People v. Stewart CA2/6

Filed 6/21/23 P. v. Stewart CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B320765 (Super. Ct. No. 2021033283) Plaintiff and Respondent, (Ventura County)

v.

MICHAEL STEWART,

Defendant and Appellant.

Michael Stewart appeals the trial court’s order declaring him a sexually violent predator (SVP) pursuant to Welfare and Institutions Code section 6600 et seq.,1 and committing him to the custody of the Department of State Hospitals (DSH) for an indeterminate term. His appointed counsel filed a brief indicating an inability to identify any appealable issues and

All statutory references are to the Welfare and 1

Institutions Code unless otherwise indicated.

requesting our independent review under People v. Wende (1979) 25 Cal.3d 436 (Wende). For the reasons discussed in People v. Kisling (2015) 239 Cal.App.4th 288, review denied Nov. 10, 2015, S228550 (Kisling), we conclude that Wende review is not available to Stewart in this SVP proceeding. We therefore dismiss his appeal. BACKGROUND Stewart’s two qualifying predicate convictions under section 6600, subdivision (b), occurred in 1981 and 2002. The first conviction was for two violations of former Penal Code section 288a, subdivision (b)(2), oral copulation of a minor. Stewart was found to be a mentally disordered sex offender and committed to Atascadero State Hospital. After failing that treatment program, he completed his sentence in state prison. The second conviction was for a violation of Penal Code section 288.5, continuous sexual abuse of a minor under the under age 14 by someone who “either resides in the same home . . . or has recurring access to the child,” and two violations of Penal Code section 288, subdivision (a), the commission of a lewd or lascivious act upon a child under the age of 14. Stewart was sentenced to 20 years in prison. Prior to Stewart’s release from prison, the District Attorney filed the petition seeking his SVP commitment under section 6600 et seq. Stewart appeals the trial court’s order granting that commitment. DISCUSSION Notwithstanding his request for Wende review, appointed counsel acknowledges in his brief that it “appears to be well established California law” that Wende procedures do not apply to appellate review of SVP appeals. (See Conservatorship of Ben