Opinion
A130233
08-05-2011
THE PEOPLE, Plaintiff and Respondent, v. THOMAS TURNER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FC23583)
This is the third occasion on which we consider an appeal by Thomas Turner from an order extending his commitment as a mentally disordered offender (MDO). (See People v. Turner (Jan. 22, 2009, A120988) [nonpub. opn.]; People v. Turner (Apr. 14, 2010, A124142) [nonpub. opn.].) Assigned counsel has submitted a Wende brief, certifying that counsel has been unable to identify any issues for appellate review. Counsel has also submitted a declaration confirming that Turner has been advised of his right to personally file a supplemental brief raising any points which he wishes to call to the court's attention. Because Wende review is not available under these circumstances, we dismiss the appeal.
People v. Wende (1979) 25 Cal.3d 436.
I. BACKGROUND
In our prior unpublished opinions, we noted the facts which resulted in Turner's underlying criminal conviction. In August 1987, Turner broke into a home in Vacaville and kidnapped a three-month-old baby girl. He brutally assaulted the infant sexually and abandoned her in a field. Turner demonstrated no remorse for his acts. He pleaded no contest to counts alleging burglary (Pen. Code, §§ 459, 460), and forcible lewd and lascivious conduct (§ 288, subd. (b)). He was sentenced to a 26-year prison term. Subsequently, Turner was involuntarily committed under the Mentally Disordered Offender Act (§ 2960 et seq.).
A 2009 state hospital evaluation offered in support of the petition to extend commitment noted inter alia that, in 2001, Turner said he wanted to hunt down, rape and kill this last victim, who was a baby at the time of the crime.
All further code references are to the Penal Code unless otherwise indicated.
This appeal arises from a petition to extend his MDO commitment filed on December 3, 2009. The matter was tried to a jury commencing on September 22, 2010. The jury returned its verdict on September 29, 2010, finding the allegations of the petition to be true. After denying a motion for new trial, the court entered an order extending Turner's commitment to February 16, 2011.
A petition to further extend Turner's commitment for an additional year was filed on October 20, 2010.
II. DISCUSSION
In an initial appeal, an indigent criminal defendant is entitled to have the appellate court independently review the record when appointed counsel files a brief indicating that he or she has found no arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende, supra, 25 Cal.3d 436.) This right to independent review does not extend to judgments that are civil in nature, even when those judgments may result in the deprivation of a liberty interest. (Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.)[Lanterman-Petris-Short conservatorship proceedings under Welf. & Inst. Code, § 5350 et seq.].) In People v. Taylor (2008) 160 Cal.App.4th 304 (Taylor), the Second District concluded that Wende review procedures do not apply to appeals from mentally disordered offender extended commitments pursuant to section 2900 et seq. (Taylor, at pp. 312-313; see also People v. Dobson (2008) 161 Cal.App.4th 1422 [holding that Wende procedures do not apply to appeals from the denial of a petition for restoration of sanity filed pursuant to § 1026.2].) We find Taylor persuasive and follow it here.
Even though appointed counsel recognizes that dismissal of the appeal does not violate the California Constitution, he nevertheless urges us to exercise our discretion to "retain the appeal." (Ben C., supra, 40 Cal.4th at p. 544, fn. 7.) We decline to do so.
Appointed counsel confirms that Turner was advised of his right to submit his own supplemental brief within 30 days of the June 3, 2011 filing of the opening brief. On July 19, 2011, this court received hand-written pro se pleadings from Turner captioned "Petition of Dismissal." While it is more than somewhat difficult to interpret Turner's rambling dissertations, a careful review of his documents reveals that he is not submitting a supplemental brief in this appeal, but is instead presenting a motion to the trial court to dismiss the most recent petition for extension of his MDO commitment, complaining of delays in the trial on that petition and asserting due process violations in his treatment as an MDO. In his papers, Turner advises us that he is providing this court with a "courtesy copy" of his trial court motion. His pleadings therefore have no bearing on the matter before us.
The pleadings would be untimely if intended to serve as a supplemental brief in this appeal. Turner raised similar issues in a petition for writ of mandate which we denied on June 15, 2011. (Turner v. Superior Court (June 15, 2001, A132282).)
III. DISPOSITION
The appeal is dismissed.
Bruiniers, J. We concur: Jones, P. J. Simons, J.