People v. Velasquez CA4/1 ( 2024 )

Filed 9/18/24 P. v. Velasquez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D083110
Plaintiff and Respondent,
v. (Super. Ct. No. SCE287392)
GABRIELA VELASQUEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Aaron H. Katz, Judge. Dismissed.
Paul R. Kraus, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
MEMORANDUM OPINION
Gabriela Velasquez appeals a judgment extending for one year her civil
commitment under Penal Code section 2970, subdivision (b), as an offender
with a mental health disorder (OMD) under the Mentally Disordered
Offender Act (Pen. Code, § 2960 et seq; [MDOA]). On appeal, Velasquez’s
appointed counsel raises no arguable issues but asks us to independently
review the record for reversible error pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders).
However, we agree with the reasoning and holding in People v. Taylor (2008)
160 Cal.App.4th 304 (Taylor) that the procedures set forth in Wende and
Anders do not apply to an extension of a civil commitment under the MDOA.
We resolve this case by memorandum opinion (Cal. Stds. Jud. Admin., § 8.1;
People v. Garcia (2002) 97 Cal.App.4th 847, 851-854), and dismiss the appeal.
I.
In January 2009, Velasquez pleaded guilty to assault by means of force
likely to produce great bodily injury. (Pen. Code, former § 245, subd. (a)(1),
amended by Stats. 2011, ch. 183, § 1.) The court sentenced her to a three-
year term of probation. Following the revocation of her probation in
September 2009, the court sentenced Velasquez to three years in state prison.
In 2011, Velasquez was committed to the Department of State
Hospitals as an OMD pursuant to Penal Code section 2962. Since then, her
commitment has been extended nine times. Her most recent extension was
set to expire on February 23, 2023.
In October 2022, the People filed a petition for extension of Velasquez’s
OMD civil commitment for an additional one year pursuant to Penal Code
section 2970. The petition alleged Velasquez continued to suffer from a
severe mental disorder that was not in remission and could not be kept in
remission without treatment, and by reason of this mental disorder she posed
a substantial danger of physical harm to others. In support of the petition,
the People attached an affidavit from the medical director of a state hospital.
The medical director opined Velasquez suffered from a mental disorder that
was not in remission, and by way of her mental disorder she presented a
substantial danger of physical harm to others.
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The medical director’s affidavit attached an evaluation report
conducted by a forensic psychologist for the state hospital. The psychologist
reported Velasquez’s primary diagnosis was schizophrenia, and that she was
displaying overt signs and symptoms of the disorder notwithstanding her
psychotropic medication and psychosocial support. Velasquez was
disengaged with her individualized treatment plan, and she refused to
participate in an interview with the psychologist. According to the report,
although Velasquez had not committed an act of physical violence for the
preceding year, she remained at risk of committing violent acts towards
others due to her symptomology. Accordingly, the report recommended
Velasquez’s civil commitment be extended.
Velasquez waived her right to a jury trial, and the court conducted a
bench trial on September 6 and 7, 2023. At the trial, the People presented
testimony from a forensic psychologist for the Department of State Hospitals,
a court-appointed psychiatrist, and a court-appointed psychologist. The
forensic psychologist for the state hospital testified that Velasquez presented
paranoid and delusional beliefs about her family of origin. These beliefs
inhibited her from discussing her plans for discharge. The psychologist
opined her symptoms resulted from schizophrenia, rather than substance
abuse, noting she has consistently demonstrated psychotic symptoms at the
state hospital even in the absence of substance use. Citing to Velasquez’s
failure to follow her individualized treatment plan and her history of
violence, the psychologist concluded she was not in remission and continued
to pose a substantial danger of physical harm to others.
The court-appointed psychiatrist testified Velasquez was diagnosed
with schizophrenia, along with three substance abuse disorders related to
alcohol, methamphetamine, and cannabis use. Citing to her continued
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auditory hallucinations and delusions, along with her poor insight into her
substance abuse disorders, he opined that Velasquez was not in remission.
He doubted she would continue to take the medications that helped curb her
aggression outside of the hospital because she lacked insight into why she
needed to take them. Although the psychiatrist recognized Velasquez had
not been violent over the last several years, he testified that her paranoid
delusions put her at risk for violence if she was released. Thus, he concluded
Velasquez posed a substantial danger of physical harm to others due to her
severe mental disorder.
The court-appointed psychologist agreed that Velasquez had a
diagnosis of schizophrenia, along with substance abuse disorders related to
cannabis, methamphetamine, and alcohol use. He believed if Velasquez was
released from the hospital she would likely discontinue her psychiatric
medication and use substances, which could lead to physical violence.
Accordingly, the psychologist concluded Velasquez’s schizophrenia was not in
remission, and she posed a substantial risk of psychical harm to others if she
was not recommitted.
A psychiatrist then testified on behalf of Velasquez. He opined
Velasquez suffered from complex post-traumatic stress disorder and
substance abuse disorders, but he did not believe to a medical certainty that
she ever had schizophrenia. He informed the court that Velasquez reported
using drugs while at the state hospital, noting she tested positive for
methamphetamine until 2016. The psychiatrist concluded Velasquez did not
pose a substantial danger of physical harm to others if released into the
community, so long as she did not have an extended relapse on drugs or
alcohol. Velasquez then testified in her own defense.
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After considering the evidence and arguments of counsel, the trial court
found the People proved beyond a reasonable doubt the petition’s allegations
were true. The court therefore found the People met its burden of
demonstrating Velasquez met the OMD recommitment criteria and extended
her commitment for one year, until February 23, 2024.
II.
We appointed counsel to represent Velasquez on appeal. Her counsel
filed a brief summarizing the facts and proceedings below, but counsel did not
identify any arguable issues. Nevertheless, counsel argues we should
independently review the record on appeal for reversible error pursuant to
Wende/Anders. Though Velasquez was provided with a copy of counsel’s
brief and informed of her right to file a supplemental brief, she has not done
so.
In Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.), the
Supreme Court held that the Anders/Wende independent review procedures
do not apply to civil commitments pursuant to the Lanterman-Petris-Short
(LPS) Act (Welf. & Inst. Code, § 5000 et seq.). (Ben C., at p. 539.) Similarly,
the Second District in Taylor, 160 Cal.App.4th at p. 308, considered whether
the Wende/Anders procedures apply to MDO commitment cases and
concluded they did not. Although Velasquez’s counsel acknowledges the
court’s holding in Taylor, counsel contends Taylor was wrongly decided and
asks this court not to follow it. As we discuss, we decline to part ways with
Taylor and apply its holding to this case.
In Taylor, the court discussed Ben. C. and other relevant cases to reach
its conclusion that the Anders/Wende review procedures are not applicable to
post-conviction commitments under the MDOA. (Taylor, 160 Cal.App.4th at
p. 312.) Taylor reasoned that Wende/Anders review is only required for
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appointed counsel’s representation of an indigent defendant in a criminal
case, and we are bound by the Supreme Court’s characterization of the
MDOA as a “‘civil commitment scheme.’” (Ibid.) In rendering its decision,
Taylor commented that the Rules of Court ensure sufficient advocacy for
OMD committees on appeal, and due process does not require the extension
of Anders/Wende to appeals from OMD commitment orders. (Id. at p. 313.)
Accordingly, Taylor dismissed the appeal without conducting an independent
review of the record. (Ibid.)
We agree with Taylor’s reasoning and apply it to this appeal. Because
no reasonably arguable issues have been raised by counsel or Velasquez, we
decline to exercise our Ben C. discretion to conduct an independent review of
the record in this case pursuant to Anders/Wende or otherwise and dismiss
the appeal. (See Taylor, 160 Cal.App.4th at p. 313.)
III.
The appeal is dismissed.
CASTILLO, J.
WE CONCUR:
DO, Acting P. J.
BUCHANAN, J.
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