Opinion
C085978
11-08-2019
THE PEOPLE, Plaintiff and Respondent, v. JADE SIMONE MASTERSON, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F5118)
Defendant Jade Simone Masterson pleaded no contest to burglary, and the trial court placed her on three years' probation. After defendant admitted multiple probation violations and demonstrated an inability to work with probation, the trial court revoked her probation and sentenced her to four years in prison. On appeal, defendant contends the trial court erred in failing to rule on her request for a new attorney, that this error rendered the probation order invalid and, therefore, the subsequent violations of probation were not supported by substantial evidence. She argues we must remand the case to the trial court to allow the court to exercise its discretion to grant pretrial mental health diversion. We affirm the judgment.
FACTS AND LEGAL PROCEEDINGS
On September 21, 2015, defendant pleaded no contest to first degree residential burglary. (Pen. Code, § 459; statutory section references that follow are to the Penal Code unless otherwise set forth.) The trial court suspended imposition of sentence and placed defendant on probation for three years.
In February 2016, the prosecution filed a petition to revoke defendant's probation in connection with new charges of misdemeanor trespass. The prosecution filed another petition to revoke probation in March 2016 in connection with a new burglary charge. Defendant denied the allegations in those petitions.
On April 5, before the preliminary hearing on the first degree residential burglary complaint defendant appeared at a pretrial conference. The trial court stated defendant's attorney "had indicated that [defendant] might want to discuss [her] relationship with [her] lawyer" and decided to hold an in camera proceeding.
During the in camera proceedings, the trial court attempted to explain the criminal proceedings to defendant. Defendant expressed confusion over the purpose of a preliminary hearing and stated her belief that she was in court that day for an evidentiary hearing. Despite the trial court's explanations, defendant continued to express confusion over the proceedings until both the court and defendant's attorney expressed doubt as to defendant's competency. Accordingly, the trial court set the matter for a competency hearing.
During the May 10 competency trial, defendant testified her attorney had not come to see her. She then testified, "I somewhat feel like he is [against me in this case] because he hasn't been trying to represent me, but that's why we're in court now, so that we can go over the evidence together. I'm glad we're all discussing this because I would rather not have to keep pushing back the evidentiary and the preliminary hearings to have to go through proceedings like getting a new attorney because I've already been here since March 19th." When asked if she would be able to work with her attorney, she responded, "I do, if we can go about it soon." The trial court found defendant not competent to stand trial, and the court committed her to Napa State Hospital.
In October, the trial court found defendant competent and reinstated criminal proceedings. Defendant admitted the probation violation and pleaded guilty to misdemeanor trespassing as a lesser offense of the burglary charge, and the trial court dismissed the misdemeanor trespass charge.
At sentencing on the probation revocation petitions, the trial court revoked the grant of conditional revocable probation and placed defendant on formal probation for three years. The trial court ordered defendant to appear in Behavioral Health Court (BHC) on December 12, participate in counseling, participate in BHC if admitted, comply with a treatment plan of a mental health professional, take medications if prescribed, participate in a substance abuse evaluation, and submit to drug testing at probation's request.
Approximately two weeks later, defendant reported to probation and was immediately walked over to meet with the mental health clinician due to her mental state. During the meeting with the mental health clinician, defendant became extremely argumentative and confrontational, and she was instructed to return the next day. Defendant failed to report the next day, and she failed to appear for her scheduled BHC assessment with probation one week later.
Defendant failed to appear for her December 12 BHC hearing, and the trial court issued a bench warrant. She was arrested three days later and released with a global positioning system (GPS) monitoring device.
On December 19, the prosecution filed a petition to revoke defendant's probation in connection with new charges of defrauding innkeepers and resisting arrest. Defendant denied the allegations. On January 10, 2017, Deputy Probation Officer Atheena Navone filed a petition to revoke probation, alleging defendant had failed to report to Shasta County Mental Health as required and had allowed her GPS monitoring device to stop working. Defendant admitted to the resisting arrest allegation from December 19, and the trial court dismissed the other probation violations. The trial court ordered defendant to seek help from Shasta County Mental Health and to appear in BHC on February 6.
On January 14, defendant failed to appear for her scheduled BHC assessment with Deputy Probation Officer Jennifer Abernathy. Abernathy scheduled another BHC assessment for February 3, but defendant contacted her mental health clinician, rather than Abernathy, for the assessment. On February 6, defendant appeared in BHC, but she had not yet been assessed by probation. Therefore, BHC ordered her to be assessed by probation on February 7 and return to BHC on February 27.
On February 7, defendant cancelled her BHC assessment due to a conflicting job interview. Abernathy informed her cancelling was not acceptable, and defendant argued she was "not on probation" and had no new charges. Abernathy was forced to hang up on defendant twice because defendant would not stop talking.
Later that day, defendant was arrested for disorderly conduct and resisting arrest. The next day, Navone picked defendant up from jail and escorted her to probation for a BHC assessment with Abernathy. Abernathy asked defendant to provide a urine sample, but she was unable to provide one. Abernathy then asked defendant to return later that day to provide a sample, but she never returned. Before defendant left that day, Abernathy instructed her to report to Navone on February 17.
On February 17, Navone arrested defendant for violating probation. While being arrested defendant yelled, pulled her arm away while she was being handcuffed, and attempted to turn and face Navone in an aggressive stance.
On February 27, BHC did not accept defendant. The court observed defendant had not completed the assessment process and had refused to release her medical records. In March, Navone filed another petition to revoke probation regarding the allegation defendant resisted arrest on February 17. On March 27, defendant appeared on the March 6 petition to revoke probation, was arraigned and denied the alleged violation. By order of that same date, the court summarily revoked defendant's probation.
In April, Navone filed another petition to revoke defendant's probation, alleging defendant vandalized a van, trespassed by entering a hotel room and refusing to leave, refused to follow orders by law enforcement officers, resisted arrest, and failed to report to probation monthly since the end of February. Defendant denied the allegations. In June, the prosecution filed another petition to revoke probation, alleging defendant possessed narcotics and drug paraphernalia and trespassed. In September, the court found the allegations defendant had resisted arrest, as alleged in March, and had failed to report to probation, as alleged in April to be true.
In October, the trial court revoked probation and sentenced defendant to four years in prison. The court observed defendant is not "able to see herself correctly" and is "a contrarian at nature." The court stated its belief that behavioral health will not help her, characterizing it as "an effort of futility." The trial court was "at the point now where I believe greater structure is necessary for her." The court then recounted defendant's lengthy involvement with the judicial system. Reflecting on defendant's refusal to release her medical records to BHC, the court stated, "Ms. Masterson doesn't trust anybody enough to believe they're going to help her, which means she can't accept the help. She can't accept it. She's not going to get it here. I don't know if she is going to get it in prison, but I know that we can't help her because she won't accept help, properly accept help."
The court observed, "It goes on and on. . . . [I]t's replete with the defendant's inability to see that she is not complying. She's not capable of complying." According to the court, "she's going to prison because she cannot be helped, because she knows everything and nobody else does, and she can't be helped if she's not willing to accept the help of others. I have not seen one iota of that. [¶] If I had seen one time when Ms. Masterson had been willing to accept, first of all, responsibility for the things she's done, number one, and then number two, accepted help and acknowledged, yes, you know, I do need help, except for, you know, today, while she's facing this sentence, if I had seen one true glimpse of Ms. Masterson being willing to comply, I would think differently about that, but I have not."
DISCUSSION
I
Marsden Hearing
Defendant contends the trial court was required to conduct a Marsden hearing, and its failure to do so deprived her of her right to a fair trial.
Our Supreme Court held in People v. Marsden (1970) 2 Cal.3d 118 (Marsden) that a trial court must grant a defendant's request for substitute counsel where defendant "makes a ' " 'sufficient showing . . . that the right to the assistance of counsel would be substantially impaired' " ' if the original attorney continued to represent the defendant." (People v. Sanchez (2011) 53 Cal.4th 80, 87 (Sanchez).) Trial courts have a " 'duty to permit a defendant to state [her] reasons for dissatisfaction with [her] attorney . . . when the defendant in some manner moves to discharge [her] current counsel.' " (Ibid.) While a formal legal motion is not required, there must be " 'at least some clear indication by defendant that [s]he wants a substitute attorney.' " (Id. at pp. 87-88.) A mere difference in opinion between defendant and attorney over trial tactics "does not place a court under a duty to hold a Marsden hearing." (People v. Lucky (1988) 45 Cal.3d 259, 281.)
Nothing in the record constitutes a " 'clear indication by defendant that [s]he want[ed] a substitute attorney.' " (Sanchez, supra, 53 Cal.4th at p. 88.) At the April 5, 2016, hearing, defendant expressed confusion about the proceedings. But defendant did not clearly indicate she wanted a new lawyer. Contrary to defendant's assertion, the trial court did not prevent defendant from requesting a new lawyer; rather, the trial court patiently answered defendant's questions about the nature of that hearing and the schedule for subsequent proceedings. Indeed, defendant testified during her May 10, 2016, competency trial that she did not want to "keep pushing back the evidentiary and the preliminary hearings to have to go through proceedings like getting a new attorney." Therefore, because defendant never "move[d] to discharge [her] current counsel" (id. at p. 87), the court did not err in failing to conduct a Marsden hearing.
Defendant argues the trial court's November 2016 order placing her on formal probation was unauthorized because the court had failed to conduct a Marsden hearing. Because we find no error in failing to conduct a Marsden hearing, we find no merit to this argument.
II
Mental Health Diversion
Assembly Bill No. 1810 (AB 1810), an omnibus mental-health bill, was signed by the Governor on June 27, 2018, effective immediately, adding sections 1001.35 and 1001.36 to the Penal Code. (Stats. 2018, ch. 34, § 24, eff. June 27, 2018.) These new sections provide for discretionary diversion of persons with qualifying mental disorders when the mental disorders contributed to the commission of the charged offense. (§ 1001.36.)
Defendant asserts section 1001.36 applies retroactively to all cases not yet final on appeal and we must remand the matter for the trial court to consider exercising its discretion to grant her pretrial diversion. The Attorney General disagrees, asserting section 1001.36 is not retroactive and, if it were, remand would be futile. Assuming without deciding the statute applies retroactively, we agree remand would be futile.
Under section 1001.36, a court may grant pretrial diversion if all the following criteria are satisfied:
1. The trial court is satisfied, based on evidence from a qualified mental health expert, the defendant suffers from a recognized mental disorder.
2. The trial court is satisfied the defendant's disorder played a significant role in the commission of the charged offense.
3. The qualified mental health expert's opinion finds the defendant's symptoms motivating criminal behavior would respond to mental health treatment.
4. The defendant consents to diversion and waives his right to a speedy trial.
5. The defendant agrees to comply with treatment for the disorder as a condition of diversion.
6. The trial court is satisfied the defendant will not pose an unreasonable risk of danger to public safety. (§ 1001.36, subd. (b).)
" '[W]hen the record shows that the trial court proceeded with sentencing on the . . . assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to "sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court," and a court that is unaware of its discretionary authority cannot exercise its informed discretion.' [Citation.] But if ' "the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required." ' [Citation.]" (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)
At the sentencing hearing, the trial court made it clear defendant cannot comply with treatment. The trial court explicitly stated prison is necessary for defendant. The court stated behavioral health will not help her, characterizing it as "an effort of futility." After a lengthy recitation of defendant's extensive involvement in the criminal justice system, the court stated, "I don't know if [defendant's] going to get [help] in prison, but I know that we can't help her because she won't accept help, properly accept help." The court continued, "she's going to prison because she cannot be helped, because she knows everything and nobody else does, and she can't be helped if she's not willing to accept the help of others."
Considering the trial court's statements at sentencing, we are persuaded the trial court would not have exercised its discretion to grant defendant pretrial diversion given the court's determination that she cannot comply with treatment for her disorder; one of the criteria for an order for diversion. On this record, remand being an idle act, we will not return this matter to the trial court.
DISPOSITION
The judgment is affirmed.
/s/_________
HULL, Acting P. J. We concur: /s/_________
MURRAY, J. /s/_________
HOCH, J.