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Name: People v. Kisling
Case #: C076047
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 08/06/2015

The Court of Appeal is not required to conduct a Wende review of the record in an appeal from the denial of petition for release from a sexually violent predator (SVP) commitment. Kisling appealed from the trial court’s denial of his petition for release from his commitment as an SVP under the Sexually Violent Predator Act (SVPA). Appointed counsel filed a Wende brief, and the appellate court requested supplemental briefing on whether the Wende review procedure applies to appeals from denials of petitions for release from an SVP commitment. Held: The Wende review procedure is inapplicable and the appeal was dismissed. The procedures outlined in People v. Wende (1979) 25 Cal.3d 436 only apply to appointed appellate counsel’s representation of an indigent criminal defendant in his first appeal of right. Proceedings under the SVPA are civil matters and an SVPA appeal does not directly implicate Wende. In Conservatorship of Ben C. (2007) 40 Cal.4th 529, the California Supreme Court applied a three-part balancing test to determine whether Wende review applied as a matter of due process to appeals from LPS conservatorship proceedings, and concluded that it did not. The same analysis applies in SVP cases, and the balance of interests weighs more heavily against applying Wende to SVPA appeals. Here, appellate counsel complied with her duty to review the record and found no arguable issues, and defendant did not identify any issues he believed should have been raised.