P. v. Jackson

Filed 2/6/07  P. v. Jackson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

                        Ronald Jackson appeals an order recommitting him to the California Department of Mental Health (CDMH) for treatment as a mentally disordered offender (MDO) (Pen. Code, §  2962) following his conviction of assault with a deadly weapon (§  245).  We conclude that the trial court provided Jackson an adequate hearing to consider his request to replace his appointed counsel and it did not err by denying his motion.  We affirm.

FACTS

                        After his conviction for assault, the Board of Prison Terms (BPT) determined that Jackson was an MDO.  He was committed to the CDMH.  After a year in treatment his doctors and the BPT determined that he was not in remission and should be re-committed as an MDO. 

                        Jackson filed a petition to challenge that determination and requested the appointment of counsel to represent him.  The superior court appointed attorney Frederick Foss. 

                        At the beginning of trial Foss said, " Mr. Jackson .  .  .  wants to address the court . .  .  ."   Jackson said, " My attorney doesn't seem to be working my best justice of interest."   The trial court responded, " I'm sure he is."  

                        Jackson told the court, " Well, you see, I haven't had no counsel with him since we started the case and I've also had another attorney tell me to - - come from the same office.  I do believe may be avoiding that, possibly, but it did seem like there was a slip-up on putting things together as an addition to assist in the courtroom the other day – - affidavit - -."

                        The court asked Foss, " Are you ready to proceed?"   Foss responded, " I am."  The court said to Jackson, " Mr. Foss is ready."  Jackson responded, " Okay.  I'll go ahead."  

                        Dr. Constantine J. Davantzis, a staff psychiatrist at Atascadero State Hospital, testified that Jackson suffers from " schizoaffective disorder, bipolar type."  He has " mood fluctuations, poor impulse control, angry reaction to mental provocation and rapid escalations in his mood from euphoria to dysphoria."   His severe mental disorders cannot be kept in remission without treatment.  He has made threats, has become " physically violent" and has not followed his treatment plan. 

                        On cross-examination Davantzis testified that in 15 months of treatment Jackson has " shown improvement."   " He's less [volatile] than he used to be."   " [He] doesn't, on a daily basis, yell at people."   " He's getting along with his peers in a better fashion."  

DISCUSSION

I. Marsden

                        Jackson contends that his MDO commitment order must be reversed because he had a right to bring a Marsden (People v. Marsden (1970) 2 Cal.3d 118)  motion to replace his appointed counsel and the court denied his motion without providing him an adequate hearing.  We disagree.

                        A defendant in a criminal case may request the court to replace his or her appointed counsel.  (People v. Marsden, supra, 2 Cal.3d at pp. 123-124.)  " '[T]he court must consider any specific examples of counsel's inadequate representation that the defendant wishes to enumerate.'"   (People v. Hines (1997) 15 Cal.4th 997, 1024.)  " [T]he right to substitution of counsel depends upon whether defendant has made a sufficient showing that the right to assistance of counsel would be substantially impaired if the request is not granted."   (People v. Winbush (1988) 205 Cal.App.3d 987, 990.) 

                        Jackson notes that some courts have concluded that Marsden applies to civil cases where a defendant or other party has a right to court appointed counsel.  For example, in In re Ann S. (1982) 137 Cal.App.3d 148, 150, the Court of Appeal held that a minor removed from the physical custody of her parents had a right to bring a Marsden motion to replace her court appointed counsel.  In People v. Leonard (2000) 78 Cal.App.4th 776, 784, the Court of Appeal " assumed" that defendants in Sexually Violent Predator Act (SVPA) cases could bring Marsden motions because SVPA defendants " deserve the same constitutional protections accorded criminal defendants."

                        The Attorney General responds that the courts are not in agreement on this issue.  He notes that in People v. Williams (2003) 110 Cal.App.4th 1577, 1590, the Court of Appeal disagreed with Leonard and concluded that because MDO proceedings " are civil in nature" many of the procedures applicable in criminal cases do not apply.  It noted that in criminal cases the right to counsel is derived from the Constitution.  But " the right to counsel (and the right to refuse such counsel) in MDO proceedings is of statutory, not constitutional origin."   (Williams, at p. 1591.)  Consequently, in MDO cases courts do not automatically follow criminal procedural rules involving the constitutional right to counsel.  Instead, they are bound by due process procedural standards which include a hearing before an impartial decisionmaker who considers the defendant's reasons for replacing counsel.  (Id., at p. 1592.)

                        But we need not resolve the conflict between Leonard and Williams because we conclude that the hearing Jackson received complied with Marsden and Williams.  The court permitted Jackson to articulate his reasons for wanting to change counsel.  Jackson said, " there was a slip-up on putting things together" and suggested his counsel was not ready for trial.  The court therefore made an inquiry of counsel as to whether he was prepared.  After obtaining an affirmative answer it advised Jackson that his attorney said he " is ready" for trial.  Jackson responded, " Okay. I'll go ahead."   From this response the court could reasonably find that Jackson had abandoned his request to change counsel and was satisfied with his counsel's response.

                        Jackson contends that the court should have held another hearing in camera to make further inquiries because some of Jackson's statements were ambiguous.  But the trial court understood the underlying substance of Jackson's complaints.  Where the court knows the positions of the defendant and his counsel it need not hold a " full-blown hearing" to decide a Marsden motion.  (People v. Freeman (1994) 8 Cal.4th 450, 481.)  Here Jackson only speculated that Foss might not be prepared, but Foss assured the court that he was.  " We review a trial court's decision declining to relieve appointed counsel under the deferential abuse of discretion standard."   (People v. Jones (2003) 29 Cal.4th 1229, 1245.)  The court did not abuse its discretion by relying on the assurances of counsel and rejecting Jackson's speculation.  (Ibid.)  Moreover, Jackson ultimately and unequivocally said that he wanted to proceed to trial with Foss.

                        Jackson claims the court prejudged his motion and decided to proceed to trial without listening to his complaints because it said it was sure Foss was acting in his best interests.  We disagree.  After the court made this gratuitous remark it allowed Jackson to state why he was dissatisfied with counsel.  There is nothing in the record to support Jackson's claim that the court prevented him from making any comments he wished to make about his attorney's performance.  The court listened to his complaints.  It then sought responses from Foss and Jackson.  It only commenced trial after Jackson said he wanted to proceed.

                        Moreover, based on the evidence presented at trial any procedural error would be harmless beyond a reasonable doubt.  (People v. Leonard, supra, 78 Cal.App.4th at p. 787.)  Jackson has serious mental disorders that are not in remission.  Davantzis' testimony supported the order for an MDO commitment.  Jackson claims the denial of his motion to change counsel was prejudicial because Foss's performance was " no performance at all."  We disagree.  Foss sought to exclude prosecution evidence, cross-examined Davantzis, tried to impeach him and elicited testimony that in 15 months of treatment Jackson had " shown improvement."  From this record Jackson has shown neither prejudice nor ineffective assistance.  (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)    

                        The order is affirmed.

                        NOT TO BE PUBLISHED.

                                                GILBERT, P.J.

We concur:

                        COFFEE, J.

                        PERREN, J.

Christopher G. Money, Judge

Superior Court County of San Luis Obispo

______________________________

                        Gerald J. Miller, 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, Lawrence M. Daniels, Supervising Deputy Attorney General, Sarah Farhat, Deputy Attorney General, for Plaintiff and Respondent.

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