People v. Kisling

Filed 8/6/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C076047

Plaintiff and Respondent, (Super. Ct. No. 01F02348)

v.

RICHARD KISLING,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Sacramento County, David W. Abbott, Judge. Dismissed.

Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.

In this case, we address whether People v. Wende (1979) 25 Cal.3d 436 review applies to an appeal from the denial of a defendant’s petition for release from his

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commitment as a sexually violent predator. Defendant Richard Kisling appeals from the trial court’s denial of his petitions for unconditional and conditional release from his commitment as a sexually violent predator. (Welf. & Inst. Code,1 §§ 6605, 6608.) Appointed counsel for defendant has asked this court to review the record pursuant to Wende to determine whether there exist any arguable issues in defendant’s appeal from the trial court’s order. We asked for supplemental briefing from the parties on whether Wende review applies to appeals from denials of petitions for release from a sexually violent predator commitment. Finding Wende review is inapplicable here, we shall dismiss the appeal. Wende applies only to “appointed appellate counsel’s representation of an indigent criminal defendant in his first appeal as of right.” (In re Sade C. (1996) 13 Cal.4th 952, 978.) Since proceedings under the Sexually Violent Predator Act (SVPA) (§ 6600 et seq.) are civil matters (People v. Hurtado (2002) 28 Cal.4th 1179, 1192), it follows that the proceeding in this appeal does not directly implicate Wende. Defendant raises two arguments in support of his contention that Wende review applies to his appeal. Admitting that SVPA proceedings are not criminal, defendant nonetheless asserts that they are sufficiently similar to criminal proceedings to warrant the protections of Wende review. This argument cannot stand in light of the statement from the California Supreme Court in Sade C. limiting Wende to first appeals of right from criminal convictions.2 Defendant’s other contention, that Wende review is required as a matter of federal and state due process, requires more attention.