People v. Foss CA4/1

Filed 9/9/24 P. v. Foss CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D083978

Plaintiff and Respondent,

v. (Super. Ct. No. CR58822)

EUGENE NILES FOSS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, David M. Gill, Judge. Dismissed. Laura Arnold, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. MEMORANDUM OPINION Eugene Niles Foss appeals an order extending for two years his civil commitment under Penal Code section 1026.5 as a person who was previously found not guilty by reason of insanity (NGI). On appeal, Foss’ appointed counsel raises no arguable issues but asks us to independently review the record on appeal for reversible error pursuant to People v. Wende (1979)

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25 Cal.3d 436 (Wende). 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 Wende and Anders v. California (1967) 386 U.S. 738 (Anders) do not apply to an extension of an NGI civil commitment. We resolve this case by memorandum opinion (Cal. Stds. Jud. Admin., § 8.1; People v. Garcia (2002) 97 Cal.App.4th 847, 851-854), and dismiss the appeal. I. In 1982, Foss was found not guilty by reason of insanity on a charge of assault with a deadly weapon (§ 245, subd. (a)). He was then committed to a state hospital pursuant to section 1026 until April 7, 1986. Thereafter, his NGI civil commitment was extended for additional two-year periods pursuant to section 1026.5 and, eventually, through April 6, 2024. On December 8, 2023, the People filed a petition for extension of Foss’ NGI civil commitment for an additional two years pursuant to section 1026.5. The petition alleged that Foss was still suffering from a mental disease, defect, or disorder and by reason of such mental disease, defect, or disorder represented a substantial danger of physical harm to others. In support of the petition, the People attached an affidavit from the medical director of the state hospital, who opined that Foss was still suffering from a mental disease, defect, or disorder and, as a result, continued to represent a substantial danger of physical harm to others. That affidavit attached an evaluation report conducted by a state hospital forensic psychologist stating that Foss had a diagnosis of schizophrenia and currently suffered primarily with psychotic symptoms despite compliance with his antipsychotic medication. In particular, the report stated that Foss suffered from auditory hallucinations, delusional thinking, and disorganized thought processes. The report recommended Foss’ civil commitment be extended, citing his history of