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.

DONNEL L LUPER

,

Defen dant and Appellant. B 30 8095

(Los Angel es County Super. Ct. No. ZM042755 )

A PPEAL 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 P laintiff and R espondent.

____________________________________2 BACKGROUND Appellant Donnell L uper was committed to a state hospital in 2014 pursuant to section 1026 of the Penal Code 1 after he was found not guilty of felony vandalism (§ 594, subd s . (a ), (b)(1)) by

r eason of insanity (N GI). On August 27, 2020 , pursuant to the Peopl e’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 c ounsel advises tha t he has
revi e wed 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, 2 0 21
, identifying any issues he believes

war r ant revi ew 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 br ief

. Counsel has taken these steps in acco r dance with the procedures articulated in People v. Wende (1979) 25

Cal.3d 436 ( Wen de ) 3 and requests that we independently review
the record fo r error pursuant to those same pr ocedures. We

1 Undesignated statut ory reference s are to the Pena l Code.

2 This was the second such extension of Appellant’s commitment

.

3 T he Wende procedures were established in response to the U.S . Supreme Court’s holding in An ders v. Cal ifornia (1967) 386 U.S. 738 (

Anders ) that an indigent crim i nal defendant in his first

ap peal of right is entitled to a full review of the record by the appellate co urt if counsel fails to identify any arguable issu es for appeal. ( Wende

, supra , 25 Cal.3d a t p. 441.)3

decline to do so.
DISCU SSION As counsel acknowledges, his request f or Wende review conflicts with published authority. Specifically, Division Three of
the Fo urth Appellate District held in People v. Martinez (2016) 246 Cal.App.4 th 1226 , 1240 ( Martinez ) that Wende review is

unav ailable in appeals of orders p ursuant to se c tion 1026.5 extending NGI commitments. Counsel urges us to disregard this
authori ty, howev er, and read subdivision (b)(7) of section 1026.5, as interpre ted in Hudec v. Superior Court (2 015) 60 Cal.4th 815 ( Hud ec ) , as mandating Wende review o f NGI commitm e nt extensions. Subdivision (b) of section 1026.5 sets forth the procedures whereby an NGI c ommitment may be extended for two years by petition to the superior co urt. Among other things, these

p rocedures afford t he NGI respondent “the right s guaranteed

u nder the federal and State Constitutions for criminal proceedings ” and provide that “[a] ll pr oceedings shall be in accordance with applicable constitutional guaran tees.” (§ 1026.5, subd. (b)(7).) It is this langu age that counsel contends re quires

us to c onduct Wende review in this case. The Supreme Court in Hudec found that subdivision (b)(7)
af fords NGI respondents the right to refuse to testify in
section 1026.5 commitment extension hearings be cause such right i s guaranteed to criminal def endants in cr i minal trials. ( Hudec

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

t he Hudec court read the text of subdivision (b)(7) as effectively granting NGI extension res pondents all of the rights of a

c rimin al defendant in an NGI exten sion hearing. ( Hudec

, supra , at p. 826. )4 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 ri ghts from the

c riminal context to the noncri minal.” ( Hud e c , supra , 60 Cal. 4th at p. 826.) Accordingly, the court allowed that “[w]here a ri ght applicab le in criminal proceedings cannot logically be provided
within the framework of an NGI commitment exten sion hearing,

w e might infer the Legislature could not ha v e meant for
section 1026.5(b)(7) to encompass it.” ( Hude c, at p. 828.) The

court found n o absurd consequences in affording section 1026.5 extension hearing respondent s the criminally accused’s right not

to testi fy. Doing so, it re asoned, w ould not requ i re “nonstatutory procedures” to be “contrived” nor tend to prevent a section 1026.5 proceeding fro m going forward. ( Hudec, at p. 829.) Based on this

a nalysis, Appellant ’ s co unsel contends that because
W ende / Ande rs review is pr acti cabl e on N GI extension a ppeals,
Hudec makes such rev iew mandatory. After carefully considering section 1026.5 and Hudec

,

we find that th e correct question is not whether Wende / Anders procedures could be applied in appeals fro m section 1026.5

extens ion orders

, but w hether 1026.5

, subdivision (b)(7) , by its terms, applies to such appeals at all

. I t d oes not

. The stru cture and tex t of section 1026.5, subdivision (b), compel the conclusion
that subdivision (b)(7) applies only to extension proceedings before the superi or court and n ot in any subsequent appeal

. Subsection (b)(1) states that commitments m ay be extended
“on ly under the procedure set forth in this subdivision ,” i.e., subdivision (b). (§ 1026.5, subd. (b)(1)

, italics added .) The subsequen t numbered paragra phs go on to d escribe procedures that could have application only to the hearing befor e the5

superior cou rt. They de scribe the timing and form of the petition (subd. (b)(2)), require notice to the NGI respondent of h is right to
counsel an d a jury trial (su bd. (b)(3)), i ncorporate by reference the rules of discovery for criminal proceedings ( ibid. ), provide f or the

trans fer of the respondent during the pendency of the hearing as necessary to bring him “within a reasona ble distance from the court” (subd. (b)( 5)), and requ i re appointment of the county public
defender or State Public Defend er if the respondent is indigent (s ubd. (b)(7)). Nowhere does section 1026.5 refer to appeals from
extension orders. As the entirety of subdivision (b) is directed to

extens ion proceedin g s before the superior court , we read appellate proceedings commenced und er section 1237

— a procedure se parate from “ the procedure” referenced in section 1026.5, subdivision (b)(1)

— as outside the scope of
subdivision (b)(7).
O ur conclusion find s support in H udec . The Hudec court summarized its holding as follows: “By its terms , section 1026.5(b )(7) provide s that NGI committees facing a commitment extension hearing enjoy the trial rights constitutionally guaranteed to criminal defendants

. . . .” ( Hudec

, s u pra , 60 Cal.4th at p. 832
, italics added].) We read the reference to “ t rial rights” rathe r than just “rights” as de liberate and limiting since the word “trial” does not appear in the actual “terms ” of
subdivision (b)(7) . By interpreting sub division (b)( 7 ) as embracing only proceedings before the trial court, we also heed
the Supreme Court’s u nambiguous directive that Wende/Anders procedures are ma ndated solely in the context “of the indigent
criminal d efendant in his first appeal as of r ight

. . . and no n e other .” ( In re Sade C. (1996) 13 Cal.4th 952, 982

– 983 , italics
added

. ) Courts have reached this conclusion regarding several6

types of proceedings that are analogous to NGI proceedings. ( See Conserva torship of Ben C. (200 7 ) 40 Cal.4 th 529 , 544 ( Ben
C. ) [ Wende procedures do not apply to LPS c onservatorship proceedings ] ; People v. Taylor (2008) 16 0 Cal.App.4 th 304 , 312 [ Wende does not apply to Mentally Disordered Offender ( MDO )
commitments ]

. )
Our conclus ion does not deprive NGI committees of their

r ight t o appeal, and to be assi sted by counsel in doing so. It simply recognizes that the limited additional review that i s only afforded to criminal defendants on their first appeal does not apply to an appell ate proceeding that is not a first app eal of a
crim i nal trial. If either co unsel or the committed person identifies any issue for review, the appellate court will prov ide
review.
CONCLUSION For these reasons, we reject counsel’s argument that we are
statutor ily obligated to co nduct a Wende re view of the N G I extension pr oceedings be low. We further adopt the Martinez
court’s conclusion that Wende review is not constitution ally 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 appel late court’s prerogative to retain appeal where
Wende review is not mandatory].) Counsel ha s identified no issues for our consideration. Nor has Appellant, desp ite notice
from counsel and fro m this c ourt of the opportunity to d o so. We the r e fore dismiss the appeal. ( Martinez

, supra , 246 Cal.App.4 th at p. 1240.)7 DISPOSITION The appeal is dismisse d

. CERTIFIED FOR PUBLICATION

HARUTUNIAN, J. *

We concur:

GRIMES, Acting P. J

.

S TRA TTON, J.

* Judge of the San Diego Superior Court, assig n ed by the Chi ef Justice pursu ant to article VI, section 6 of the California Constitution.