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The People v. John D. Kelso


December 22, 2010


(Solano County Super. Ct. No. FCR190338)

The opinion of the court was delivered by: Needham, J.

P. v. Kelso



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

John D. Kelso appeals from a judgment extending his commitment as a mentally disordered offender pursuant to Penal Code section 2970. His attorney has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436 (see Anders v. California (1967) 386 U.S. 738), in order to determine whether there is any arguable issue on appeal. Because Wende review is not available under these circumstances, we will dismiss the appeal.


After being convicted of battery on a police officer (Pen. Code, § 243, subd. (c)(2)), Kelso was committed to the state mental hospital as a condition of parole under the Mentally Disordered Offender Act (MDOA, § 2962 et seq.).*fn1 At issue here is a petition to extend the commitment, filed in January 2010.

In February 2010, Kelso asked to represent himself in the trial court, claiming "I don't have to be drooling on myself to be illegible [sic] to represent myself," but "I don't have to be linked to the Gettysburg Address, either." After reviewing Kelso's hospital record, the trial court denied his request.

Kelso waived time, and trial on the petition took place in June 2010. Evidence at trial included a report from Patton State Hospital and the testimony of Kelso's treating psychiatrist, Dr. Paul Kratofil.

According to the report of Patton State Hospital's staff psychiatrist, Kelso was diagnosed primarily with schizoaffective disorder, bipolar type, polysubstance dependence in a controlled environment, and antisocial personality disorder. He had 20 psychiatric hospital admissions since the age of 15, auditory hallucinations, paranoia, depressive symptoms, hypomanic symptoms, manic symptoms, suicidal ideation, and suicide attempts. He is not in remission, as indicated by his poor grooming, disheveled appearance, feelings of persecution, responses to internal stimuli, extremely poor insight, and escalating inappropriate and threatening behavior. He has refused medication since his arrival at the hospital, and he sees himself as a political prisoner rather than mentally ill. He has had increasing episodes of aggression based on paranoia, irritability, and grandiosity, including throwing objects, yelling at staff with closed fists, refusing to comply with directions, calling a staff member a "fucking bitch," putting his finger in a staff member's face in a threatening manner, threatening to cut off the head of a staff member if he did not get new shoes, and threatening to kill his psychiatrist. The report concluded that Kelso met the criteria of having a severe mental disorder, not in remission, and representing a substantial danger of physical harm to others.

Dr. Kratofil testified that he believes Kelso has a severe mental disorder: schizoaffective disorder, bipolar type. He is also diagnosed as having antisocial personality disorder, and he is not in remission. Kelso exhibits delusional thinking, in that "[h]e believes he's persecuted by the government, that government agencies conspire to keep him in the hospital illegally and with malice." He responds to internal stimuli, spending much of the time talking to himself. He has a variety of disorganized behaviors when acutely ill, including hand gestures, screaming, disruptive behaviors, and poor hygiene. He experiences delusional thinking, including his belief that he can talk with snakes. He has manifested periods of rapid speech, increased energy, decreased sleep, and agitation. He has become increasingly agitated, threatening to "chop the head off" of one female staff member and kill another, and threatening his psychiatrist. Due to his severe mental disorder, Kelso represents a substantial danger of physical harm to others. Under a decreased level of supervision, Kelso could refuse medication, relapse on drugs, become more psychotic, and become violent.

The court granted the petition to extend the commitment.

This appeal followed.


Kelso's appellate counsel requests, in light of his inability to identify any arguable issue on appeal, that we review the record on appeal and determine whether there are any arguable issues, pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We need not conduct such a review, because the Wende procedure is not available in this matter.

Although not mentioned by Kelso's appellate counsel, People v. Taylor (2008) 160 Cal.App.4th 304 held that Wende review is not available for a civil commitment order under the MDOA. (Taylor, at pp. 312-313.) We find the reasoning of Taylor to be persuasive and follow it here.

Kelso's appellate counsel represented in the opening brief in this appeal that he wrote to Kelso and advised him of the filing of a Wende brief and his opportunity to file his own supplemental brief within 30 days after the filing of the opening brief. We have not received a supplemental brief from Kelso. Kelso did send us a handwritten request for a 90-day continuance "to make the change from the court appointed attorney to pro se [and] the creation of my contribution to the appeal." We deny the request. Kelso had 30 days to file his own supplemental brief, so it was unnecessary for him "to make the change from the court appointed attorney to pro se" in order to make his "contribution to the appeal." He provides no reason that he was unable to file a supplemental brief within 30 days. Furthermore, he provides no adequate showing as to why he did not request to "change from the court-appointed attorney to pro se" status earlier.


The appeal is dismissed.

We concur. SIMONS, Acting P. J. BRUINIERS, J.

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