People v. McCloud CA1/2

Filed 9/21/23 P. v. McCloud CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A167751
v.
BYRON McCLOUD, (Solano County
Super. Ct. No. VC31353)
Defendant and Appellant.
Byron McCloud appeals from an order denying his petition for
conditional release under Welfare and Institutions Code section 6608 of the
Sexually Violent Predator Act.1
McCloud’s appellate counsel has filed an opening brief informing the
court he has reviewed the record and researched potential issues and can find
no arguable issues to raise on appeal. Citing People v. Kisling (2015) 239
Cal.App.4th 288, counsel asks us to follow the procedures set forth in
Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.). In Ben C., our
Supreme Court held that “[i]f appointed counsel . . . finds no arguable issues,
counsel . . . should (1) inform the court he or she has found no arguable issues
to be pursued on appeal; and (2) file a brief setting out the applicable facts
and the law.” (Ben C., supra, 40 Cal.4th at p. 544.) In addition, “[t]he
1 Undesignated statutory references are to the Welfare and Institutions
Code.
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conservatee is to be provided a copy of the brief and informed of the right to
file a supplemental brief.” (Id. at p. 544, fn. 6.) The appellate court may then
dismiss the appeal if there are no arguable issues. (Id. at p. 544.)
Here, McCloud has filed a supplemental brief. We have evaluated his
arguments and find no issues of merit. (Cf. People v. Delgadillo (2022) 14
Cal.5th 216, 232 [in postconviction appeal of the denial of a petition for
resentencing, when appointed counsel files a no-issue brief and “the
defendant subsequently files a supplemental brief or letter, the Court of
Appeal is required to evaluate the specific arguments presented in that brief
and to issue a written opinion”].) Accordingly, we will dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
After he was found to be a sexually violent predator (SVP) in 2011,
McCloud was committed to the custody of the Department of State Hospitals
(DSH). (People v. McCloud (Jan. 25, 2023, A166026) 2023 WL 382379, at *1
(McCloud III).) McCloud petitioned for conditional release without the
concurrence of the DSH in 2015, 2019, and 2022; each time, the trial court
denied the petition. (Id. at *1–3.)
Mostly recently, on March 17, 2023, McCloud petitioned for conditional
release and appointment of an expert under section 6608, subdivision (a)
(§ 6608(a)). He attached an annual psychological exam dated June 9, 2022,
in which the DSH concluded that he still met the definition of an SVP and
that adequate protection for the community could not be assured in a less
restrictive treatment setting. The report explained the “conditional release
program is designed for patients who have already benefitted from treatment
and are motivated to engage in . . . community-based therapy,” but “McCloud
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continues to refuse to participate in the hospital SOTP [sexual offense
treatment program].”2
On March 30, 2023, the trial court issued a three-page order denying
McCloud’s petition. The court noted McCloud’s previous petition (filed in
2022) was denied without a hearing pursuant to section 6608(a).3 The trial
court concluded McCloud failed to make a prima facie showing for relief in his
current petition and was not entitled to a hearing because he “d[id] not allege
that he is no longer an SVP and did not allege any facts to contradict the
conclusion of the [DSH] report.”
DISCUSSION
A person who has been committed as an SVP has a right under section
6608(a), to petition the court for conditional release with or without the
recommendation or concurrence of the Director of the DSH. When a person
petitions for conditional release without the concurrence of the DSH (as in
this case), the trial court is required to “endeavor whenever possible to review
the petition and determine if it is based upon frivolous grounds and, if so, . . .
deny the petition without a hearing.” (§ 6608(a), italics added.)
Further, when a petitioner previously filed a petition for conditional
release without the concurrence of the DSH and the previous petition was
denied on the merits (again, as in this case), section 6608(a) provides that
“the court shall deny the subsequent petition unless it contains facts upon
2 In his current petition, McCloud avers that he “ ‘VOLUNTARILY’
entered SOTP Phase 1” and that this is a change “since July 2011
commit[]ment.” The annual report explains, however, that while he was
enrolled in SOTP from 2009 through 2013, “McCloud has consistently
declined to enroll in SOTP since 2013.” McCloud does not dispute that he has
not participated in the DSH’s sexual offense treatment program since 2013.
3 This court dismissed McCloud’s appeal from the denial of his 2022
petition. (McCloud III, supra, 2023 WL 382379, at *4.)
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which a court could find that the condition of the committed person had so
changed that a hearing was warranted.” (§ 6608(a), italics added.)
Here, the trial court properly denied the petition because McCloud did
not make a prima facie case for relief, that is, he failed to allege facts showing
his condition had so changed that a hearing was warranted.
We have reviewed McCloud’s supplemental brief, and he does not raise
any issues showing error by the trial court. He argues the trial court erred in
failing to appoint an expert. Section 6608, subdivision (g), provides, “The
committed person shall have the right to the appointment of experts, if the
committed person so requests.” However, subdivision (g), governs the
conduct of a hearing on a petition; thus, the right to an appointed expert
arises only when a hearing on the petition is required. But, in this case, no
hearing was required because McCloud failed to allege “facts upon which a
court could find that the condition of the committed person had so changed
that a hearing was warranted.” (§ 6608(a).) McCloud’s remaining arguments
are undeveloped and do not suggest the trial court erred in finding his
petition failed to state a prima facie case for relief.
DISPOSITION
The appeal is dismissed.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, P.J.
_________________________
Richman, J.
A167751, People v. McCloud
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