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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
2
C. (2007) 40 Cal.4th 529, 537-539 (Ben C.) [Wende does not apply
to proceedings that are civil in nature, such as Lanterman-Petris-
Short Act conservatorships].) In Kisling, supra, 239 Cal.App.4th
288, the Court of Appeal considered whether Wende applies to an
appeal from the denial of a defendant’s petition for release from
SVP commitment. The court concluded Wende review applies
only to appointed counsel’s representation of an indigent criminal
defendant in a first appeal of right. (Kisling, at p. 290.) Because
SVP proceedings are civil matters, it follows that an appeal from
an SVP proceeding does not directly implicate Wende. (Kisling,
at pp. 290-292.) This is true whether the appeal is from the
initial SVP commitment order, as it is here, or from the denial of
a petition for release from the commitment. (See ibid.)
Stewart’s appointed counsel filed an opening brief raising
no arguable issues on appeal. On February 27, 2023, we sent a
notice to appointed counsel in which we directed him to send
Stewart the record on appeal and a copy of the opening brief and
to inform Stewart he had 30 days from the date of our notice to
submit a supplemental brief.
Appointed counsel has confirmed that he sent Stewart a
copy of his opening brief and advised Stewart of his right to file a
supplemental brief. Counsel also informed Stewart that “this
court has no obligation to conduct an independent review of the
record under current California law” and that “it is very likely
that if he does not file a supplemental brief this court will dismiss
his appeal as abandoned.”
The time for Stewart to file a supplemental brief has
expired and no such brief was filed. The appeal is therefore
subject to dismissal. (See Ben C., supra, 40 Cal.4th at p. 544;
Kisling, supra, 239 Cal.App.4th at pp. 291-292.)
3
DISPOSITION
The appeal is dismissed.
CODY, J.
We concur:
GILBERT, P.J.
YEGAN, J.
4
Paul W. Baelly, Judge
Superior Court County of Ventura
______________________________
Rudy Kraft, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
5