Opinion
C088029
02-24-2021
THE PEOPLE, Plaintiff and Respondent, v. ROBERT DANIEL SIMS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 93F03509)
After nine years of being housed in a state hospital pending trial, a jury found defendant Robert Daniel Sims was a sexually violent predator. On appeal, defendant challenges the trial court's failure to entertain his allegations of a constitutional speedy trial violation and to hold a Marsden hearing. The People concede error in both regards and urge us to remand the matter for the trial court to hold an evidentiary hearing regarding the alleged due process violation and to hold a Marsden hearing. Defendant argues remand is not necessary because the record sufficiently demonstrates his speedy trial right was violated, entitling him to dismissal, and that his counsel's conflicted and ineffective representation prejudiced him, entitling him to a new trial at the very least.
People v. Marsden (1970) 2 Cal.3d 118.
We agree with the parties that error occurred and agree with the People concerning the appropriate remedy. Accordingly, the judgment is conditionally reversed and the matter remanded to the trial court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On January 29, 2009, the Sacramento County District Attorney filed a petition to commit defendant as a sexually violent predator. In it, the prosecution alleged defendant had been convicted of forcible rape in 1993 and of sodomizing his cell mate in 2004. The prosecution further alleged that following defendant's release on parole in 2007, he tested positive for cocaine and methamphetamine, and absconded. His parole was revoked and "the Board of Parole Hearings and/or the Department of Mental Health determined [he] met the initial screening criteria for civil proceedings as a Sexually Violent Predator . . . ." Thereafter, "the director of the California Department of Mental Health . . . concluded that [defendant] is, as a result of a mental disorder, a danger to the health and safety of the others and is likely to engage in sexually violent predatory criminal behavior if released." On February 2, 2009, at the probable cause hearing, the trial court ordered defendant to be held in a secure facility until a probable cause hearing could be held. Also, Robert Saria was appointed as defendant's attorney.
Defendant's probable cause hearing was continued approximately seven times until July 20, 2009. The continuances were predominantly requested by Saria and sometimes by others on his behalf because Saria was in trial. It appears defendant was present for one of these hearings, at which he expressed confusion about the legal process and asserted his right to a speedy and public trial. Defendant also wrote to the trial court before the probable cause hearing requesting a new attorney because Saria and Saria's investigator failed to visit him, take his calls, and investigate his case. The trial court indicated it planned to hear defendant's complaints during a Marsden hearing, however, the record does not reflect the trial court ever held such hearing. At the July 20, 2009, probable cause hearing, defendant waived his right to a probable cause hearing entirely and stipulated to the prosecution's experts' reports. Defendant was then transported to Coalinga State Hospital.
There is no transcript for defendant's probable cause hearing in the record.
Defendant's case was thereafter continued multiple times, exclusively at Saria's request, until January 2013 when the parties set a trial date for June 27, 2013. Saria did not provide reasons for the continuances. Most often, the record consists of Saria or the prosecutor providing only a date to the trial court and the trial court granting an implied motion to continue. Defendant was not present at these hearings and Saria was often absent as well. The prosecution never objected or voiced any complaint.
The reporter's transcript indicates defendant was present for the June 7, 2012, hearing, but the clerk's transcript indicates he was not. Given the People's concession that the record demonstrates defendant was not present at any hearing after the probable cause finding until trial, we adopt the clerk's transcript's version of events as have the People. Ultimately, this record inconsistency, if it proves to be relevant, can be worked out in the trial court on remand.
During the three and one-half years of these requested continuances, defendant filed two petitions for writ of habeas corpus and sent two letters to the court. In the first petition, filed in July 2011, defendant alleged Saria failed to investigate his case and communicate with him, and also that Saria took advantage of defendant's mental illness. Defendant requested a "marsh motion" and dismissal of his attorney. Defendant's petition was denied because he could seek the relief he requested in his sexually violent predator proceeding. A copy of the order denying defendant's petition was sent to Saria, the prosecutor, and the trial court.
A few months after the denial of his first petition for writ of habeas corpus, defendant sent a letter voicing the same complaints found in his petition. Two weeks later, defendant sent another letter, again complaining of the issues raised in his petition. At least one of defendant's letters was construed as a motion for reconsideration and denied. The denial was again forwarded to Saria, the prosecutor, and the trial court.
In August 2012, defendant filed his second petition for writ of habeas corpus. In that petition, he alleged: "[Defendant], has been here at Coalinga [S]tate Hospital a long time without court. His [sic] asking this court and judge to give him a court ORDER. To grant [defendant] speedy trial. [H]is attorney will not do this at all for him. This person [h]as a legal right to go to court." Defendant's petition was denied because he could not seek his requested relief in his sexually violent predator proceeding. A copy of the order denying defendant's petition was forwarded to the prosecutor, Saria, and the trial court.
At the trial readiness hearing for the June 2013 trial, Saria requested the release of records obtained by the prosecution and the prosecution stipulated to their release. Saria also asked the trial court to vacate the June trial and move it to July. At the July 2013 hearing and thereafter, Saria requested multiple continuances, to which the prosecution agreed. Defendant was not present at these hearings. Saria indicated during several requests that he was waiting on an expert's report, during several others that he was waiting on records from the state hospital, and at another that he was having "expert witness issues." Saria further represented to the trial court in January 2016 that defendant was having "significant medical issues that he's dealing with, and he doesn't feel he's medically stable enough in order to have the riggers [sic] of coming to Sacramento and doing a trial."
In March 2016, defendant filed another petition for writ of habeas corpus citing Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, and asserting a speedy trial violation. Defendant also complained about Saria's ineffective representation. Defendant's petition was denied for the same reason his petitions were denied in 2011 and 2012. The order denying defendant's petition was sent to the prosecutor, Saria, and the trial court. While the trial court and Saria acknowledged the order, defendant's concerns were not addressed.
Starting in August 2016, Saria, and those standing in for him because he frequently was not present, represented to the trial court that defendant was "programming" and deciding whether to go to trial, which apparently defendant decided to do in June 2017 when trial was set for the end of the year. In November 2017, Saria had surgery and required recovery time. Defendant's case was taken off track for trial. In January 2018, defendant's case was again set for trial, this time for May of that year. On May 3, 2018, trial for later that month was confirmed, but when the day arrived, Saria was in trial with another client and the matter was continued to August. In August, Saria was again in trial and defendant's trial was continued to September 2018. On September 6, 2018, the People had "witness problems" and the matter was trailed to the next week.
On September 13, 2018, defendant's trial began, and defendant was present in the trial court for the first time since he was transported to Coalinga State Hospital in July 2009. Defendant waived his right to a jury and during that waiver expressed confusion about the jury trial process and what was expected of him at trial. Defendant later requested a jury trial, which he was given. When asking for a jury trial, defendant was very agitated and said he was "set up" by Saria and that Saria took advantage of him because defendant took medication and heard voices. Saria was concerned about defendant's mental stability and requested defendant be seen by "jail psych services." At trial, the prosecution presented three witnesses and defendant testified on his own behalf. After the close of evidence, the jury found defendant was a sexually violent predator.
Defendant appeals.
DISCUSSION
I
Defendant Is Entitled To Remand For The Trial Court To Hold An
Evidentiary Hearing Regarding His Motion To Dismiss
The parties agree the trial court erred by failing to consider defendant's allegations of a speedy trial violation as a motion to dismiss. The People assert the record is inadequate to adjudicate defendant's speedy trial claim because the trial court never heard evidence or considered the motion. Under the reasoning of People v. McCoy (1983) 147 Cal.App.3d 638, the People urge us to remand the matter for an evidentiary hearing so the trial court can collect facts relevant to defendant's speedy trial claim. Defendant counters that such a hearing is unnecessary because the record sufficiently shows a speedy trial violation. We agree with the People.
In McCoy, the appellate court concluded the trial court erred by failing to consider a defendant's renewed motion to dismiss for a speedy trial violation de novo after the motion had previously been brought before a magistrate. (People v. McCoy, supra, 147 Cal.App.3d at pp. 640, 644.) Because the trial court "never properly resolved the factual issue of whether defendant's rights to due process and a speedy trial were violated" the remedy was not to "reverse defendant's conviction outright. Defendant's only challenge to his conviction was the denial of this pretrial motion. When the validity of a conviction depends solely on an unresolved or improperly resolved factual issue which is distinct from the issue submitted to the jury, the appellate court can remand the cause for resolution of that issue at a separate postjudgment hearing. (People v. Vanbuskirk (1976) 61 Cal.App.3d 395, 405 . . . ; see also People v. Bustamanate (1981) 30 Cal.3d 88, 103 . . . ; People v. Ingram (1978) 87 Cal.App.3d 832, 840-841 . . . , and cases there cited.)" (McCoy, at p. 644.)
Here, there are factual issues left unresolved as it relates to whether defendant's right to a speedy trial was violated because the trial court never considered his motion. This includes, for example, the reasons for defendant's lengthy trial delay. (See People v. Litmon (2008) 162 Cal.App.4th 383, 398 [among the factors to be considered when determining whether a constitutional speedy trial violation occurred are " '[the] length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant' "].)
Defendant alleged Saria never visited him or talked to him about his case, but the record contains Saria's representations to the court he had previously had conversations with defendant, had seen defendant sporadically, and had investigators and experts visit him regularly. Defendant asserted his right to a speedy trial multiple times, but the record reflects many of Saria's requested continuances were for defendant's benefit -- for an expert to investigate, because defendant was "programming," and because of defendant's medical issues. The record further suggests Saria and the prosecutor had off the record conversations regarding the status of defendant's case before stipulating to continuances with the trial court. While no reason was provided on the record for the continuances, there is no basis for us to conclude good cause did not exist such that defendant is entitled to dismissal of the petition seeking to civilly commit him. Indeed, the true reason for the trial delay in defendant's case is unknown because it was left unexplored by the trial court at every stage of defendant's sexually violent predator proceeding. Because we cannot determine the reason for the trial delay, we are unable to determine what length of delay is attributable to the state, and whether that delay prejudiced defendant. (See People v. Litmon, supra, 162 Cal.App.4th at p. 398.) Accordingly, we remand defendant's case for the purpose of holding an evidentiary hearing regarding defendant's motion to dismiss for a speedy trial violation.
Defendant's citations to In re Butler (2020) 55 Cal.App.5th 614, People v. DeCasas (2020) 54 Cal.App.5th 785, and People v. Superior Court (Vasquez) (2018) 27 Cal.App.5th 36, are well taken. In each of those cases, however, the parties developed the record, making the reason for the trial delay apparent. (Butler, at pp. 626, 656-658, 660-661 [after an evidentiary hearing on the defendant's petition for writ of habeas corpus alleging a speedy trial violation, court concluded defendant was minimally responsible in light of the prosecution expressly abandoning its duty to bring the defendant to trial and counsel's failure to move the defendant's case forward]; DeCasas, at pp. 800, 810-811 [after an evidentiary hearing on the defendant's motion to dismiss, the court concluded the delay was caused by the state due to the systemic breakdown in the public defender's office and abdication of the prosecution's and the court's due process obligations]; Vasquez, at pp. 52, 69, 73-74 [after an evidentiary hearing on the defendant's motion to dismiss, the court concluded the delay was caused predominately by the state where "extensive record" showed systemic breakdown in the public defender's office, as opposed to the failures of an individual attorney, and abdication of the court's due process obligations].) A conclusion at this point that defendant's case is like any one of these cases is speculative.
The parties disagree about the standard applicable to determining whether a speedy trial violation occurred in a sexually violent predator proceeding. We leave that disagreement to be resolved by the trial court.
II
On Remand, Defendant Is Also Entitled To A Marsden Hearing
Defendant contends the trial court erred by failing to hold a Marsden hearing as to each of defendant's letters and petitions complaining of Saria's representation. The People agree defendant consistently and "doggedly" asserted his right to a Marsden hearing and the trial court's failure to hold any amounted to prejudicial error.
In such a situation, courts have typically "reversed the judgment of the trial court and remanded the matter to that court with the following directions: '(1) the court shall hold a hearing on [defendant]'s Marsden motion concerning his representation . . . ; (2) if the court finds that [defendant] has shown that a failure to replace his appointed attorney would substantially impair his right to assistance of counsel, the court shall appoint new counsel to represent him and shall entertain such applications as newly appointed counsel may make; and (3) if newly appointed counsel makes no motions, any motions made are denied, or [defendant]'s Marsden motion is denied, the court shall reinstate the judgment.' " (People v. Sanchez (2011) 53 Cal.4th 80, 92 ["we believe this is the proper disposition"]; see People v. Armijo (2017) 10 Cal.App.5th 1171, 1183-1184; People v. Hill (2013) 219 Cal.App.4th 646, 653.)
Defendant contends this is not always the case, pointing to Armijo. He argues the Armijo court conditioned reversal of the defendant's judgment only on whether the defendant's Marsden motion was granted. This, he argues, was because the trial court ignored a pretrial Marsden motion. Not so. The Armijo court followed Sanchez and conditioned reversal on the defendant presenting a successful Marsden motion and "motion to withdraw his plea or any other such motions newly appointed counsel may deem appropriate." (People v. Armijo, supra, 10 Cal.App.5th. at p. 1183.) Otherwise, the trial court was to reinstate the defendant's judgment of conviction. (Id. at p. 1184.) Thus, Armijo is consistent with Sanchez despite the fact it pertained to a pretrial Marsden motion. (Armijo, at p. 1184, fn. 6.)
Defendant also points to People v. Knight (2015) 239 Cal.App.4th 1, for the proposition we may remand with instruction that "[i]f the trial court, during the Marsden hearing, determine[s] that the defendant was entitled to a new attorney because he had received ineffective assistance of counsel at the trial, he would . . . received a new trial because the court had just ruled that there was ineffective assistance of counsel at his trial. On the other hand, if the trial court grant[s] the Marsden motion because at the time of the Marsden motion there was an irreconcilable conflict, then the defendant would . . . receive a new attorney, but not an automatic new trial." But this is not the holding of Knight nor the instructions upon remand the Knight court provided to the trial court. The Knight court remanded "with directions to the trial court to conduct a Marsden hearing with respect to the representation defendant received at trial." (Id. at p. 9.) "If the court determines that defendant's representation by trial counsel gave rise to the right to new counsel, the court shall appoint new counsel and conduct further proceedings as necessary in light of that appointment. If, on the other hand, the trial court determines that defendant's representation at trial did not require appointment of new counsel, the trial court shall reinstate the judgment." (Id. at p. 10.) The Knight court further discussed a case rejecting the very procedure defendant proposes. (Id. at pp. 7-8, citing People v. Dennis (1986) 177 Cal.App.3d 863, 869, 872-874.) Thus, the Knight court crafted its direction on remand consistent with Sanchez. The other cases defendant relies on predate our Supreme Court's ruling in Sanchez and its endorsement of the remedy used since, therefore those cases are of limited value.
Still, we understand defendant's point: the People concede a posttrial motion to dismiss should be considered by the trial court and the subject of that motion includes, at least in part, an analysis of Saria's representation. But the fact defendant can show he may succeed on remand after a properly heard and considered Marsden motion is insufficient for us to depart from the remedy articulated by our Supreme Court in Sanchez.
DISPOSITION
The judgment is conditionally reversed. The trial court shall hold a hearing on defendant's Marsden motion; if the court finds defendant has shown that a failure to replace his appointed attorney would substantially impair his right to assistance of counsel, the court shall appoint new counsel to represent defendant and shall entertain such applications as newly appointed counsel may make, in addition to a motion to dismiss for a speedy trial violation. If defendant's Marsden motion is denied, the court shall still hold a hearing on defendant's motion to dismiss on speedy trial grounds. If, after resolution of defendant's Marsden motion, the trial court denies defendant's motion to dismiss, the judgment shall be reinstated.
/s/_________
Robie, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Murray, J.