People v. Sundberg
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD132737
- Trial judge
- Melinda J. Lasater
- Outcome
- dismissed — Appeal dismissed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), William S. Dato, Truc T. Do
Analysis
The trial court denied Sundberg's application for outpatient placement under Penal Code section 1026.2 after an evidentiary hearing. On appeal, the Court of Appeal dismissed the appeal because appointed counsel found no arguable issues and the Anders/Wende independent review procedures did not apply to this type of proceeding.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of application for outpatient placement pursuant to Penal Code section 1026.2“After conducting an evidentiary hearing, the trial court denied the petition.” | unclear | not reached | agree with court The appellate court did not review the merits of the trial court's decision because it determined that the Anders/Wende independent review procedures did not apply to this appeal, and no arguable issues were raised by counsel or the appellant. |
Applicability of Anders/Wende independent review procedures“we conclude that the review required by Anders and Wende does not apply in this appeal.” | de novo | correct | agree with court The court correctly applied the holding in Conservatorship of Ben C. and People v. [JUSTICE]bson, which establish that Anders/Wende review is not required for appeals from orders denying applications for restoration of sanity or outpatient placement under section 1026.2. |
Authorities
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel who finds no arguable issues on appeal, including the requirement to conduct an independent review of the record.
- relied: People v. Wende (1979) 25 Cal.3d 436 — California's counterpart to Anders, requiring independent review by the court when appointed counsel finds no arguable issues.
- relied: Conservatorship of Ben C. (2007) 40 Cal.4th 529 — Holds that Anders/Wende independent review procedures do not apply to civil commitments pursuant to the Lanterman-Petris-Short (LPS) Act.
- relied: People v. [JUSTICE]bson (2008) 161 Cal.App.4th 1422 — Holds that Anders/Wende review is not required in an appeal from an order denying an application for restoration of sanity pursuant to section 1026.2 filed by an NGI committee.
The appellate opinion: sound — The opinion is sound because it correctly identifies that the Anders/Wende procedures do not apply to this specific type of appeal based on controlling precedent (Ben C. and [JUSTICE]bson). It properly follows the alternative procedure outlined in Ben C. for cases where Anders/Wende does not apply, ensuring the appellant had the opportunity to file a supplemental brief.
How this analysis was made · dispute it
unusual dispositionThe trial court, after an evidentiary hearing, denied Kelly Sundberg's Penal Code section 1026.2 application for release from a state hospital to outpatient placement under CONREP following his 1999 NGI commitment. On appeal, appointed counsel found no arguable issues and requested Anders/Wende review; the Court of Appeal, following Conservatorship of Ben C. and People v. Dobson, held that Anders/Wende review does not apply to such appeals, noted Sundberg declined to file a supplemental brief, and dismissed the appeal without reaching the merits.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Sundberg's section 1026.2 application for outpatient placement (CONREP) after an evidentiary hearing“After conducting an evidentiary hearing, the trial court denied the petition. Sundberg appeals from that order.” | unclear | not reached | unsure The appellate court did not review the merits of the denial because appointed counsel identified no arguable issues, the appellant filed no supplemental brief, and the court held that independent Anders/Wende review is unavailable in an appeal from a section 1026.2 order under Ben C. and Dobson. Nothing in the opinion permits an assessment of whether the trial court correctly denied the petition, so the merits of the underlying ruling cannot be evaluated. |
Authorities
- relied: Conservatorship of Ben C. (2007) 40 Cal.4th 529 — Anders/Wende independent review procedures do not apply to appeals from LPS Act civil commitments; appointed counsel may file a brief stating no arguable issues and setting out the facts and law, the appellee may file a supplemental brief, and the court may dismiss if no arguable issue is raised.
- relied: People v. Dobson (2008) 161 Cal.App.4th 1422 — Relying on Ben C., Anders/Wende review is not required in an appeal from an order denying an NGI committee's application for restoration of sanity under Penal Code section 1026.2; the appeal may be dismissed where no arguable issues are raised.
- relied: People v. Wende (1979) 25 Cal.3d 436 — In an indigent criminal defendant's first appeal as of right, the appellate court must independently review the entire record when appointed counsel finds no arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Due process and equal protection require procedures protecting an indigent criminal defendant's right to counsel on a first appeal as of right when appointed counsel finds the appeal frivolous.
- missed: People v. Delgadillo (2022) 14 Cal.5th 216 — Wende/Anders independent review is not constitutionally required in appeals from postconviction orders outside the first appeal as of right; when appointed counsel finds no arguable issues the court must notify the defendant of the right to file a supplemental brief and that the appeal may be dismissed as abandoned if none is filed, and the court may dismiss if no supplemental brief is filed.
The appellate opinion: sound with gaps — The court correctly followed Ben C. and the directly on-point Dobson decision in holding that Anders/Wende review is unavailable for appeals from section 1026.2 orders, and it afforded the appellant notice and an opportunity to file a supplemental brief before dismissing. It did not, however, acknowledge the Supreme Court's then-recent decision in People v. Delgadillo, which addressed the same question for non-first-appeal proceedings and prescribed the notice procedures that should precede dismissal, though the procedure the court actually followed appears consistent with that case.
Opinion
Filed 2/17/23
CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080500
Plaintiff and Respondent, v. (Super. Ct. No. SCD132737)
KELLY SUNDBERG,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Appeal dismissed. Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Kelly Sundberg appeals from an order denying his application for outpatient placement pursuant to Penal Code section 1026.2. 1 In 1999, Sundberg was found not guilty by reason of insanity (NGI) following a criminal trial, resulting in his commitment to a state hospital. Over two decades later, Sundberg applied to be discharged from the hospital and 1 All statutory references are to the Penal Code unless otherwise designated. placed under community supervision on an outpatient basis, but the trial court denied his application. He now appeals from that order. On appeal, Sundberg’s appointed counsel raises no arguable issues, but asserts 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) apply to this appeal. Following existing authority, we conclude that the review required by Anders and Wende does not apply in this appeal. We offered Sundberg the opportunity to file his own brief on appeal, but he declined to do so. Accordingly, in the absence of any arguable issues to review, we dismiss this appeal. FACTUAL AND PROCEDURAL BACKGROUND In 1997, Sundberg was charged with multiple offenses, including attempted murder. Sundberg was found not guilty by reason of insanity, and, in 1999, he was committed to a state hospital. In 2021, Sundberg petitioned the court to be released from the hospital and placed under community supervision on an outpatient basis in a conditional release program (CONREP) as part of the process for restoration of his sanity pursuant to section 1026.2. After conducting an evidentiary hearing, the trial court denied the petition. Sundberg appeals from that order. DISCUSSION We appointed counsel to represent Sundberg on appeal. His counsel filed a brief summarizing the facts and proceedings below. He informed this court that he found no arguable issues and set out the applicable facts and the law. We invited Sundberg to file a supplemental brief on his own behalf and he declined to do so.
2 Counsel notes the Supreme Court’s decision in Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.), which 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.) In People v. Dobson (2008) 161 Cal.App.4th 1422, the court relied on Ben C. and held that Anders/Wende review is not required in an appeal from an order denying an application for restoration of sanity pursuant to section 1026.2 filed by an NGI committee. (Dobson, supra, at pp. 1435-1436.) Although counsel asks this court to conduct an Anders/Wende review, Dobson directly addresses the situation present here and we agree with its conclusion that this appeal is not subject to Anders/Wende review. Appointed counsel followed the procedures outlined in Ben C. by filing a brief informing the court that he found no arguable issues and setting out the applicable facts and the law. (Ben C., supra, 40 Cal.4th at p. 544.) Sundberg was provided with a copy of the brief and informed of his right to file a supplemental brief. Sundberg did not elect to do so. Because no reasonably arguable issues have been raised by counsel or appellant, we dismiss the appeal. (Dobson, supra, 161 Cal.App.4th at p. 1439.)
3 DISPOSITION
The appeal is dismissed.
HUFFMAN, Acting P. J.
WE CONCUR:
DATO, J.
DO, J.
Cites, in this corpus
- People v. Dobson F053531 · 2008-04-16
- San Diego County Health & Human Services Agency v. Ben C. S126664 · 2007-02-05
- People v. Wende Crim. 20851 · 1979-10-12