The People v. Gary

1

THE PEOPLE Plaintiff and Respondent, v. REGINALD A. GARY, Defendant and Appellant.

B328885

California Court of Appeals, Second District, Fifth Division

July 15, 2024

NOT TO BE PUBLISHED

Appeal from an order of the Superior Court of Los Angeles County Super. Ct. No. ZM033162 James R. Dabney, Judge.

Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Respondent.

MOOR ACTING, P. J.

Reginald A. Gary appeals the trial court's order declaring him a sexually violent predator (SVP) pursuant to the Sexually Violent Predator Act (SVPA), Welfare and Institutions Code^[1]section 6600 et seq., and committing him to the custody of the Department of State Hospitals for an indeterminate term. Gary's appointed counsel filed a brief indicating that he was unable to identify any appealable issues and requesting our independent review under People v. Wende (1979) 25 Cal.3d 436 (Wende), Anders v. California (1967) 386 U.S. 738 (Anders), and Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.).

In the opening brief, appointed counsel acknowledged that Wende/Anders procedures do not apply to appellate review of SVP commitment orders under established law, but stated that Gary disagreed with this precedent. Counsel requested that we exercise our discretion to conduct an independent review of the record. Counsel attached a declaration to the opening brief confirming that he sent Gary a copy of the opening brief and advised Gary of his right to file a supplemental brief. Counsel also informed Gary that "if he did not file a supplemental brief, the Court of Appeal would almost certainly dismiss his appeal as abandoned."

Based upon the opening brief's joint identification of Gary's appeal as filed pursuant to Wende/Anders and Ben C., this court initially issued an order citing Wende/Anders and granting Gary 30 days in which to file a supplemental brief on his own behalf. Subsequently, we granted Gary's motion extending by 30 days the deadline to file a supplemental brief, and notified Gary that Wende/Anders procedures do not apply to his appeal, such that his failure to file a supplemental brief could result in dismissal of the appeal as abandoned. (See Ben C., supra, 40 Cal.4th at p. 535 [Wende/Anders review not required in conservatorship proceedings under the Lanterman-Petris-Short Act]; People v. Kisling (2015) 239 Cal.App.4th 288, 290 (Kisling) [Wende review not required in appeal from denial of petition for release from SVP commitment].)

Gary filed a supplemental brief.^[2] We have read and fully considered Gary's supplemental brief and conclude it raises no arguable issues. We affirm the trial court's order.

PROCEDURAL HISTORY

On September 26, 2016, the district attorney of Los Angeles County filed a petition seeking to commit Gary as an SVP pursuant to section 6600. On May 26, 2022, Gary filed a waiver of his right to a jury trial.

Gary's court trial began on March 20, 2023. At trial, the People presented evidence of three predicate sexually violent offenses: (1) a 1974 juvenile adjudication that Gary committed the offense of kidnapping (Pen. Code, § 207)^[3]; (2) a 1986 conviction for committing a lewd act on a child under 14 years of age (Pen. Code, § 288)^[4] for a crime that Gary committed in 1980; and (3) a 1998 conviction of one count of committing a lewd act on a child under age 14 years of age (Pen. Code, § 288, subd. (a)) and one count of oral copulation of a person under 14 years of age (Pen. Code § 288a, subd. (c)).

Dr. Kathleen Longwell and Dr. Tricia Busby, who each conducted multiple psychological evaluations of Gary, testified for the People. Dr. Longwell and Dr. Busby testified regarding the facts and circumstances of the predicate offenses, diagnosed Gary as having pedophilic disorder and antisocial personality disorder, and opined that Gary was likely to commit another sexually violent and predatory offense if released from custody.

Dr. Christopher Fisher testified on Gary's behalf. He opined that Gary's diagnosis of pedophilic disorder was not currently supported. Although he noted that the diagnosis might have been appropriate at earlier times in Gary's life, pedophilic disorder can change over time, even without treatment. He further opined that the diagnosis alone was not sufficient to meet SVP criteria if a person is not volitionally impaired, and that there was no current or recent evidence that Gary could not control his sexual behavior. Although Dr. Fisher believed that Gary could have been diagnosed with antisocial personality disorder when he was 20 or 30 years old, he believed those traits were currently in remission.

Multiple employees of Coalinga State Hospital also testified on Gary's behalf. A former patient at Coalinga State Hospital testified that he was friends with Gary and would provide Gary with support if Gary was released. A woman who had been in contact with Gary for 10 years on a daily basis testified that she would relocate to live with Gary if he was released. It was stipulated that another person would provide Gary with $100 in monthly support. A licensed clinical psychologist assigned to Gary's unit testified that he observed Gary over five years, and met with him approximately every 90 days. He was not aware of any reports of Gary acting out sexually. However, at each periodic meeting, Gary was recommended to have, and offered, sexual offender treatment, but has refused the recommendation. Gary has indicated that it is because he is not guilty of his most recent conviction.

On April 3, 2023, the court issued its ruling finding that Gary qualified as an SVP and committed him to the Department of State Hospitals for an indefinite term.^[5]

Gary timely appealed.

DISCUSSION

SVP Commitment Proceedings

Pursuant to section 6600, subdivision (a)(1), a" 'Sexually violent predator'" is defined as: "a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." "[A]n inmate qualifies as an SVP if (1) the inmate 'has been convicted of a sexually violent offense against one or more victims,' (2) the inmate 'has a diagnosed mental disorder that makes [him or her] a danger to the health and safety of others,' and (3) the mental disorder makes it 'likely' that the inmate 'will engage in future predatory acts of sexually violent criminal behavior if released from custody.'" (People v. Peyton (2022) 81 Cal.App.5th 784, 796.)

Analysis

We have read and fully considered Gary's supplemental brief and conclude that it raises no arguable issues. We address Gary's contentions by the number provided in his supplemental brief, where applicable. In reaching our disposition, we have applied the procedures and safeguards set forth in Ben C., Kisling, and People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo).

In Ben C., supra, 40 Cal.4th at page 535, our Supreme Court held that Wende/Anders review is not required in conservatorship proceedings under the Lanterman-Petris-Short Act. Ben C. set forth the procedures that counsel and this court should follow in conservatorship proceedings: "If appointed counsel finds no arguable issues, counsel . . . should (1) inform the court he or she has found no arguable issues to be pursued on appeal; and (2) file a brief setting out the applicable facts and the law." (Ben C., at p. 544.) "The conservatee is to be provided a copy of the brief and informed of the right to file a supplemental brief." (Id. at p. 544, fn. 6.) The appellate court may then dismiss the appeal if there are no arguable issues. (Id. at p. 544.) Kisling, supra 239 Cal.App.4th at pages 290 through 292, held that Ben C. procedures apply in the context of SVP commitment proceedings. Kisling explained that SVP commitment proceedings are not implicated by Wende, which applies to criminal matters in the first appeal of right. (Ibid.) Although the defendant in Kisling appealed from the denial of petition for release from SVP commitment, the principles apply equally to an appeal from an initial commitment order such as in the instant case.

In an abundance of caution, we also adopt the procedures that our Supreme Court recently articulated in Delgadillo. There, the court held that Wende/Anders procedures do not apply to appeals from orders denying resentencing pursuant to Penal Code section 1172.6. (Delgadillo supra, 14 Cal.5th at p. 222.) Rather, the court provided the following guidance: "When appointed counsel finds no arguable issues to be pursued on appeal: (1) counsel should file a brief informing the court of that determination, including a concise recitation of the facts bearing on the denial of the petition; and (2) the court should send, with a copy of counsel's brief, notice to the defendant, informing the defendant of the right to file a supplemental letter or brief and that if no letter or brief is filed within 30 days, the court may dismiss the matter." (Id. at pp. 231-232.) "If the defendant subsequently files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion. The filing of a supplemental brief or letter does not compel an independent review of the entire record to identify unraised issues." (Id. at p. 232.) Although the defendant in Delgadillo appealed the denial of a petition for resentencing, which is a criminal proceeding, the liberty interests in civil SVP commitment proceedings are significant, and arguably merit equal consideration. We therefore specifically consider and address...