Filed 9/11/13



                      CERTIFIED FOR PARTIAL PUBLICATION*



                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           FOURTH APPELLATE DISTRICT

                                     DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                      E054823

v.                                                     (Super.Ct.No. RIC10009408)

RICHARD CLINTON HILL,                                  OPINION

        Defendant and Appellant.



        APPEAL from the Superior Court of Riverside County. James T. Warren† and

Jean P. Leonard, Judges. Reversed with directions.

        Chris Truax, under appointment by the Court of Appeal, for Defendant and

Appellant.



        *Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II and III.

        † Judge Warren is a retired judge of the Riverside Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.

                                              1
       Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Ronald A.

Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

       Defendant Richard Clinton Hill appeals an order civilly committing him to a state

hospital under the Sexually Violent Predator Act. (Welf. & Inst. Code, § 6600 et seq.

(the SVPA).)1 He contends that he had a constitutional right to the effective assistance of

counsel and that the trial court violated that right by refusing to consider his Marsden2

motion to replace his court-appointed attorney. He also contends that his right to a fair

trial was violated by the trial judge‟s “multi-tasking” during the trial and that the

indefinite commitments provided for in SVPA proceedings violate equal protection

principles.

       We reject the latter two contentions. However, we agree that defendant was

entitled to a Marsden hearing and that the trial court‟s failure to conduct a Marsden

hearing was prejudicial error.

                                     BACKGROUND

       Defendant does not challenge the jury‟s finding that he meets the statutory

definition of a sexually violent predator. Accordingly, we need not discuss the

underlying offenses or the expert testimony supporting the jury‟s findings. For our

purposes, it suffices to say that the district attorney filed a petition for commitment under

       1 All statutory citations refer to the Welfare and Institutions Code unless another
code is specified.

       2   People v. Marsden (1970) 2 Cal.3d 118.

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the SVPA and that a jury found the allegations of the petition true. On October 24, 2011,

the court ordered defendant committed to Coalinga State Hospital. On that same date,

defendant filed his notice of appeal.

                                        DISCUSSION

                                             I.

 THE TRIAL COURT‟S REFUSAL TO HEAR DEFENDANT‟S MARSDEN MOTION

                                 REQUIRES REVERSAL

       1. Introduction and Summary of the Issue.

       Defendant was represented by a court-appointed attorney in the SVPA

proceedings. Before trial commenced, defendant filed a written motion seeking a

Marsden hearing to ask for the appointment of substitute counsel. In his written motion,

he stated that he was dissatisfied with his current attorney for various reasons, including

counsel‟s failure to communicate and confer with him, except briefly; counsel‟s failure to

subpoena witnesses defendant considered necessary to his defense; counsel‟s failure to

investigate and obtain evidence crucial to the defense; counsel‟s failure to secure expert

witnesses; and counsel‟s failure to file a number of motions. Defendant stated in the

written motion that he would present evidence to support his contentions at the hearing.

       At a pretrial hearing, the trial court informed defendant that he was not entitled to

a Marsden hearing and dismissed the motion.

       Defendant now contends that he has a constitutional right to the effective

assistance of counsel and, as part of that right, to a Marsden hearing. The Attorney

General agrees that defendant has a due process right to counsel and to a Marsden

                                              3
hearing. The parties disagree, however, as to the standard for reversal following a trial

court‟s refusal to hold a Marsden hearing where the defendant has a right to such a

hearing.

       2. A Defendant in a Civil Commitment Proceeding Has a Due Process Right to

the Effective Assistance of Counsel and to a Marsden Hearing.

       We first address defendant‟s right to a Marsden hearing.

       Defendant acknowledges that the Sixth Amendment right to counsel, which is the

source of the Marsden procedure, does not apply to civil commitment proceedings.

Nevertheless, he contends that he has a due process right to the effective assistance of

counsel, both arising directly from the due process clause of the Fourteenth Amendment

and from the due process right which arises as a result of the Legislature‟s creation of a

statutory right to counsel in SVPA proceedings. (§ 6603, subd. (a).)

       This issue, arising under the Lanterman-Petris-Short (LPS) Act (§ 5000 et seq.),

was addressed in Conservatorship of David L. (2008) 164 Cal.App.4th 701 (David L.).

In that case, the proposed involuntary conservatee contended that he had a constitutional

right to the effective assistance of counsel and to a Marsden hearing. The trial court had

denied the motion without allowing the proposed conservatee to state the reasons for his

request. (Id. at pp. 707-708, 712.)

       The appellate court held that because the Marsden procedure is grounded in the

Sixth Amendment right to effective counsel in criminal proceedings, it does not directly

apply to an LPS proceeding, which is civil in nature. (David L., supra, 164 Cal.App.4th

at pp. 709-710.) However, because the LPS Act provides a statutory right to counsel, a

                                             4
prospective involuntary conservatee has a liberty interest in that right which is protected

by the due process clause of the federal Constitution. The court held that once a

substantial state-created right has been conferred, “„minimum procedures appropriate

under the circumstances [are] required . . . “to insure that the state-created right is not

arbitrarily abrogated.” [Citation.]‟” (Wilson v. Superior Court (1978) 21 Cal.3d 816,

823, cited in David L., at p. 710.) Accordingly, the court held, “under the LPS Act[,]

a prospective conservatee‟s statutory right to effective assistance of counsel is protected

by due process.”3 (David L., at p. 710.)

       The court next addressed the question of what procedures are required to protect

the prospective conservatee‟s interest in his right to effective assistance of counsel. The

court applied the four factors identified in People v. Otto (2001) 26 Cal.4th 200 (Otto), as

relevant to that determination: “(1) the private interest that will be affected by the official

action; (2) the risk of an erroneous deprivation of such interest through the procedures

used, and the probable value, if any, of additional or substitute procedural safeguards;

(3) the government‟s interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural requirement would

entail; and (4) the dignitary interest in informing individuals of the nature, grounds, and

consequences of the action and in enabling them to present their side of the story before a




       3 The court noted that the duty of appointed counsel to perform in an effective and
professional manner is implicit in the statutory right to counsel. (David L., supra, 164
Cal.App.4th at p. 710.)

                                               5
responsible government official. [Citation.]” (Otto, at p. 210, quoted in David L., supra,

164 Cal.App.4th at pp. 710-711.)

       The court held, first, that the liberty interests at stake in a conservatorship are

significant because in addition to the possibility of involuntary physical restraint, a

disabled person for whom a conservatorship is established faces the loss of many other

liberties. (David L., supra, 164 Cal.App.4th at p. 711.)

       Second, the court held, there is “no meaningful distinction between criminal and

LPS proceedings insofar as the procedures required to guard against the erroneous

deprivation of the right to effective assistance of counsel. In holding that a trial court

must provide a criminal defendant seeking substitute counsel an opportunity to state the

reasons for his request, the court [in Marsden] explained that „[a] trial judge is unable to

intelligently deal with a defendant‟s request for substitution of attorneys unless he is

cognizant of the grounds which prompted the request. The 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. . . . A judicial decision made without giving a party an

opportunity to present argument or evidence in support of his contention “is lacking in all

the attributes of a judicial determination.”‟ [Citations.] Because the reasoning expressed

in Marsden is equally applicable to LPS conservatorship proceedings, we conclude that

the trial court must afford a prospective conservatee a full opportunity to state the reasons

for requesting substitute counsel in accordance with Marsden.” (David L., supra, 164

Cal.App.4th at p. 711.)

                                               6
       Third, the court held, providing a proposed conservatee the opportunity to seek

replacement of counsel furthers the purpose of the LPS Act “insofar as it safeguards

against the erroneous deprivation of the right to effective assistance of counsel, which is

essential to ensure the proposed conservatee is not erroneously deprived of his liberty. . . .

Moreover, allowing a prospective conservatee a full opportunity to state his reasons for

requesting substitute counsel is unlikely to place a significant fiscal or administrative

burden on the government or potentially impede the government‟s interest in protecting

the public safety or the prospective conservatee.” (David L., supra, 164 Cal.App.4th at

pp. 711-712.) Fourth, the court held, “insofar as failing to provide a proposed

conservatee with a full opportunity to state his reasons for requesting substitute counsel

adversely impacts his right to effective assistance of counsel, it necessarily „disable[s]

him from presenting his side of the story before a responsible government official.‟” (Id.

at p. 712, quoting Otto, supra, 26 Cal.4th at p. 215.)

       For all of these reasons, the court concluded that a prospective conservatee “has a

right under the due process clause to fully state the reasons for requesting substitute

counsel in an LPS conservatorship proceeding.” (David L., supra, 164 Cal.App.4th at

p. 712.)

       For the same reasons, we conclude that a defendant in an SVPA proceeding has a

due process right to a Marsden hearing. A defendant in SVPA proceedings is generally

entitled to due process protections. (Otto, supra, 26 Cal.4th at p. 209; see also Addington

v. Texas (1979) 441 U.S. 418, 419-420, 425-431 [due process clause of the Fourteenth

Amendment requires at least clear and convincing evidence in a state civil commitment

                                              7
proceeding].) And, like the LPS Act, the SVPA provides a statutory right to counsel.

(§ 6603, subd. (a).) The considerations discussed in David L., supra, 164 Cal.App.4th

701, apply equally to SVPA proceedings. Indeed, in light of the fact that a commitment

under the SVPA is most likely to result in loss of physical liberty for a prolonged period,

potentially for the remainder of the defendant‟s life, these considerations apply with even

greater force in SVPA proceedings than in LPS proceedings. Accordingly, we agree with

the parties that the trial court‟s refusal to entertain defendant‟s Marsden motion

arbitrarily deprived defendant of his statutory right to effective representation and of his

due process right to a Marsden hearing to protect and effectuate that right.

       3. Reversal for a Posttrial Marsden Hearing Is Required.

       The court in David L. did not decide what standard of reversal applied to the

denial of the right to a Marsden hearing because the conservatorship had been terminated

before the appeal was decided. (David L., supra, 164 Cal.App.4th at pp. 712-713.) Here,

defendant contends that reversal is automatic because (1) a due process right is involved

and (2) the absence of a record of a defendant‟s reasons for wanting a new attorney

prevents meaningful review. At the very least, he contends, we should apply harmless

error review pursuant to Chapman v. California (1967) 386 U.S. 18 (Chapman). The

Attorney General contends that because defendant did not have a Sixth Amendment right

to counsel but merely a state-created statutory right, the erroneous denial of the Marsden

hearing is subject to prejudice review under People v. Watson (1956) 46 Cal.2d 818,

which governs the majority of state-law errors.



                                              8
       The denial of a statutory right in a civil commitment proceeding is reviewed under

Watson. (People v. Cosgrove (2002) 100 Cal.App.4th 1266, 1276 [Fourth Dist.,

Div. Two].) Federal constitutional violations in such proceedings are reviewed under

Chapman. (People v. Hurtado (2002) 28 Cal.4th 1179, 1194; People v. Fisher (2009)

172 Cal.App.4th 1006, 1014.) Here, although the right to effective assistance of counsel

in SVPA proceedings is statutory, that right is protected by the due process clause of the

federal Constitution. (See David L., supra, 164 Cal.App.4th at p. 710.) Accordingly,

reversal is required unless we can find the denial of defendant‟s right to bring a Marsden

motion harmless beyond a reasonable doubt.

       The error was not harmless beyond a reasonable doubt. In Marsden, the defendant

made an oral motion to replace his attorney but was not given the opportunity to state his

reasons. (Marsden, supra, 2 Cal.3d at pp. 120-122.) The court held that the error was

prejudicial: “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.

[Citing Chapman.]” (Id. at p. 126.) Here, defendant‟s written Marsden motion listed a

number of complaints about his attorney‟s representation which, if true, could support a

finding that the attorney failed to meet his professional responsibilities. Defendant stated

in his motion that he would provide factual support for his claims at the hearing on the

                                             9
motion. Because defendant might have been able to demonstrate that his attorney was

not affording him adequate representation, the court‟s failure to hold a hearing resulted in

a record which precludes effective review, as was the case in Marsden. Accordingly, we

cannot say that the error was harmless beyond a reasonable doubt.

       Moreover, we would come to the same conclusion even if Watson were the

applicable standard of review. Watson requires reversal if the appellant demonstrates a

reasonable probability that the outcome of the proceeding would have been more

favorable in the absence of the trial court‟s error. (Watson, supra, 46 Cal.2d at p. 836.)

A reasonable probability does not mean “more likely than not.” Rather, it means “merely

a reasonable chance, more than an abstract possibility.” (People v. Superior Court

(Ghilotti) (2002) 27 Cal.4th 888, 918.) Because defendant‟s written motion lists failings

of trial counsel which, if true, would warrant a finding that counsel failed to meet his

professional responsibilities, defendant has met his burden of demonstrating that there is

a reasonable probability that if the trial court had allowed him to bring the motion, the

court would have granted defendant‟s request for new counsel.

       When the trial court‟s failure to afford the defendant an opportunity to state the

reasons for his dissatisfaction with his attorney results in a record which is insufficient for

meaningful review but the trial was otherwise free of error, it is appropriate to reverse the

judgment and remand the cause for the limited purpose of conducting a postjudgment

Marsden hearing. (See People v. Olivencia (1988) 204 Cal.App.3d 1391, 1400-1401;

People v. Lopez (2008) 168 Cal.App.4th 801, 815.) As we discuss below, we reject



                                              10
defendant‟s other claims of error. Therefore, we conclude that limited remand is

appropriate in this case.

                                             II.

DEFENDANT‟S COMPLAINT ABOUT THE TRIAL COURT‟S “MULTI-TASKING”

                            IS NOT COGNIZABLE ON APPEAL

       At the beginning of the trial, the judge informed the jury that she was the duty

judge that week and that one of her responsibilities was to review and sign probable

cause statements and search warrants. However, she assured the jury, she would be

paying attention to the proceedings and would be reading the court reporter‟s notes on her

computer in “real time.” Defendant now contends that the court‟s multitasking violated

his constitutional right to a fair trial by depriving him of a judge who was fully paying

attention to the proceedings.

       As a general rule, we are limited to deciding those issues that the appellant has

preserved for appeal. “„An appellate court will ordinarily not consider procedural defects

or erroneous rulings, in connection with relief sought or defenses asserted, where an

objection could have been but was not presented to the lower court by some appropriate

method . . . . The circumstances may involve such intentional acts or acquiescence as to

be appropriately classified under the headings of estoppel or waiver . . . . Often,

however, the explanation is simply that it is unfair to the trial judge and to the adverse

party to take advantage of an error on appeal when it could easily have been corrected at

the trial.‟ [Citation.]” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180,



                                             11
184, fn. 1; see also Arabia v. BAC Home Loans Servicing, L.P. (2012) 208 Cal.App.4th

462, 478.)

       Here, because defendant did not object in the trial court to the judge‟s allegedly

divided attention, he did not preserve the issue for appeal. Accordingly, we will not

address its merits. We note, however, that defendant does not make any effort to

demonstrate that he was prejudiced by the judge‟s multitasking. Rather, he contends that

judicial multitasking may be a trend, brought about by budget reductions to the trial

courts, which has a “fundamental impact on the administration of justice” and should not

be permitted without discussion and analysis. He asks that we publish this opinion to

“put parties, counsel, the [L]egislature and the public on notice that this practice exists.”

He entreats us not to dismiss his contention cavalierly, as the Attorney General does, at

least in defendant‟s opinion. However, because the issue was not litigated below, we do

not have a record which permits us to determine either that this is a trend or that it

impairs the administration of justice. For that reason, the discussion and analysis

defendant seeks must take place in a forum other than this one, i.e., in a trial court in

which the issue is litigated or in hearings or debate before the Legislature.

                                             III.

 INDEFINITE SVPA COMMITMENTS DO NOT VIOLATE EQUAL PROTECTION

                                        PRINCIPLES

       As originally enacted, the SVPA provided for a two-year commitment, renewable

only if the state proved to a jury beyond a reasonable doubt that the defendant still met

the definition of a sexually violent predator, or SVP. In 2006, the SVPA was amended

                                              12
by Proposition 83, changing the two-year initial commitment to an indefinite

commitment subject to annual reports from the California Department of Mental Health

assessing the defendant‟s continued status as an SVP. (People v. McKee (2010) 47

Cal.4th 1172, 1183-1184 (McKee I).) In McKee I, the California Supreme Court rejected

due process and ex post facto challenges to Proposition 83. However, it concluded that

SVP‟s are similarly situated with respect to persons committed under other statutes (id. at

pp. 1196-1207) and directed the appellate court to remand the case to the trial court “for

an evidentiary hearing to determine whether the People, applying constitutional equal

protection principles, could demonstrate a constitutional justification for imposing on

SVP‟s a greater burden to obtain release from commitment than on those persons

committed under the Mentally Disordered Offenders Act (Pen. Code, § 2960 et seq.)

(MDO‟s) and those persons committed after being found not guilty by reason of insanity

(Pen. Code, § 1026.5, subd. (a)) (NGI‟s).” (People v. McKee (2012) 207 Cal.App.4th

1325, 1330 (McKee II), citing McKee I, at pp. 1208-1209.)

       In his opening brief, defendant contended that we should reserve ruling on this

case until the equal protection issue raised by McKee I has been definitively settled.

McKee II, supra, 207 Cal.App.4th 1325, was decided after defendant filed his opening

brief. He apparently concedes that, as the Attorney General contends, McKee II correctly

and definitively resolved the issue by finding that Proposition 83 did not violate equal

protection principles. We agree.




                                            13
       Following the evidentiary hearing ordered in McKee I, in which the trial court

found that the SVPA does not violate equal protection, the appellate court in McKee II

applied the strict scrutiny standard mandated for equal protection analysis and concluded

that the state had established both that it has a compelling interest which justifies the

challenged procedure and that the distinctions drawn by the procedure are necessary to

further that interest. (McKee II, supra, 207 Cal.App.4th at pp. 1335, 1347-1348.)

Specifically, the court found that substantial evidence, including medical and scientific

evidence, supported the conclusion that disparate treatment of SVP‟s was justified: “The

People have shown that, „notwithstanding the similarities between SVP‟s and MDO‟s

[and NGI‟s], the former as a class bear a substantially greater risk to society, and that

therefore imposing on them a greater burden before they can be released from

commitment is needed to protect society.‟ [Quoting McKee I, supra, 47 Cal.4th at p.

1208.] The People have shown „that the inherent nature of the SVP‟s mental disorder

makes recidivism as a class significantly more likely[;] . . . that SVP‟s pose a greater risk

[and unique dangers] to a particularly vulnerable class of victims, such as children‟; and

that SVP‟s have diagnostic and treatment differences from MDO‟s and NGI‟s, thereby

supporting a reasonable perception by the electorate that passed Proposition 83 that the

disparate treatment of SVP‟s under the amended [SVP] Act is necessary to further the

state‟s compelling interests in public safety and humanely treating the mentally

disordered. [Citing and quoting McKee I, at p. 1208].” (McKee II, at p. 1347.)

       We agree with the analysis in McKee II, supra, 207 Cal.App.4th 1325, and we

therefore reject defendant‟s equal protection claim.

                                              14
                                     DISPOSITION

       The judgment is reversed, and the case is remanded with directions to the trial

court to conduct a Marsden hearing and exercise judicial discretion to order a new trial,

to reinstate the judgment, or to proceed otherwise as authorized by law.

       CERTIFIED FOR PARTIAL PUBLICATION


                                                               McKINSTER
                                                                                            J.
We concur:



HOLLENHORST
          Acting P. J.



RICHLI
                          J.




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