Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 151098
Haerle, Acting P.J.
I. INTRODUCTION
After a court trial, appellant was ordered recommitted to Napa State Hospital pursuant to the Mentally Disordered Offender Act, Penal Code section 2960 et seq. (MDOA). Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), appellant’s counsel asks us to examine the record in this case 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.
Unless otherwise noted, all subsequent statutory references are to the Penal Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural History
On July 17, 1992, the San Francisco District Attorney’s office filed a two count complaint against appellant, alleging that he had violated sections 212.5 and 664 by attempting to commit second-degree robbery two days earlier. The complaint included allegations of prior convictions and use of a deadly weapon under section 12022, subdivision (b).
Almost a year later, on June 17, 1993, appellant pled guilty to both counts and was subsequently committed to facilities of the Department of Mental Health.
On September 9, 2005, the same district attorney filed a petition under the MDOA to extend appellant’s commitment for involuntary treatment. This, the first petition, sought to recommit appellant for the period February 8, 2006 through February 8, 2007.
Between September 2005 and April 2006, the parties litigated a separate petition for involuntary administration of an anti-psychotic medication. At the conclusion of the presentation of the state’s evidence during that hearing, appellant’s counsel moved to bifurcate that hearing from the first recommitment petition. The motion to bifurcate was taken under submission and the matter continued to allow appellant to retain an expert witness.
During May 2006, appellant requested and obtained new appointed counsel, who requested, and received, another continuance for the setting of the first recommitment petition for trial.
On September 12, 2006, the district attorney filed a second recommitment petition, which covered the following 12-month period, i.e., from February 8, 2007, to the same day in 2008. On October 30, 2006, the court granted the district attorney’s motion to consolidate the two petitions.
Over the objection of his client, appellant’s counsel waived a jury trial and the court convened a December 5, 2006, court trial on the consolidated petitions. After the presentation of the state’s evidence (see post, part II, B), appellant testified, during the course of which he demanded a new attorney. The court conducted a Marsden hearing after which it denied the motion. After the testimony of appellant, the court found him to be a mentally-disordered offender and recommitted him through February 8, 2008.
Two days after this combined hearing, appellant filed a timely notice of appeal.
B. Evidence Adduced at the Combined Hearing
At the hearing held on December 5, 2006, Dr. Haesook Yuo, a psychiatrist at Napa State Hospital, and appellant’s treating physician testified that, in her opinion, appellant has a severe mental disorder which is not in remission. She diagnosed that disorder as schizi-effective disorder of a bipolar type, and based this opinion on appellant’s several violent assaults on persons––including her––and his delusional beliefs that various agencies and other patients owed him money. She also opined that appellant had an anti-social personality disorder, which she testified could be the cause of his assaultive behavior toward others.
More specifically, Dr. Yuo testified that, on November 23, 2006, appellant attempted to hit her as she was entering her office, and he had also previously threatened to hit her on May 30, 2006, if she did not change the medication she was prescribing for him.
Another doctor, Dr. Karen Phillips, a staff psychologist and program teacher, was appellant’s treating psychologist until two months before the trial. She agreed, in her testimony at the December 2006 hearing, that appellant suffered from a severe mental disorder not currently in remission. In so testifying, she recounted recent episodes evidencing appellant’s delusions and, again, his assaultive behavior as support for her opinion that appellant is dangerous to others. Dr. Phillips also diagnosed appellant as having an anti-social personality disorder, but opined that his assaultive behavior was caused by his mental disorder.
Appellant’s case in the trial consisted of only his own testimony; no expert testimony was presented on his behalf. Appellant denied having a mental disorder of any kind and, again, requested a jury trial. He also denied having assaultive behavior, and specifically denied ever assaulting, or attempting to assault, Dr. Yuo. He also testified that he had won a billion dollar lawsuit against the California prison system, the proceeds of which were being withheld from him by the Napa State Hospital police.
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 grave doubts that cases arising under the MDOA are subject to review pursuant to Wende.
In People v. Smith (2005) 31 Cal.Rptr.3d 94 (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 MDOA. Smith was appealed to the Supreme Court, which granted review (and hence, of course, depublished it) on July 13, 2005. A decision in that case was deferred pending the Supreme 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 were and are inapplicable in a proceeding brought under the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.), even though, in that case, those proceedings resulted in the confinement of the conservatee in a “closed, locked treatment facility.” (Ben C. at p. 535.)
The Ben. C. decision recently resulted in an order by our Supreme Court of May 9, 2007, dismissing review of Smith. We interpret this dismissal of review, 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 but unpublished (see Cal. Rules of Court, rule 8.528(b)(3))––is effectively controlled by the principles articulated in Ben C., i.e., also not subject to Wende procedures. We also so conclude not only because of the Ben C. holding, but also because MDOA proceedings have long been considered civil and not criminal in nature. (See, e.g., People v. Williams (2003) 110 Cal.App.4th 1577, 1588-1590, and cases cited therein.)
In any event, we have examined the record in this case, and find no issues deserving of further briefing. Appellant was at all times represented by able counsel and hence the trial court made the correct decision under Marsden; the trial court had the clear discretion to deny appellant’s personal demand for a jury trial in view of his attorney’s waiver of a jury trial (see People v. Montoya (2001) 86 Cal.App.4th 825, 829-832); and there was clearly substantial evidence––including appellant’s own testimony and the lack of any expert testimony on his behalf––which authorized, if not required, his continued detention.
IV. DISPOSITION
The judgment is affirmed.
We concur: Lambden, J., Richman, J.