Filed 4/16/13 P. v. Shulte CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A136105
v.
TIMOTHY CHRISTOPHER SHULTE,                                          (Sonoma County
                                                                     Super. Ct. No. SCR23531)
         Defendant and Appellant.


         Timothy Christopher Shulte appeals from a judgment of the Sonoma County
Superior Court, in a case tried to the court, extending his commitment as a mentally
disordered offender (MDO) pursuant to Penal Code section 2972.1 The commitment
expires on August 10, 2013. Appellant’s court-appointed counsel has filed a brief raising
no legal issues and asking this court to conduct an independent review pursuant to People
v. Wende (1979) 25 Cal.3d 436. The court has also received and considered a two-page
handwritten supplemental brief submitted by appellant in propria persona, which was
filed with this court on December 31, 2012.
         As appellant’s counsel acknowledges, In re Ben C. (2007) 40 Cal.4th 529, held
that the judicial review procedures established in Anders v. California (1967) 386 U.S.
738 and People v. Wende, supra, 25 Cal.3d 436, are inapplicable to conservatorship
proceedings arising under the Lanterman-Petris-Short Act (LPS Act) (Welf. & Inst. Code,
§ 4500 et seq.), and People v. Taylor (2008) 160 Cal.App.4th 304, which relied on Ben


         1
             Unless otherwise indicated, all statutory references are to the Penal Code.
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C., held that the Anders/Wende review requirements are also inapplicable to appeals from
civil commitments pursuant to the Mentally Disordered Offender Act (MDOA).
       Nevertheless, pointing to the statement in Ben C. that a reviewing court “may, of
course, find it appropriate to retain the appeal” in an LPS Act case (In re Ben C., supra,
40 Cal.4th at p. 544, fn. 7), and that nothing in People v. Taylor, supra, 160 Cal.App.4th
304 prohibits a reviewing court from according independent Wende review in an appeal
from a commitment under the MDOA if it wishes to do so, counsel requests that we
exercise our discretion to independently review the record to determine whether it
presents any issue that, if resolved favorably to appellant, would result in reversal or
modification of the judgment.
       This division, having concluded that we have authority to voluntarily accord
Wende review in this case, and desiring to do so, grant appellant’s request.
                        FACTS AND PROCEEDINGS BELOW
       The facts are provided primarily by the 10-page January 7, 2012 Dispositional
Court Report of Forensic Evaluator Ai-Li Arias, M.D., for the Department of Mental
Health (DMH), which was filed with the Sonoma County Superior Court on October 8,
2012, by Medical Director George Christison, of Patton State Hospital, as an exhibit to
his January 25, 2012 affidavit recommending that the Sonoma County District Attorney
apply to the court for an extension of appellant’s commitment. As it is a confidential
document, Dr. Arias’s Dispositional Court Report was sealed.
       Appellant, a 48-year-old deaf man, was charged by the Sonoma County District
Attorney with lewd and lascivious conduct with a child under the age of 14 (§ 288, subd.
(a)) in 1995. After he was found incompetent to stand trial, he was committed to DMH,
and initially admitted to Atascadero State Hospital, pursuant to the MDOA (§ 2962). On
May 10, 1996, appellant was discharged from Atascadero State Hospital as having been
restored to competence to stand trial, and thereafter tried and convicted of the aforesaid
offense and sentenced to eight years in prison. During his term of imprisonment he was
transferred multiple times between the California Department of Corrections and


                                              2
Rehabilitation (CDCR), where he was treated as a mentally ill prisoner, and DMH, which
placed him at Atascadero State Hospital for “psychiatric stabilization and management.”
       Appellant’s original discharge date was August 10, 2006, but his commitment has
been continuously extended pursuant to section 2970. On August 10, 2003, appellant
was found to meet criteria for treatment by DMH as a condition of his parole, certified as
an MDO, and admitted to Atascadero State Hospital. On January 8, 2004, he was
administratively transferred to Patton State Hospital.
       Appellant’s 1995 conviction for violation of section 288, subdivision (a), involved
inappropriate touching of his niece’s genitalia, and the placing of her hand on his erect
penis, which she was unable stop as appellant is deaf and she does not know sign
language. Appellant had suffered prior convictions and arrests for indecent exposure,
child molestation, and solicitation of a lewd act.
       Dr. Arias’s 10-page Dispositional Court Report, which was “administratively
reviewed” and approved by Dr. Christison, the medical director of Patton State Hospital,
recommends that the district attorney petition to civilly commit appellant pursuant to
section 2972 on the ground that satisfies the criteria for such a commitment. That is,
appellant “has a severe mental disorder as defined in Penal Code section 2962(a),” he is
“not in remission as evidenced by signs and symptoms of a severe mental disorder not
controlled by either psychotropic medication or psychosocial support,” and he
“represents a substantial danger of physical harm to others . . . by reason of his severe
mental disorder.” (See § 2962, subds. (a)(1), (3) & (d).) The bases of these
determinations are set forth at length by Dr. Arias in her confidential report to the court.
       The petition for continued involuntary treatment pursuant to section 2970 was
filed by the district attorney on February 9, 2012, and the hearing on the petition was
conducted without a jury by the Honorable Kenneth J. Gnoss on July 9, 2012. Dr. Arias
was the only witness.2 Appellant participated in the proceeding with the assistance of a


       2
        At the close of Dr. Arias’s testimony, appellant stated for the record that he had
been advised of his right to testify on his own behalf and waived the right.
                                              3
team of American Sign Language interpreters, who also assisted appellant in
communicating with his attorneys in preparation for trial.
       Before the taking of Dr. Arias’s testimony, appellant’s counsel filed a document
embodying 10 in limine motions, all of which pertained to the nature of the expert
testimony to be received by the court, most of which were designed to preclude the
receipt of expert testimony based on hearsay. After hearing the arguments of counsel,
some of the motions were granted, some with modifications,3 others were denied, and
some were taken under submission to be decided during the course of the proceedings.
       The bulk of the hearing was taken up with the direct and cross-examination of
Dr. Arias. When it was completed, and counsel had made their closing arguments, the
court granted the petition, finding appellant is an MDO within the meaning of the
MDOA. The court explained its ruling as follows:
       “Based on the testimony of Dr. Arias, the court does find that [appellant] does
have a severe mental . . . illness or disease or condition that substantially impairs [his]
thoughts, perceptions of reality, emotional process, or judgment.
       “Given his confusion with God and Lucifer, it indicates to the court that he lacks
the necessary insight in[to] his own mental disease or disorder. This is also based on his
continued auditory and visual hallucinations.
       “The court also has concerns regarding his refusal to participate in the individual
sexual offender treatment counseling. I do understand that it is somewhat limited by the
fact of his hearing issues; however, it appears that they’re willing to work with him on an
individual basis to allow him to participate in some form of one-on-one treatment. This
is given his prior criminal record and the commitment offenses of two counts of Penal
Code section 288(a), which the court had taken judicial notice that he had suffered those




       3
         For example, the court sustained appellant’s objections to any probation report,
bail report, or police report being received in evidence, in written form or hearsay
testimony, on the grounds it was hearsay. (See People v. Campos (1995) 32 Cal.App.4th
304.)
                                               4
two prior convictions for lewd and lascivious conduct with a child under the age of 14
and that he received a state prison sentence of eight years.
       “The court also has a concern in that [appellant’s] failure to take responsibility for
the commitment offense and the fact he blames Lucifer for the fault that he molested his
niece. The court also has a concern that if released, he will fail to continue his
medication. This is based on the statement to the interviewer that he said God says he
doesn’t have to take his medications. The court also has a concern about his intentions to
consume alcohol when released.
       “The court’s biggest concern is that he has not followed his in-custody treatment
plan and has no out-of-custody treatment plan in place, which would likely result in
relapse if released back in the community.
       “Based on the testimony and evidence presented here in court, the court also finds
that his severe mental disorder is not in remission. And because of the severe mental
disorder, he continues to represent a substantial danger of physical harm to others.”
Based on these findings, which the court explicitly made “beyond a reasonable doubt,”
the court extended appellant’s commitment to August 10, 2013.
                                       DISCUSSION
       Appellant was at all times represented by able counsel who protected his rights
and interests.
       In order to prepare for trial with his attorneys and to participate in the trial,
appellant was provided able interpreters who also insured that appellant’s waiver of the
right to testify was voluntary and informed.
       Having reviewed the motions considered by the court in limine and the transcript
of the proceedings, we conclude that no inadmissible evidence was received by the court
and no admissible evidence excluded.
       The judgment is supported by substantial evidence.
       The commitment ordered by the court is authorized by law.
       Accordingly, our independent review discloses no arguable issue requiring further
briefing. The judgment is affirmed.

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                                _________________________
                                Kline, P.J.


We concur:


_________________________
Lambden, J.


_________________________
Richman, J.




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