do not apply to LPS conservatorship 

proceedings]; People v. Taylor (2008) 160 Cal.App.4th 304, 312

[Wende does not apply to Mentally Disordered Offender (MDO)

commitments].)

Our conclusion does not deprive NGI committees of their 

right to appeal, and to be assisted by counsel in doing so. It 

simply recognizes that the limited additional review that is only 

afforded to criminal defendants on their first appeal does not 

apply to an appellate proceeding that is not a first appeal of a

criminal trial. If either counsel or the committed person

identifies any issue for review, the appellate court will provide 

review.

CONCLUSION

For these reasons, we reject counsel’s argument that we are 

statutorily obligated to conduct a Wende review of the NGI 

extension proceedings below. We further adopt the Martinez 

court’s conclusion that Wende review is not constitutionally 

mandated. Finally, we decline to exercise our discretion to 

conduct a Wende review. (See Ben C. supra, 40 Cal.4th at p. 544, 

fn. 7 [noting appellate court’s prerogative to retain appeal where 

Wende review is not mandatory].) Counsel has identified no 

issues for our consideration. Nor has Appellant, despite notice 

from counsel and from this court of the opportunity to do so. 

We therefore dismiss the appeal. (Martinez, supra, 246 

Cal.App.4th at p. 1240.)
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DISPOSITION

The appeal is dismissed.

CERTIFIED FOR PUBLICATION 

HARUTUNIAN, J.*

We concur:

GRIMES, Acting P. J.

STRATTON, J.

* Judge of the San Diego Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.