People v. Blanchard ( 2020 )

Filed 1/8/20 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A156720
v.
BRYAN JACK BLANCHARD, (Contra Costa County
Super. Ct. No. 5-171905-3)
Defendant and Appellant.
ORDER MODIFYING OPINION;
NO CHANGE IN JUDGMENT
BY THE COURT:
It is ordered that the opinion filed herein on December 31, 2019, be modified as
follows:
1. On page 1, before the final sentence of the second full paragraph, insert the
sentence “We have also considered supplemental briefing we requested on the
appropriate standard for review in this appeal.”
2. On page 3, in the citation at the end of the last full paragraph, the number
“1370.01” is deleted and the number “1370” is inserted in its place.
3. On page 4, in the first full paragraph, in the sentence commencing with the words
“A defendant,” the phrase “up to one year” is deleted and the words “the shorter
period of two years or the maximum time that could be imposed for his violation
of probation” are inserted in its place.
4. On page 4, in the first full paragraph, after the sentence commencing with the
words “A defendant,” the citation “(§ 1370.01, subd. (c)(1).)” is deleted and the
citation “(§ 1370, subd. (c)(1).)” is inserted in its place.
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5. On page 4, in the first full paragraph, after the sentence commencing with the
words “During such time,” the citation “(§ 1370.01, subd. (c).)” is deleted and the
citation “(§ 1370, subds. (a)(1)(B) & (b)(1).)” is inserted in its place.
6. On page 4, in the second full paragraph, after the sentence commencing with the
words “Within 15 court days,” the citation “(§ 1370.01, subd. (a)(3)(A).)” is
deleted and the citation “(§ 1370, subd. (a)(2)(A).)” is inserted in its place.
7. On page 4, in the second full paragraph, the sentence “Placement in a state
hospital is not permitted unless there is no ‘less restrictive appropriate
placement’ ” is deleted and the sentence “Placement is based upon State Hospital
guidelines” is inserted in its place.
8. On page 4, in the second full paragraph, after the sentence commencing with the
words “Within 90 days,” the citation “(§ 1370.01, subd. (b).)” is deleted and the
citation “(§ 1370, subd. (b).)” is inserted in its place.
9. On page 4, in the second full paragraph, after the sentence commencing with the
words “If the defendant,” the citation “(§ 1370.01, subd. (b).)” is deleted and the
citation “(§ 1370, subd. (b).)” is inserted in its place.
10. On page 4, in the second full paragraph, after the sentence commencing with the
words “Any transfer,” the citation “(§ 1370.01, subd. (a)(6).)” is deleted and the
citation “(§ 1370, subd. (a)(6)(A).)” is inserted in its place.
The petition for rehearing filed January 2, 2020 is denied. There is no change in the
judgment.
Dated: ____01/08/2020__ ___________SIGGINS, P.J.________P.J.
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Trial Court: Superior Court of Contra Costa County
Trial Judge: Lewis A. Davis, J.
Counsel: First District Appellate Project, Jonathan Soglin and Jeremy Price for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters and Jeffrey M.
Laurence, Assistant Attorneys General, Seth K. Schalit and Lisa
Ashley Ott, Deputy Attorneys General, for Plaintiff and Respondent.
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Filed 12/31/19 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A156720
v.
BRYAN JACK BLANCHARD, (Contra Costa County
Super. Ct. No. 5-171905-3)
Defendant and Appellant.
Bryan Jack Blanchard appeals from an order that adjudicated him incompetent to
stand trial for a probation revocation charge and committed him to the Department of
State Hospitals. His court-appointed counsel has filed a brief seeking our independent
review of the record pursuant to People v. Wende (1979) 25 Cal. 3d 436 (Wende) to
determine whether there are any arguable issues on appeal. After considering whether
Wende requires our independent review of the record in this circumstance, we conclude it
does not. Instead, we follow and apply the process for review identified by our Supreme
Court in Conservatorship of Ben C. (2007) 40 Cal. 4th 529 (Ben C.).
We have reviewed the brief provided by appointed counsel. It contains a summary
of the relevant facts and law, and there appear to be no arguable issues to be pursued on
appeal. Accordingly, this appeal is dismissed.
BACKGROUND
Blanchard was arrested after he was seen carrying a backpack and running away
from a home that was not his own. The homeowners identified items in the backpack as
theirs.
Blanchard entered a no contest plea to second degree burglary. The court
suspended the imposition of sentence and placed Blanchard on behavioral health
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probation for three years. Between January and November 2018, Blanchard was twice
charged with violating the terms of his probation, and each time probation was reinstated.
On November 29, 2018, he was charged with a third violation for a possible commercial
burglary. That charge was quickly supplemented with two other charged violations.
On December 11, 2018, his counsel on the probation violation charges declared a
doubt regarding Blanchard’s competence to stand trial. Blanchard objected to any
finding of his incompetence, and the court appointed experts to evaluate him. With the
agreement of all counsel, the expert reports were admitted into evidence, and the matter
was submitted. On the basis of the reports, Blanchard was found incompetent to stand
trial. The court referred Blanchard to the Contra Costa Conditional Release Program
(CONREP) for a recommendation regarding his proper placement. Based on the
CONREP recommendation, the court committed Blanchard to a state hospital for two
years. He appealed the finding of incompetency and his hospital commitment.
DISCUSSION
“In [Anders v. State of California (1967) 386 U.S. 738 (Anders)], the United States
Supreme Court held that when appointed counsel in a criminal defendant’s first appeal is
unable to find any arguable issues for briefing, counsel should submit a brief referring to
any matters in the record that might arguably support the appeal, provide the defendant a
copy, and request permission to withdraw. [Citation.] After the defendant is given the
opportunity to raise any points he or she wants the appellate court to consider, the court
independently reviews the proceedings to determine whether the appeal is ‘wholly
frivolous.’ [Citation.] In Wende, the California Supreme Court concluded that Anders
required the Courts of Appeal ‘to conduct a review of the entire record whenever
appointed counsel submits a brief which raises no specific issues or describes the appeal
as frivolous. This obligation is triggered by the receipt of such a brief from counsel and
does not depend on the subsequent receipt of a brief from the defendant personally.’
[Citation.] The court further recognized that ‘counsel may properly remain in the case so
long as he has not described the appeal as frivolous and has informed the defendant that
he may request the court to have counsel relieved if he so desires.’ [Citation.]” (People
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v. Taylor (2008) 160 Cal. App. 4th 304, 309.) This process is commonly referred to as an
Anders/Wende review. (Id. at p. 312.)
In In re Sade C. (1996) 13 Cal. 4th 952, 959 (Sade C.), our Supreme Court held
that Anders/Wende review does not apply to an indigent parent’s appeal of an order
terminating parental rights or a custody determination. Sade C. began by recognizing the
obvious qualification for Anders/Wende review. By its very terms, the Anders/Wende
procedures apply to appointed counsel’s representation of an indigent criminal defendant
in the defendant’s first appeal as of right. (Id. at p. 982.) Beyond this obvious distinction
from a dependency case, the Sade C. court considered whether due process required
Anders/Wende review as a matter of fundamental fairness. The Court balanced three
elements in reaching its conclusion that it does not. They are: “(1) the private interests at
stake; (2) the state’s interests involved; and (3) the risk that absence of the procedures in
question will lead to an erroneous resolution of the appeal.” (Id. at p. 987.)
In Ben C., supra, 40 Cal. 4th 529, the court applied the Sade C. factors to a request
for Anders/Wende review of a conservatorship imposed under the Lanterman–Petris–
Short Act (Welf. & Inst. Code, § 5000 et seq.) (LPS). In rejecting the necessity for such
a review, the court first focused on the private and public interests at stake under the LPS
scheme. It recognized that among the LPS Act’s goals are the prompt evaluation and
treatment of persons with serious mental disorders; individualized treatment supervision
and placement services for the gravely disabled; judicial review to safeguard the rights of
those involuntarily committed; and the guarantee and protection of public safety through
implementation of the commitment scheme. (Ben C., supra, 40 Cal.4th at p. 540.)
The public and private interests at stake in competency proceedings are strikingly
similar to LPS commitments. Concern for prompt evaluation and treatment of mentally
incompetent defendants, their individualized treatment and supervision, protection of the
public, and a comprehensive system of judicial review to protect the rights of such
defendants are all attributes of the statutory scheme. (See Pen. Code § 1370.01.)1
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Further statutory references are to the Penal Code.
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Just as in the case of an LPS conservatorship, the liberty interest at stake for a
defendant found incompetent to proceed is significant. A defendant who, like Blanchard,
is facing probation revocation charges may be confined for treatment for up to one year.
(§ 1370.01, subd. (c)(1).) During such time the criminal proceedings are suspended, and
at the end of the period of commitment, the criminal proceedings may resume or long-
term civil commitment proceedings may begin. (§ 1370.01, subd. (c).) “Moreover, a
person suffering from a grave mental disorder is obviously in a poor position to influence
or monitor counsel’s efforts on his behalf.” (Ben C., supra, 40 Cal.4th at p. 540.)
But, just as in the case of LPS commitments, the scheme for mentally incompetent
defendants has “several layers of important safeguards.” (Ben C., supra, 40 Cal.4th at
p. 540.) Within 15 court days following a declaration of incompetence, the county
mental health director or designee must file a report with the court regarding the
defendant’s possible suitability for outpatient treatment. (§ 1370.01, subd. (a)(3)(A).)
Placement in a state hospital is not permitted unless there is no “less restrictive
appropriate placement.” (Ibid.) Within 90 days of the defendant’s placement, the
medical director of the facility providing treatment must report to the court on the
defendant’s progress toward recovery of competence. (§ 1370.01, subd. (b).) If the
defendant has not regained competence, but there is a substantial likelihood he will do so
in the foreseeable future, he may be retained in a treatment program and the director must
report to the court at six-month intervals. (§ 1370.01, subd. (b).) Any transfer of a
defendant to a different treatment facility must be authorized by the court and notice of
the proposed transfer provided to the defendant’s counsel. (§ 1370.01, subd. (a)(6).)
These safeguards considered in light of the facts that criminal proceedings are
suspended during the defendant’s period of incompetence and the commitment process is
a special proceeding of a civil nature (People v. Lawley (2002) 27 Cal. 4th 102, 131), not
a criminal defendant’s first appeal of right, lead us to conclude that Anders/Wende review
is not required. Instead, we will employ the process identified in Ben C. Blanchard’s
counsel has filed a brief stating that he has found no arguable issue to be pursued on
appeal, and the brief sets out the relevant facts and law. We consider counsel’s brief to
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provide an adequate basis for this court to dismiss the appeal on our own motion.
(Ben C., supra, 40 Cal.4th at p. 544.) Counsel has advised that Blanchard has been
provided a copy of the opening brief and advised of his right to file a supplemental brief
on his behalf. The time for Blanchard to file a supplemental brief has passed, and we did
not receive any brief or response from him. (Id. at p. 544, fn. 6.)
Our determination to apply Ben C. is consistent with the cases that have
considered whether Anders/Wende review is required in a variety of civil commitment
proceedings. All employ the procedure identified in Ben C. (See People v. Martinez
(2016) 246 Cal. App. 4th 1226; People v. Kisling (2015) 239 Cal. App. 4th 289; People v.
Taylor, supra, 160 Cal. App. 4th 304; People v. Dobson (2008) 161 Cal. App. 4th 1422.)
DISPOSITION
The appeal is dismissed.
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_________________________
Siggins, P.J.
WE CONCUR:
_________________________
Fujisaki, J.
_________________________
Petrou, J.
People v. Blanchard, A156720
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A156720/People v. Bryan Jack Blanchard
Trial Court: Superior Court of Contra Costa County
Trial Judge: Lewis A. Davis, J.
Counsel: First District Appellate Project, Jonathan Soglin and Jeremy Price for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters and Jeffrey M.
Laurence, Assistant Attorneys General, Seth K. Schalit and Lisa
Ashley Ott, Deputy Attorneys General, for Plaintiff and Respondent.
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