P. v. Rosenbalm

Filed 12/11/09 P. v. Rosenbalm CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Appellant Vincent Rosenbalm filed an appeal from an order denying his motion for substitute counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) following two prior remands by this court. His court-appointed appellate counsel has filed a brief raising no issues, but seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm.

I. Facts and Procedural History

Appellant was charged with making a criminal threat under Penal Code section 422.[1] He was committed to a state hospital after the court determined he was incompetent to stand trial. ( 1370.) Following an appeal from the original commitment order, we remanded the case for a hearing on appellants motion for substitute counsel under Marsden. (People v. Rosenbalm (April 3, 2008, A116597) [nonpub. opn.].) On remand, the trial judge accepted disqualification from the case after appellant filed a motion pursuant to Code of Civil Procedure section 170.6, but nonetheless proceeded to hear and deny the Marsden motion. Appellant again appealed and this court reversed and remanded for a new Marsden hearing before a different judge. (People v. Rosenbalm (May 13, 2009, A122553 [nonpub. opn.].)

On remand for the second time, the new judge heard and considered appellants Marsden motion in a hearing closed to the prosecution. Appellant advised the court that he believed his attorney had not represented him properly because she had been on vacation at two crucial times, had not visited him in jail and had allowed more than 60 days to pass without a preliminary hearing. Defense counsel explained that she had difficulties dealing with appellant in the courtroom because he spoke in a loud voice about extraneous issues. She had raised doubts about his competency to stand trial based on his behavior and history of mental illness. As to the failure to hold a preliminary hearing within 60 days, appellants speedy trial rights did not apply while criminal proceedings were suspended. Counsel finally noted that appellant had filed more than 52 writs with the Court of Appeal, and that she would not assist him in using the legal system in this manner.

The trial court denied the Marsden motion and appellant filed this most recent appeal. Appointed counsel filed a Wende brief raising no issues and advised appellant of his right to file a supplemental brief. (See People v. Kelly (2006) 40 Cal.4th 106, 124.) Appellant has filed a supplemental brief in which he reiterates the complaints about his counsel raised at the Marsden hearing. He also makes various allegations about police misconduct in his case and the conditions of his confinement.

II. Discussion

When an indigent defendant files his first appeal as a matter of right, he is entitled to have the court independently review the record when appointed counsel files a brief indicating that he or she has found no arguable issues. (Anders v. California (1967) 386 U.S. 738; Wende, supra, 25 Cal.3d 436.) This right to independent review by the appellate court does not extend to judgments that are civil in nature, even when those judgments result in the deprivation of a liberty interest. (See Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535, 537, 544 (Ben C.) [no Wende review in Lanterman-Petris-Short conservatorship appeals]; In re Sade C. (1996) 13 Cal.4th 952, 959 [no Wende review in appeals from orders affecting parental custody in juvenile dependency cases]; People v. Taylor (2008) 160 Cal.App.4th 304, 308, 313 [Wende review not required in appeal from order declaring the appellant a mentally disordered offender]; People v. Dobson (2008) 161 Cal.App.4th 1422, 1425 [no Wende review of order denying outpatient status pursuant to petition to restore competency under  1026.2].)

The underlying order declaring appellant incompetent to stand trial is a judgment in a special civil proceeding. (See People v. Pokovich (2006) 39 Cal.4th 1240, 1269-1270; People v. Stanley (1995) 10 Cal.4th 764, 807; People v. Masterson (1994) 8 Cal.4th 965, 969-970; Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 494-496.) As such, it is akin to the civil judgments noted above, to which Wende does not apply. But even assuming that independent review of the record is not required, appellant has filed a supplemental brief raising issues that we must address. We have fully reviewed the record in this case in connection with those issues. (See Ben C., supra, 40 Cal.4th at p. 544, fn. 7 [appellate court may elect to retain case and decide appeal].)

Appellant states in his supplemental brief that trial counsel took a vacation rather than insisting on a timely preliminary hearing in his case. This is effectively an argument that the trial court erred in denying his motion for substitute counsel. We disagree. The trial court held a Marsden hearing at which appellant was allowed to describe specific instances of alleged inadequate representation, including his complaints regarding his speedy trial rights. (People v. Crandell (1988) 46 Cal.3d 833, 854, disapproved on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) Having credited counsels explanation for her handling of the case, the court did not abuse its discretion in denying the Marsden motion. Appellant did not demonstrate that counsel had provided ineffective assistance or become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citation.] (People v. Mayfield (1997) 14 Cal.4th 668, 795; see also People v. Webster (1991) 54 Cal.3d 411, 435.)

Other issues raised by appellant in his supplemental brief include alleged police misconduct, misconduct by counsel, constitutional violations in requiring him to take medication, irregularities in the competency proceedings and violations of his rights based on the conditions of his confinement. These issues are not apparent from the record on appeal and are not cognizable in this appeal. (See People v. Smith (2007) 40 Cal.4th 483, 507.)

We are satisfied that appellants appointed attorney has fully complied with the responsibilities of appellate counsel and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 284-289.)

III. DISPOSITION

The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P. J.

SIMONS, J.

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[1] Further statutory references are to the Penal Code unless otherwise indicated.