Filed 4/29/14 P. v. Watts CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040019
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 78100)

         v.

ANDREW BRIAN WATTS,

         Defendant and Appellant.



         On December 15, 1980, appellant Andrew Brian Watts went into a psychotic rage
at his parents’ home and strangled his father to death. He did not believe his father was
dead, so to slow his father down, he cut off his legs with a knife and a machete and
poured sugar on his body, believing it was cyanide. Later he stole his father’s van and
drove to Salt Lake City, Utah. He was arrested in Utah on December 18, 1980.
         Appellant has always maintained that the person he murdered was not his father,
but a duplicate of his father. Appellant was found not guilty by reason of insanity and
committed to the state hospital system. He was diagnosed with Schizophrenia, paranoid
type, and polysubstance dependence. Appellant has been in and out of the state hospital
system and the community release program since that time.1
1
 The factual recitation here is limited to the facts necessary to dispose of this appeal
pursuant to People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano). On the Court’s
own motion, we take judicial notice of People v. Watts, (Aug. 29, 2013, H038825)
       On April 17, 2013, the District Attorney of Santa Clara County filed a petition
seeking to extend appellant’s commitment for an additional two years pursuant to Penal
Code sections 1026 and 1026.5. Appellant’s jury trial began on July 30, 2013. At trial,
three treating physicians, both past and present, testified for the prosecution. All three
opined that because of appellant’s persistent, severe delusions and his inability to
recognize his mental illness or control his behavior, there was a substantial risk that, if
released, he would pose a danger to the community. On July 31, 2013, the jury returned
a verdict, finding the petition to be true. Thereafter, the court ordered appellant
committed for two years, ending August 30, 2015. Appellant filed a timely notice of
appeal from this order.
       On appeal, we appointed counsel to represent appellant in this court. Appointed
counsel filed an opening brief pursuant to Serrano, supra, 211 Cal.App.4th 496, 501.
Despite acknowledging Serrano’s apparent application, counsel attempts to distinguish
Serrano on its facts. While the Serrano appeal followed an order on a collateral post-
judgment motion in a criminal case, the instant appeal follows an order of recommitment
under Penal Code sections 1026 and 1026.5. As we made clear in Serrano, the Supreme
Court has, on multiple occasions, limited the availability of Wende2 review. (Serrano,
supra, 211 Cal.App.4th 496, 501; see also Conservatorship of Ben C. (2007) 40 Cal.4th
529, 543-544 [no Wende review in conservatorship cases]; In re Sade C. (1996)
13 Cal.4th 952 [no Wende review in dependency cases].) In Serrano, we relied on the
California Supreme Court’s holding in Ben C., supra, 40 Cal.4th 529 to hold that Wende


[nonpub.opn.], where this court considered an appeal by appellant from an earlier
recommitment proceeding related to a 1993 assault case. (Santa Clara County Superior
Court No. 169048.) We also take judicial notice of People v. Watts, (Dec, 16, 2010,
H035049) [nonpub. opn.], an appeal by appellant from an earlier recommitment
proceeding in this case. (Santa Clara County Superior Court No. 78100.) A more
complete recitation of the factual and procedural background appears in those appeals.
2
  People v. Wende (1979) 25 Cal.3d 436 (Wende).
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review was only available in the first appeal of right from a criminal conviction.
(Serrano, supra, 211 Cal.App.4th 496, 500.) Other courts have similarly relied on Ben C.
to limit the availability of Wende review, including appeals from civil commitments.
(People v. Taylor (2008) 160 Cal.App.4th 304 (Taylor) [extending Ben C. procedures
from conservatorship cases to Mentally Disturbed Offender (MDO) commitments under
Penal Code section 2962].) Counsel argues that Taylor was wrongly decided to the
extent it extended Ben C. procedures to MDO cases. He urges us not to extend Ben C. to
recommitments pursuant to Penal Code sections 1026 and 1026.5, and to review the
entirety of the record on appeal pursuant to Wende, supra, 25 Cal.3d 436.
       Under Serrano, it is the procedural posture of the order appealed from (i.e., an
appeal from a post-judgment order) and not the nature of the underlying proceeding (i.e.,
dependency, civil recommitment) that determines the availability of Wende review.
Because defendant’s appeal is from an order extending his commitment for an additional
two years, and not a first appeal of right from a judgment of conviction, he is not entitled
to Wende review. (Serrano, supra, 211 Cal.App.4th at pp. 501-502.) Therefore, we will
proceed with this appeal pursuant to the standard we enunciated in Serrano.
       Pursuant to Serrano, on December 18, 2013, we notified appellant of his right to
submit written argument in his own behalf within 30 days. On December 23, 2013,
January 13, 2014, and March 21, 2014, we received letters from appellant. In his letters,
appellant again contends that the person killed was not his father, and that his father may
still be alive. He asks us to reopen the case and review photographs of the victim,
contending that the actual victim’s identity may have been falsified. In the alternative, he
asks that we search for various tape recordings and grant him a new trial. In effect,
appellant wishes to challenge the sufficiency of the evidence supporting his conviction.
Challenges to the sufficiency of the evidence of appellant’s underlying conviction are not
properly before us in an appeal from the order recommitting him to the state hospital
system. Because those issues are long final, we cannot grant appellant’s request for
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further discovery or for a new trial. Thus, nothing in appellant’s letters raises an arguable
issue on appeal from an order of recommitment. (People v. Kelly (2006) 40 Cal.4th 106.)
Therefore, we decline to retain the case.
       The appellant having failed to raise any arguable issue on appeal, we shall dismiss
the appeal. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
                                            Disposition
       The appeal is dismissed.




                                                  _________________________
                                                  MÁRQUEZ, J.

WE CONCUR:




_________________________
PREMO, ACTING P.J.




_________________________
ELIA, J.


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