California Court of Appeal Sep 11, 2013 No. E054823Published
Before: McKINSTER
Synopsis
[CERTIFIED FOR PARTIAL PUBLICATION*]
Filed 9/11/13
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E054823
v. (Super.Ct.No. RIC10009408)
RICHARD CLINTON HILL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. James T. Warren† and
Jean P. Leonard, Judges. Reversed with directions.
Chris Truax, under appointment by the Court of Appeal, for Defendant and
Appellant.
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II and III.
† Judge Warren is a retired judge of the Riverside Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
1
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Ronald A.
Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Richard Clinton Hill appeals an order civilly committing him to a state
hospital under the Sexually Violent Predator Act. (Welf. & Inst. Code, § 6600 et seq.
(the SVPA).)1 He contends that he had a constitutional right to the effective assistance of
counsel and that the trial court violated that right by refusing to consider his Marsden2
motion to replace his court-appointed attorney. He also contends that his right to a fair
trial was violated by the trial judge‟s “multi-tasking” during the trial and that the
indefinite commitments provided for in SVPA proceedings violate equal protection
principles.
We reject the latter two contentions. However, we agree that defendant was
entitled to a Marsden hearing and that the trial court‟s failure to conduct a Marsden
hearing was prejudicial error.
BACKGROUND
Defendant does not challenge the jury‟s finding that he meets the statutory
definition of a sexually violent predator. Accordingly, we need not discuss the
underlying offenses or the expert testimony supporting the jury‟s findings. For our
purposes, it suffices to say that the district attorney filed a petition for commitment under
1 All statutory citations refer to the Welfare and Institutions Code unless another code is specified.
2 People v. Marsden (1970) 2 Cal.3d 118.
2
the SVPA and that a jury found the allegations of the petition true. On October 24, 2011,
the court ordered defendant committed to Coalinga State Hospital. On that same date,
defendant filed his notice of appeal.
DISCUSSION
I.
THE TRIAL COURT‟S REFUSAL TO HEAR DEFENDANT‟S MARSDEN MOTION
REQUIRES REVERSAL
1. Introduction and Summary of the Issue.
Defendant was represented by a court-appointed attorney in the SVPA
proceedings. Before trial commenced, defendant filed a written motion seeking a
Marsden hearing to ask for the appointment of substitute counsel. In his written motion,
he stated that he was dissatisfied with his current attorney for various reasons, including
counsel‟s failure to communicate and confer with him, except briefly; counsel‟s failure to
subpoena witnesses defendant considered necessary to his defense; counsel‟s failure to
investigate and obtain evidence crucial to the defense; counsel‟s failure to secure expert
witnesses; and counsel‟s failure to file a number of motions. Defendant stated in the
written motion that he would present evidence to support his contentions at the hearing.
At a pretrial hearing, the trial court informed defendant that he was not entitled to
a Marsden hearing and dismissed the motion.
Defendant now contends that he has a constitutional right to the effective
assistance of counsel and, as part of that right, to a Marsden hearing. The Attorney
General agrees that defendant has a due process right to counsel and to a Marsden
3
hearing. The parties disagree, however, as to the standard for reversal following a trial
court‟s refusal to hold a Marsden hearing where the defendant has a right to such a
hearing.
2. A Defendant in a Civil Commitment Proceeding Has a Due Process Right to
the Effective Assistance of Counsel and to a Marsden Hearing.
We first address defendant‟s right to a Marsden hearing.
Defendant acknowledges that the Sixth Amendment right to counsel, which is the
source of the Marsden procedure, does not apply to civil commitment proceedings.
Nevertheless, he contends that he has a due process right to the effective assistance of
counsel, both arising directly from the due process clause of the Fourteenth Amendment
and from the due process right which arises as a result of the Legislature‟s creation of a
statutory right to counsel in SVPA proceedings. (§ 6603, subd. (a).)
This issue, arising under the Lanterman-Petris-Short (LPS) Act (§ 5000 et seq.),
was addressed in Conservatorship of David L. (2008) 164 Cal.App.4th 701 (David L.).
In that case, the proposed involuntary conservatee contended that he had a constitutional
right to the effective assistance of counsel and to a Marsden hearing. The trial court had
denied the motion without allowing the proposed conservatee to state the reasons for his
request. (Id. at pp. 707-708, 712.)
The appellate court held that because the Marsden procedure is grounded in the
Sixth Amendment right to effective counsel in criminal proceedings, it does not directly
apply to an LPS proceeding, which is civil in nature. (David L., supra, 164 Cal.App.4th
at pp. 709-710.) However, because the LPS Act provides a statutory right to counsel, a
4
prospective involuntary conservatee has a liberty interest in that right which is protected
by the due process clause of the federal Constitution. The court held that once a
substantial state-created right has been conferred, “„minimum procedures appropriate
under the circumstances [are] required . . . “to insure that the state-created right is not
arbitrarily abrogated.” [Citation.]‟” (Wilson v. Superior Court (1978) 21 Cal.3d 816,
823, cited in David L., at p. 710.) Accordingly, the court held, “under the LPS Act[,]
a prospective conservatee‟s statutory right to effective assistance of counsel is protected
by due process.”3 (David L., at p. 710.)
The court next addressed the question of what procedures are required to protect
the prospective conservatee‟s interest in his right to effective assistance of counsel. The
court applied the four factors identified in People v. Otto (2001) 26 Cal.4th 200 (Otto), as
relevant to that determination: “(1) the private interest that will be affected by the official
action; (2) the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural safeguards;
(3) the government‟s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would
entail; and (4) the dignitary interest in informing individuals of the nature, grounds, and
consequences of the action and in enabling them to present their side of the story before a
3 The court noted that the duty of appointed counsel to perform in an effective and professional manner is implicit in the statutory right to counsel. (David L., supra, 164 Cal.App.4th at p. 710.)
5
responsible government official. [Citation.]” (Otto, at p. 210, quoted in David L., supra,
164 Cal.App.4th at pp. 710-711.)
The court held, first, that the liberty interests at stake in a conservatorship are
significant because in addition to the possibility of involuntary physical restraint, a
disabled person for whom a conservatorship is established faces the loss of many other
liberties. (David L., supra, 164 Cal.App.4th at p. 711.)
Second, the court held, there is “no meaningful distinction between criminal and
LPS proceedings insofar as the procedures required to guard against the erroneous
deprivation of the right to effective assistance of counsel. In holding that a trial court
must provide a criminal defendant seeking substitute counsel an opportunity to state the
reasons for his request, the court [in Marsden] explained that „[a] trial judge is unable to
intelligently deal with a defendant‟s request for substitution of attorneys unless he is
cognizant of the grounds which prompted the request. The defendant may have
knowledge of conduct and events relevant to the diligence and competence of his
attorney which are not apparent to the trial judge from observations within the four
corners of the courtroom. . . . A judicial decision made without giving a party an
opportunity to present argument or evidence in support of his contention “is lacking in all
the attributes of a judicial determination.”‟ [Citations.] Because the reasoning expressed
in Marsden is equally applicable to LPS conservatorship proceedings, we conclude that
the trial court must afford a prospective conservatee a full opportunity to state the reasons
for requesting substitute counsel in accordance with Marsden.” (David L., supra, 164
Cal.App.4th at p. 711.)
6
Third, the court held, providing a proposed conservatee the opportunity to seek
replacement of counsel furthers the purpose of the LPS Act “insofar as it safeguards
against the erroneous deprivation of the right to effective assistance of counsel, which is
essential to ensure the proposed conservatee is not erroneously deprived of his liberty. . . .
Moreover, allowing a prospective conservatee a full opportunity to state his reasons for
requesting substitute counsel is unlikely to place a significant fiscal or administrative
burden on the government or potentially impede the government‟s interest in protecting
the public safety or the prospective conservatee.” (David L., supra, 164 Cal.App.4th at
pp. 711-712.) Fourth, the court held, “insofar as failing to provide a proposed
conservatee with a full opportunity to state his reasons for requesting substitute counsel
adversely impacts his right to effective assistance of counsel, it necessarily „disable[s]
him from presenting his side of the story before a responsible government official.‟” (Id.
at p. 712, quoting Otto, supra, 26 Cal.4th at p. 215.)
For all of these reasons, the court concluded that a prospective conservatee “has a
right under the due process clause to fully state the reasons for requesting substitute
counsel in an LPS conservatorship proceeding.” (David L., supra, 164 Cal.App.4th at
p. 712.)
For the same reasons, we conclude that a defendant in an SVPA proceeding has a
due process right to a Marsden hearing. A defendant in SVPA proceedings is generally
entitled to due process protections. (Otto, supra, 26 Cal.4th at p. 209; see also Addington
v. Texas (1979) 441 U.S. 418, 419-420, 425-431 [due process clause of the Fourteenth
Amendment requires at least clear and convincing evidence in a state civil commitment
7
proceeding].) And, like the LPS Act, the SVPA provides a statutory right to counsel.
(§ 6603, subd. (a).) The considerations discussed in David L., supra, 164 Cal.App.4th
701, apply equally to SVPA proceedings. Indeed, in light of the fact that a commitment
under the SVPA is most likely to result in loss of physical liberty for a prolonged period,
potentially for the remainder of the defendant‟s life, these considerations apply with even
greater force in SVPA proceedings than in LPS proceedings. Accordingly, we agree with
the parties that the trial court‟s refusal to entertain defendant‟s Marsden motion
arbitrarily deprived defendant of his statutory right to effective representation and of his
due process right to a Marsden hearing to protect and effectuate that right.
3. Reversal for a Posttrial Marsden Hearing Is Required.
The court in David L. did not decide what standard of reversal applied to the
denial of the right to a Marsden hearing because the conservatorship had been terminated
before the appeal was decided. (David L., supra, 164 Cal.App.4th at pp. 712-713.) Here,
defendant contends that reversal is automatic because (1) a due process right is involved
and (2) the absence of a record of a defendant‟s reasons for wanting a new attorney
prevents meaningful review. At the very least, he contends, we should apply harmless
error review pursuant to Chapman v. California (1967) 386 U.S. 18 (Chapman). The
Attorney General contends that because defendant did not have a Sixth Amendment right
to counsel but merely a state-created statutory right, the erroneous denial of the Marsden
hearing is subject to prejudice review under People v. Watson (1956) 46 Cal.2d 818,
which governs the majority of state-law errors.
8
The denial of a statutory right in a civil commitment proceeding is reviewed under
The judgment is reversed, and the case is remanded with directions to the trial
court to conduct a Marsden hearing and exercise judicial discretion to order a new trial,
to reinstate the judgment, or to proceed otherwise as authorized by law.
CERTIFIED FOR PARTIAL PUBLICATION
McKINSTER J. We concur:
HOLLENHORST Acting P. J.
RICHLI J.
15
AI Brief
AI-generated · verify before citing
Holding. A defendant in a Sexually Violent Predator Act (SVPA) proceeding has a due process right to a Marsden hearing to request substitute counsel, and the trial court's failure to conduct such a hearing constitutes prejudicial error requiring remand.
Issues
Does a defendant in an SVPA proceeding have a due process right to a Marsden hearing?
Is the trial court's failure to conduct a Marsden hearing in an SVPA proceeding subject to harmless error review?
Did the trial court's 'multi-tasking' during trial violate the defendant's right to a fair trial?
Do indefinite SVPA commitments violate equal protection principles?
Disposition. reversed and remanded
Quotations verified verbatim against the opinion
“a defendant in an SVPA proceeding has a due process right to a Marsden hearing.”
“we cannot say that the error was harmless beyond a reasonable doubt.”