People v. Lucas CA3

Filed 8/11/21 P. v. Lucas CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Placer) ----

THE PEOPLE, C092922

Plaintiff and Respondent, (Super. Ct. No. SCV0023989)

v.

DAVID LEE LUCAS,

Defendant and Appellant.

Defendant David Lee Lucas appeals from a trial court order dismissing his petition for unconditional discharge from the custody of the Department of State Hospitals (DSH) under the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq).1 We appointed counsel to represent defendant 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 [18 L.Ed.2d 493] and People v. Wende (1979) 25 Cal.3d

1 Undesignated statutory references are to the Welfare and Institutions Code.

1

436. For the reasons discussed in People v. Kisling (2015) 239 Cal.App.4th 288, we conclude that Anders/Wende review on appeal is not available to defendant in the SVPA proceedings involved here, and we dismiss the appeal. BACKGROUND In 2013, the trial court found defendant to be a sexually violent predator within the meaning of the SVPA and committed him to the custody of DSH at Coalinga State Hospital. In 2019, consistent with section 6604.9, DSH conducted an annual review of defendant’s mental condition and concluded neither conditional nor unconditional release would be appropriate. In 2020, defendant filed a document entitled “Petition for 6605 Unconditional Discharge; Hearing, Judicial Review of Commitment,” which contained the text of section 6605. The court appointed counsel and set a hearing on the matter. At the hearing, the court considered whether defendant was entitled to petition for unconditional discharge under section 6605. Defense counsel argued defendant did not require a recommendation from DSH to apply for unconditional discharge. The prosecutor argued defendant’s only avenue to apply for release without a recommendation from DSH was to apply first for conditional release and then later apply for unconditional release. Citing People v. Smith (2020) 49 Cal.App.5th 445, the court reasoned, “the legislature determined that before SVPs are unconditionally discharged on their own petitions they must spend time or they must spend at least one year on conditional release. “That language, although I understand how it’s applied in that case, is consistent with this Court’s reading with respect to how to interpret [section] 6605 as requiring as a precondition for unconditional release and filing the petition the concurrence from the doctor or the -- a favorable opinion from the Department of State Hospitals.” The court thus dismissed the petition, saying defendant could not seek unconditional discharge under section 6605. Defendant timely appealed.