Opinion
F074953
03-23-2018
THE PEOPLE, Plaintiff and Respondent, v. EMILIO RUDY GONZALES, Defendant and Appellant.
Jake Stebner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF164383A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Jake Stebner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Franson, J. and Smith, J.
-ooOoo-
On June 3, 2016, appellant Emilio Rudy Gonzales was charged in a criminal complaint with elder abuse (Pen. Code, § 368, subd. (b)(1)). On December 5, 2016, pursuant to sections 1370 and 1370.1, the court ordered Gonzales committed to the Department of State Hospitals for a maximum term of three years.
All further statutory references are to the Penal Code.
On appeal, Gonzales contends the court erred when it failed to conduct a Marsden hearing. We find merit to this contention and remand for further proceedings.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
FACTS
The facts underlying the charged elder abuse offense are omitted because they are not germane to the issues Gonzales raises. --------
On June 9, 2016, after being appointed counsel, Gonzales pled not guilty to a charge of elder abuse and was released on bond.
On June 20, 2016, the court granted defense counsel's motion to suspend criminal proceedings to determine Gonzales's competency to stand trial and it ordered Dr. Kathe Lundgren to examine him. (§§ 1367, 1368.)
On July 19, 2016, the court continued the matter to allow Gonzales to retain private counsel.
On August 2, 2016, the court was informed that Gonzales was unable to retain counsel.
On September 27, 2016, Gonzales failed to appear at a hearing and the court issued a warrant for his arrest.
On October 17, 2016, Gonzales appeared in court and the court reappointed the public defender to represent him. Additionally, because Gonzales never submitted to an examination by Dr. Lundgren, the court appointed Dr. Michael Musacco to examine him.
In a report filed on October 31, 2016, Dr. Musacco recommended that the court find Gonzales incompetent to stand trial.
On November 7, 2016, after the parties submitted the issue of Gonzales's competency on Dr. Musacco's report, the court found Gonzales incompetent to stand trial and it continued the matter to December 5, 2016, for a hearing on involuntary medication.
On December 5, 2016, after defense counsel and the prosecutor submitted the issue of involuntary medication on two doctors' reports, Gonzales reiterated an earlier complaint about not having glasses when he was evaluated by Dr. Musacco. He then stated:
"So you understand the disadvantage. That is one of my disabilities. I have seizures. That reason, even to be known, I would like to also, too, with this Marsden motion also reclaim[]my claim of insanity. I didn't even really know she was doing that while I was outside of the courtroom. HIPAA law prohibits any kind of counsel inadvertently, indirectly given.
"So I was really misrepresented at that[]at that moment is why my Marsden motion is primarily being filed." (Italics added.)
The court then committed appellant to the Department of State Hospitals for no more than three years on the felony elder abuse charge and no more than a year on several outstanding misdemeanors, and it authorized the involuntary use of psychotropic medication, if deemed appropriate by the hospital.
Afterwards, Gonzales stated, "So is my Marsden motion not being bothered [sic]?" When the court stated that the hearing was in recess, Gonzales responded, "Sir is my Marsden motion[]my Civil Rights, I can't exercise a Marsden motion?" (Italics added.) The court, however, ended the hearing without conducting a Marsden hearing.
DISCUSSION
Gonzales contends that his repeated references to a Marsden motion during the December 5, 2016, hearing triggered the trial court's duty to conduct a Marsden hearing, and that the court erred and denied him his federal constitutional right to counsel by its failure to conduct such a hearing. Respondent contends Gonzales's incompetence rendered him unable to personally make a request for substitute counsel pursuant to Marsden because it "rendered him incapable of possessing knowledge outside the trial court's observation" to establish that he was denied the effective assistance of counsel. We agree with Gonzales.
"A defendant 'may be entitled to an order substituting appointed counsel if he shows that, in its absence, his Sixth Amendment right to the assistance of counsel would be denied or substantially impaired.' [Citation.] The law governing a Marsden motion 'is well settled. "When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]." ' " (People v. Memro (1995) 11 Cal.4th 786, 857.)
" 'A person cannot be tried or adjudged to punishment ... if, as a result of mental disorder or developmental disability, [he or she] is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.' (§ 1367, subd. (a).) ' "... [W]hile the trial court may not 'proceed with the case against the defendant' before it determines his competence in a section 1368 hearing [citation], it may and indeed must promptly consider a motion for substitution of counsel when the right to effective assistance 'would be substantially impaired' if his request were ignored. [Citation.]" [Citation.]'
"Even though 'section 1368 mandates the suspension of " 'all proceedings in the criminal prosecution' " once the court has ordered a hearing into the mental competence of the defendant,' the Supreme Court held, 'the Sixth Amendment right to effective representation compels a hearing and an order granting a motion for substitution of counsel when there is a sufficient showing that the defendant's right to the assistance of counsel will be substantially impaired if his request is denied. [Citation.]' [Citations.] Hearing a Marsden motion during a competency hearing does not reinstate criminal proceedings against the defendant." (People v. Solorzano (2005) 126 Cal.App.4th 1063, 1069 (Solorzano).)
Here, Gonzales made it clear through his comments that he was requesting a Marsden hearing but the court ignored his requests. Thus, the court erred by its failure to do so.
In Marsden, the Supreme Court stated that the trial court "cannot thoughtfully exercise its discretion in [ruling on a Marsden motion] without listening to [the defendant's] reasons for requesting [substitution] of attorneys." It also noted that "[t]he defendant may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four corners of the courtroom." (Marsden, supra, 2 Cal.3d at p. 123.) Respondent relies on the quoted statement to contend the court here was not required to hold a Marsden hearing because Gonzales's incompetence rendered him incapable of presenting facts necessary for the court to rule on a Marsden motion. Thus, according to respondent, the court did not err by its failure to hold a Marsden hearing. Respondent is wrong.
Although Dr. Musacco diagnosed Gonzales with unspecified schizophrenia disorder, Gonzales was lucid enough to be interviewed for the evaluation and in his evaluation of Gonzales, Dr. Musacco did not suggest Gonzales did not have the ability to relate his observations to the court. In any event, even if Gonzales's mental impairment affected his ability to relate his observations, the court could have allowed Gonzales to express his dissatisfaction with defense counsel and ruled on his Marsden motion based on his statements and those of defense counsel, if necessary. Thus, any difficulty Gonzales might have had in relating facts outside of the observation of the court did not justify the court's failure to hold a Marsden hearing.
Respondent also attempts to distinguish Solorzano. In Solorzano, the defendant made a Marsden motion while criminal proceedings were suspended to determine his competency. In making the motion, the defendant asserted specific complaints regarding his attorney's failure to obtain medical and school records. The trial court refused to hear the motion because criminal proceedings were suspended. After the trial court found the defendant competent and reinstated criminal proceedings, a Marsden hearing was held during which the defendant explained he had a learning disability and his attorney did not bring his medical and school records to the competency hearing. The trial court denied the motion. (Solorzano, supra, 126 Cal.App.4th at pp. 1066-1068.) On appeal, this court concluded the trial court erred by its failure to hold a hearing when the defendant originally complained about his attorney's representation. (Id. at pp. 1071-1072.)
Respondent contends Solorzano is not controlling because unlike the defendant there, Gonzales "will not be forced to face trial while incompetent" because criminal proceedings have been suspended until he regains his competence. Thus, according to respondent, Gonzales will not face the same due process violation endured by the defendant in Solorzano. We disagree.
The salient point in Solorzano was that the defendant's complaints about his appointed counsel required the court to hold a Marsden hearing when he made the complaints, even if it occurred during the competency proceedings. (Solorzano, supra, 126 Cal.App.4th at pp. 1069-1070.) Further, our holding in Solorzano, that the defendant was entitled to a Marsden hearing, was not, as respondent suggests, based on the possibility that the defendant might be tried while he was incompetent. Instead, our inability to determine whether the refusal to hear the defendant's Marsden motion affected the court's competency finding was the main reason why we could not conclude that the Marsden error there was harmless. (Solorzano, supra, at p. 1069.) Accordingly, we reject respondent's attempt to distinguish Solorzano.
In Marsden, the court held: "On this record we cannot ascertain that defendant had a meritorious claim, but that is not the test. Because the defendant might have catalogued acts and events beyond the observations of the trial judge to establish the incompetence of his counsel, the trial judge's denial of the motion without giving defendant an opportunity to do so denied him a fair trial. We cannot conclude beyond a reasonable doubt that this denial of the effective assistance of counsel did not contribute to the defendant's conviction." (Marsden, supra, 2 Cal.3d at p. 126.)
Here, as in Marsden, the trial court's failure to hold a Marsden hearing does not allow for meaningful review of the impact of the court's error. Therefore, since we cannot conclude that the error was harmless beyond a reasonable doubt, we will remand the matter for further proceedings.
DISPOSITION
The judgment is reversed and the matter is remanded with directions to the trial court to conduct a Marsden hearing and exercise judicial discretion to reinstate competency proceedings, to reinstate the commitment order, or to proceed as authorized by law. (People v. Marsden (1970) 2 Cal.3d 118.)