P. v. Shulte CA1/2

Filed 4/16/13 P. v. Shulte CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A136105 v. TIMOTHY CHRISTOPHER SHULTE, (Sonoma County Super. Ct. No. SCR23531) Defendant and Appellant.

Timothy Christopher Shulte appeals from a judgment of the Sonoma County Superior Court, in a case tried to the court, extending his commitment as a mentally disordered offender (MDO) pursuant to Penal Code section 2972.1 The commitment expires on August 10, 2013. Appellant’s court-appointed counsel has filed a brief raising no legal issues and asking this court to conduct an independent review pursuant to People v. Wende (1979) 25 Cal.3d 436. The court has also received and considered a two-page handwritten supplemental brief submitted by appellant in propria persona, which was filed with this court on December 31, 2012. As appellant’s counsel acknowledges, In re Ben C. (2007) 40 Cal.4th 529, held that the judicial review procedures established in Anders v. California (1967) 386 U.S. 738 and People v. Wende, supra, 25 Cal.3d 436, are inapplicable to conservatorship proceedings arising under the Lanterman-Petris-Short Act (LPS Act) (Welf. & Inst. Code, § 4500 et seq.), and People v. Taylor (2008) 160 Cal.App.4th 304, which relied on Ben

1 Unless otherwise indicated, all statutory references are to the Penal Code. 1

C., held that the Anders/Wende review requirements are also inapplicable to appeals from civil commitments pursuant to the Mentally Disordered Offender Act (MDOA). Nevertheless, pointing to the statement in Ben C. that a reviewing court “may, of course, find it appropriate to retain the appeal” in an LPS Act case (In re Ben C., supra, 40 Cal.4th at p. 544, fn. 7), and that nothing in People v. Taylor, supra, 160 Cal.App.4th 304 prohibits a reviewing court from according independent Wende review in an appeal from a commitment under the MDOA if it wishes to do so, counsel requests that we exercise our discretion to independently review the record to determine whether it presents any issue that, if resolved favorably to appellant, would result in reversal or modification of the judgment. This division, having concluded that we have authority to voluntarily accord Wende review in this case, and desiring to do so, grant appellant’s request. FACTS AND PROCEEDINGS BELOW The facts are provided primarily by the 10-page January 7, 2012 Dispositional Court Report of Forensic Evaluator Ai-Li Arias, M.D., for the Department of Mental Health (DMH), which was filed with the Sonoma County Superior Court on October 8, 2012, by Medical Director George Christison, of Patton State Hospital, as an exhibit to his January 25, 2012 affidavit recommending that the Sonoma County District Attorney apply to the court for an extension of appellant’s commitment. As it is a confidential document, Dr. Arias’s Dispositional Court Report was sealed. Appellant, a 48-year-old deaf man, was charged by the Sonoma County District Attorney with lewd and lascivious conduct with a child under the age of 14 (§ 288, subd. (a)) in 1995. After he was found incompetent to stand trial, he was committed to DMH, and initially admitted to Atascadero State Hospital, pursuant to the MDOA (§ 2962). On May 10, 1996, appellant was discharged from Atascadero State Hospital as having been restored to competence to stand trial, and thereafter tried and convicted of the aforesaid offense and sentenced to eight years in prison. During his term of imprisonment he was transferred multiple times between the California Department of Corrections and