People v. Torres

35 Cal.Rptr.3d 520

133 Cal.App.4th 1359

The PEOPLE, Plaintiff and Respondent, v. Guadalupe TORRES, Defendant and Appellant.

No. C048309.

Court of Appeal, Third District.

November 8, 2005.

Athena Shudde, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, Charles A. French, Supervising Deputy Attorney General, Jeffrey D. Firestone, Deputy Attorney General, for Plaintiff and Respondent.

CANTIL-SAKAUYE, J.

Defendant Guadalupe Torres appeals his recommitment as a sexually violent predator (SVP). (Welf. & Inst.Code, § 6604.)¹

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (Wende).) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.

We requested supplemental briefing on whether the procedures under Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (Anders) and Wende, supra, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 apply here. Defendant responds affirmatively; the Attorney General responds just the opposite. We conclude the Anders/Wende procedures are not applicable and will dismiss the appeal as abandoned.

PROCEDURAL HISTORY

The Yolo County District Attorney filed a petition to extend defendant's commitment as a SVP pursuant to section 6604. In his declaration, the prosecutor stated that defendant qualified as a SVP because he had previously been convicted of sexually violent offenses which involved two or more victims with whom he had a predatory relationship, that he had a current mental disorder and that by reason of the mental disorder, he was likely to reoffend in the future by committing another sexually violent offense.

Defendant waived his right to a jury trial (§ 6603, subd. (a)). After a court trial, the court found beyond a reasonable doubt that defendant was a SVP and recommitted defendant to Atascadero State Hospital for a term of two years, commencing on December 8, 2003. His recommitment expires on December 7, 2005.

DISCUSSION

The parties do not cite to, and we are unaware of, a published California case which considers whether the Anders/Wende procedure applies requiring the court to make a review of the entire record to an appeal by a SVP from an order of commitment or recommitment.

Anders and Wende

Anders determined that an indigent criminal defendant's appointed counsel who finds the case wholly frivolous could not simply file a no-merits letter with an appellate court but must instead file a brief "referring to anything in the record that might arguably support the appeal" and request permission to withdraw. The appellate court then examines the case to determine whether the appeal is wholly frivolous and if so, may grant the request to withdraw and dismiss the appeal or decide it on the merits if required by state law. When arguable issues are found by the appellate court, defense appellate counsel must be given the opportunity to argue. (Anders, supra, 386 U.S. at pp. 739-742, 744, 87 S.Ct. at pp. 1397-1399, 1400, 18 L.Ed.2d at pp. 495-498.) The Anders procedures are "not the result of an `"independent constitutional"' requirement but rather a `"prophylactic framework"' for vindicating the right to counsel established in Douglas v. California [(1963)] 372 U.S. [353] at pages 357-358 [83 S.Ct. 814, 9 L.Ed.2d 811]" and "is relevant only when there is a constitutional right to counsel on appeal." (In re Kevin S. (2003) 113 Cal.App.4th 97, 103, 6 Cal.Rptr.3d 178 (Kevin S.), citing Smith v. Robbins (2000) 528 U.S. 259, 273, 120 S.Ct. 746, 757, 145 L.Ed.2d 756, 772 (Smith); Pennsylvania v. Finley (1987) 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539, 545 and In re Sade C. (1996) 13 Cal.4th 952, 972, 55 Cal.Rptr.2d 771, 920 P.2d 716 (Sade C.).)

Wende determined that on an indigent criminal defendant's first appeal as of right, the appellate court was required under Anders and People v. Feggans (1967) 67 Cal.2d 444, 62 Cal.Rptr. 419, 432 P.2d 21 (Feggans) "to make a review of the entire record before determining that the appeal was frivolous." (Wende, supra, 25 Cal.3d at pp. 440-441, 158 Cal.Rptr. 839, 600 P.2d 1071.) Wende also determined that appointed counsel is not required to seek permission to withdraw if he or she finds no arguable issues. (Id. at p. 442, 158 Cal.Rptr. 839, 600 P.2d 1071.) California's Wende procedure was upheld as constitutional. (Smith, supra, 528 U.S. at pp 264-265, 120 S.Ct. at pp. 752-753, 145 L.Ed.2d at pp. 766-767.)

The <Anders/Wende procedures have generally been applied in criminal appeals, not civil appeals, but there have been exceptions including paternity appeals, termination of parental rights, conservatorship appeals, and juvenile delinquency appeals.² (Sade C., supra, 13 Cal.4th at p. 962, fn. 2, 55 Cal.Rptr.2d 771, 920 P.2d 716, and cases cited therein.)

Sade C.

In Sade C., supra, 13 Cal.4th 952, 55 Cal.Rptr.2d 771, 920 P.2d 716, the California Supreme Court concluded that the Anders procedures are inapplicable and should not be extended in an appeal involving an adverse decision affecting an indigent parent's custody of a child or his or her status as the child's parent. Sade C. determined that such review was neither compelled directly by Anders nor required by fundamental fairness, equal protection or policy. (Id. at pp. 959, 981-982, 984-993, 55 Cal.Rptr.2d 771, 920 P.2d 716.)

Sade C. conducted a thorough review of the case law prior to, including, and subsequent to Anders (Sade C., supra, 13 Cal.4th at pp. 965-977, 55 Cal.Rptr.2d 771, 920 P.2d 716) before summarizing its conclusions drawn therefrom:

"First, Anders establishes certain procedures for state appellate courts that are `prophylactic' in nature. [Citations.] It does not, however, `set down' any `independent ... command' derived from the United States Constitution itself. [Citations.] If, after conscientious examination, appointed appellate counsel, in an indigent criminal defendant's first appeal as of right, moves the appellate court for leave to withdraw on the ground that the appeal is `wholly frivolous,' `without merit,' or generally `lack[ing] any basis in law or fact' [citation], these steps must be taken: Counsel must submit an Anders brief — which, although a peculiar kind of brief, is a brief nonetheless — `referring to anything in the record that might arguably support the appeal.' [Citation.] apparently, either by denying counsel's motion to withdraw or by granting his request and appointing new counsel in his place.

"Second, Anders's `prophylactic' procedures are limited in their applicability to appointed appellate counsel's representation of an indigent criminal defendant in his first appeal as of right. [Citations.] They do not extend to an appeal, even on direct review, that is discretionary. [Citation.] A fortiori, they do not reach collateral postconviction proceedings. [Citation.] Proceedings of this sort are considered civil in nature and not criminal. [Citation.] As such, they are far removed from the object of the Anders court's concern, which was the first appeal as of right in a criminal action.

"Third, Anders's `prophylactic' procedures are dependent for their applicability on the existence of an indigent criminal defendant's right, under the Fourteenth Amendment's due process and equal protection clauses, to the assistance of appellate counsel appointed by the state in his first appeal as of right. [Citations.] By operation of the due process guaranty, the right extends beyond nominal assistance to effective assistance. [Citations.] The same is true under the equal protection entitlement. [Citations.]

"Fourth, Anders's `prophylactic' procedures are designed solely to protect an indigent criminal defendant's right, under the Fourteenth Amendment's due process and equal protection clauses, to the assistance of appellate counsel appointed by the state in his first appeal as of right. [Citations.] In a word, Anders seeks to ensure that `counsel acts in the role of an active advocate in behalf of his client....' [Citation.] In aid thereof, it requires an Anders brief from counsel, to compel him to play, and to show that he has played, the part that is proper to him as an attorney and the one for which he is suited. It also requires Anders review from the court, to compel it to assure itself, on an adequate basis, that counsel has done so and need do no more. Counsel's withdrawal, of course, deprives the defendant of his continued assistance, effective or otherwise. [Citation.] It may be allowed only if any further assistance would be inutile — that is to say, only if the `appeal lacks any basis in law or fact' [citation]." (Sade C., supra, 13 Cal.4th at pp. 977-979, 55 Cal.Rptr.2d 771, 920 P.2d 716, fn. omitted.)

Sade C. discussed Feggans and Wende, noting that Wende "reaches somewhat beyond Anders" in stating that "appointed appellate counsel is not required to move to withdraw if he believes the appeal to lack any basis in law or fact." (Sade C., supra, 13 Cal.4th at pp. 979-981, 55 Cal.Rptr.2d 771, 920 P.2d 716, orig. italics.)

In determining that the Anders procedures are not directly compelled by the facts before it, Sade C. pointed out that an indigent parent is not a criminal defendant; the proceedings were civil not criminal; and the Anders procedures are "dependent" upon and "designed solely to protect" the indigent criminal defendant's right under the Fourteenth Amendment to the assistance of appellate counsel, only in his first...