People v. Wermuty CA4/1 ( 2023 )

Filed 6/30/23 P. v. Wermuty CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081421
Plaintiff and Respondent,
v. (Super. Ct. No. SCN034737)
CHRIS MATHEW WERMUTY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Runston G. Maino, Judge. Appeal dismissed.
John L. Staley, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance by Plaintiff and Respondent.
Defendant Chris Mathew Wermuty, aka Chris Mathew Wermuth,
(Wermuth) appeals an order extending for an additional two years his civil
commitment to the California Department of Mental Health (DMH) as a
person who was previously found not guilty by reason of insanity (NGI). On
appeal his appointed counsel raises no arguable issues, but requests that we
nevertheless exercise our discretion to conduct an independent review of the
record. However, we agree with the reasoning and holding in People v.
Martinez (2016) 246 Cal.App.4th 1226 (Martinez) that the procedures set
forth in Anders v. California (1967) 386 U.S. 738 (Anders) and People v.
Wende (1979) 25 Cal.3d 436 (Wende) do not apply to an extension of an NGI
civil commitment. Accordingly, we dismiss this appeal without conducting an
independent review of the record pursuant to Anders/Wende or otherwise.
FACTUAL AND PROCEDURAL BACKGROUND
Wermuth pleaded guilty in 1996 to recklessly causing a fire of a
structure or a forest (Pen. Code, § 452, subd. (c)). The court found he was
insane at the time of the offense and committed him to the State Department
of Mental Health pursuant to Penal Code section 1026. The court has
extended his commitment numerous times over the years. In 2020, Wermuty
stipulated to an extension of his commitment until November 27, 2022.
The People filed a petition for extension in July 2022 alleging he still
suffers from a mental disease, defect, or disorder and by reason of such
mental disease, defect, or disorder represents a substantial danger of
physical harm to others. In support of the petition, the People attached the
declaration of Paul Ananias, D.O., the medical director of the state hospital,
who provided his opinion that Wermuth is still suffering from a mental
disease, defect, or disorder and, as a result, continues to represent a
substantial danger of physical harm to others. It also attached a report from
a senior psychologist specialist regarding his May 2022 evaluation with his
opinion that Wermuth should be considered for an extension of commitment
because he represents a substantial danger of physical harm to others and
has serious difficulty controlling his dangerous behavior because of his
mental disease, defect, or disorder.
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The trial court subsequently appointed two forensic mental health
specialists to examine Wermuth pursuant to Penal Code section 1026.2.
Wermuth waived his right to a jury trial. Trial commenced on
December 6, 2022 and Wermuth was represented by counsel. The trial court
heard testimony from three clinical psychologists who opined that Wermuth
suffered from a mental disease or defect that made him a serious risk to
cause physical injury to other people if he was released into the community.
The court also heard testimony from Wermuth, Wermuth’s mother, and his
stepfather. After considering the evidence and the arguments of counsel, the
court found the People had proven the elements necessary for recommitment
under Penal Code section 1026.5 and ordered Wermuth recommitted for a
period of two years, until November 27, 2024.
DISCUSSION
We appointed counsel to represent Wermuth on appeal. His counsel
filed a brief summarizing the facts and proceedings below. He requested that
we exercise our discretion to independently review the record on appeal
pursuant to Anders/Wende. Counsel did not identify an arguable issue on
appeal but generally directed the court’s attention to whether “the evidence
was sufficient to sustain the finding that appellant’s commitment should be
extended under section 1026.5 especially in light of appellant’s compliant
behavior while in custody of the State Department of Mental Health.”
Wermuth was provided with a copy of the brief and informed of his right to
file a supplemental brief. He has not timely responded.
In Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.), the
Supreme Court held that the Anders/Wende independent review procedures
do not apply to civil commitments pursuant to the Lanterman-Petris-Short
(LPS) Act (Welf. & Inst. Code, §§ 5000 et seq.). (Ben C., supra, at p. 539.)
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In Martinez, supra, 246 Cal.App.4th 1226, the court reviewed Ben C.
and other relevant cases and held that “due process does not require an
appellate court to conduct an independent review of the appellate record
[applying Anders/Wende procedures] for possible issues in an appeal from an
extension of an NGI’s civil commitment.” (Martinez, supra, at p. 1230.)
We agree with the reasoning of Martinez as applied to this appeal.
Because no reasonably arguable issues have been raised by counsel or
appellant, we decline to exercise our Ben C. discretion to conduct an
independent review of the record in this case pursuant to Anders/Wende or
otherwise and dismiss the appeal. (Martinez, supra, 246 Cal.App.4th at
p. 1240.)
DISPOSITION
The appeal is dismissed.
BUCHANAN, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.
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