P. v. Bible

Filed 7/27/06 P. v. Bible CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Demetrios Bible appeals from the judgment after a court trial committing him to the Department of Mental Health for treatment as a mentally disordered offender (MDO). (Pen. Code, § 2960 et seq.)[1] Bible contends that the trial court violated his constitutional and statutory rights when it denied his request for self-representation, failed to conduct a hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and accepted his counsel's waiver of a jury trial. We affirm.

FACTS AND PROCEDURAL HISTORY

Bible was sentenced to three years in state prison after a conviction for battery with injury to a police officer. (§ 243, subd. (c)(2).) In June 2005, the Board of Prison Terms (BPT) determined that he was an MDO and committed him to the Department of Mental Health. (§ 2966, subd. (b).) Bible filed a petition challenging the BPT's determination and seeking appointment of counsel.

At a hearing on August 25, 2005, Bible's appointed counsel informed the court that he would waive a jury trial over Bible's objection. Bible stated that, if counsel was unwilling to demand a jury trial, "then I have no choice but to try [to] represent myself, if that's possible." He stated: "It's not that I want to. To be honest with you, I don't. I would prefer to have adequate representation from a lawyer . . . . But I can't understand why he doesn't want me to go to the jury." Bible explained that he was "not questioning [counsel's] integrity, or nothing. I just would prefer to have a jury. And if I have to do it myself . . . , I would ask the court to grant me the opportunity to do that."

The court urged Bible to discuss counsel's reasoning with counsel. Bible acknowledged that counsel had told him that there was a "better chance" with a court trial than a jury trial, but stated that: "I don't want him to represent me." The court accepted counsel's jury waiver without further action, and conducted a court trial on August 30, 2005.

At trial, treating physician Joshua Deane, M.D., testified that Bible satisfied all the criteria for commitment as an MDO. Dr. Deane testified that Bible suffered from schizoaffective disorder, although major depression with psychotic features was also a possibility. He listed Bible's symptoms as including hallucinations, paranoia, and disorganized and incoherent thinking, and stated that Bible had a long history of these symptoms.

Dr. Deane testified that Bible's severe mental disorder was a cause or aggravating factor in the commission of the qualifying offense which was revealed by Bible's grossly inappropriate and paranoid response to a police traffic stop. Dr. Deane also testified that Bible had received at least 90 days of treatment within the year prior to his parole date, that his mental disorder was not in remission and could not be kept in remission without treatment, and that he represented a substantial danger of physical harm to others due to his disorder. Dr. Deane testified that Bible poses "quite a special danger" because of his denial of mental illness, refusal to take medications, refusal to attend drug-substance treatment, and his "poor or impaired" insight into his mental illness.

Bible testified on his own behalf. He acknowledged having psychological problems, but stated that "they are not severe." He testified that he needed "some monitoring" to avoid making the "wrong choice." He described the qualifying offense as an attempt by police officers to get even with him because of his light sentence for a prior offense. He testified that he thought the officers would be angry and would "come after me for something."

DISCUSSION

No Violation of Statutory Right to Self-Representation

Bible contends that the trial court violated his constitutional and statutory rights by denying his request to represent himself. We conclude that there is no constitutional right of self-representation in MDO proceedings, and that there was no violation of his statutory right.

Bible claims a Sixth Amendment right to self-representation based on Faretta v. California (1975) 422 U.S. 806 (Faretta). Bible concedes that Faretta does not apply in civil proceedings but claims that an MDO commitment proceeding is criminal. We will follow established law to the contrary. "[B]ecause MDO proceedings are not punitive in nature they are considered civil proceedings, and therefore there is no constitutional right to self-representation." (People v. Williams (2003) 110 Cal.App.4th 1577, 1588.)

We also reject Bible's claim that he has a due process right to self-representation under the Fourteenth Amendment. We agree that a prisoner in an MDO proceeding is entitled to due process protection because the proceeding can result in a deprivation of liberty. (Foucha v. Louisiana (1992) 504 U.S. 71, 80; Zachary v. Superior Court (1997) 57 Cal.App.4th 1026, 1032.) But, due process in an MDO proceeding is measured by the standards applicable to civil proceedings. (See People v. Superior Court (Howard) (1999) 70 Cal.App.4th 136, 154.) A similar conclusion was reached by our Supreme Court in People v. Otto (2001) 26 Cal.4th 200, 209, which concerned due process requirements under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.)

The MDO statute incorporates sufficient due process safeguards such as the requirement of a hearing and proof beyond a reasonable doubt, the right to counsel, and a limitation on the commitment period. (§ 2972.) A right to self-representation is not necessary to protect against the erroneous deprivation of the prisoner's liberty interest or to provide an opportunity for the prisoner to present his or her side of the story. (See Mathews v. Eldridge (1976) 424 U.S. 319, 334-335; see also People v. Otto, supra, 26 Cal.4th at p. 210.)

Bible relies on Faretta's consideration of individual autonomy as one factor in finding a right to self-representation in criminal trials, as well as reference in another case to due process as a possible basis for a right to self-representation in some contexts. (Faretta, supra, 422 U.S. at p. 834; Martinez v. Court of Appeal (2000) 528 U.S. 152, 161 [no Sixth Amendment or due process right to self-representation on appeal].) These cases do not consider or provide authority for a due process right to self-representation in MDO proceedings. In particular, the cases point out that self-representation is not a valuable procedural safeguard against error because it is unlikely to be as effective as representation by counsel. (Faretta, at p. 834; Martinez, at p. 161.)

Although there is no constitutional right to self-representation in MDO proceedings, section 2972 gives prisoners a statutory right. (People v. Williams, supra, 110 Cal.App.4th at pp. 1585-1586, 1588.) Section 2972 grants prisoners the right to counsel in MDO proceedings and, by implication, allows them to refuse appointed counsel and represent themselves. (Id., at pp. 1588, 1591.)

In determining a statutory request for self-representation in an MDO case, the court applies the standards set forth in Faretta, and must determine whether the request is made voluntarily, knowingly, and intelligently. (Faretta, supra, 422 U.S. at pp. 834-835; People v. Welch (1999) 20 Cal.4th 701, 729, 732.) The prisoner need not understand the rules of evidence or trial procedure and tactics, but should understand the nature of MDO proceedings, and be able to conduct an elementary defense and appreciate the risk of self-representation. (Welch, at p. 733.)

Moreover, "in order to protect the fundamental constitutional right to counsel, one of the trial court's tasks when confronted with a motion for self-representation is to determine whether the defendant truly desires to represent himself or herself. [Citations.] The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant's conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant's conduct or words reflecting ambivalence about self-representation may support the court's decision to deny the defendant's motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied." (People v. Marshall (1997) 15 Cal.4th 1, 23.)

Because the right is statutory and not constitutional, the denial of a request for self-representation is reviewed for an abuse of discretion. (People v. Williams, supra, 110 Cal.App.4th at pp. 1580, 1588.) Based on the record, the trial court did not abuse its discretion in denying Bible's request.

The trial court informed Bible of the consequences of his request and implicitly considered the Faretta criteria by inquiring about Bible's reasons and motive to determine whether his request was knowing, intelligent, and unequivocal. The record supports the trial court's conclusion that Bible was ambivalent and equivocal in his request. Bible stated that he did not really want to represent himself. He just wanted a jury trial.

The record also supports the conclusion that Bible had not assessed the risk of self-representation or demonstrated the ability to conduct a basic defense. Bible was angry about his counsel's waiver of a jury trial and asked to represent himself in defiance of that decision.

Even if there was error, the error was harmless. Because the right is statutory, we apply the Watson harmless error standard and conclude that it is not reasonably probable that a result more favorable to Bible would have been reached had he been allowed to represent himself. (See People v. Williams, supra, 110 Cal.App.4th at pp. 1592-1593; People v. Watson (1956) 46 Cal.2d 818, 836.)

The evidence is overwhelming that appellant meets the criteria for commitment as an MDO. The testimony of Dr. Deane is clear, comprehensive, and undisputed. And, if anything, Bible's own testimony corroborated Dr. Deane's testimony. Although Bible claimed that his mental illness was minor, his testimony revealed serious mental problems, and failed to dispute the evidence that he suffered from a severe mental disorder that was not in remission and that caused the qualifying offense and rendered him a danger to society.

No Marsden Error

Bible contends that the trial court deprived him of his right to counsel by failing to conduct a hearing pursuant to Marsden. It is questionable whether Marsden applies to MDO proceedings. MDO proceedings are civil and a prisoner does not have a constitutional right to counsel. As Bible notes, the court in People v. Leonard (2000) 78 Cal.App.4th 776, applied Marsden in a proceeding under the SVPA, stating that "we assume for purposes of argument that individuals subject to the SVPA deserve the same constitutional protections accorded criminal defendants." (Id., at p. 784, italics added.) "Quite clearly, Leonard did not hold that the rights of those subject to the SVP Act are coterminous with those of criminal defendants. Instead, it held simply that even if Marsden applies to SVP Act proceedings, the defendant's rights had not been violated." (People v. Burns (2005) 128 Cal.App.4th 794, 803-804.)

Even if Marsden is applied to MDO proceedings, there was no error in this case. Under Marsden, when a defendant seeks substitution of appointed counsel, the trial court must permit the defendant to explain the basis of his or her request and appoint new counsel if the record clearly shows the current attorney is not providing adequate representation, or that there is an irreconcilable conflict between defendant and counsel that makes ineffective representation likely. (People v. Hart (1999) 20 Cal.4th 546, 603.) The trial court has discretion to deny the motion if it concludes that refusal to appoint new counsel will not "substantially impair" the defendant's right to counsel. (Ibid.) Here, the trial court allowed Bible to express the reasons for his dissatisfaction with counsel. Based on those reasons, the court was not required to appoint substitute counsel or even conduct a further hearing regarding the matter.

First, Bible failed to make a clear and unequivocal request for substitution of counsel as required by established authority. (People v. Freeman (1994) 8 Cal.4th 450, 480-481; People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8; People v. Rivers (1993) 20 Cal.App.4th 1040, 1051, fn. 7.) Bible asserted that "I don't want him to represent me" after the court informed him that his counsel had waived the right to a jury trial, and Bible could not convince the court to reject the waiver. Bible expressed dissatisfaction with counsel's decision to waive a jury trial, but had no complaint about the adequacy of counsel's representation otherwise.

Second, Bible showed only a difference of opinion with counsel over the tactical decision of whether he would fare better before a judge or a jury. A dispute over tactics does not require the court to conduct a Marsden hearing, and is an insufficient reason to compel substitution of counsel. (People v. Lucky, supra, 45 Cal.3d at p. 281; see People v. Smith (2003) 30 Cal.4th 581, 606; People v. Dickey (2005) 35 Cal.4th 884, 922.) Tactical disagreements do not by themselves constitute an irreconcilable conflict or fundamental breakdown in the attorney-client relationship. (People v. Welch, supra, 20 Cal.4th at pp. 728-729; People v. Webster (1991) 54 Cal.3d 411, 436.)

Counsel May Waive Jury Trial

Bible also contends that the trial court violated his rights by accepting defense counsel's jury trial waiver. In People v. Otis (1999) 70 Cal.App.4th 1174 (Otis), this court held that a prisoner's counsel in an MDO proceeding may waive the right to a jury trial over the prisoner's objection. (Id., at pp. 1176-1177.) Bible concedes that Otis defeats his claim, but contends that Otis was wrongly decided. For the reasons expressed in Otis, we reject his contentions.

In Otis, we reasoned that an MDO proceeding is a civil matter and that, in such cases, the Attorney General has the authority to waive a jury. We further reasoned that the context and purpose of the MDO statutory scheme support the conclusion that the Legislature did not intend to require a prisoner to personally waive but intended to leave the decision whether to waive a jury in the hands of the attorney. (Otis, supra, 70 Cal.App.4th at p. 1177.)

We also reject Bible's contention that he has a due process right to a jury trial because he could be subjected to a civil commitment. Although this argument was not expressly raised in Otis, a later case concludes that a prisoner in an MDO proceeding does not have a federal due process right to a trial by jury. (People v. Montoya (2001) 86 Cal.App.4th 825, 831-832.) "A jury sitting in a civil hearing pursuant to sections 2970 and 2972 does not impose criminal punishment and has no power to determine the extent to which the defendant will be deprived of his liberty. Defendant's jury trial interest thus is, . . . 'merely a matter of state procedural law' and does not implicate the Fourteenth Amendment." (Id., at p. 832.)

The judgment (order of commitment) is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Barry T. LaBarbera, Judge

Superior Court County of San Luis Obispo

______________________________

Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte, Supervising Deputy Attorney General, Stacy S. Schwartz, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless otherwise stated.