People v. Perez CA2/8 ( 2016 )


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  • Filed 5/5/16 P. v. Perez CA2/8
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION EIGHT
    THE PEOPLE,                                                          B264646
    Plaintiff and Respondent,                                   (Los Angeles County
    Super. Ct. No. ZM012136)
    v.
    ANTHONY PEREZ,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los Angeles County,
    Melissa N. Widdifield, Judge. Dismissed.
    Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Kamala D. Harris, Attorney General, and Eric J. Kohm, Deputy Attorneys
    General, for Plaintiff and Respondent.
    __________________________________
    Defendant Anthony Perez appeals from a trial court order committing him to the
    custody of the Department of Mental Health (DMH) under the Sexually Violent Predators
    Act (SVPA; see Welf. & Inst. Code, § 6600 et seq.) We appointed counsel to represent
    Perez on appeal. Appointed counsel filed an opening brief invoking the independent
    judicial review procedures set forth in Anders v. California (1967) 
    386 U.S. 738
     (Anders)
    and People v. Wende (1979) 
    25 Cal.3d 436
     (Wende). For reasons discussed in People v.
    Kisling (2015) 
    239 Cal.App.4th 288
     (Kisling), review denied November 10, 2015,
    S228550, we conclude that Anders/Wende review on appeal is not available to Perez in
    the SVPA proceedings involved here, and, for this reason, dismiss his appeal.
    DISCUSSION
    In August 2007, the People filed a petition to commit Perez to the DMH as a
    sexually violent predator within the meaning of the SVPA. The trial court thereafter
    found probable cause, and ordered Perez transported to Coalinga State Hospital. Perez
    waived jury, and the petition was tried to the trial court during March 2015. At trial,
    competing testimony was given regarding Perez’s criminal history, including criminal
    sex acts, along with testimony concerning his sexual mental disorders, treatment, and
    the question of whether he could be safely supervised outside a commitment setting.
    On March 24, 2015, the trial court found the allegations in the petition to be true
    beyond a reasonable doubt. As a result, the court ordered Perez into DMH’s custody for
    an indeterminate commitment.
    Perez filed a timely notice of appeal, and we appointed counsel to represent him
    in our court. Appointed counsel filed an opening brief citing Anders and Wende. On
    March 25, 2016, we invited the parties to submit further briefs addressing the issue of
    whether Anders/Wende review is available on appeal from an SVPA proceeding.
    We specifically cited the recent Kisling decision by the Third District Court of Appeal.
    Perez thereafter filed a supplemental brief arguing that Kisling incorrectly analyzed the
    Wende review issue in light of Conservatorship of Ben C. (2007) 
    40 Cal.4th 529
    2
    (Ben C.). The People filed a letter brief arguing that Kisling correctly addressed the
    Wende review issue in light of Ben C.
    We recognize that Kisling involved an individual’s appeal from an order denying
    his petition to be released from a commitment under the SVPA, whereas Perez’s current
    appeal is taken from an order committing him to the DMH’s custody. Nonetheless,
    we find the principles discussed in Kisling are applicable to Perez. Wende review applies
    only to appointed counsel’s representation of an indigent criminal defendant in a first
    appeal of right, and, because proceedings under the SVPA are civil matters, it follows
    that an appeal from an SVPA proceeding does not directly implicate Wende. (Kisling,
    supra, 239 Cal.App.4th at p. 290.) Application of the three-part test articulated in Ben C.
    for determining whether Wende review is available on appeal from a particular type of
    proceeding does not cause us to find that such review is required on appeal from a SVPA
    proceeding. (Kisling, supra, 239 Cal.App.4th at pp. 290-292.) When appointed counsel
    files an opening brief raising no issues on appeal from a SVPA proceeding, dismissal of
    the appeal is warranted. (Id. at pp. 291-292.)
    DISPOSITION
    The appeal is dismissed.
    BIGELOW, P. J.
    We concur:
    RUBIN, J.
    GRIMES, J.
    3
    

Document Info

Docket Number: B264646

Filed Date: 5/5/2016

Precedential Status: Non-Precedential

Modified Date: 4/18/2021