1

Filed 10/9/20 P. v. L.W. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v.
L .W. , Defendant and Appellant. E0 74 619 (Super.Ct.No. FELJS1 9 0002 24)

OPINION

APPEAL from the Superior Court of San Bernardino County. Lorenzo R. Balderrama, Judge. Dismissed

. Michelle D. Peña , under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.2 I
INTRODUCTION Defendant and appellant L .W. appeals from an order denying her petition challenging her status as a mentally disordered offender (MDO). (Pen. Code, 1 § 296 0, et seq.) After counsel filed the notice of appeal, this court appointed counsel to represent
defendant. Counsel has filed a brief under t he authority of People v. Wende (1979) 25
Cal.3d 436 ( Wende ) and Anders v. California (1967) 386 U.S. 738 ( Anders ) , requesting
this court to undertake a review of the entire record. We conclude that Anders / Wende procedures do not apply to appeals in MDO c ommitment cases, and thus dismiss the appeal.
II

FACTUAL AND PROCEDURAL BACKGROUND On April 6, 2018, defendant resisted arrest, causing injury to an officer, as she was being escorted out of a Planned Parenthood for creating a disturbance. On April 10, 2018, a felony complaint was filed charging defendant with two counts of felony resisting an executive officer by means of threat and violence (§ 69 ; counts 1 & 2 ). The complaint also alleged that defendant had suffered a prior serious
and/or violent str ike conviction (§§ 667, subds. (b)

- (j), 1170.12, subd. (b)). On that same day, the trial court, on its own motion and over defense counsel’s objection, declared a

1 All future statutory references are to the Penal Code unless otherwise stated.3

doubt as to defendant’s mental competency, ordered defendant to undergo a competency
evaluat ion under section 1368, and suspended the proceedings. On July 2, 2018, Dr. B.R. Rubenstein evaluated defendant and found defendant incompetent to stand trial. Dr. Rubenstein concluded defendant was “‘ “ highly unstable and uncooperative with treatment whi le incarcerated ” ’” and observed defendant to be

“‘ “ snapping her fingers, irritable, labile, disorganized[,] and uncooperative. ” ’” On July 10, 2018, the trial court found defendant i ncompetent to s tand t rial under
section 1368 . Defendant was thereafter transferred to Patton State Hospital ( Patton ) for
restoration of competen ce
. On November 19, 2018, defendant was discharged from Patton. On November 27, 2018, defendant was found mentally competent to stand trial
under section 1368 and criminal proceedings were reinstated. On December 10, 2018, defendant plead ed nolo contendere to one count of felony resisting arrest (§ 69; count 1) with threat or violence. In return, the remaining allegations were dismissed, imposition of a two

- year sentence was suspended , and
defendant was placed on formal probation for a period of three years on various terms
and conditions. One of defendant’s probation ary terms required defendant to participate
in a mental health treatment program. On Ma rch 12, 2019, the trial court revoked defendant’s probation after it found
defendant failed to comply with her mental health treatment program
.4

On April 3, 2019, after waiving her rights to a formal probation revocation hearing, defendant admitted to viol ating her probation. The trial court thereafter terminated defendant’s probation and sentenced her to two years in state prison with
521 days ’ credit for time served. Defendant’s parole release date was July 17, 2019. Upon her arrival at the California Department of Corrections and Rehabilitation (CDCR) on April 30, 2019, defendant was placed in the Mental Health Services Delivery System at the Enhanced Outpatient Pr ogram. On May 31, 2019, Dr. Eric V. Roth, a CDCR MDO evaluator and psychologist , evaluated defendant. Dr. Roth found defendant met the criteria as an MDO under
section 2962 and recommended defendant be hospitalized within the California Department of Sta te Hospitals (DSH)

. 2 On June 13, 2019, Dr. Robert E. Record, a DSH evaluator and psychologist, also
conducted an MDO evaluation of defendant. Dr. Record concluded defendant met all six criteria for treatment pursuant to section 2962. On July 1, 2019, CDCR’s Chief Psychiatrist , Dr. Nir Lorant, certified defendant’s continued treatment by DSH under section 2962. Dr. Lorant stated that he had reviewed the psychological evaluations conducted by Dr. Record on June 13, 2019, and Dr. Roth on May 31, 2019, in concluding defendant met all six section 2962 criteria for a civil

2 The Mentally Disordered Offender Act (§§ 2960 et seq.) provides for involuntary civil commitment as a condition of parole for prisoners who are found to have a “ ‘ severe mental health disorder ’ ” if certain conditions are met. (§ 2962, subds. (a)

- (f).) The commitment is for a term of one year, and the district attorney may petition to extend an MDO ’ s commitment annually for additional one

- year terms. (§§ 2970, 2972, subds. (a), (c), (e).)5

commitment certification. Dr . Lorant also filed a document entitled “Certification of Mentally Disordered Offender” indicating that defendant met the criteria of section 2962.
Dr. Lorant noted , among others, that (1) defendant had a severe mental disorder, specifically schi zophrenia , p aranoid t ype, c hronic ; (2) defendant had ongoing symptoms of anxiety, fear, irritability, varied eye contact, loose associations, paranoid delusions, and disorganized thought; (3) defendant was not in remission; (4) defendant had refused treatment; (5) defendant had been in treatment 90 days or more for a severe mental disorder within a year prior to her parole release date; and (6) defendant continued to present a substantial danger of physical harm to others due to being non

- compliant with
her medicati on, history of substance abuse, and lack of insight into her severe mental
disorder. On July 1, 2019, the Board of Prison Terms (BPT) reviewed the certification and
reaffirmed defendant’s continued treatment under section 2962. The BPT found defendant was a parolee who met all six criteria for certification as an MDO by a preponderance of the evidence. On October 24, 2019, defendant filed a petition for a hearing with the superior court, challenging the BPT’s determination she met the criteri a as an MDO under
section 2962 , and order for appointment of counsel

. On November 21, 2019, the trial court appointed counsel for defendant. On December 19, 2019, defendant waived her right to a jury trial and a court trial
commenced

. Defendant testifi ed that she was housed at Patton as a “mentally disordered6

offender,” and that she had been diagnosed as a “ [ p ] aranoid schizophrenic.” She believed her diagnosis was correct. Defendant also stated that her “sickness . . . could be kept in remission if [s he] treat[ed] [her]self . . . with the right medications

. . . . ” She understood she had to take her medication if she was released on parole. Defendant admitted that she did not take her medication while she was in prison, prior to being
transferred to Patton. She explained that she did not take her medication in prison
because she had medical concerns and communicated her concerns to her doctors. She asserted that she was taking her medication at Patton and at the time of the hearing.
After defendant testified, the People introduced 11 exhibits into evidence . The
trial court admitted those exhibits into evidence without any objections by defense
counsel , including objections pursuant to People v. Sanchez (2016) 63 Cal.4th 665. The
exhibits consi sted of the following documents: a Board of Parole Hearings p acket; a
p olice r eport concerning defendant’s resisting arrest conviction ; a p rior p acket as to defendant’s resisting arrest conviction; defendant’s mental health records from CDCR;
notes from defen dant’s treating p sychiatrist; notes from defendant’s p sychologist; n urse’s

n otes; i nterdisciplinary n otes; defendant’s section 969b p acket; defendant’s criminal rap sheet ; and i nterdisciplinary n otes from October through December 2019.7

On January 22, 2020, the trial court denied defendant’s petition and found
defendant met the criteria of an MDO under sections 2962 and 2966, subdivision (c). Defendant was thus ordered to remain committed to the DSH as a mentally disordered
offender at P atton. On January 2 9 , 2020, defendant filed a timely notice of appeal from the civil commitment order under the Mentally Disordered Offender Act (§ 2960, et seq.)

. III
DISCUSSION As previously noted, after defendant appealed, upon h er request, this cour t appointed counsel to represent h er . Counsel has filed a brief under the authority of
Wende , supra , 25 Cal.3d 436 and Anders , supra , 386 U.S. 738 , setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this

court to conduct an independent review of the record. We offered defendant an opportunity to file a personal supplemental brief, and s he
has not done so. Counsel acknowledges authorities holding that MDO commitment cases such as defendant’s are exempt from Anders / Wende procedures ( People v. Taylor (2008) 160 Cal.App.4th 304 ( Taylor )), and, that such procedures do not apply to orders extending the
civil comm itment of an individual previously found not guilty by reason of insanity where counsel finds no arguable appellate issues and the client is given an opportunity to file a brief but does not. ( People v. Martinez (2016) 246 Cal.App.4th 1226 ( Martinez ) .)8

C ounsel also acknowledges these decisions rely in part on Conservatorship of Ben C. (2007) 40 Cal.4th 529, 538, in which the California Supreme Court held that appeals
from Lanterman

- Petris

- S hort Act (Welf. & Inst. Code, § 5000 et seq.) conservatorship
proc eedings are not subject to Anders / Wende review. The Anders / Wende procedures apply only to an indigent criminal defendant’s first appeal as a matter of right. ( Taylor , at p. 312 ; Martinez , at pp. 1230, 1233, 1236; see In re Phoenix H. (2009) 47 Cal.4th 83 5, 838 [reiterating Ben C. holding]; In re Sade C. (1996) 13 Cal.4th 952, 959 [ Anders / Wende do not extend to indigent parent’s appeal of an order adversely affecting custody or parental status].) Counsel nevertheless urges us to conduct an independent r eview of the record here, because “[t]hese issues have not been directly decided by the California Supreme
Court.” This argument does not convince us. We follow Taylor , supra , 160 Cal.App.4th 304, in which the prisoner there was also certified for MDO tr eatment as a condition of parole. ( Id . at p. 312.) As Taylor pointed out, this court is bound by the high court ’ s characterization of the MDO Act as a “‘civil commitment scheme.’” ( Ibid ., quoting In re
Howard N. (2005) 35 Cal.4th 117, 127.) Here, as in Taylor , defendant was informed of
h er right to file a supplemental brief identifying any issues s he wanted us to consider, but
did not do so. ( Taylor , at p. 313.) We agree with Taylor and decline to apply
Wende / Anders procedures to this MDO case and decline to exercise our discretion to
conduct such a review.9

Accordingly, f

or the reasons expressed in Taylor , dismissal is appropriate. ( Taylor , supra , 160 Cal.App.4th at p. 313.)
IV
DISPOSITION
The appeal is dism issed

. NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J. We concur:

MILLER Acting P. J.

MENETREZ J.