People v. Hicks CA1/2

Filed 1/2/14 P. v. Hicks CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A138643 v. DENNIS R. HICKS, (Napa County Super. Ct. No. CR34668) Defendant and Appellant.

Dennis R. Hicks appeals from a final judgment determining that he qualifies as a mentally disordered offender (MDO), and recommitting him to Napa State Hospital for a period of one year. (Pen. Code, §§ 2790, 2792.)1 His court-appointed attorney has filed a brief raising no legal issues and requesting this court independently review the record pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) and People v. Wende (1979) 25 Cal.3d 436 (Wende). Appellant’s counsel acknowledges that, pursuant to People v. Taylor (2008) 160 Cal.App.4th 304 (Taylor), judicial review pursuant to Anders and Wende is not required in appeals from civil commitments under the Mentally Disordered Offender Act (MDOA). (§ 2962.) Counsel believes, however, “that the California Supreme Court would, and should, reach a different result [from Taylor] in MDO cases.” Counsel also maintains that “even if Wende/Anders procedures are not required because of the similarities between MDO and criminal cases, they are required under the due process

1 All statutory references are to the Penal Code unless otherwise indicated. 1

clause of the State and federal constitution.” As counsel sees it, Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.) and In re Sade C. (1996) 13 Cal.4th 952, which are the bases of the holding in Taylor, involve appeals in proceedings in which the risk of an erroneous result that would result from the elimination of Wende review is far less than that which would result from the elimination of such review in MDOA cases. Counsel argues, in other words, that Taylor’s analysis of the procedural protections afforded an MDO in section 2962 proceedings “overstates their significance.” Finally, appellant argues that even if we agree with Taylor that Wende/Anders review is not required in MDO cases, we nevertheless retain discretion to conduct such review (see Ben C., at p. 553, fn. 7), and should do so. Concurring with the reasoning and result in Taylor, we decline to depart from the ruling in that case. However, we are mindful of the forceful dissent in Ben C. emphasizing the fundamental nature of the private interests at stake in that case, which are comparable to those at stake in this case, and observing that the majority’s holding “in no way prevents the Courts of Appeal from expending the minimal effort required to provide these appeals with a second look and to provide an opinion that briefly notes the court has reviewed the record and that identifies the findings and evidence supporting the order.” (Ben C., supra, 40 Cal.4th at p. 556.) For those reasons, we shall undertake review of the record. FACTS AND PROCEEDINGS BELOW The record is unclear as to why and exactly when appellant was originally found to be an MDO and committed to Napa State Hospital. It does indicate, however, that as a result of his mental state appellant has been “in and out of the hospital since the age of 15” and may initially have been committed to Napa State Hospital due to a finding he was incompetent to stand trial. (See §§ 1026, 1026.5.) The record also shows that in 1999, while a patient in that facility, appellant was charged by the District Attorney of Napa County with assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1)) and battery with serious bodily injury (§ 243, subd. (d)). On October 6th of that year, after the battery had been dismissed, appellant entered a plea of guilty to the assault.