People v. Navarro CA3 ( 2021 )

Filed 4/19/21 P. v. Navarro CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Siskiyou)
----
THE PEOPLE, C091909
Plaintiff and Respondent, (Super. Ct. No. MCYK-CRF-
2015-706-2)
v.
BALDEMAR NAVARRO,
Defendant and Appellant.
Defendant Baldemar Navarro appeals from the trial court’s order authorizing the
involuntary administration of medication. His appointed counsel has asked this court for
an independent review of the record to determine whether there are any arguable issues
on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We conclude defendant is
not entitled to a Wende review and will dismiss this appeal as abandoned.
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BACKGROUND
Defendant was charged with eight counts of aggravated sexual assault of a child--
six for sexual penetration (Pen. Code, § 269, subd. (a)(5)),1 one for rape (§ 269, subd.
(a)(1)), and one for oral copulation (§ 269, subd. (a)(4))--and two counts of lewd act upon
a child (§ 288, subd. (a)). It was further alleged that for all counts defendant committed
an offense specified in section 667.61, subdivision (c) against more than one victim
(§ 667.61, subds. (b) & (e)); for all counts but one lewd act count that more than one
victim was under 14 years old; and that for all counts he had two prior convictions for sex
crimes (§§ 667.51, subd. (a), 667.6, subd. (a)).
On January 15, 2019, the trial court found defendant not competent to stand trial
and suspended criminal proceedings. The court based its finding on two psychologists’
reports. The court also heard and denied defendant’s motion for new counsel pursuant to
People v. Marsden (1970) 2 Cal.3d 118. The court committed defendant to the State
Department of State Hospitals for a maximum of two years.
On January 16, 2020, the State Department of State Hospitals filed a petition to
compel involuntary treatment with antipsychotic medications. The trial court held a
hearing on the petition on January 30, 2020. A psychiatrist who had been working with
defendant at the state hospital testified in support of the petition. The court found “the
evidence established really without contradiction that [defendant] lacks the capacity to
make decisions regarding antipsychotic medication,” “his mental disorder requires
medical treatment with antipsychotic medication,” and “that serious harm will result to
[defendant’s] mental health if he’s not treated with antipsychotic medication.”
Consequently, the court ordered defendant be administered antipsychotic medication
involuntarily. Defendant filed a notice of appeal to this order on April 22, 2020.
1 Undesignated statutory references are to the Penal Code.
2
On May 20, 2020, the State Department of State Hospitals filed a certification that
defendant was competent to stand trial and on June 2, 2020, the trial court ordered
criminal proceedings reinstated.
DISCUSSION
Counsel filed an opening brief that sets forth the relevant procedural history and
facts of the case and requests this court to review the record and determine whether there
are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was
advised by counsel of the right to file a supplemental brief within 30 days from the date
the opening brief was filed, but has not done so.
Review pursuant to Wende or its federal constitutional counterpart, Anders v.
California (1967) 386 U.S. 738 [18 L.Ed.2d 493], is required only in the first appeal of
right from a criminal conviction. (Pennsylvania v. Finley (1987) 481 U.S. 551, 555
[95 L.Ed.2d 539, 545]; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537;
People v. Serrano (2012) 211 Cal.App.4th 496, 500-501 (Serrano).) And the due process
right to Anders/Wende review applies only in appellate proceedings in which a defendant
has a previously established constitutional right to counsel. (Serrano, at p. 500; Ben C.,
at pp. 536-537.) The constitutional right to counsel extends to the first appeal of right,
and no further. (Serrano, at pp. 500-501.) Although a criminal defendant has a right to
appointed counsel in an appeal from an order after judgment affecting his or her
substantial rights (§§ 1237, 1240, subd. (a); Gov. Code, § 15421, subd. (c)), that right is
statutory, not constitutional. Thus, a defendant is not entitled to Wende review in such an
appeal when appointed counsel finds no arguable issues on appeal. (See Serrano, at
p. 501 [no Wende review for denial of postconviction motion to vacate guilty plea
pursuant to § 1016.5].)
The appeal before us, “although originating in a criminal context, is not a first
appeal of right from a criminal prosecution, because it is not an appeal from the judgment
of conviction.” (Serrano, supra, 211 Cal.App.4th at p. 501.) Though defendant is
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subject to a criminal proceeding, the issue he has appealed – authorization of involuntary
administration of antipsychotic medication – was issued in the context of a competency
commitment, and these proceedings are civil in nature. (People v. Lawley (2002)
27 Cal.4th 102, 131.) We conclude that defendant has no right to Wende review of the
order to administer antipsychotic medication involuntarily. (Conservatorship of Ben C.,
supra, 40 Cal.4th at pp. 537, 544 [dismissal of appeal appropriate where “appointed
counsel in a conservatorship appeal finds no arguable issues”].) Further, given
defendant’s failure to file a supplemental brief despite being advised of his right to do so,
we will dismiss defendant’s appeal as abandoned. (See People v. Cole (2020)
52 Cal.App.5th 1023, 1039-1040 [because postjudgment order appealed from is
presumed to be correct, where defendant does not file a supplemental brief, the Court of
Appeal may dismiss the appeal as abandoned], review granted Oct. 14, 2020, S264278.)
DISPOSITION
The appeal is dismissed.
/s/
HOCH, J.
We concur:
/s/
RAYE, P. J.
/s/
RENNER, J.
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