People v. Carter ( 2022 )

Filed 12/21/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C094949
Plaintiff and Respondent, (Super. Ct. No.
CRF19987081)
v.
ISHMAEL MICHAEL CARTER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Yolo County, Daniel M.
Wolk, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Clara M. Levers, Deputy
Attorney General, Julie A. Hokans, Supervising Deputy Attorney General, for Plaintiff
and Respondent.
1
After defendant Ishmael Michael Carter was housed for more than 14 years in a
state hospital awaiting trial, the trial court found him to be a sexually violent predator and
committed him to an indeterminate term. Defendant appeals contending the trial court:
(1) abused its discretion in denying his Marsden1 motion; and (2) failed to obtain a valid
waiver of defendant’s right to a jury trial. We find no error and affirm the judgment.
BACKGROUND2
On May 29, 2007, a petition to commit defendant as a sexually violent predator
was filed. On August 1, 2007, the parties submitted on probable cause that defendant met
the criteria for commitment and the court ordered defendant transported to Coalinga State
Hospital.3 Defendant waived time for trial for the opportunity to educate himself and
receive treatment.
From October 2007 to November 2019, trial setting conferences were continued at
the request of one side or the other or both, but mainly by the public defender on behalf
of defendant, for various reasons as noted in the court’s minute orders. For example,
minute orders on September 22, 2008, June 29, 2009, and July 15, 2009, noted the public
defender’s efforts to obtain defendant’s medical records by subpoena and a court order.
A minute order on October 7, 2009, stated defendant wanted to secure an expert. A
March 21, 2011 minute order noted that defendant was working on his sex offender
treatment program. On January 23, 2014, a minute order noted that both parties
1 People v. Marsden (1970) 2 Cal.3d 118.
2Defendant includes in the opening brief a summary of the evidence presented at trial.
We limit our recitation to the factual background pertinent to defendant’s contentions,
which involve matters determined prior to trial.
3 Under the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.;
further undesignated section references are to this code), Coalinga State Hospital is the
primary facility for commitment of a person for mental health treatment. (§ 6600.05.)
2
requested a continuance because the hospital needed to do a further evaluation. On
April 30, 2014, the minute order noted, “Def[endant] still in treatment[,] not ready to set
trial.”
On January 25, 2016, a minute order noted that defendant was continuing
treatment at Coalinga State Hospital. On November 8, 2016, trial setting was continued
at defendant’s request for additional evaluation by an expert witness. A minute order
dated November 21, 2017, noted that the judge signed an order for an early evaluation.
On April 23, 2018, the minute order noted that the court had not received the new
evaluation. On October 22, 2018, the minute order noted that defendant had retained an
expert. On April 10, 2019 and May 22, 2019, the minute orders noted that the defense’s
expert had evaluated defendant. A July 15, 2019 minute order noted a continuance
requested by both parties to allow counsel the opportunity to coordinate with doctors
(who would presumably testify at trial). An August 12, 2019 minute order noted that the
People had requested, and the court order, an additional evaluation. On October 7, 2019,
the minute order continuing trial setting noted that defendant was waiting for two reports.
On January 30, 2020, the court set a jury trial for May 11, 2020. Further
continuances and delays for other reasons followed leading to a new jury trial date of
June 21, 2021. On May 17, 2021, supervising deputy public defender Monica Brushia
moved to continue the trial on the ground that she had “inherited” the case and realized
she had much to learn. The People did not object, and the court granted the motion. On
June 18, 2021, the court set the case for jury trial on September 13, 2021.
On September 13, 2021, defendant waived jury trial. A court trial began on that
date. On September 27, 2021, the trial judge ruled that the People had proved beyond a
reasonable doubt that defendant was a sexually violent predator. The court ordered
defendant committed for an indeterminate term.
Defendant filed a timely notice of appeal.
3
DISCUSSION
I
Marsden Motion
A. Background
1. Marsden Motion
On December 13, 2019, chief deputy public defender Allison Zuvela forwarded
defendant’s pro. per. Marsden motion to the superior court and requested that the matter
be put on calendar for a hearing. In the Marsden motion, defendant sought appointment
of substitute counsel and to disqualify Zuvela and the public defender’s office, claiming
that (1) Zuvela was a percipient witness and disqualification was necessary to protect
defendant’s confidential information and avoid a conflict of interest, and (2) defense
counsel was responsible for delays that violated defendant’s due process right to a speedy
trial.
At the same time, defendant submitted a motion for dismissal under People v.
Superior Court (Vasquez) (2018) 27 Cal.App.5th 36 and People v. Litmon (2008) 162
Cal.App.4th 383 for violation of his right to a speedy trial, noting that he had been at
Coalinga State Hospital for 12 years.4
On December 19, 2019, the trial court continued the hearing on defendant’s
motions to January 15, 2020. The court inquired whether defense counsel wanted both
motions heard and Zuvela suggested that the Marsden motion be heard first. Zuvela
explained: “The issue from [defendant’s] perspective is that there’s a few cases out there
4 In Vasquez, the court upheld the trial court’s decision to grant the defendant’s motion
to dismiss an SVPA petition for violation of the defendant’s due process right to a speedy
trial, after a 17-year delay in bringing the case to trial. (People v. Vasquez, supra, 27
Cal.App.5th at p. 41.) In Litmon, the court reversed the defendant’s commitment under
the SVPA, determining that the lower court should have granted his motion to dismiss the
civil commitment petitions for excessive delay in bringing the case to trial. (People v.
Litmon, supra, 162 Cal.App.4th at p. 406.)
4
that says, hey, I’ve asked for a speedy trial and I haven’t gotten my speedy trial. And so
[defendant’s] asking to dismiss on that, on those grounds. And we can address this at the
Marsden hearing, but there was a philosophy and he was waving time so he could get in
the best place where he could, so we can have a trial and we’ve kind of set that in
motion.”
The court heard the Marsden motion on January 15, 2020. When the court asked
defendant why he wanted to replace his lawyer, defendant responded: “Well, I’ve been
sitting here for 12 and a half years and there’s been multiple delays that was not at my
request. [¶] When Ms. Zuvela took over, I informed her of some things going on and she
was looking into it, but then we’ve been -- I just -- I been requesting trials and I’m still
sitting here without my trial.”
Defendant added, “[I]t’s hard getting anything done at the moment. But that’s
really my main -- you know, my only complaint is really my request for the trial is
constant delays, and I’m not aware of a lot of them.”
In response to a further question from the court, defendant confirmed that Zuvela
had been in touch with him by letter or telephone, and also said, “Usually when I call, a
good portion of the time she responded back immediately and there was times she didn’t
because either she wasn’t in the office or she was in another trial.”
Defendant said his previous public defender was hard to contact “a lot of times.”
Many times when the trial or a hearing was delayed, defendant did not hear about it until
defendant called in to the public defender’s office and was informed of the continuance
by a secretary.
When the court inquired if there were any other concerns defendant had about
Zuvela representing him, defendant responded, “That was the main one, about the
constant delays, and my speedy trial is not being adhered to or things likes [sic] that, but
that’s the biggest complaint I’ve had, is the delays.”
5
When the court asked defendant if Zuvela had explained the reason for the delays,
defendant said, “The last time I knew why evaluators didn’t come up until after the trial
date. And there was other things going on with communication between her and the
[district attorney’s office], but there was some things going on and there was times after
that that she was in trials. But the specific delay in that particular trial was due to the
evaluators not coming up here.”5
Asked by the court if Zuvela had done things she should not have done, defendant
first said, “a lot of times they got her in trial, so it’s hard to catch her at those times.”
Then, responding to the court’s question whether there were other things Zuvela should
be doing but had not done yet, defendant said: “No. Every time I requested something
she’s actually pushed to get it done if she could. If there’s some kind of delay, when she
had the opportunity she notified me and let me know either by letter or she’s called me.”
The court then asked Zuvela for comments. Zuvela said that when she inherited
the case, she understood that defendant was to do as much sex offender treatment as
possible to be in a good position for trial, but it was hard to complete treatment because
the hospital kept changing the program. In November 2017, defendant said he was ready
for and requested trial, but the district attorney wanted a reevaluation by two doctors and
it took a year to get their reports. Zuvela then obtained an expert witness who saw
defendant, and on June 5, 2019, provided a report stating defendant did not meet the
criteria for a sexually violent predator. Zuvela gave the report to the district attorney and
indicated that defendant was ready to set a trial date. The district attorney then wanted a
5 Evaluators are practicing psychiatrists or psychologists who evaluate a person to
determine whether he or she is a sexually violent predator. (§ 6601, subd. (d); People v.
Orey (2021) 63 Cal.App.5th 529, 538 (Orey).) A petition for commitment requires the
concurrence of two evaluators that a person “has a diagnosed mental disorder so that the
person is likely to engage in acts of sexual violence without appropriate treatment and
custody . . . .” (§ 6601, subd. (d).) A district attorney petitioning for commitment may
request updated evaluations to present the case for commitment. (§ 6603, subd. (d)(1).)
6
follow-up evaluation. Zuvela did not get the final reports until January 2020, whereupon
she again said defendant was ready to set a trial date. Zuvela added that she talked to
defendant once or twice a month, went to visit him five months prior, wrote to him
frequently, and sent him stamps to respond.
Zuvela concluded, “I think we’ve been moving forward. I understand that it’s
frustrating for [defendant], but I think we’re in a good position to go to trial. Now it’s
just getting all the experts in at the same time.”
The court also inquired about defendant’s claim that Zuvela was a witness, which
defendant clarified he was referring to her awareness of delays involving completing sex
offender treatment at the hospital.6 Defendant again faulted Zuvela’s predecessor but
said, when Zuvela “took over the case and I started giving her information that she
needed concerning what is going on here and what I’ve done, and she’s been getting this
information and trying to push for -- it seems like there’s more roadblocks coming from
this hospital than anything and it’s frustrating. [¶] So I give her credit when I did give
her information she needed I -- she went after it. It’s getting the hospital to conform to
what the law says which is the problem.”
The court denied defendant’s Marsden motion, explaining: “I understand your
frustration of your own case moving or not moving and the frustration in the case getting
to trial. [¶] From what Ms. Zuvela has told us today, I’m satisfied that she’s been
diligent trying to push the case forward. She hasn’t necessarily delayed the process.
She’s promptly communicated with you and described what happened. From my vantage
point she has done her job as your lawyer. It doesn’t mean in a perfect world this
couldn’t have happened sooner, but many of the reasons of why it’s so slow is not
because of what she did or didn’t do, it’s because of what other people did or didn’t do.”
6 In ruling on the motion, the court observed that whatever Zuvela had witnessed was
hearsay, about which she would not be allowed to testify.
7
2. Motion to Dismiss
Turning to defendant’s motion to dismiss, the court asked Zuvela if she had
discussed it with defendant. Zuvela confirmed that she had and defendant was frustrated
that the process had gone forward but he had not had a trial. Zuvela explained that, to
have defendant’s motion granted, Zuvela would have to say that she was not fulfilling her
ethical duty to pursue trial in a timely manner. Zuvela said: “I don’t think I’ve breached
my ethical duties and I think I’ve been trying to fight for speedy trial.” Given that the
trial court ruled on the Marsden motion that “I have done what I need to do,” Zuvela
stated she could not ethically pursue the motion to dismiss.
The court then addressed defendant: “Based on what Ms. Zuvela has said, you
could still pursue this motion, but I don’t think she can represent you and advocate for it.
So you would be representing yourself and I would give the [district attorney] an
opportunity to respond.” Asked by the court if he wanted to pursue the motion
representing himself, defendant said, “I can’t represent myself to that extent. I just -- I’m
aware of the ethical portion on her. Like I said, she’s done what she could, but it was just
the continual delay that Vasquez wanted because the fact was he was sitting here for 17
years and never given the trial he requested, and they didn’t just put it on his attorney, but
they put it also on the [district attorney’s] office for the delay and because they said --
and I’m just paraphrasing, ‘They should have known within two years if he met the
criteria or not.’ ”
After further argument, the court concluded: “If you want to pursue that -- and
you may have to do it on your own because it sounds like your attorney’s position is
since she is still your attorney and she would have to say she didn’t do her job right and
she doesn’t believe that’s true, she can’t argue on behalf of you on this motion because at
least it in part requires her to say she didn’t do her job right.”
The court said, as the trial was few months away, defendant could pursue the
motion, but he needed to file a declaration in support of the motion. Defendant
8
responded, “It’s just I have to have help in doing that stuff because I’m not really versed
in the law, but I understand common sense and I understand how the law plays things and
things, but as far as using the language of the law, I’m not really versed in that, so . . . .”
The court repeated that if defendant wanted to pursue the motion, “you need to file a
declaration and you’ll send that to your attorney or to the [c]ourt and then we’ll bring it
up again.”
Defendant did not pursue a motion to dismiss further.
B. Analysis
“An indigent person subject to a commitment petition under the SVPA has a
statutory right to the appointment of counsel. (§ 6603, subd. (a).) Although the Sixth
Amendment right to counsel does not apply to such civil commitment proceedings, a
defendant has a due process right to the effective assistance of counsel, and thus the right
to make Marsden motions to discharge his or her appointed counsel. [Citation.] [¶] ‘ “A
defendant is entitled to have appointed counsel discharged upon a showing that counsel is
not providing adequate representation or that counsel and defendant have become
embroiled in such an irreconcilable conflict that ineffective representation is likely to
result.” ’ [Citation.] We review the trial court’s denial of defendant’s Marsden motion
under the abuse of discretion standard. [Citation.] Denial of a Marsden motion is not
abuse of discretion unless the defendant has shown that a failure to replace the appointed
attorney would substantially impair the defendant’s right to assistance of counsel.
[Citation.]” (Orey, supra, 63 Cal.App.5th at pp. 567-568.)
Defendant argues that the trial court should have granted his Marsden motion and
replaced Zuvela when she “stated on the record that she was not pursuing a motion that
appeared on its face to potentially have merit because she would have to argue her own
incompetence.” Defendant mischaracterizes what happened at the Marsden hearing. At
the time Zuvela explained that she could not represent defendant regarding his pro. per.
motion to dismiss, the court had already denied the Marsden motion. During the hearing
9
on the Marsden motion, when defendant said his “main” and “only complaint” was delay
in bringing his case to trial, Zuvela not only set forth her diligent efforts to push for trial
after defendant requested it in November 2017, but defendant also agreed that Zuvela had
been diligent and “[e]very time I requested something she’s actually pushed to get it done
if she could.” When defendant detailed some of the specific reasons for the delay, the
trial court correctly perceived that the delay was not attributable to Zuvela but others,
including the district attorney’s office. To be sure, defendant was critical of Zuvela’s
predecessor, but to the extent defendant wanted a public defender who would push harder
for trial, defendant got what he wanted in replacement of the prior attorney with Zuvela.
In short, defendant presented the trial court with no grounds to grant a Marsden motion
and the court did not abuse its discretion in denying it.
Defendant’s motion to dismiss was functionally a Marsden motion or a quasi-
Marsden motion, because it created a conflict between the public defender, who did not
believe she and the public defender’s office had failed to diligently pursue a timely trial
on his behalf, and defendant, who maintained he had been denied a speedy trial while
represented by the public defender’s office. To pursue a motion to dismiss would require
substitute counsel and therefore was tantamount to a Marsden motion.
We do not, however, endorse the trial court’s invitation to defendant to represent
himself while the public defender’s office continued to represent him. The general rule is
that a defendant who is represented by an attorney of record will not be personally
recognized by the court in the conduct of his case. (People v. Weisner (2022) 77
Cal.App.5th 1072, 1077, review granted July 13, 2002, S274617; People v. Merkouris
(1956) 46 Cal.2d 540, 554 [“ ‘It is settled that the attorney of record has the exclusive
right to appear in court for his client and to control the court proceedings, so that neither
the party himself [citations], nor another attorney [citations], can be recognized by the
court in the conduct or disposition of the case’ ”].) “Motions and briefs of parties
represented by counsel must be filed by such counsel.” (People v. Clark (1992) 3 Cal.4th
1041, 173, disapproved on other grounds in People v. Edwards (2013) 57 Cal.4th 658, 704-
705.) A court “will accept and consider pro se motions regarding representation,
including requests for new counsel. [Citation.] Such motions must be clearly labeled as
such, and must be limited to matters concerning representation.” (Clark, at p. 173.)
“Any pro se documents by represented parties not clearly coming within this exception
will be returned unfiled.” (Ibid.)
“Although a trial court retains discretion to allow a represented defendant’s
personal participation, such an arrangement ought to be avoided unless the court is
convinced, upon a substantial showing, that it will promote justice and judicial efficiency
in the particular case.” (In re Barnett (2003) 31 Cal.4th 466, 472.) We find no such
showing in the record. To the contrary, defendant’s comment that he needed help to
pursue the motion to dismiss because he was “not really versed in the law” indicated that
he did not desire to exercise his constitutional right to represent himself. (See People v.
Windham (1977) 19 Cal.3d 121, 128 [“when a motion to proceed pro se is timely
interposed, a trial court must permit a defendant to represent himself upon ascertaining
that he has voluntarily and intelligently elected to do so, irrespective of how unwise such
a choice might appear to be”]; Faretta v. California (1975) 422 U.S. 806, 836.)
Viewing the motion to dismiss as a Marsden motion—which defendant clearly
does on appeal—made on the ground that defense counsel refused to pursue a motion to
dismiss, defendant’s contention that Zuvela should have been replaced is the equivalent
of the defendant’s argument in Orey that the trial court erred in denying his Marsden
motions claiming defense counsel wrongly refused to file a motion to dismiss for
violation of his right to a speedy trial under Vasquez and Litmon. (Orey, supra, 63
Cal.App.5th at pp. 564-567.) Indeed, in one of the Marsden motions described in Orey,
the defendant similarly “claimed that [counsel] had told him she would not file a Vasquez
motion because ‘that would require her to indicate that her coworkers didn’t do their job
and she couldn’t do that . . . .’ ” (Id. at p. 566.)
11
In Orey, the appellate court held that the trial court did not abuse its discretion in
denying defendant’s Marsden motion. The court reasoned that the decision not to file the
Vasquez/Litmon motion “was essentially a tactical decision, and ‘[t]actical disagreements
between the defendant and his attorney do not by themselves constitute an “irreconcilable
conflict.” ’ [Citation.] ‘A defendant does not have the right to present a defense of his
own choosing, but merely the right to an adequate and competent defense.’ ” (Orey,
supra, 63 Cal.App.5th at pp. 568-569.) “[W]hen a defendant exercises his or her
constitutional right to representation by professional counsel, it is counsel who ‘is in
charge of the case’ and the defendant ‘surrenders all but a handful of “fundamental”
personal rights to counsel’s complete control of defense strategies and tactics.’ ” (In re
Barnett, supra, 31 Cal.4th at p. 472; Orey, at p. 569 [“counsel is ‘captain of the ship’ and
can make all but a few fundamental decisions for the defendant”].)
Here, the tactical decision was for defendant to complete sex offender treatment at
Coalinga State Hospital before requesting trial, as reflected in the record. A minute order
on August 1, 2007, stated that defendant “waives time for [t]rial for opportunity to
educate himself & [r]ec[eive] treatment,” another on March 21, 2011, noted that
defendant was “working on his program preparation,” an April 30, 2014 minute order
continuing trial setting noted that defendant was “still in treatment [and] not ready to set
trial,” and on January 25, 2016, the order noted that defendant “continues [with]
treatment @ State Hospital.” When Zuvela referred to this tactical decision at the
Marsden hearing, defendant did not dispute it. Defendant, like Zuvela, attributed delays
in completing treatment to the hospital, not the public defender assigned to his case or the
public defender’s office. When defendant finally requested trial in November 2017,
telling Zuvela, “Okay, I’m ready. I have it together, and I want my trial,” defendant
confirmed that Zuvela had “done what she could” to move the case forward to trial.
We also note that defendant did not file a Marsden motion until after the
publication of Vasquez in October 2018, in combination with a motion to dismiss under
12
that case. Defendant’s behavior reflects a belief held by many in the state hospital that
creating a conflict with the assigned attorney might aid in dismissal of the case. By filing
a Marsden motion with a motion to dismiss, defendant attempted to create a conflict of
interest by disagreeing with the tactic that the record indicates he had previously assented
to. Thus, the trial court had discretion to deny defendant’s Marsden motion as an
impermissible attempt to manufacture a conflict of interest. (Orey, supra, 63 Cal.App.5th
at p. 570; People v. Smith (1993) 6 Cal.4th 684, 696-697 [“a defendant may not force the
substitution of counsel by his own conduct that manufactures a conflict”].)
On appeal, defendant proposes that this court “conditionally” reverse the trial
court’s denial of his Marsden motion and remand with directions “(1) to appoint new
counsel to represent appellant; and (2) new counsel to file a Vasquez motion if
appropriate.” In a similar vein, defendant argues that the proper remedy in this instance
would have been for the trial court to “appoint[] a new attorney for appellant for all
purposes or possibly appoint[] counsel solely to file a Vasquez motion if appropriate.”
Defendant explains that he “is not arguing his defense attorney was generally ineffective
and not communicative and therefore needed to be replaced because of overall inadequate
representation. Appellant’s claim focuses on the defense counsel’s failure to file a
specific motion.”
As the People point out, the cases defendant cites in support involved the trial
court’s failure to hold a Marsden hearing and the appellate court’s conditional reversal
with an instruction to the trial court to hold the hearing, in order to afford the defendant
an opportunity to demonstrate ineffective assistance of counsel or irreconcilable conflict.
(See, e.g., People v. Armijo (2017) 10 Cal.App.5th 1171, 1183-1184.) Defendant does
not dispute that, here, the trial court did conduct a sufficient Marsden hearing.
In any event, in People v. Sanchez (2011) 53 Cal.4th 80, the court rejected a
procedure where a second attorney is appointed to investigate whether to file a motion
that would implicate the competence of the first attorney. In that case, the defendant pled
13
guilty and then at sentencing his counsel told the trial court defendant wanted to explore
withdrawing the plea. (Id. at p. 85.) The court appointed “ ‘conflict counsel for the sole
purpose of looking into the motion to withdraw his plea.’ ” (Ibid.) The California
Supreme Court held that “if the defendant makes a showing during a Marsden hearing
that his right to counsel has been ‘ “ ‘substantially impaired’ ” ’ [citation], substitute
counsel must be appointed as attorney of record for all purposes.” (Id. at p. 90.) The
court “specifically disapprove[d] of the procedure adopted by the trial court in this case,
namely, the appointment of a substitute or ‘conflict’ attorney solely to evaluate whether a
criminal defendant has a legal ground on which to move to withdraw the plea on the basis
of the current counsel’s incompetence.” (Ibid.; see also People v. Smith, supra, 6 Cal.4th
at p. 695 [“When a Marsden motion is granted, new counsel is substituted for all
purposes in place of the original attorney, who is then relieved of further representation.
If the Marsden motion is denied, at whatever stage of the proceeding, the defendant is not
entitled to another attorney who would act in effect as a watchdog over the first”].)
Sanchez concluded the trial court erred in part “by appointing substitute counsel for the
limited purpose of evaluating defendant’s reasons for wanting to withdraw his plea rather
than appointing substitute counsel for all purposes.” (Sanchez, at p. 92.)
Here, defendant’s request for remand to appoint new counsel specifically to
investigate and potentially file a motion to dismiss is a variation of the procedure
disapproved of in Sanchez. Defendant declares that he does not claim that defense
counsel “needed to be replaced because of overall inadequate representation,” tacitly
conceding that defendant failed to show at the Marsden hearing that his current counsel,
Zuvela, had been ineffective. Defendant maintains he only wants new counsel to
evaluate and potentially file a motion to dismiss that posed a conflict for his current
counsel. However, substitute counsel may only be appointed for all purposes on a
showing at a Marsden hearing that the defendant’s right to counsel has been substantially
impaired. We have concluded that defense counsel’s tactical decision to have defendant
14
complete sex offender treatment before trial—which the record suggests defendant
agreed to for at least the first nine years of his commitment to Coalinga State Hospital—
was not a basis to grant a Marsden motion. Defendant may not obtain what he failed to
achieve at the Marsden hearing by narrowing the request to appointment of new counsel
solely to evaluate and potentially pursue a specific motion.
We conclude the trial court did not abuse its discretion in denying defendant’s
Marsden motion.
Our dissenting colleague maintains the 12-year delay in bringing this case to trial
was presumptively prejudicial under Vasquez and Litmon (dis. opn., post, at pp. 12, 13),
even though defendant did not dispute that he waited until November 2017 to tell Zuvela
he was ready and wanted a trial, i.e., more than 10 years after his commitment in August
2007. Zuvela also explained that reason for the delay was tactical: that defendant would
do as much sex offender treatment as possible to be in a good position for trial. Thus,
this case is a variation of Orey, where a decision not to bring a motion to dismiss was
tactical and not a basis for substitution of counsel.
Nonetheless, the dissent argues appointment of a second attorney is required solely
to determine the merits of a motion to dismiss made on the ground that defendant was
denied a timely trial by his current counsel’s lack of diligence. (Dis. opn., post, at p. 13.)
The dissent relies on the recent California Supreme Court decision wherein the defendant
handwrote a note complaining his counsel was ineffective, which the trial court construed
as a motion for a new trial, and appointed the alternate public defender’s office to assess
any ineffective assistance of counsel issues (dis. opn., post, at pp. 17-18). (People v.
Parker (2022) 13 Cal.5th 1, 84.) When defendant claimed on appeal this procedure
violated Sanchez, the court said that case was factually distinguishable because in Parker
“there was no request to substitute counsel” and the defendant “submitted a handwritten
note in which he merely asserted ineffective assistance as a basis for a new trial, and
there was no showing that defendant’s right to counsel had been substantially impaired.”
15
(Id. at p. 86.) The court further observed that the “defendant did not move under
Marsden for substitution of counsel . . . . (Ibid.) Here, however, defendant did seek
substitution of counsel in a Marsden motion brought in tandem with a motion to dismiss,
and both motions rested on the same ground that defendant was denied the right to a
speedy trial by his counsel’s lack of diligence. Indeed, Zuvela explained to the trial court
that this issue was at the heart of both motions and suggested that it could be addressed
and resolved in hearing the Marsden motion first (though that is not what the trial court
elected to do). Thus, Parker is factually distinguishable.
The problem with the strategy the dissent advocates is that defendant would be
simultaneously represented by two lawyers, one of whom is against the other. If the rule
is a defendant may be entitled to a new lawyer for a limited purpose even though, as here,
his Marsden motion has been denied, then every defendant who loses a Marsden motion
nonetheless gets new counsel to investigate and potentially pursue a motion that his or
her current lawyer could not or would not, because counsel’s effectiveness is implicated.
The result can be the roundelay that Smith condemned: “The spectacle of a series of
attorneys appointed at public expense whose sole job, or at least a major portion of whose
job, is to claim the previous attorney was, or previous attorneys were, incompetent
discredits the legal profession and judicial system, often with little benefit in protecting a
defendant’s legitimate interests.” (Smith, supra, 6 Cal.4th at p. 695.) As mentioned, the
court further said: “When a Marsden motion is granted, new counsel is substituted for all
purposes in place of the original attorney, who is then relieved of further representation.
If the Marsden motion is denied, at whatever stage of the proceeding, the defendant is not
entitled to another attorney who would act in effect as a watchdog over the first.” (Ibid.)
As outlined in Smith, the better approach to the present situation is to resolve the
matter under the Marsden standard. (Smith, supra, 6 Cal.4th at p. 696.) “When a
defendant satisfies the trial court that adequate grounds exist, substitute counsel should be
appointed. Substitute counsel could then investigate a possible motion to withdraw the
16
plea or a motion for new trial [or in this case, a motion to dismiss] based upon alleged
ineffective assistance of counsel. Whether, after such appointment, any particular motion
should actually be made will, of course, be determined by the new attorney.” (Ibid.)
II
Jury Trial Waiver
Defendant argues that he is entitled to the same advisements required for a
criminal defendant to validly waive his right to a jury trial and the trial court did not
sufficiently advise him under that standard. Alternatively, defendant contends that we
should remand the case to the trial court to hold an equal protection hearing.
We need not determine whether defendant was entitled under due process and
equal protection principles to the same advisements given to defendants in criminal
proceedings because defendant was given adequate advisements under that standard.
Even if defendant were entitled to heightened advisements, he cannot show prejudice due
to the absence of such advisements.
A. Background
At the commencement of trial, the judge inquired, and the parties confirmed, that
neither party would be requesting a jury trial. However, subsequently, the prosecutor
advised the court that “before we go too far with the waiver of the jury trial, I do believe
that [the] [c]ourt needs to inquire [with] [defendant] himself to get a personal waiver
about the fact that he’s entitled to a trial by a jury of 12 people with a unanimous verdict,
and that Ms. Brushia has explained everything to him, and that he is personally giving up
that right.”
The following colloquy ensued between the trial court and defendant:
“THE COURT: Okay. Mr. Carter, you understand that this may be tried by a jury
of your peers of 12 persons to a verdict. You understand that you have that right,
correct?
“THE DEFENDANT: Yes.
17
“THE COURT: Have you discussed that with your attorney, Ms. Brushia?
“THE DEFENDANT: Yes.
“THE COURT: Are you -- you also may waive that right in order to have that
before this Court sitting alone pursuant to the Welfare and Institutions Code; do you
understand that?
“THE DEFENDANT: Yes.
“THE COURT: And I assume you discussed that with Ms. Brushia, as well?
“THE DEFENDANT: Yeah.
“THE COURT: And you understand that despite the right to a jury trial in this
matter you are waiving that right and having that trial before me sitting alone, correct?
“THE DEFENDANT: Yes.
“THE COURT: Okay, Ms. Brushia, any comments?
“MS. BRUSHIA: No, your Honor.
“THE COURT: Okay. Thank you, [district attorney].
“[DISTRICT ATTORNEY]: Thank you.”
B. Analysis
Under the SVPA, “[a]n alleged [sexually violent predator] is entitled to a jury trial,
but only upon a demand by the alleged [sexually violent predator] or his or her attorney.
Section 6603, subdivision (a), provides, ‘A person subject to this article is entitled to a
trial by jury . . . .’ Subdivision (b), in turn, provides, ‘The attorney petitioning for
commitment under this article has the right to demand that the trial be before a jury.’
Further, ‘[i]f the person subject to this article or the petitioning attorney does not demand
a jury trial, the trial shall be before the court without a jury.’ (Id., subd. (f).)” (People v.
Washington (2021) 72 Cal.App.5th 453, 462.)
In People v. Sivongxxay (2017) 3 Cal.5th 151 (Sivongxxay), the California
Supreme Court addressed the adequacy of jury trial waiver advisements in criminal
proceedings. In Sivongxxay, the court “offer[ed] some general guidance to help ensure
18
that a defendant’s jury trial waiver is knowing and intelligent, and to facilitate the
resolution of a challenge to a jury waiver on appeal.” (Id. at p. 169.) Our high court
“recommend[ed] that trial courts advise a defendant of the basic mechanics of a jury trial
in a waiver colloquy, including but not necessarily limited to the facts that (1) a jury is
made up of 12 members of the community; (2) a defendant through his or her counsel
may participate in jury selection; (3) all 12 jurors must unanimously agree in order to
render a verdict; and (4) if a defendant waives the right to a jury trial, a judge alone will
decide his or her guilt or innocence.” (Ibid.) The court “also recommend[ed] that the
trial judge take additional steps as appropriate to ensure, on the record, that the defendant
comprehends what the jury trial right entails. A trial judge may do so in any number of
ways—among them, by asking whether the defendant had an adequate opportunity to
discuss the decision with his or her attorney, by asking whether counsel explained to the
defendant the fundamental differences between a jury trial and a bench trial, or by asking
the defendant directly if he or she understands or has any questions about the right being
waived.” (Id. at pp. 169-170.)
Failure to follow the court’s guidelines in Sivongxxay does not necessarily result in
the absence of a knowing and intelligent waiver of a defendant’s right to a jury trial. The
court “emphasize[d] that our guidance is not intended to limit trial courts to a narrow or
rigid colloquy.” (Sivongxxay, supra, 3 Cal.5th at p. 170.) “Our precedent has not
mandated any specific method for determining whether a defendant has made a knowing
and intelligent waiver of a jury trial in favor of a bench trial. We instead examine the
totality of the circumstances.” (Id. at p. 167.) “[A] trial court’s adaptation of or
departure from the recommended colloquy in an individual case will not necessarily
render an ensuing jury waiver invalid. . . . Reviewing courts must continue to consider
all relevant circumstances in determining whether a jury trial waiver was knowing,
intelligent, and voluntary.” (Id. at p. 170, fn. omitted.) “[U]ltimately, a ‘ “defendant’s
rights are not protected only by adhering to a predetermined ritualistic form of making
19
the record. Matters of reality, and not mere ritual, should be controlling.” ’ ” (Ibid.)
We conclude the trial court’s advisements were sufficient under the standard
applicable to criminal defendants. To begin with, the trial court did not require defendant
or his counsel to demand a trial, thus affording defendant rights beyond those set forth in
the SVPA. (See § 6603, subds. (a), (b) & (f).) Instead, the trial court took an express
waiver of the right to a jury trial from defendant.
Defendant argues the waiver was defective because the trial court did not inform
defendant that he had a right to take part in jury selection and the jury’s verdict must be
unanimous. Defendant acknowledges that the prosecutor stated that the jury verdict must
be unanimous but contends there was no indication in the record that defendant gave a
sign that he heard and understood this statement. Defendant also asserts that the court
was required to inform defendant that a true finding would result in an indeterminate
commitment. While defendant acknowledged that he had discussed jury trial waiver with
his attorney, he argues on appeal that, given that the record is silent regarding the
contents and length of the conversation, there is no assurance defendant validly waived
jury trial under Sivongxxay standards.
We reiterate that Sivongxxay guidelines are not mandatory. (Sivongxxay, supra,
3 Cal.5th at pp. 167, 170.) Rather, we uphold a jury waiver as valid, “ ‘if the record
affirmatively shows that it is voluntary and intelligent under the totality of the
circumstances.’ ” (People v. Collins (2001) 26 Cal.4th 297, 310; see also Sivongxxay, at
p. 167.) Under the totality of the circumstances, we conclude defendant’s jury trial
waiver was knowing and intelligent.
We note that the trial court did inform defendant that the trial would be before the
judge alone and not a jury of 12 persons. We disagree that the prosecutor’s comment that
the verdict must be unanimous was somehow not communicated to defendant. Simply
because defendant did not say something in response does not mean he did not hear and
understand that a jury verdict must be unanimous. Accordingly, it was adequately
20
conveyed to defendant that, in a jury trial, if one juror disagreed, the petition for civil
commitment would not be granted. Moreover, defendant was to be present during the
trial if tried to a jury, which implied that he would have had the opportunity to consult
with counsel on the topic of juror selection.
To be sure, we do not know the specifics of defendant’s conversation with his
attorney regarding the differences between a jury trial and a bench trial. However, as
reflected in the reporter’s transcript, the judge had been told by the parties that neither
side was requesting a jury trial. The record thus indicates that leading up to trial,
defendant and his attorney discussed the pros and cons of a jury trial versus a bench trial.
Defendant decided in favor of a bench trial, and defense counsel conveyed that decision
to the prosecutor before the trial started. Moreover, the fact that defendant wanted a
speedy trial, in the hope that the resulting decision would lead to his release sooner rather
than later, suggests that defendant was in favor of a trial with one trier of fact over the
delays associated with trial by 12 jurors.
Lastly, defendant had prior experience with the justice system when charged and
convicted of his qualifying offense. Defendant pled no contest to a 1998 charge of lewd
and lascivious conduct with a child under 14. (Pen. Code, § 288, subd. (a).) The form
minute order regarding the plea included a checked box labeled, “Defendant waives
Constitutional Rights.” While the plea agreement is not in the record, it typically
enumerates among these rights a trial by a jury of defendant’s peers. (See People v.
Gandy (2017) 13 Cal.App.5th 1288, 1292.) Thus, as part of his experience with criminal
procedure, defendant had waived the right to a jury trial and was familiar with the rights
associated with jury trials relinquished by waiver. The court in Sivongxxay found such
prior experience significant when determining that the defendant voluntarily and
intelligently waived his right to a jury trial. (Sivongxxay, supra, 3 Cal.5th at p. 167.)
This fact is just as significant here.
21
As in Sivongxxay, we conclude that “[v]iewed holistically, the circumstances
surrounding defendant’s jury waiver demonstrate that it was knowing and intelligent.”
(Sivongxxay, supra, 3 Cal.5th at p. 168.)
Because we conclude defendant was afforded the same procedure owed to
criminal defendants when waiving their right to a jury trial, we need not consider whether
defendant was entitled to such procedure under principles of due process and equal
protection. (See People v. Cortez (1992) 6 Cal.App.4th 1202, 1212 [“ ‘[o]ne who seeks
to raise a constitutional question must show that his rights are affected injuriously by the
law which he attacks and that he is actually aggrieved by its operation’ ”].)
DISPOSITION
The judgment is affirmed.
/s/
BOULWARE EURIE, J.
I concur:
/s/
HULL, J.
22
ROBIE, A.P.J., Concurring and Dissenting.
Defendant Ishmael Michael Carter raises three issues on appeal to challenge the
trial court’s finding that he is a sexually violent predator (SVP) within the meaning of the
Sexually Violent Predator Act (Act) (Welf. & Inst. Code,1 § 6600 et seq.). He asserts the
judgment should be reversed because the trial court erred in denying his Marsden2
motion to appoint substitute counsel; alternatively, the judgment should be conditionally
reversed and the matter remanded for newly appointed counsel to investigate whether a
motion to dismiss should have been filed (and to file such motion if appropriate); and,
finally, the trial court failed to obtain a valid waiver of his right to a jury trial.
I concur in the majority’s conclusions that defendant validly and intelligently
waived his right to a jury trial and the trial court did not err in denying his Marsden
motion to relieve his appointed counsel, Chief Deputy Public Defender Allison Zuvela,
for all purposes. I dissent, however, to the majority’s conclusion that defendant’s
requested motion to dismiss for violation of his right to a timely trial was functionally the
equivalent of a Marsden motion or a quasi-Marsden motion. Orey certainly does not
stand for that proposition,3 and by treating the motion to dismiss as a Marsden motion,
the majority fails to account for the important distinctions between the analytical
frameworks and remedies associated with the two different motions. (Citing People v.
Orey (2021) 63 Cal.App.5th 529 (Orey).) More importantly, the majority endorses the
trial court’s Wood error. (Wood v. Georgia (1981) 450 U.S. 261.) The timely trial right
analysis was triggered by the presumptively prejudicial delay of over 12 years in bringing
1 Undesignated section references are to the Welfare and Institutions Code.
2 People v. Marsden (1970) 2 Cal.3d 118.
3 As explained post, Orey merely held that a defendant cannot use his, her, or their
counsel’s decision not to file a motion to dismiss to manufacture a conflict of interest for
the purpose of seeking substitute counsel under a Marsden motion.
1
defendant to trial. (People v. Superior Court (Vasquez) (2018) 27 Cal.App.5th 36, 61
(Vasquez).) The trial court violated defendant’s statutory right to counsel under section
6603, subdivision (a) when it left defendant unrepresented as to the motion to dismiss,
even though he was otherwise represented by appointed counsel.
The judgment should be conditionally reversed with directions for defense counsel
to investigate and decide whether a motion to dismiss for violation of defendant’s right to
a timely trial has merit. If counsel finds the motion has no merit or if a motion is filed
but the trial court denies it, the judgment should be reinstated. If, however, the motion to
dismiss is filed and the trial court grants it, the commitment petition should be dismissed.
(See Vasquez, supra, 27 Cal.App.5th at pp. 82-83 [proper remedy for violation of a
defendant’s due process right to a timely trial is dismissal of the petition].) Alternatively,
if defense counsel finds merit in the motion to dismiss but declines to pursue it because of
a conflict of interest, separate counsel should be appointed to represent defendant.
I
PERTINENT FACTUAL BACKGROUND
Defendant was housed in a state hospital awaiting trial on his SVP commitment
petition when he forwarded a Marsden motion and motion to dismiss to his counsel,
Zuvela. Zuvela, in turn, forwarded the motions to the trial court and requested a hearing
on the Marsden motion.
During the Marsden hearing, defendant said he wanted to replace his attorney
because he had “been sitting [t]here for 12 and a half years and there[ had] been multiple
delays that [were] not at [his] request.” He explained, although Zuvela was responsive,
his prior attorney was difficult to reach and failed to inform him of delays with respect to
trial or hearings. He further complained about “continual delays” at Coalinga State
Hospital (Coalinga) and said, “It’s getting the hospital to conform to what the law says
[that] is the problem.”
2
Zuvela told the trial court she “inherited” the case from another attorney and
understood from that attorney that he wanted defendant to do as much of the sex offender
treatment program as possible. Zuvela explained, however, “One of the issues and
problems with what is going on in Coalinga is they keep on [changing] the program so
they can’t finish the program.” Zuvela expressed: “Coalinga . . . is extremely frustrating
and [as defendant] told the Court they keep changing the [sexual offender] treatment. It’s
my opinion it’s so no one can ever graduate, but that’s my opinion.” She further
explained it took a year for the two doctors retained by the district attorney’s office to
reevaluate defendant after defendant requested a trial in November 2017, and she
thereafter sought an evaluation from another doctor and had received his report shortly
after June 5, 2019. Zuvela provided her doctor’s report to the district attorney, who
responded that the district attorney’s two doctors had to do a follow-up evaluation.
Coalinga provided the final evaluation reports to the district attorney’s office on
January 6, 2020, and Zuvela received the reports the following Thursday. Zuvela further
complained about not being able to access the district attorney’s office’s recorded
evaluations and needing to send a subpoena duces tecum to obtain accessible versions.
The trial court denied the Marsden motion stating, in part, Zuvela had “done her
job” and “been diligent trying to push the case forward,” and “many of the reasons of
why [the process had been] so slow [were] not because of what she did or didn’t do, it’s
because of what other people did or didn’t do.”
The trial court next addressed defendant’s draft motion to dismiss, asking Zuvela
if she had discussed with defendant whether she would pursue the motion. The motion to
dismiss discussion was held during the same closed hearing as the Marsden motion.
Zuvela responded: “Yes. I mean, basically he’s saying he’s frustrated because the
process has gone forward and he hasn’t had his trial, and so I would have to say that I am
not living up to my ethical duties to pursue this for trial, . . . in order to have that . . . be
granted. [¶] So in essence, the first step was a Marsden hearing. I don’t think I’ve
3
breached my ethical duties and I think I’ve been trying to fight for [a] speedy trial. [¶]
But Vasquez is the case where he said he wanted a speedy trial and he didn’t get the
speedy trial and [the] case [wa]s dismissed and Mr. Vasquez was released from Coalinga
. . . on those grounds because his lawyer didn’t push for a trial in a timely manner and his
lawyer did not meet their [sic] ethical duties. [¶] So in my mind, if the Court did not
grant the Marsden motion, and [found] that I have done what I need to do, I don’t think I
can ethically pursue that. [¶] I’m not removing myself from the case. And, in fact, for
Mr. Carter’s benefit, I think I’m in the best position if we go to trial to fight for Mr.
Carter and I want to do that.” (Italics added.)
The trial court acknowledged it “didn’t thoroughly brief or review” the motion to
dismiss and then told defendant: “Based on what Ms. Zuvela has said, you could still
pursue this motion, but I don’t think she can represent you and advocate for it. So you
would be representing yourself and I would give the [district attorney’s office] an
opportunity to respond. [¶] Do you wish to pursue this motion representing yourself?”
Defendant responded: “I can’t represent myself to that extent. I just -- I’m aware
of the ethical portion on her. Like I said, she’s done what she could, but it was just the
continual delay that Vasquez wanted [sic] because the fact was he was sitting here for 17
years and never given the trial he requested, and they didn’t just put it on his attorney, but
they put it also on the [district attorney’s] office for the delay and because they said --
and I’m just paraphrasing, ‘They should have known within two years if he met the
criteria or not.’ ”
After defendant and Zuvela discussed some of the facts surrounding defendant’s
SVP case, the trial court addressed defendant pertaining to his motion to dismiss:
“Here’s what I want to tell you about the motion to dismiss. You can pursue that if you
wish. One thing the Court would need to see is a declaration -- a statement by you under
oath saying these are the facts and the dates and the events that support this request. [¶]
In the text of the motion you’ve made reference to things but I can’t necessarily say that I
4
can tell from that there are facts that would justify the result that you’re asking for. Most
motions are supposed to be accompanied by [a] declaration, a statement under penalty of
perjury, saying these are the facts that relate to this motion . . . and based upon these facts
and the law that I’m describing in the motion, this should be the Court’s decision. [¶]
. . . [¶] If you want to pursue that -- and you may have to do it on your own because it
sounds like your attorney’s position is since she is still your attorney and she would have
to say she didn’t do her job right and she doesn’t believe that’s true, she can’t argue on
behalf of you on this motion because at least it in part requires her to say she didn’t do
her job right. [¶] . . . [¶] You’re going to have a couple months before a trial. If you
want to pursue this, I would ask that you submit at least a declaration to add to your
motion. [¶] Until you do that, I won’t be asking the district attorney to file a response
because there isn’t enough here right now to grant your motion, and I don’t know if there
will be or not, but we need a declaration for the motion to be presentable.”
Defendant responded: “It’s just I have to have help in doing that stuff because I’m
not really versed in the law, but I understand common sense and I understand how the
law plays things and things, but as far as using the language of the law, I’m not really
versed in that, so . . . .” The trial court then concluded the hearing: “I’ll leave that issue
in your hands, and I won’t receive anything more from you. [¶] We’ll never talk about
this motion again and if you want to pursue it, you need to file a declaration and you’ll
send that to your attorney or to the Court and then we’ll bring it up again.”
II
DISCUSSION
The Act “authorizes the involuntary civil commitment of a person who has
completed a prison term but is found to be a sexually violent predator.” (State Dept. of
State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 344.) The Act is intended
“ ‘ “to protect the public from dangerous felony offenders with mental disorders and to
5
provide mental health treatment for their disorders.” ’ ” (State Dept. of State Hospitals, at
p. 344.)
When an SVP commitment petition is filed in the trial court, the court determines
“whether the petition states or contains sufficient facts that, if true, would constitute
probable cause to believe that the individual named in the petition is likely to engage in
sexually violent predatory criminal behavior upon his or her release.” (§ 6601.5.) If the
petition meets this hurdle, the trial court conducts a probable cause hearing in accordance
with section 6602. If, following that hearing, the trial court determines there is probable
cause to believe the alleged SVP is likely to engage in sexually violent predatory criminal
behavior upon his, her, or their release, the trial court orders a trial. (§ 6602.)
After a finding of probable cause on the commitment petition and while the
alleged SVP awaits trial, he, she, or they is held “in custody in a secure facility.”
(§ 6602, subd. (a); see People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 904.)
Coalinga is the primary secure facility for commitment of a person for mental health
treatment and operates under the control and direction of the State Department of State
Hospitals. (§ 6600.05.)
The alleged SVP is entitled to the assistance of counsel and the court shall appoint
counsel to assist an indigent person. (§ 6603, subd. (a).) “Because civil commitment
involves a significant deprivation of liberty, a defendant in an SVP proceeding is [also]
entitled to due process protections.” (People v. Otto (2001) 26 Cal.4th 200, 209.) An
SVP detainee’s due process rights are entitled to protection during the period of his, her,
or their pretrial deprivation of liberty. (People v. Litmon (2008) 162 Cal.App.4th 383,
399, 406 (Litmon).)
Litmon held alleged SVP’s detained prior to trial have the right to a timely trial.
(Litmon, supra, 162 Cal.App.4th at p. 399.) The Litmon court used the analytical
framework of Mathews and Barker to assess whether a lengthy pretrial delay violated the
fundamental requirements of due process. (Litmon, at pp. 399-405, 405-407, applying
6
Mathews v. Eldridge (1976) 424 U.S. 319, 335 [court balances three factors: private
interest, value of other procedural safeguards, and government interest], Barker v. Wingo
(1972) 407 U.S. 514, 530 [court weighs four factors: length of delay, “reason for delay,
the defendant’s assertion of his right, and prejudice to the defendant” from the delay].)
The court concluded that, when an alleged SVP is civilly committed after a probable
cause hearing, a lengthy pretrial delay is oppressive and prejudicial to the defendant.
(Litmon, at pp. 405-406.)
Litmon charged the state with responsibility for issues such as “chronic, systematic
postdeprivation delays in SVP cases that only the government can rectify,” and
postcommitment “delays due to the unwillingness or inability of the government to
dedicate the resources necessary to ensure a prompt [Act] trial.” (Litmon, supra,
162 Cal.App.4th at p. 403.) The court held: “[P]ostdeprivation pretrial delays in [Act]
proceedings cannot be routinely excused by systemic problems, such as understaffed
public prosecutor or public defender offices facing heavy caseloads, underdeveloped
expert witness pools, or insufficient judges or facilities to handle overcrowded trial
dockets.” (Ibid., fn. omitted.) The ultimate responsibility for bringing the alleged SVP to
trial in a timely manner rests with the government, and the remedy for excessive pretrial
delays is to dismiss the commitment petition. (Id. at pp. 399-406.)
Landau distinguished Litmon approximately five years later. (People v. Landau
(2013) 214 Cal.App.4th 1, 27, 37-38.) The Landau court concluded the defendant’s
pretrial delay of seven years did not violate his due process rights because the vast
majority of the delays were at his request or with his consent. (Ibid.) While the court
agreed with the principle that the government bears ultimate responsibility for providing
a timely trial (id. at p. 41), it concluded that principle did not mean an SVP detainee
could seek to continue trial repeatedly and then complain that the court violated due
process by granting his requests (id. at p. 37).
7
Approximately five years after Landau, the Court of Appeal in Vasquez held a 17-
year pretrial delay violated an SVP detainee’s due process rights to a timely trial.
(Vasquez, supra, 27 Cal.App.5th at p. 41.) Vasquez noted the general rule is that delays
caused by defense counsel and not caused by a systemic breakdown are properly
attributed to the defendant. (Id. at p. 70.) The Vasquez court accordingly attributed the
first 14 years of the delay to the defendant. (Ibid.) The remaining period of the delay,
however, was caused largely by underfunding of, and dramatic staffing cuts at, the public
defender’s office. Those delays were attributable to the state. (Id. at pp. 71-72.) In
addition, the trial court shared some responsibility for the delays, as it was required to
find good cause to support continuances and take meaningful action to control the
proceedings and protect the defendant’s rights. (Id. at pp. 74-75.) Thus, where the trial
court did not meet those obligations, the delays were also attributable to the state. (Id. at
p. 74.)
Finally, in October 2020, the court in Butler agreed with Vasquez and Litmon that
an SVP detainee has a due process right to a timely trial. (In re Butler (2020)
55 Cal.App.5th 614, 666.) Butler also agreed with Vasquez and Litmon that the
prosecution, defense, and trial court shared responsibility for protecting the defendant’s
due process rights and bringing the matter to trial. (Butler, at pp. 641, 653-656, 660-661,
682-683.) Butler, however, rejected the claim that where responsibility for the delay
overlapped between defense counsel and the state, the delay had to necessarily be
attributed to the defendant. (Id. at p. 662.) Instead, Butler concluded those delays would
have diminished weight against the defendant given the public defender ignored the
defendant’s demands for a timely trial and waived time without the defendant’s
authorization. (Ibid.) Accordingly, Butler concluded where state actors and the
defendant were responsible for the same period of delay in bringing the defendant to trial,
the ultimate obligation to bring an alleged SVP to trial in a meaningful time falls on the
8
state (even where the alleged SVP might prefer delay) and justifies charging the state
with more responsibility for the delay. (Id. at pp. 662-664.)
The question presented here is whether the trial court violated defendant’s
statutory right to counsel when it instructed defendant to represent himself in bringing his
motion to dismiss because his assigned counsel had an inherent conflict in arguing her
own ineffective assistance of counsel. The answer is, “yes.”
An alleged SVP’s statutory right to counsel includes, as a matter of due process,
the right to the effective assistance of counsel⸺the same right guaranteed to criminal
defendants under the Sixth Amendment. (Orey, supra, 63 Cal.App.5th at p. 567.)
“Included in the right to the effective assistance of counsel is ‘a correlative right to
representation that is free from conflicts of interest.’ ” (People v. Bonin (1989) 47 Cal.3d
808, 834.)
Generally, “ ‘[c]ounsel’s function is to assist the defendant, and hence counsel
owes the client a duty of loyalty, a duty to avoid conflicts of interest.’ [Citation.]
Fundamental to counsel’s role is ‘a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.’ ” (People v.
Doolin (2009) 45 Cal.4th 390, 411 (Doolin).) Indeed, “[c]ounsel’s primary ‘duty is to
investigate the facts of his client’s case and to research the law applicable to those facts.’
[Citation.] Counsel’s decisions regarding strategy and tactics must be rational and
‘ “founded upon adequate investigation and preparation.” ’ ” (Id. at p. 423.) “[T]he role
of defense attorney requires that counsel ‘serve as the accused’s counselor and advocate
with courage, devotion and to the utmost of his or her learning and ability . . . .’
[Citation.] Once an attorney is appointed to represent a client, he assumes the authority
and duty to control the proceedings. The scope of this authority extends to matters such
as deciding what witnesses to call, whether and how to conduct cross-examination, what
jurors to accept or reject, what motions to make, and most other strategic and tactical
determinations. [Citations.] A refusal to participate in formulating or conducting a
9
defense is not generally among the available strategic options.” (People v. McKenzie
(1983) 34 Cal.3d 616, 631, fn. omitted, italics added.)
Relying on United States Supreme Court precedent, our Supreme Court in Bonin
held: “When the trial court knows, or reasonably should know, of the possibility of a
conflict of interest on the part of defense counsel, it is required to make inquiry into the
matter. [Citations.] It is immaterial how the court learns, or is put on notice, of the
possible conflict, or whether the issue is raised by the prosecution [citation] or by the
defense [citation]. [¶] The trial court is obligated not merely to inquire but also to act in
response to what its inquiry discovers. [Citation.] In fulfilling its obligation, it may, of
course, make arrangements for representation by conflict-free counsel. [Citation.]
Conversely, it may decline to take any action at all if it determines that the risk of a
conflict is too remote.” (People v. Bonin, supra, 47 Cal.3d at pp. 836-837, italics added,
citing Wood v. Georgia, supra, 450 U.S. at pp. 272-273; see Holloway v. Arkansas
(1978) 435 U.S. 475, 484.)
When the trial court violates its duty by failing “to inquire into the possibility of a
conflict of interest or fail[ing] to adequately act in response to what its inquiry discovers,
it commits error under Wood . . . .” (People v. Bonin, supra, 47 Cal.3d at p. 837.) “[S]o
long as the trial court knew, or reasonably should have known, of the possibility of a
conflict of interest, it is immaterial whether or not the defendant made any objection.”
(Id. at p. 839.) “To obtain reversal for Wood error, the defendant need not demonstrate
specific, outcome-determinative prejudice. [Citation.] But he must show that an actual
conflict of interest existed and that that conflict adversely affected counsel’s
performance.” (Id. at p. 837.)4
4 In Mickens, a case upon which our Supreme Court relied in Doolin, the United
States Supreme Court explained that it has “spared the defendant the need of showing
probable effect upon the outcome, and ha[s] simply presumed such effect, where
10
“In determining the effect of an asserted conflict of interest on counsel’s
performance, we consider whether ‘ “the record shows that counsel ‘pulled [her]
punches,’ i.e., failed to represent defendant as vigorously as [she] might have had there
been no conflict.” ’ ” (People v. Clark (2011) 52 Cal.4th 856, 984.) “ ‘In undertaking
such an inquiry, we are . . . bound by the record,’ ” unless the record does not reflect the
omission. (Doolin, supra, 45 Cal.4th at p. 418.)5 The record in this case is not silent as
to why Zuvela declined to pursue the motion to dismiss; the record speaks, and we are
thus bound by it.
Here, following the Marsden hearing, the trial court asked Zuvela if she had
discussed whether to pursue the motion to dismiss with defendant, and Zuvela responded
that, “in [her] mind,” the trial court’s denial of defendant’s Marsden motion established
she could not ethically pursue the motion to dismiss because the trial court found she did
not breach her duty to defendant in pursuing a timely trial. In other words, Zuvela said
she would not pursue defendant’s motion to dismiss because she had an inherent and
actual conflict in arguing her own ineffective assistance of counsel.
assistance of counsel has been denied entirely or during a critical stage of the
proceeding. When that has occurred, the likelihood that the verdict is unreliable is so
high that a case-by-case inquiry is unnecessary. [Citations.] But only in ‘circumstances
of that magnitude’ do we forgo individual inquiry into whether counsel’s inadequate
performance undermined the reliability of the verdict.” (Mickens v. Taylor (2002)
535 U.S. 162, 166, italics added; see Doolin, supra, 45 Cal.4th at p. 421.) Although a
motion to dismiss undoubtedly qualifies as a critical stage in the proceedings (given, if it
is granted, the commitment petition is dismissed), it appears our Supreme Court in
Doolin held a showing of prejudice is required in every instance “outside the context of
multiple concurrent representation.” (Doolin, at p. 428.)
5 “ ‘[W]here a conflict of interest causes an attorney not to do something’ ” and the
record does not reflect such an omission, we “ ‘examine the record to determine (i)
whether arguments or actions omitted would likely have been made by counsel who did
not have a conflict of interest, and (ii) whether there may have been a tactical reason
(other than the asserted conflict of interest) that might have caused any such omission.’ ”
(Doolin, supra, 45 Cal.4th at p. 418.) That is not the case here.
11
As explained in Vasquez, supra, 27 Cal.App.5th at pages 60-61, however, the
Barker test, which is used, in part, to analyze and determine whether a defendant’s right
to a timely trial was violated, is triggered when the length of the delay is presumptively
prejudicial. Undoubtedly, the 12-year delay was presumptively prejudicial and triggered
a timely trial analysis. (Litmon, supra, 162 Cal.App.4th at p. 405 [one-year delay
“create[d] a presumption of prejudice that trigger[ed] a Barker type of balancing test”].)
As explained ante, one of the key factors in determining whether a motion to dismiss for
violating an alleged SVP’s right to a timely trial has merit is the scope of and reasons for
the delays caused by the government, i.e., all state actors.
Defendant attributed most of the 12-year delay in bringing him to trial to actions
and/or inactions by the district attorney’s office, Coalinga (the state’s primary secure
facility for the commitment of alleged SVP’s), and defense counsel who represented him
prior to Zuvela. In his draft motion to dismiss, defendant further attributed partial
responsibility for the delay to the trial court, arguing the trial court “never exercised
reasonable control over all the proceedings connected with this pending litigation.”
(Capitalization omitted.)
Zuvela did not address or discuss the propriety of defendant’s claims of delay as to
the foregoing state actors or any of the other Barker and Mathews factors in the context
of the motion to dismiss analytical framework (especially for the delay prior to Zuvela’s
representation of defendant) when the trial court inquired as to whether she intended to
pursue the motion to dismiss; nor did the trial court inquire whether Zuvela had done any
investigation into the propriety of filing a motion to dismiss or if there was any tactical
basis or ground for Zuvela’s decision not to file the motion. Simply put, even though the
timely trial right analysis was triggered by the presumptively prejudicial 12-year delay
when defendant requested that Zuvela file a motion to dismiss, Zuvela refused to consider
the merits of the motion because of her asserted inherent and actual conflict of interest.
12
Under these facts, the trial court committed Wood error because Zuvela’s conflict of
interest, which the trial court validated, adversely affected her performance.
The trial court should have inquired to determine whether there was a tactical
reason for Zuvela’s decision. In the absence of a tactical decision and if Zuvela
continued to assert an inherent and actual conflict of interest as the basis for not pursuing
the motion to dismiss, the trial court should have appointed substitute counsel to
determine whether the motion to dismiss had any merit. (See People v. Smith (1993)
6 Cal.4th 684, 692, 695-696 [when the trial court determines appointed counsel cannot be
expected to bring a motion based on his, her, or their own ineffective assistance of
counsel, the “ ‘inherent conflict’ ” requires appointment of substitute counsel when the
trial court is satisfied adequate grounds exist].) The trial court has the “duty to protect
the rights of the accused and . . . to ensure a fair determination of the issues on their
merits”; it may thus relieve counsel on its own motion, “even over the objections of
defendant or counsel.” (People v. McKenzie, supra, 34 Cal.3d at pp. 627, 629.) The trial
court here violated defendant’s statutory right to counsel.
Notably, Bonin dealt with the trial court’s duties when it knows, or has reason to
know, of counsel’s conflict of interest. Our Supreme Court has not revisited the analysis
in that opinion within that context. In Mai, however, our Supreme Court wrote that,
when a defendant raises a claim on appeal that his, her, or their trial counsel had a
conflict of interest, reversal is required only when the defendant can “demonstrate that (1)
counsel labored under an actual conflict of interest that adversely affected counsel’s
performance, and (2) absent counsel’s deficiencies arising from the conflict, it is
reasonably probable the result of the proceeding would have been different.” (People v.
Mai (2013) 57 Cal.4th 986, 1009-1010.) To the extent the second showing is required for
reversal of Wood error, that showing has been made as well (despite the absence of a
meaningful record for review, as noted post). As already explained, the delay in this case
was presumptively prejudicial. The trial court further attributed that delay to “what other
13
people did or didn’t do,” rather than attributing it to Zuvela’s conduct in the case. In the
absence of rebuttal evidence, we must conclude it is reasonably probable the result would
have been different. (State v. Alexis (Fla. 2015) 180 So.3d 929, 936 [Mickens “explains
that the presumption of prejudice means that the defendant whose right to the assistance
of counsel has been violated need not show an effect on the outcome”], citing Mickens v.
Taylor, supra, 535 U.S. at pp. 166-167; see People v. Williams (2006) 40 Cal.4th 287,
333 [a presumption of prejudice may be rebutted by a showing that no prejudice actually
occurred].)
Defendant did not waive his right to counsel or make a Faretta6 motion to
represent himself. He instead repeatedly expressed his need for the assistance of counsel,
a right to which he was entitled. As the majority appropriately notes, defendant, as a
party represented by counsel, could not even file his own motion to dismiss in propria
persona. (Maj. opn., ante, at p. 10; People v. Clark (1992) 3 Cal.4th 41, 173 [except for
motions concerning representation, all motions and briefs of represented parties must be
filed by counsel of record], disapproved on other grounds in People v. Edwards (2013)
57 Cal.4th 658, 704-705; see also People v. Merkouris (1956) 46 Cal.2d 540, 554 [“ ‘It is
settled that the attorney of record has the exclusive right to appear in court for his client
and to control the court proceedings, so that neither the party himself [citations], nor
another attorney [citations], can be recognized by the court in the conduct or disposition
of the case”].)
I disagree with the majority’s statement that the motion to dismiss was
functionally the equivalent of a Marsden motion or a quasi-Marsden motion. (Maj. opn.,
ante, at p. 10.) The purpose of a motion to dismiss is to evaluate whether the defendant’s
right to a timely trial was violated and not whether the defendant’s appointed counsel
6 Faretta v. California (1974) 422 U.S. 806.
14
should be dismissed for all purposes. The remedies as to the two motions are also
substantially different. If a Marsden motion is granted, substituted counsel is
appointed⸺the defendant is not left without counsel. If a motion to dismiss is granted,
the commitment petition is dismissed and the defendant no longer faces trial. In neither
of those situations is the defendant left without the assistance of counsel.
If Zuvela had made a tactical decision not to file a motion to dismiss based on the
facts known to her, there would have been no need to substitute counsel. (See Orey,
supra, 63 Cal.App.5th at pp. 568-569 [counsel’s decision not to file a motion to dismiss
is a tactical decision and “ ‘[t]actical disagreements between the defendant and his
attorney do not by themselves constitute an “irreconcilable conflict” ’ ”].)
This case is not like Orey. In that case the defendant argued his counsel’s refusal
to bring a timely trial motion created a conflict of interest, and thus his Marsden motion
should have been granted. (Orey, supra, 63 Cal.App.5th at pp. 564-565.) The defendant
said his attorney made statements such as that “she would not file a Vasquez motion
because ‘that would require her to indicate that her coworkers didn’t do their job and she
couldn’t do that.’ ” (Id. at p. 566.) In other words, the defendant in that case wanted to
use his attorney’s decision not to file a timely trial motion as a basis for demonstrating an
actual conflict of interest in support of his Marsden motion. The appellate court in Orey
concluded the “counsel’s decision not to file a motion to dismiss the [Act] petition
pursuant to Vasquez and Litmon was essentially a tactical decision,” and thus did not
establish an abuse of discretion as to the trial court’s denial of the Marsden motion.
(Orey, at pp. 568-569.) That was because “ ‘[t]actical disagreements between the
defendant and his attorney do not by themselves constitute an “irreconcilable
conflict.” ’ ” (Ibid.)
Here, defendant was not complaining about his counsel’s tactical decision in
declining to file a motion to dismiss; Zuvela instead declined to represent defendant
regarding the motion because she had “done what [she] need[ed] to do.” Zuvela relied on
15
the trial court’s Marsden hearing analysis as the reason to decline to file the motion to
dismiss. This is the exact opposite of what occurred in Orey. Further, the defendant’s
attorney in Orey did not state (as Zuvela did here) that the evaluation of the merits as to a
timely trial motion presented an inherent and actual conflict of interest.
People v. Sanchez (2011) 53 Cal.4th 80 is also distinguishable. In that case, our
Supreme Court considered “under what circumstances a trial court is obligated to conduct
a hearing on whether to discharge counsel and appoint new counsel when a criminal
defendant indicates a desire to withdraw a guilty or no contest plea on the ground that
current counsel has provided ineffective assistance.” (Id. at pp. 83-84.) Our Supreme
Court agreed with the Court of Appeal “that the trial court erred by failing to hold a
hearing on [the] defendant’s informal Marsden motion concerning his representation by
the public defender’s office, by appointing substitute counsel without a sufficient
showing that failure to appoint substitute counsel would substantially impair or deny [the]
defendant’s right to assistance of counsel, and by appointing substitute counsel for the
limited purpose of evaluating defendant’s reasons for wanting to withdraw his plea rather
than appointing substitute counsel for all purposes.” (Id. at p. 92.) The issue in that case
was thus that the trial court appointed substitute counsel in lieu of conducting a Marsden
hearing. (Ibid.)7 Indeed, our Supreme Court further agreed with the Court of Appeal
that “ ‘[d]efense counsel, like the trial courts, should abandon their reliance on counsel
specially appointed to do the trial court’s job of evaluating the defendant’s assertions of
incompetence of counsel and deciding the defendant’s new trial or plea withdrawal
motion.’ ” (Sanchez, at p. 89.)
7 In Sanchez, “the trial court entrusted a second defense attorney to decide the issue
of whether the defendant’s current attorney was representing the defendant in a
competent manner. [Citations.] This procedure was deemed improper because it
amounted to an unlawful delegation of the court’s decisionmaking authority.” (People v.
Jackson (2017) 8 Cal.App.5th 1310, 1317.)
16
Our Supreme Court concluded “a trial court is obligated to conduct a Marsden
hearing on whether to discharge counsel for all purposes and appoint new counsel when a
criminal defendant indicates after conviction a desire to withdraw his plea on the ground
that his current counsel provided ineffective assistance only when there is ‘at least some
clear indication by defendant,’ either personally or through his current counsel, that
defendant ‘wants a substitute attorney.’ ” (People v. Sanchez, supra, 53 Cal.4th at
pp. 89-90, second italics added.)
Our Supreme Court recently, in People v. Parker (2022) 13 Cal.5th 1, clarified the
procedural posture in and application of Sanchez. In Parker, “[f]ollowing the penalty
phase but before a verdict had been reached, [the] defendant submitted a lengthy
handwritten motion alleging trial counsel had been ineffective and had colluded with the
court and prosecution. In response, the trial court appointed an attorney with the alternate
public defender’s office to investigate whether the claim was meritorious. After the
attorney concluded the claim lacked merit, the trial court heard and denied [the]
defendant’s handwritten motion. At the hearing on that motion, the court stated its belief,
given the high quality of advocacy provided by defense counsel and the alternate public
defender’s office, that there was no attorney with whom defendant would have been
satisfied.” (Id. at pp. 27-28.) On appeal, the defendant argued, among other things, that
the “trial court erred by appointing the alternate public defender without relieving trial
counsel.” (Id. at p. 84.) Specifically, the defendant argued that the appointment of
separate counsel “for the limited purpose of determining whether appointed trial counsel
was ineffective ran afoul of [Sanchez], in which [the court] explained that if a defendant
makes a showing during a Marsden hearing that the right to counsel was substantially
impaired, ‘substitute counsel must be appointed as attorney of record for all purposes.’ ”
(Id. at p. 86.) Our Supreme Court disagreed.
Our Supreme Court explained that Sanchez was readily distinguishable because, in
that case, the court “explained that if a defendant makes a showing during a Marsden
17
hearing that the right to counsel was substantially impaired, ‘substitute counsel must be
appointed as attorney of record for all purposes.’ ” (People v. Parker, supra, 13 Cal.5th
at p. 86.) In Parker, however, “there was no request to substitute counsel” (i.e., there was
no pending Marsden motion), the defendant had “submitted a handwritten note in which
he merely asserted ineffective assistance as a basis for a new trial, and there was no
showing that [the] defendant’s right to counsel had been substantially impaired.” (Ibid.)
Our Supreme Court thus found Sanchez inapplicable and found no error in the trial
court’s procedure of appointing separate counsel to investigate the defendant’s new trial
motion based on ineffective assistance of counsel. (Id. at pp. 86-87.) As Parker
demonstrates, the procedural posture in Sanchez was pertinent to the analysis and
outcome in that case⸺a procedural posture that is absent in this case.
I further disagree with the majority’s reliance on excerpts from the record to
conclude that, “By filing a Marsden motion with a motion to dismiss, defendant
attempted to create a conflict of interest by disagreeing with the tactic that the record
indicates he had previously assented to.” (Maj. opn., ante, at p. 13.) No record was made
as to the motion to dismiss because, as the trial court noted, the motion was never filed or
argued, the motion was not supported by evidence, and the district attorney’s office never
filed a response. The majority attempts to decide the merits of the motion to dismiss
based on a record that does not provide an opportunity for meaningful review because
defendant was denied his statutory right to counsel.
Under the majority’s analysis, a defendant’s motion to dismiss can always be
construed as a Marsden motion when the alleged SVP’s counsel cites an inherent conflict
of interest in having to argue his, her, or their own ineffective assistance of counsel.
Practically, that means, whenever a defendant seeks to file a motion to dismiss that
potentially implicates the effectiveness of the defendant’s appointed counsel, irrespective
of how short a period the appointed counsel had been representing the defendant and the
strength and merits of the motion, appointed counsel can decline to file the motion solely
18
based on an inherent conflict of interest. I can comprehend of no reasoned analysis that
logically reaches or endorses that result and believe such a rule would eviscerate a
defendant’s statutory right to counsel.
To be clear, I take no position on the merits of any potential motion to dismiss in
this case. My quibble is that defendant was left unrepresented when he had a statutory
right to counsel and, in fact, had appointed counsel. Given the Wood error here did not
infect defendant’s trial but instead occurred during a critical stage of the proceeding that
could have obviated the need for trial, I believe the judgment should be conditionally
reversed to give defense counsel (and potentially the trial court, if a motion is filed) an
opportunity to consider the merits of the requested motion. It would obliterate an alleged
SVP’s statutory right to counsel to find otherwise.
/s/
Robie, Acting P. J.
19