Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 71166
Haerle, J.
I. INTRODUCTION
After a court trial, appellant was ordered recommitted to Patton State Hospital for an additional two years pursuant to Penal Code section 1026.5, subdivision (b) (section 1026.5(b)). Previous to that trial, appellant had been confined to various state hospitals after having been found not guilty by reason of insanity of a charge of second degree murder in 1972. Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), appellant’s counsel asks us to examine the record regarding the extension-of-commitment trial and determine if there are any legal issues deserving of further briefing and then consideration by this court. We hold, consistent with our Supreme Court’s recent decision in Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.), that a case such as this is not subject to review pursuant to Wende but, even if it is, the record before us does not reveal any issues deserving of further briefing.
All statutory references are to the Penal Code, unless otherwise noted.
II. FACTUAL AND PROCEDURAL BACKGROUND
After being found not guilty by reason of insanity (NGI) of second degree murder in 1972, appellant was committed to Napa State Hospital. On March 7, 2005, he stipulated to a two-year extension of the commitment pursuant to section 1026.5(b) and his commitment was thus extended to May 18, 2007. On January 8, 2007, the San Francisco District Attorney’s office filed a petition to extend appellant’s commitment pursuant to section 1026.5(b). Attached to that petition was a letter and declaration from the then-acting director of Patton State Hospital which opined that appellant qualified for an extension of his commitment pursuant to that statute because he represented a substantial danger of personal harm to others.
On April 30, 2007, appellant personally appeared in the trial court, although accompanied by counsel who had previously represented him, and requested a jury trial on the recommitment petition. Later, however, and on the advice of his counsel, appellant waived his right to a jury trial, agreeing that the petition could be heard and decided by the trial court, the Honorable Wallace P. Douglass.
A hearing on the continued-commitment petition was held the following day before Judge Douglass. The deputy district attorney presented as her only witness Dr. Maher Saleeb, a staff psychiatrist from Patton State Hospital. After being qualified, Dr. Saleeb testified that he had been treating appellant for approximately a year and a half. He went on to explain that he believes appellant suffers from schizophrenia, for which he takes several prescribed medicines. Saleeb also opined that appellant suffers from anti-social personality disorder, insomnia, and alcohol and cocaine abuse.
Contrary to the suggestion in the Wende brief, the record makes clear to us that Dr. Saleeb is male.
Dr. Saleeb testified that he believed appellant posed a substantial and continuing risk to the safety of others if released into the community due to the symptoms of the disorders which he testified appellant suffered from, and supported this opinion with examples of his impulsive and threatening behavior in the hospital, including threatening a nurse with physical harm (“If I had a pistol, I would put caps in your head”) just a few months earlier, kicking a chair on which another staff person was sitting and trying to close the door on her, and making frequent threats to other hospital staff. Dr. Saleeb went on to state that appellant did not believe he had a mental illness or problems with substance abuse, and had not developed a relapse prevention plan.
Appellant’s counsel who, as noted, had represented him previously, did not cross-examine Dr. Saleeb, but did permit his client to testify. In doing so, appellant testified that he had been at Patton for a decade, had no problems there, and that he had no problems in taking his medication while at Patton and, also, had had no problems with, or made threats to, any Patton Hospital staff. He testified that he attended Narcotics Anonymous and Alcoholics Anonymous meetings there and, if released, would live with his family, go back to school, seek employment as a tailor’s apprentice, and continue with sobriety counseling.
At the conclusion of the hearing, as noted earlier the court ordered that appellant be recommitted to Patton for an additional two years, i.e., until May 18, 2009.
Appellant filed a timely notice of appeal.
III. DISCUSSION
First of all, although the matter has not been conclusively decided by our Supreme Court, and the only directly-pertinent court of appeal decision is now unreported, we have doubts that cases such as the instant one are subject to Wende review.
In People v. Smith (2005) 26 Cal.Rptr.3d 50 (Smith), review granted July 13, 2005, S133593, our colleagues in Division Five of the Second District addressed precisely this issue and concluded, in light especially of our Supreme Court’s decision in In re Sade C. (1996) 13 Cal.4th 952, 978-983, that the unique Wende process is not mandated in cases brought under the Mentally Disordered Offender Act (MDOA), a statute (sections 2960 et seq.) very similar in process and result to that involved here, section 1026.5(b). Smith was appealed to the Supreme Court, which granted review (and thus depublished it) on July 13, 2005. A decision in that case was deferred pending the court’s review of and decision in Ben C., supra, 40 Cal.4th 529. A decision in Ben C. issued on February 5, 2007, holding that Wende procedures are inapplicable in a proceeding brought under the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.), even though, in that case, the proceedings resulted in the confinement of the conservatee in a “closed, locked treatment facility.” (Ben C. at p. 535.)
The Ben. C. decision resulted in an order dismissing review of Smith. We interpret that dismissal, entered pursuant to California Rules of Court, rule 8.528(b)(1), as meaning our Supreme Court has concluded that the result in Smith––which remains in effect albeit unpublished (see Cal. Rules of Court, rule 8.528(b)(3))––is controlled by the principles articulated in Ben C., i.e., not subject to Wende review. This conclusion is also supported by (1) the holding in Ben C. and (2) by the fact that both proceedings brought under section 1026.5(b) and those brought under the similar MDOA are considered to be civil and not criminal in nature. (See, e.g., People v. Powell (2004) 114 Cal.App.4th 1153, 1159; People v. Williams (2003) 110 Cal.App.4th 1577, 1588-1590.)
Even if a case such as this is subject to Wende review, there clearly was substantial evidence before the trial court, e.g., the testimony of Dr. Saleeb summarized above, which supported the court’s order detaining appellant for an additional two years pursuant to section 1026.5(b). As noted above, at the hearing on the motion for continued detention, appellant was represented by counsel who had previously represented him. That counsel opted not to cross-examine Dr. Saleeb, but did put appellant on the stand to testify about his confinement, his mental and physical health, including the medications he was taking, and why he felt he could readjust to community life. That testimony elicited a few follow-up questions from the court, but no cross-examination from the deputy district attorney present, or further redirect examination.
From our review, we conclude that the continued-commitment hearing held pursuant to section 1026.5(b) was properly conducted in all respects, appellant ably represented by counsel, and the conclusion of the trial court thereafter fully justified by the evidence before it. We thus find no issues deserving of further briefing.
IV. DISPOSITION
The trial court’s order recommitting appellant is affirmed.
We concur: Kline, P.J., Lambden, J.