People v. McCloud CA1/2

Filed 1/25/23 P. v. McCloud CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A166026 v. BYRON McCLOUD, (Solano County Super. Ct. No. VC31353) Defendant and Appellant.

Byron McCloud appeals from an order denying his petition for conditional release or unconditional discharge under Welfare and Institutions Code section 6608 of the Sexually Violent Predator Act.1 McCloud’s counsel on appeal has filed an opening brief stating that he has reviewed the record on appeal and researched potential issues and can find no arguable issues to raise on appeal.2 Citing People v. Kisling (2015) 239 Cal.App.4th 288, counsel asks us to follow the procedures set forth in Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535 (Ben C.). In Ben C., our Supreme Court held that “[i]f appointed counsel in a conservatorship appeal finds no arguable issues, counsel . . . should (1) inform the court he or she has

1 Undesignated statutory references are to the Welfare and Institutions Code. McCloud’s counsel on appeal also represents that counsel at the First 2

District Appellate Project concurs with counsel’s opinion.

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found no arguable issues to be pursued on appeal; and (2) file a brief setting out the applicable facts and the law.” (Ben C., supra, 40 Cal.4th at p. 544.) In addition, “[t]he conservatee is to be provided a copy of the brief and informed of the right to file a supplemental brief.” (Id. at p. 544, fn. 6.) The appellate court may then dismiss the appeal if there are no arguable issues. (Id. at p. 544.) McCloud has filed a supplemental brief. He claims the evidence relied on to hold him as a sexually violent predator was “unlawful[]” under Walker v. Superior Court (2021) 12 Cal.5th 177 (Walker) and is “therefore suspect and should be treated with less deference,” and he asserts this supports his request for a hearing. FACTUAL AND PROCEDURAL BACKGROUND We grant counsel’s request to take judicial notice of our decision denying McCloud’s previous petition for conditional release, People v. McCloud (2021) 63 Cal.App.5th 1 (McCloud II), and rely on it for this brief background. “McCloud has been convicted of 17 sexually violent crimes against six different victims. The offenses against the first five victims were committed in 1979, with McCloud breaking into the victims’ homes and sexually assaulting them. The first victim was a 10–year–old girl. McCloud was convicted of these crimes and sent to prison. He was paroled in March 1991, and seven months later, when he was 37 years old, McCloud broke into the home of a 69-year-old woman and sexually assaulted her. (People v. McCloud (2013) 213 Cal.App.4th 1076, 1080 (McCloud I).) “In July 2011, a jury determined McCloud was a sexually violent predator (SVP), and he was committed to the custody of the Department of