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P. v. Zapisek
P. v. Zapisek

P. v. Zapisek

Filed 2/17/09 P. v. Zapisek CA1/2


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.





Plaintiff and Respondent,



Defendant and Appellant.


(San Francisco City and County

Super. Ct. No. 169095)

Appellant Paul Zapisek appeals the March 11, 2008 order of the trial court extending his commitment to Napa State Hospital for an additional two years pursuant to Penal Code section 1026.5, subdivision (b) (further references are to the Penal Code unless otherwise specified). Appellants appointed counsel has identified no issues on appeal and asks this court to conduct a review of the record and disposition of the case in accordance with the procedures outlined in Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.).


On June 12, 2007, a petition was filed to extend appellants insanity commitment for an additional two years. ( 1026.5, subd. (b).) Shortly thereafter, the appointed defense counsel waived appellants statutory right to a timely trial on the extended commitment petition in view of the pending expiration of the then current commitment on September 10, 2007. The matter came up for hearing on March 7, 2008, at which time appellant personally waived his statutory right to a jury trial. Court held a bench trial on March 11, 2008, at which time it sustained the petition and extended the commitment until September 10, 2009.

Appellant was originally found not guilty by reason of insanity of an offense in which he stabbed a stranger on the street whom he believed to be the devil. At the time of the current proceedings, appellant had been treated by Dr. Harinder Auluck, a staff psychiatrist at the Napa State Hospital, who testified at the commitment extension trial. Dr. Auluck testified that although appellant had not been assaultive since arriving at the State Hospital in 1998, and had not threatened anyone in the five years preceding the extended commitment hearing, he continues to suffer from schizoaffective disorder of the bipolar type and continues to have delusions.

During the course of the court trial, Dr. Auluck, who was the only witness, testified regarding the delusions, which appellant continues to suffer, including: that George W. Bush sees appellant as a threat and wants to kill him; that a mob is following him in order to get his private parts; that he owns a hotel chain and has access to millions of dollars once he leaves the hospital; that he is being observed by hidden surveillance cameras monitored by the CIA; that the medication nurse at the hospital is giving him fake Chinese medications; and that another doctor at the hospital is conspiring to keep him in the hospital.

Dr. Auluck testified that in his opinion appellant is still suffering from the same type of delusions that caused him to commit the original assault upon a stranger and that he had not behaved in a violent fashion since that time because of the structured hospital environment. Dr. Auluck also concluded that if appellant were unconditionally released from the hospital he would not take his medications and would most likely act out in a dangerous way. The doctor also informed the court regarding appellants relatively advanced age (64 years) and poor health, as well as the failure of efforts to place appellant in open units with other patients because he became increasingly delusional and agitated in the presence of other people. Based on this evidence the court sustained the petition and extended appellants commitment.

The California Supreme Court concluded in a four-to-three decision that the procedures available in criminal proceedings pursuant to People v. Wende (1979) 25 Cal.3d 436 are inapplicable to appeals of Lanterman-Petris-Short Act (LPS) conservatorship proceedings (Welf. & Inst. Code,  5350 et seq.). (Ben C., supra, 40 Cal.4th 529.) The majority in Ben C. held as follows: [i]f appointed counsel in a conservatorship appeal finds no arguable issues, counsel need not and should not file a motion to withdraw. Instead, 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. (Id. at p. 544.) In addition, [t]he 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.) Moreover, even though dismissal of the appeal does not violate the California Constitution, the Court of Appeal has the discretion to retain the appeal. (Id. at p. 544, fn. 7.)

In the Wake of Ben C., a number of appellate courts have held Wende review inapplicable to other types of civil commitment appeals as well. For example, in People v. Dobson (2008) 161 Cal.App.4th 1422, the Fifth District held that Wende procedures do not apply to appeals from the denial of first stage restoration to sanity petitions pursuant to section 1026.2. Similarly, in People v. Taylor (2008) 160 Cal.App.4th 304, Division Six of the Second District concluded that Wende review procedures do not apply to appeals from mentally disordered offender extended commitments pursuant to section 2960 et seq.

We are mindful of the dissent in Ben C. authored by Chief Justice George and joined by Justices Kennard and Moreno, which stated that, it is undisputed that the private interests at stake are of the most fundamental nature as the conservatee may be subjected to restrains upon physical freedom and personal autonomy for lengthy periods, and may be denied other basic civil rights as well (id. at p. 545) and agree that under the circumstances it is a small matter for the Court of Appeal to confirm that proper procedures were followed and that the order of extended commitment is supported by sufficient evidence. (Id. at p. 555.) According to the Chief Justice: The majoritys holding that independent review is not constitutionally required in LPS appeals in no way prevents the Courts of Appeal from expending the minimal effort required to provide these appeals with a second look and to provide an opinion that briefly notes the court has reviewed the record and that identifies the findings and evidence supporting the order. (Id. at p. 556.)

Accordingly, we have reviewed the entire record in these proceedings in order to conclude that appellant was represented by counsel at all times, that appellant was informed, as far as possible, of his rights, that the trial court treated appellant in a considerate fashion and fully informed itself regarding appellants condition. We are satisfied that the trial court made findings supported by substantial evidence before concluding that it was necessary to extend appellants commitment.

Our review of the record also confirms that appellant has been notified by court appointed counsel that a brief conforming with the procedures set forth in Ben C. would be filed in this case and further advising appellant of his right to personally file a supplemental brief. No supplemental brief has been filed by appellant on his own behalf.


The judgment extending appellants commitment through September 10, 2009, is affirmed.


Lambden, J.

We concur:


Kline, P.J.


Haerle, J.

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