P v. Martinez (4th Dist., Div.3) An Appellate Court Has No Duty to Review the Record for Meritorious Issues in a NGI Extension Appeal

In 2004, Mr. Martinez was found not guilty by reason of insanity (NGI) of residential burglary.  Subsequently, he became an involuntary patient in the state hospital for a time equal to the maximum prison sentence for residential burglary.  When his time was up, he agreed to an extension of his NGI commitment.  Martinez was placed on outpatient status, but after he went AWOL his outpatient status was revoked and he was placed back in the state hospital.  March 2015, a petition to extend Martinez's commitment was filed and a jury trial was conducted.

A jury found true the facts required for the extension; to wit, that Martinez suffered from a qualifying mental condition, posed a substantial risk of physical harm to others, and had serious difficulty controlling his dangerous behavior.  Upon the jury's findings, the trial court ordered a two year extension of Martinez's NGI hospital commitment.  Martinez appealed and an appellate attorney was appointed to represent Martinez on appeal.

Martinez's attorney reviewed the record, found no meritorious appellate issues, and filed a brief with the appellate court stating same (In California this is sometimes called a Wende brief).  The Fourth District sent a copy of the Wende brief to Martinez and told him if he wanted to, he was welcome to file his own brief if he disagreed with his attorney.  Martinez did not respond.

The issue is whether the Fourth District has a duty to go through the record and see if it can identify any meritorious appellate issues.  The panel answers "no", and dismisses Martinez's appeal.

An appellate court does have a duty to independently review the record upon receiving a Wende brief in an appeal of right in a criminal case.  This duty originates with the right to counsel contained in the Sixth Amendment to the United States Constitution and applied to the state via the Fourteenth Amendment.  This duty of independent review applies in cases in which the defendant has a Constitutional right to counsel.  Since the United States Supreme Court has held that the Constitutional right to appellate counsel only covers the first appeal of right in a criminal matter, Martinez has no Constitutional right to counsel in his NGI appeal.  That California law provides Martinez a right to counsel in his NGI appeal is of no effect on this issue.  It is the source of the right to counsel that controls.  If a source of the right is the U.S. Constitution, independent review is required.  If the Constitution doesn't require the right to counsel in the matter, independent review is not required.    

The panel's analysis is consistent with other California appellate courts that have found no duty of independent appellate court review in juvenile dependency appeals, conservatorship appeals, and mentally disordered offender (MDO) appeals, other proceedings in which California law provides a right to counsel, but to which there is no Sixth Amendment right to counsel.

As a backup argument, Martinez argues the principle of equal protection.  But this argument doesn't really go anywhere as the panel decides NGI appellants are not similarly situated to criminal defendants pursuing a first appeal of right.