People v. Taylor CA2/6

Filed 1/28/21 P. v. Taylor CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B303044
(Super. Ct. No. ZM016857)
Plaintiff and Respondent, (Los Angeles County)
v.
EUGENE TAYLOR,
Defendant and Appellant.
Eugene Taylor appeals an order recommitting him for an
indeterminate term to the California State Department of State
Hospitals as a sexually violent predator (SVP). (Welf. & Inst.
Code, § 6600 et seq.)1
Following proceedings pursuant to the SVP law, the trial
court found that Taylor was an SVP and recommitted him for
treatment. Taylor now raises two procedural challenges to those
proceedings. First, he contends that the trial court erred by not
All statutory references are to the Welfare and
1
Institutions Code unless stated otherwise.
advising him sua sponte of his right to a jury trial and obtaining
a personal waiver of that right. Second, he contends that the
court erred by denying his Marsden motion for substitute or
conflict counsel. (People v. Marsden (1970) 2 Cal.3d 118.) We
reject these contentions and affirm.
FACTUAL AND PROCEDURAL HISTORY2
In 1986, Taylor was convicted of numerous felony sexual
offenses against a child under 14 years old, and was sentenced to
28 years 8 months in prison. Following a 2008 jury trial, Taylor
was found to be an SVP and ordered to a two-year commitment.
In 2010, the prosecutor sought to recommit Taylor as an SVP for
an indeterminate term. In 2013, the trial court found there was
probable cause that Taylor continued to meet the SVP criteria.
In 2019, the present proceedings commenced.
At a lengthy court trial, the prosecutor presented
documentary evidence and victim testimony regarding Taylor’s
prior sexual offense convictions involving many victims. (Pen.
Code, § 288, subds. (a) & (b).) Two doctors testified and opined
that based upon their frequent evaluations of Taylor, he suffers
from pedophilic disorder, nonexclusive type, and a grandiose-type
delusional disorder. Taylor also informed the doctors that he
presently sees himself as a spiritual healer who teaches sex to
children. Based upon this evidence, the court determined that
Taylor satisfied the criteria of the SVP law beyond a reasonable
doubt, and ordered his commitment for an indeterminate term.
(§ 6600, subd. (a)(1) [definition of SVP].)
2We present an abbreviated version of the extensive
evidence received at trial given the limited nature of Taylor’s
appellate procedural claims.
2
Taylor appeals the recommitment order and contends that:
1) section 6603 violates principles of due process of law and equal
protection by presuming a waiver of jury trial unless expressly
requested by the defendant or petitioning attorney, and 2) the
trial court abused its discretion by denying his Marsden motion.
DISCUSSION
I.
Taylor argues that section 6603, subdivision (f), requiring a
defendant or the petitioning attorney to demand a jury trial,
violates his federal and state due process rights to a judicial
advisement and personal waiver of his right to a jury trial. He
relies upon People v. Blackburn (2015) 61 Cal.4th 1113(Blackburn), People v. Tran (2015) 61 Cal.4th 1160 (Tran), and
People v. McKee (2010) 47 Cal.4th 1172 (McKee). Taylor asks
that we “read into ‘the statute’ ” a requirement of advisement and
personal waiver. He asserts that the trial court’s failure to
provide an advisement and accept a personal waiver requires per
se reversal. (Tran, at p. 1169.)
Taylor also contends that section 6603 violates equal
protection of the law because the Mentally Disordered Act (MDO)
and the statutory scheme for extending involuntary commitment
for persons who have pleaded not guilty by reason of insanity
(NGI) expressly provide for judicial advisement and personal
waiver of the right to jury trial.
Prior to trial, Taylor waived his right to appear at trial in
writing and orally in court. At the next court date, the trial court
inquired whether either party was requesting a jury trial. Taylor
was not present; his counsel and the prosecutor replied no. The
court then stated the matter would proceed as a court trial which
it did.
3
In SVP proceedings, the defendant “is entitled to a trial by
jury.” (§ 6603, subd. (a).) The attorney “petitioning for
commitment” also “has the right to demand that the trial be
before a jury.” (Id., subd. (b).) If an SVP defendant or a
petitioning attorney “does not demand a jury trial, the trial shall
be before the court without a jury.” (Id., subd. (f).) The SVP law
does not expressly require the trial court to advise or obtain from
the defendant a personal waiver of the right to a jury trial.
The right to a jury trial in an SVP proceeding is a statutory
right, not a constitutional one. (People v. Rowell (2005) 133
Cal.App.4th 447, 452 (Rowell).) SVP proceedings are special
proceedings that are civil in nature and unknown to the common
law. (Id. at pp. 451-452.) Thus, because an SVP defendant’s
right to a jury trial is based only on statute, judicial advisement
and personal waiver of the right to a jury trial are not
constitutionally required in SVP proceedings. (Id. at p. 452
[“Under section 6603, a defendant’s right to a jury trial in an SVP
proceeding is waived by the simple failure to demand one. There
is no requirements that the statutory right to a jury trial be
personally waived”].) “The requirement of an express waiver
applies to the constitutional right to a jury trial, but not to jury
trial rights that are established only by statute.” (People v.
French (2008) 43 Cal.4th 36, 46.)
Since 2005, the Legislature has amended the SVP law in
several respects, but has not required the trial court to advise the
defendant of the right to a jury trial and require a personal
waiver. We presume that the Legislature was cognizant of the
Rowell decision and implicitly approved it. (People v. Garcia
(2006) 39 Cal.4th 1070, 1087-1088.)
4
Blackburn and Tran do not require a different result here.
Blackburn interpreted Penal Code section 2972, subdivision (a)
and MDO recommitment proceedings. That section expressly
requires the trial court to advise the defendant of the right to a
jury trial. Subdivision (a)(2) provides that “[t]he trial shall be by
jury unless waived by both the [defendant] and the district
attorney.” (Blackburn, supra, 61 Cal.4th 1113, 1116.)
Tran interpreted Penal Code section 1026.5 and
proceedings extending the involuntary commitment of a NGI
person. That section expressly requires the trial court to inform
a defendant personally of the jury trial right and obtain a
personal waiver before conducting a court trial. (Id., subd. (b)(3),
(4); Tran, supra, 61 Cal.4th 1160, 1163.) Thus, the requirement
of an advisement and waiver of the right to a jury trial
established in Blackburn and Tran derives not from
constitutional principles, but from the express language of the
pertinent Penal Code statutes.
McKee, supra, 47 Cal.4th 1172, does not assist Taylor.
That decision concerned the appointment of a mental health
expert in an SVP proceeding. Our Supreme Court did not reach
the due process challenge to the statute, but instead decided the
issue through statutory interpretation. (Id. at p. 1192.)
Taylor asserts that the four-factor balancing test of People
v. Otto (2001) 26 Cal.4th 200, 210, requires a judicial advisement
preceding a personal waiver of the right to a jury trial. The four
factors include the private interest affected by the official action;
risk of erroneous deprivation of such interest and the value of
additional or substitute safeguards; the government’s interest
including fiscal or administrative burdens involved; and the
dignitary interest in informing individuals of the nature,
5
grounds, and consequences of the action. Only the first factor
weighs in favor of adding the advisement and personal waiver
procedures as they affect an SVP’s liberty and freedom. The
remaining factors do not weigh in favor of adding the requested
procedures.
Taylor has also forfeited his equal protection challenge by
not raising it in the trial court. (People v. Alexander (2010) 49
Cal.4th 846, 880, fn. 14.) Failure to raise the argument below
deprived the respondent of an opportunity to set forth reasons
and produce evidence justifying different treatment in MDO and
NGI proceedings as contrasted to SVP proceedings. We decline to
exercise our discretion to address this issue because it is not a
pure question of law.
Moreover, it is likely Taylor’s counsel made a reasonable
tactical decision that the trial judge would better dispassionately
evaluate the evidence and apply the law than a jury. Taylor has
not established that his attorney was ineffective for not requiring
an advisement and personal waiver.
II.
Taylor argues that the trial court abused its discretion by
denying his Marsden motion, asserting that he had an
irreconcilable conflict with counsel resulting in inadequate
representation. In particular, he contends that the court erred by
not appointing conflict counsel to prepare a dismissal motion
based upon unreasonable delay (nine years post-petition) in
holding the SVP proceeding. (In re Butler (2020) 55 Cal.App.5th
614 [13-year delay in SVP proceedings violates sexual offender’s
due process rights]; People v. Superior Court (Vasquez) (2018) 27
Cal.App.5th 36 [trial court dismissed SVP proceeding where 17-
6
year delay between filing petition and trial regarding a two-year
commitment].)
On January 28, 2019, Taylor read a form statement in
court listing many general complaints against the public
defender’s office. Among the complaints were unjustified delays,
failure to fully communicate with clients, failure to timely secure
expert witnesses, concealing misconduct and material facts from
clients, and failure to encourage clients to file motions pursuant
to People v. Litmon (2008) 162 Cal.App.4th 383 [SVP petition
dismissed on grounds of excessive delay], among other asserted
shortcomings. Taylor requested that the court appoint different
counsel to assist him in his Marsden motion, or else dismiss the
proceedings: “I request that counsel be appointed to assist me in
obtaining and producing the records which will be offered as
evidence in support of my Marsden Motion . . . .”
In response, the trial court set a date for a Marsden motion.
Taylor replied that he preferred that the court allow him to
return to Indiana.
On March 4, 2019, the trial court held a Marsden hearing.
Taylor provided the court with a written copy of his general
grievances against counsel and the public defender’s office. The
trial judge commented that he had seen the list of grievances
before because it had been circulated among patients at the state
hospital and may have been drafted by a patient. Taylor’s
counsel informed the trial court that he was unaware of Taylor’s
demand for trial but that he would set a trial date after speaking
to the prosecutor. Counsel also stated that he already had
engaged a favorable expert witness. Taylor declined to add to his
previous statement. The court then denied Taylor’s Marsden
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motion. Counsel requested that the court then set a trial date
which it did. Trial occurred in October 2019, seven months later.
The decision whether to grant a motion for substitution of
counsel rests within the trial court’s discretion. (People v. Myles
(2012) 53 Cal.4th 1181, 1207.) The court does not abuse its
discretion by denying a Marsden motion unless defendant has
established that a failure to replace counsel would substantially
impair his right to the assistance of counsel. (Ibid.) Substantial
impairment of the right to counsel can occur when appointed
counsel is providing inadequate representation or when
defendant and his attorney have become embroiled in
irreconcilable conflict such that ineffective representation is
likely to ensue. (Ibid.) Marsden hearings also apply in SVP
proceedings pursuant to the defendant’s statutory and due
process rights to effective assistance of counsel. (People v. Hill
(2013) 219 Cal.App.4th 646, 652.)
The trial court properly denied Taylor’s Marsden motion
without first appointing conflict counsel. Taylor did not request a
substitute attorney; he merely requested a conflict counsel to
gather records and assist him in providing evidence at a later
Marsden hearing. Taylor also stated that he did not want to
proceed to trial; he requested a dismissal, and asked to be sent to
Indiana. His written list of general complaints stated that he has
experienced most of the grievances listed but he did not state any
specific complaints, allegations of misrepresentation against his
current counsel, or specific claims of unreasonable delay. Taylor
also did not describe any irreconcilable conflict with counsel to
the court. (People v. Myles, supra, 53 Cal.4th 1181, 1207
[defendant’s claimed lack of trust or inability to get along with
appointed counsel does not compel appointment of substitute
8
counsel].) Taylor experienced only one change of counsel over the
years and agreed to some continuances of the proceedings.
Taylor did not claim that he had asked his current counsel to file
a Litmon motion based upon unreasonable delay. He also did not
specifically request the court to appoint conflict counsel for that
reason; complaints of delay by the public defender were included
in the form list of grievances presented to the court. The trial
court did not abuse its discretion by denying the Marsden motion
and not appointing conflict counsel.
DISPOSITION
The recommitment order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
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Marcelita V. Haynes, Judge
Superior Court County of Los Angeles
______________________________
Christian C. Buckley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael C. Keller and William N. Frank, Deputy
Attorneys General, for Plaintiff and Respondent.
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