Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. MCUK-CRCR-06-74005
SIMONS, J.
Vincent Lee Rosenbalm appeals an order committing him to a state hospital (Pen. Code, § 1370) after he was found incompetent to proceed with trial on a charge of making a criminal threat (§ 422). He contends, and the People concede, the court erred in refusing to conduct a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118). We agree the court erred in refusing to conduct a Marsden hearing and conclude the error is prejudicial.
All undesignated section references are to the Penal Code.
The background facts are taken from the reports of Drs. Douglas Rosoff and Kevin Kelly.
Ukiah police served a search warrant on appellant’s home and seized items while investigating an internet counterfeit check scheme. Appellant became upset because he believed the items were seized illegally. He was charged with making a criminal threat after mailing letters to Ukiah Police Captain Dan Walker in September and October 2006, which Walker perceived as becoming progressively more threatening.
Drs. Rosoff and Kelly both found that appellant would be unable to assist his counsel in the preparation of his defense and unable to conduct his own defense, and found him incompetent to stand trial because of his delusional disorder.
Discussion
Appellant contends the court erroneously refused to conduct a Marsden hearing on his request for substitute counsel. He argues that at a minimum, the matter should be remanded for the court to conduct a Marsden hearing. The People concede the error but argue his due process rights were not violated, there was no prejudice, and therefore the error was harmless.
At appellant’s October 23, 2006 arraignment, the court (Judge Mayfield) advised him of his right to counsel and asked if he wanted counsel appointed for him. Appellant responded that he had a plea and writ of habeas corpus, that his case would be dismissed that day, and said “I don’t want an attorney today.” Appellant then submitted his habeas corpus petition to the court, and he was advised that a judicial officer has up to 60 days to make a determination on the petition and that the petition would not be ruled on that day. The court also told appellant it would not address his concerns about matters which occurred in 2004, stated it had some concerns about his ability to proceed and was considering ordering a section 4011.6 evaluation. When appellant said he was having problems at the jail the court said, “sounds like you could benefit from having an attorney represent you. You are absolutely entitled under the Sixth Amendment.” Appellant responded that he wanted a change of venue because his habeas petition would not be heard that day, and offered to enter a plea. The court denied the request for change of venue, said it would consider appellant’s habeas petition following the hearing, and said appellant could represent himself or counsel could be appointed for him. After appellant said he wanted several public defenders, the court appointed public defender Linda Thompson to represent him. Thereafter, the prosecutor and the court expressed concern regarding appellant’s competency and the court sought Thompson’s comments on imposing a 72-hour hold and evaluation under section 4011.6. Thompson acknowledged there was “some question” as to appellant’s mental state but said given his apparent ability to discuss underlying factors, she was unprepared to suggest a section 1368 competency evaluation. After the court denied appellant’s request to be released on his own recognizance, Thompson said appellant would enter a not guilty plea. Appellant disagreed that that would be his plea, and said he wanted review of his habeas petition. He then requested a Marsden hearing, told Thompson she was “fired,” and asked for a Marsden hearing “right now.” The court then suspended the proceedings and ordered Drs. Kelly and Rosoff to evaluate appellant’s competency. Appellant again asked for a Marsden hearing, and Thompson and the prosecutor advised the court that given the suspension of the proceedings, the competency evaluation would have to occur before a Marsden hearing. The court set a hearing for November 13.
At the commencement of the November 13, 2006 hearing, appellant stated he had not yet seen Dr. Kelly. Thompson requested that the court order appellant to see Dr. Kelly and stated she believed appellant was incompetent. Appellant stated he had “fired” Thompson three weeks before. The court stated that Thompson was appellant’s attorney of record and would remain so pending further proceedings, and that no Marsden hearing would be held until receipt of the reports from Drs. Kelly and Rosoff.
At the next hearing on November 27, 2006, the court received the reports of Drs. Kelly and Rosoff. When Thompson stated she would stipulate to the admission of both reports, appellant said she was not his lawyer and asked to have a Marsden hearing. The court stated it found appellant not competent to proceed and that the criminal proceedings would remain suspended. Thompson and the court discussed a date for a mental health placement evaluation, and the court set the matter for December 18.
At the commencement of the December 18, 2006 placement recommendation hearing, appellant requested a Marsden hearing. The matter was continued to December 21. At the December 21 hearing presided over by Judge Brown, appellant again requested a Marsden hearing. When the court stated it would “give that to [him],” Thompson explained that the criminal proceedings were suspended, appellant had been found incompetent and the hearing was for purposes of placement. The court adopted the recommendation of the Golden Gate Conditional Release Program and ordered appellant transported to Napa State Hospital. When appellant again requested a Marsden hearing, the court said he was represented by counsel and his request for a Marsden hearing had been denied. Appellant filed a timely appeal from the commitment order.
“A person cannot be tried or adjudged to punishment . . . if, as a result of mental disorder or developmental disability, the defendant 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); People v. Solorzano (2005) 126 Cal.App.4th 1063, 1068-1069.) “[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.]” (People v. Stankewitz (1990) 51 Cal.3d 72, 88; Solorzano, at p. 1069.) “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. [(Stankewitz, at pp. 87-88.)]’ [Citations.]” (Solorzano, at p. 1069.) “Hearing a Marsden motion during a competency hearing does not reinstate criminal proceedings against the defendant.” (Solorzano, at p. 1069, citing Stankewitz, at p. 88.)
“A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citations.]” (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.) “ ‘ “ ‘When a defendant seeks to discharge 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.’ ” ’ ” (People v. Welch (1999) 20 Cal.4th 701, 728.) A trial court’s refusal to relieve appointed counsel is reviewed under the deferential abuse of discretion standard. (Jones, at p. 1245.)
The parties agree the court abused its discretion in failing to conduct a Marsden hearing; our attention is directed to the question of prejudice. Marsden error is reviewed for prejudice under the Chapman v. California (1967) 386 U.S. 18“beyond a reasonable doubt” standard. (Solorzano, supra, 126 Cal.App.4th at p. 1071.)
Appellant contends that because he was not permitted to disclose the factual nature of his dissatisfaction with his counsel, Thompson, it cannot be concluded beyond a reasonable doubt that the denial of his Marsden motion was not prejudicial. He asserts that had the court promptly addressed his concerns regarding defense counsel, a competency hearing might have been unnecessary, since his request to enter his own “novel” plea was the sole reason Thompson expressed concern about his competency. He also argues that the court’s repeated refusals to hold a Marsden hearing “likely contributed to and exacerbated [his] belief that courts and its officers could not be trusted.” Appellant cites Solorzano, which in turn quoted Marsden regarding prejudice: “ ‘On this record we cannot ascertain that [Solorzano] had a meritorious claim, but that is not the test. Because [he] 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 [him] 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 finding that he was competent to stand trial.]’ ” (Solorzano, supra, 126 Cal.App.4th at p. 1071, quoting Marsden, supra, 2 Cal.3d at p. 126.)
The People present a two-fold argument that appellant was not prejudiced by the court’s refusal to conduct a Marsden hearing. First, none of the complaints expressed by appellant in open court pertained to Thompson’s conduct in connection with the competency proceedings. Instead, the complaints focused on his detention following the seizure of items from his home two years previously. Second, except for a 15-minute private conference between Thompson and appellant before appellant attempted to enter a plea, all contact between appellant and Thompson was observed by the court. Thus, the argument runs, this was not a case of a silent record or speculation by the trial court. The People argue that appellant’s claim that he was denied a Marsden hearing can be cured by reasserting that motion at a subsequent proceeding when he is restored to competency and the court reinstates criminal proceedings against him.
This suggestion flies in the face of Stankewitz and Solorzano, which recognize that despite a section 1368 suspension of criminal proceedings, the court must promptly consider a Marsden motion when the right to effective assistance would be substantially impaired if the request were ignored.
The People’s twofold argument is entirely speculative. Based on the record before us, we cannot conclude beyond a reasonable doubt that had a timely Marsden hearing been held a commitment order would nevertheless have resulted. The commitment order is vacated.
In light of this conclusion, we need not address appellant’s claim of ineffective assistance of counsel.
Disposition
The commitment order is vacated and the matter remanded with the following directions: (1) the court shall hold a hearing on appellant’s Marsden motion concerning Thompson; (2) if appellant prevails on his Marsden motion, the court shall appoint new counsel to assist him for this purpose and shall entertain such applications as newly appointed counsel may make; and (3) if newly appointed counsel does not make any motions, any motions made are denied, or appellant’s Marsden motion is denied, the court shall reinstate the commitment order.
We concur. JONES, P.J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.