Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 94F04029.
ROBIE, J.
In March 1996, defendant Anthony Turner was found not guilty by reason of insanity of first degree burglary. The trial court committed him to the State Department of Mental Health. His most recent recommitment was in June 2008.
In September 2009, defendant filed a petition in propria persona for transfer to outpatient treatment (apparently while represented by appointed counsel). He thereafter filed three motions in propria persona on November 20 to substitute his appointed counsel (People v. Marsden (1970) 2 Cal.3d 118), which appear to be identical except for the omission of a declaration from the first. In December 2009, the prosecutor filed a petition to extend defendant’s current commitment, which was set to expire in June 2010.
The trial court held a hearing in March 2010. It denied defendant’s request for substitution of counsel and summarily denied defendant’s subsequent oral motion for self-representation. After allowing defendant to make a brief argument about the merits of his petition for outpatient treatment and his oral motion for dismissal of the recommitment proceedings, the trial court denied them. It continued the recommitment proceedings. Defendant filed a notice of appeal in propria persona from these rulings. (People v. Sword (1994) 29 Cal.App.4th 614, 619, fn. 2.)
The People represented in their brief that a trial on the recommitment petition was scheduled for November 2010. We have determined, however, that the trial court sustained the petition on September 30, 2010, for a new commitment ending June 30, 2012. (See https://services.saccourt.com/indexsearchnew/, case No. 94F04029.)
On appeal, defendant asserts the trial court abused its discretion in denying his motion to substitute counsel, erred in summarily denying his motion to represent himself, and erred in failing to hold an evidentiary hearing on his petition for outpatient placement. We disagree with his first claim, but the trial court misapprehended (as a result of defense counsel’s misadvisement) defendant’s entitlement to self-representation. This unfortunately makes the denial of his outpatient petition reversible per se. We must therefore reverse the denial of the outpatient petition and the denial of his motion to represent himself and remand for the trial court to consider his self-representation request on the merits. If the trial court grants defendant’s motion to represent himself, the court must also hold an evidentiary hearing on the outpatient petition.
DISCUSSION
I
Motions To Substitute Counsel
In his motions for substitution, defendant cited various inadequacies of his appointed counsel. More particularly, he complained about defense counsel’s failure to set his previous recommitment hearing in June 2008 for a jury trial; defense counsel’s failure to present any defense at the June 2008 hearing; defense counsel’s failure to confer or maintain contact with him; and defense counsel’s threatening behavior toward defendant’s girlfriend when she tried to contact defense counsel on behalf of defendant. Defendant also attested to an apparent form list of types of ineffective assistance without connecting them to the specific circumstances of his case.
Hearing the issue in camera, the court asked defendant why it should relieve his appointed counsel. Defendant claimed to have seen defense counsel only once in the past several years, as a result “com[ing] to court every time blind. I don’t know what is going on with any of these proceedings.” Defendant asserted that he had been left “on [his] own... [, ] filing [his] own paperwork and challenging the validity of everything....” Defense counsel asserted that he had met “many times” with defendant over the previous several years, recently responding immediately to defendant’s phone call. An investigator had gone to meet with defendant, but he had been “obstinate and unwilling to cooperate with her. I have a doctor appointed... to go meet with [defendant].” Defense counsel noted that defendant would not accept the previous finding that he met the criteria for recommitment, and defense counsel had not submitted a report from the defense expert at that hearing because it was “unhelpful.” Defense counsel noted that he had been in practice for 11 years, and had handled “hundreds” of “these types of cases” involving “clients coming back from the petitions.” When the trial court announced that it was going to deny the motion for substitution, defendant asked for the basis of the ruling. The trial court responded, “That I don’t feel the motion should be granted.”
Back in open court, defendant asserted, “I’d like to issue a... Faretta motion.” (Faretta v. California (1975) 422 U.S. 806 [right of criminal defendant to self-representation].) The court asked, “Is he allowed to do Faretta?” Defense counsel replied, “No. Ruling [sic] in an SVP petition is not allowed to represent himself. It’s a civil matter.” Defendant interjected that “I’m capable of representing myself.” The trial court then reiterated, “Marsden is denied, ” and in its next breath stated “Faretta is denied” without considering the Faretta criteria, the criteria in People v. Watts (2009) 173 Cal.App.4th 621, 629 (determining a defendant’s ability to conform himself to the rules of procedure and courtroom protocols), or the more recent decision in Indiana v. Edwards (2008) 554 U.S. 164, 178 [171 L.Ed.2d 345, 357], which “permits States to insist upon representation by counsel for those competent enough to stand trial... but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.”
While presently binding California authority requires a court to grant self-representation at trial to any defendant competent to stand trial (People v. Taylor (2009) 47 Cal.4th 850, 866-867; People v. Welch (1999) 20 Cal.4th 701, 732), People v. Lynch (2010) 50 Cal.4th 693, 721, recently cited Edwards in stating in dictum that “a Faretta motion may be denied if the defendant is not competent to represent himself” at trial, and it would thus appear the Supreme Court would uphold a trial court choosing to follow Edwards.
Defendant does not contend his representations in camera that defense counsel had abandoned him, which defense counsel had disputed, entitled him to substitution of counsel under Marsden for inadequate representation or an irreconcilable conflict between them. Rather, based on the erroneous statement of defense counsel to the trial court after the hearing in camera that this was a proceeding to extend the commitment of an SVP (sexually violent predator) in which defendant did not have the right of self-representation, defendant now contends defense counsel demonstrated incompetence entitling him to the substitution of counsel. He also contends the trial court’s refusal to explain its ruling further was error.
Defendant has not presented any authority in support of his proposition that he was entitled to a detailed ruling from the trial court beyond its statement that he had not convinced it to grant the motion, nor do we agree with his claim that this was a “textbook example of an arbitrary ruling”; cursory is not synonymous with arbitrary. We thus do not need to consider the argument any further. (People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 10; Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.)
Similarly, defendant does not present any authority that a trial court has a duty to reconsider a Marsden motion sua sponte on grounds beyond those that a defendant articulates, based on its subsequent observations of defense counsel’s performance in court, such that even on a legal issue about which the court was uncertain (the right to self-representation) its failure to discern purported ineffectiveness is subject to reversal on appeal. Marsden involves affording defendant an opportunity to be heard about his complaints about trial counsel’s performance (or their relationship), which the present trial court provided. We therefore reject his effort to force this issue into the framework of Marsden.
II
The Court’s Denial Of Self-Representation
This brings us to the actual issue: the trial court’s summary denial of defendant’s invocation of his right to self-representation. Courts in other proceedings involving civil commitments have concluded a person does not have a right of self-representation under the federal Constitution. (People v. Williams (2003) 110 Cal.App.4th 1577, 1591 [finding statutory right to self-representation in mentally disordered offender proceedings]; see People v. Fraser (2006) 138 Cal.App.4th 1430, 1446, 1449, 1450 [right to self-representation in sexually violent predator proceedings possibly under common or statutory law]; compare Conservatorship of Joel E. (2005) 132 Cal.App.4th 429, 432 [neither constitutional nor statutory self-representation right in conservatorship proceedings].) However, a defendant found not guilty by reason of insanity is entitled by statute in subsequent commitment proceedings “to the rights guaranteed under the federal and State Constitutions for criminal proceedings. All proceedings shall be in accordance with applicable constitutional guarantees.” (Pen. Code, § 1026.5, subd. (b)(7).) Thus, People v. Wolozon (1982) 138 Cal.App.3d 456 reversed a commitment extension for denying a motion for self-representation on grounds other than whether the waiver of counsel was knowing and intelligent.
The People concede the trial court and defense counsel were mistaken in believing defendant did not have the right of self-representation in the then-pending recommitment proceedings and (by analogy) in his petition for outpatient treatment. They assert, however, that the error was harmless because he was allowed to file a petition in propria persona even though represented by counsel, and to argue its merits in his own behalf. They do not provide any authority, however, for applying harmless error analysis to the summary denial of a Faretta motion where a defendant is afforded a limited role as some sort of cocounsel. It is black letter law that Faretta error “is reversible error per se.” (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 267, p. 412.) In any event, the assertion of the right to self-representation applied to the ongoing recommitment proceedings as well, a fact the People do not address in their analysis of the purported harmless error.
As a result, we must reverse the denial of defendant’s Faretta motion, conditionally reverse the denial of his petition for outpatient treatment, and remand for the court to consider the merits of defendant’s request to represent himself under the principles of Faretta (with its timeliness assessed as of his original invocation of the right), Edwards, and Watts. If the court grants defendant’s request, the court must then hold an evidentiary hearing on the petition for outpatient treatment (as we next determine). If the court has grounds to deny defendant’s request for self-representation, it may reinstate its order denying the petition for outpatient treatment because defendant was not entitled to file a petition in propria persona when represented by counsel.
III
The Outpatient Hearing
The People concede that if defendant’s petition “is truly... a petition for release on outpatient treatment, ” he was entitled to an evidentiary hearing with the full panoply of due rights (other than a jury) before the trial court rules on it. (People v. Soiu (2003) 106 Cal.App.4th 1191, 1197, 1199, 1201 [as a matter of statutory interpretation, trial court does not have authority to deny outpatient petition summarily without an evidentiary hearing].) They contend (without citation of any authority) that we may review the substance of defendant’s petition and determine that it does not warrant an evidentiary hearing because his grounds in essence are an attack on the June 2008 determination that he then met the recommitment criteria, rather than grounds establishing the restoration of his sanity. It may be that his grounds are mistaken or inadequate, but that does not explain how we could contravene his statutory right to an evidentiary hearing in which to resolve that issue. If a trial court does not have authority to dismiss a petition for want of a prima facie showing, then neither do we. Thus, once the trial court determines whether defense counsel or defendant is entitled to conduct the litigation, it must then hold a hearing on the petition for outpatient treatment.
DISPOSITION
The orders denying defendant’s motion to represent himself and petition for outpatient treatment are reversed and the matter is remanded for a hearing on the self-representation motion and further proceedings, as necessary, on the petition for outpatient treatment in accordance with this opinion.
We concur: RAYE, Acting P. J., BUTZ, J.