People v. Jackson CA3 ( 2021 )

Filed 7/30/21 P. v. Jackson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
----
THE PEOPLE, C088572
Plaintiff and Respondent, (Super. Ct. No. STK-MH-
SVPR-2015-0000014)
v.
HERSHEL JACKSON,
Defendant and Appellant.
Appellant Hershel Jackson appeals from the civil commitment order entered after
jury trial and committing appellant to 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 Jackson on appeal. Appointed counsel filed an opening
brief invoking the independent judicial review procedures set forth in Anders v. State of
1 Undesignated statutory references are to the Welfare and Institutions Code.
1
California (1967) 386 U.S. 738 and People v. Wende (1979) 25 Cal.3d 436. For reasons
discussed in People v. Kisling (2015) 239 Cal.App.4th 288, as well as Conservatorship of
Ben C. (2007) 40 Cal.4th 529 (Ben C.), we conclude that Anders/Wende review on appeal
is not available in this civil commitment proceeding; accordingly, we dismiss the appeal.
BACKGROUND
On February 4, 2015, the People filed a petition seeking to commit Jackson as a
sexually violent predator (SVP) pursuant to section 6000 et. seq. The jury found he
qualified as an SVP. The trial court committed him for appropriate treatment and
confinement in a secure facility for an indeterminate term. He timely appealed. The
matter was assigned to this panel on June 25, 2021.
DISCUSSION
Appointed counsel filed an opening brief citing Anders and Wende. Counsel
acknowledged that the courts of appeal have concluded Wende/Anders procedures do not
apply to SVP proceedings. Accordingly, in accordance with Ben C., supra, 40 Cal.4th at
page 544, counsel set forth the basic facts and procedural history of the case. Counsel
declared that he advised appellant of his right to file a supplemental brief or letter
containing any issues he wishes this court to consider.2 We have received no briefing
directly from Jackson.
We recognize that Kisling involved an individual’s appeal from an order denying
his petition to be released from a commitment under the SVPA, whereas Jackson’s
current appeal is taken from an order committing him to the Department of State
2 Appellate counsel reads footnote in Ben. C., supra, 40 Cal.4th at page 544, footnote 6
to require that in addition to counsel providing notice of the right to file a supplemental
brief, this court must also provide that notice. The footnote itself says only that the
appellant “is to be provided a copy of the [Wende] brief and informed of the right to file a
supplemental brief.” Nothing in that footnote suggests we are required to duplicate
counsel’s notice.
2
Hospital’s custody under the SVPA. (See People v. Kisling, supra, 239 Cal.App.4th at p.
290.) Nonetheless, we find the principles discussed in Kisling applicable. Wende review
applies only to appointed counsel’s representation of an indigent criminal defendant in a
first appeal of right; because proceedings under the SVPA are civil matters, it follows
that an appeal from an SVPA proceeding does not directly implicate Wende. (Id. at p.
290.) Application of the three-part test articulated in Ben C., supra, 40 Cal.4th 529, upon
which Kisling relies, does not cause us to find that such review is required on appeal from
a SVPA proceeding. (Kisling, at pp. 290-292.) Here, appointed counsel filed an opening
brief raising no issues on appeal, Jackson has not filed a supplemental brief, and the case
is thus subject to dismissal under Kisling.
DISPOSITION
The appeal is dismissed.
/s/
Duarte, J.
We concur:
/s/
Robie, Acting P. J.
/s/
Mauro, J.
3