Filed 8/26/13 P. v. Arteaga CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038236
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC815385)

         v.

LORENZO ARTEAGA,

         Defendant and Appellant.



         Defendant Lorenzo Arteaga appeals from an order finding him incompetent to
stand trial and committing him to the Department of Mental Health pursuant to Penal
Code section 1370, subdivision (a)(2).1 On appeal, defendant contends the trial court
erred by refusing to hold a hearing on his Marsden motion. (People v. Marsden (1970)
2 Cal.3d 118 (Marsden).) We will reverse the commitment order and remand for a
Marsden hearing.

                                                 BACKGROUND
         On August 19, 2008, the District Attorney filed a complaint alleging that
defendant failed to register as a sex offender (§ 290.015, subd. (a)) and had 11 prior
convictions that qualified as strikes (§§ 667, subds. (b)-(i), 1170.12).


         1
             All further statutory references are to the Penal Code unless stated otherwise.
       Defendant was committed to Atascadero State Hospital (Atascadero) on June 10,
2009 after being found incompetent to stand trial.2 (See § 1370.) On February 14, 2011,
the medical director of Atascadero filed a report certifying that defendant‘s competency
had been restored. (See § 1372.)
       Criminal proceedings were reinstated on March 21, 2011. Defendant was granted
the right to represent himself on March 23, 2011. (See Faretta v. California (1975) 422
U.S. 806.) Defendant continued to represent himself over the next several months.
       On December 9, 2011, the trial court declared a doubt as to defendant‘s
competency to stand trial and suspended criminal proceedings. (See § 1368.) On
December 14, 2011, the trial court revoked defendant‘s pro per status and appointed the
Public Defender‘s Office to represent him. After the appointment, Deputy Public
Defender Mallory Street noted that defendant objected ―to a doubt being declared,‖ and
she requested that two doctors be appointed to evaluate defendant. The trial court
appointed Brent Hughey, Ph.D. for one of the evaluations.
       Dr. Hughey filed his report on January 10, 2012. He had evaluated defendant for
one hour, 30 minutes. Defendant initially made a ―considerable effort to present himself
in a favorable and ‗normal‘ manner.‖ However, his ―mental health symptomatology‖
began to show; it included ―increasing pressured speech, considerable rambling and
tangential train of thought with frequent references to various legal matters or letters, . . .
regardless of the topic or specific question being posed.‖ Towards the end of the
evaluation, defendant ―began exhibiting paranoid delusional beliefs.‖
       Dr. Hughey concluded that defendant had a ―significantly impaired ability to
rationally cooperate with counsel as a result of a decompensated mental state as a result
of schizophrenia of the paranoid type.‖ Dr. Hughey recommended that he be restarted on


       2
        This court affirmed that commitment order in an unpublished opinion. (People
v. Arteaga (Mar. 30, 2010, H034322) [nonpub. opn.].)

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psychotropic medications, which defendant had stopped taking after his release from
Atascadero.
       On January 11, 2012, defendant filed a written Marsden motion. In the motion, he
checked boxes listing a number of general grounds for the motion, such as trial counsel‘s
failure to confer with him, failure to perform investigation, and failure to file motions on
his behalf. He asserted that ―[attorney] Mallory Street, P.D. and the entire [Santa Clara
County] Public Defender‘s office has a serious and sustained conflict of interest in this
case‖ and that there was an ―on-going conspiracy‖ to delay the criminal proceedings and
destroy evidence of his innocence. He indicated that he was represented by attorney Lori
Silva Stuart in habeas proceedings, but that she was on maternity leave and
―unavailable.‖
       At a hearing on January 11, 2012, defendant was represented by Deputy Public
Defender Jennifer Bedolla. Defendant stated, ―There‘s a Marsden pending current.‖ The
trial court responded, ―Yes. I understand that, but I also have a competing doctor‘s report
from Dr. Hughey. And based on that report, I am going to decline to entertain any kind
of Marsden motion because proceedings are suspended, and I am prepared to follow the
recommendation of Dr. Hughey.‖ Defendant pointed out that two doctors had been
appointed, and attorney Bedolla made a formal request for a second evaluation. The trial
court then appointed Steven Barron, Ph.D. for a second evaluation.
       Dr. Barron issued a report on February 7, 2012. His report was based on ―a
review of available records‖ because defendant had declined to participate in an
evaluation. The report reflected that defendant had been delusional upon his admission to
Atascadero but that his condition improved with medication, which he was currently
refusing to take. Dr. Barron concluded that defendant was ―presently unable to
understand the nature of the criminal proceedings and assist counsel in the conduct of a
defense in a rational manner,‖ and that involuntary psychiatric medications should be
administered.

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       At a hearing on February 8, 2012, defendant was still represented by attorney
Bedolla, but a different judge presided. Defendant referred to his ―pending Marsden
motion‖ and indicated that it pertained to attorney Stuart. Defendant also asserted that
there was ―no problem‖ with his competency. Attorney Bedolla informed the court that
defendant was ―in disagreement‖ with Dr. Barron‘s finding and requested that defendant
be given another opportunity to participate in an interview with Dr. Barron. The trial
court agreed to re-refer the matter to Dr. Barron. The court did not make any comments
about the Marsden motion.
       Dr. Barron issued a second report on February 27, 2012. He had attempted to
evaluate defendant again, but defendant had again declined to participate. Dr. Barron
again concluded that defendant was incompetent to stand trial.
       At a hearing on April 2, 2012, defendant was represented by Deputy Public
Defender Mairead O‘Keefe. The parties submitted the competency determination on the
doctors‘ reports, and the trial court found that defendant was incompetent to stand trial.
By order filed on April 19, 2012, defendant was committed to the Department of Mental
Health for a maximum of three years.

                                      DISCUSSION
       Defendant contends the trial court erred by refusing to hold a hearing on his
Marsden motion.
       ―When a defendant seeks new counsel on the basis that his appointed counsel is
providing inadequate representation—i.e., makes what is commonly called a Marsden
motion [citation]—the trial court must permit the defendant to explain the basis of his
contention and to relate specific instances of inadequate performance. A defendant is
entitled to relief if the record clearly shows that the appointed counsel is not providing
adequate representation or that defendant and counsel have become embroiled in such an




                                              4
irreconcilable conflict that ineffective representation is likely to result.‖ (People v. Smith
(2003) 30 Cal.4th 581, 604.)
       A trial court must conduct a Marsden hearing even when the defendant‘s
complaints about counsel arise during competency proceedings. (See People v.
Solorzano (2005) 126 Cal.App.4th 1063, 1069-1070 (Solorzano); accord, People v.
Taylor (2010) 48 Cal.4th 574, 600-601 (Taylor) [trial court erred when it ―brushed aside‖
defendant‘s requests for substitution of counsel in the belief that the question of
defendant‘s competence had to be resolved first]; People v. Govea (2009) 175
Cal.App.4th 57, 61 (Govea).) Thus, in this case, even though the criminal proceedings
were suspended, the trial court should have addressed defendant‘s Marsden motion.
       However, ―Marsden does not establish a rule of per se reversible error.
[Citation.]‖ (People v. Washington (1994) 27 Cal.App.4th 940, 944.) Reversal is not
required if the record shows beyond a reasonable doubt that the defendant was not
prejudiced by the trial court‘s failure to hold a Marsden hearing. (See People v. Reed
(2010) 183 Cal.App.4th 1137, 1148 (Reed); see also Marsden, supra, 2 Cal.3d at p. 126;
Taylor, supra, 48 Cal.4th at p. 601; Solorzano, supra, 126 Cal.App.4th at p. 1071.)
       The trial court‘s failure to hold a Marsden hearing was prejudicial in Solorzano,
where the defendant indicated he wanted a new attorney on the day of his competency
hearing. The defendant complained that his attorney had not obtained certain records that
would establish his incompetency. (Solorzano, supra, 126 Cal.App.4th at p. 1068.) The
trial court refused to hold a Marsden hearing, and it found the defendant competent to
stand trial. The defendant was then convicted and sentenced to state prison. (Id. at
p. 1068.) On appeal, the Solorzano court explained that it could not determine whether
the outcome of the competency proceeding might have been different had the defendant
been given an opportunity to explain the basis for his claims about counsel. (Id. at
p. 1071.) Since ―[a] criminal trial of a defendant incompetent to stand trial violates due
process,‖ and it was possible that the competency trial could have had a different result if

                                              5
the trial court had heard and granted the defendant‘s Marsden motion, the error was not
harmless. (Ibid.)
       Failure to hold a Marsden hearing was held to be harmless in both Govea and
Taylor. In Govea, the defendant‘s attorney declared a doubt as to his competency. While
criminal proceedings were suspended, the defendant requested a Marsden hearing, but
the trial court refused to conduct such a hearing. (Govea, supra, 175 Cal.App.4th at
p. 60.) After finding the defendant competent to stand trial, the trial court heard and
denied the Marsden motion, but it ultimately appointed another attorney to represent the
defendant at trial. (Id. at p. 61.) The appellate court held that while the trial court
―should have conducted a Marsden hearing, notwithstanding the pending issue regarding
defendant‘s competency,‖ the error did not require reversal. (Ibid.) The error was
harmless because the defendant eventually got a Marsden hearing, was found competent,
and obtained a new attorney: ―the trial court gave defendant everything he sought.‖ (Id.
at p. 62.)
       In Taylor, the California Supreme Court followed Govea and found the failure to
hold a Marsden hearing was harmless. There, the defendant requested another attorney
after counsel declared a doubt as to his competency. The trial court initially refused to
hold a Marsden hearing ― ‗[b]ecause of the mental competence problem,‘ ‖ but it
ultimately held two Marsden hearings – one before finding defendant competent to stand
trial, and one afterwards – and it granted the defendant‘s request for a new attorney
before the criminal trial began. (Taylor, supra, 48 Cal.4th at p. 597.) Since, as in Govea,
―the ‗trial court gave defendant everything he sought,‘ ‖ the error was harmless. (Id. at
p. 601.)
       In this case, defendant filed a Marsden motion while criminal proceedings were
suspended and requested a Marsden hearing twice during the competency proceedings.
The trial court did not hold a Marsden hearing before determining defendant‘s
competency. Unlike in Govea and Taylor, the trial court here found defendant

                                               6
incompetent, against his wishes. Although defendant was represented by different
attorneys from the Public Defender‘s Office, defendant‘s motion had alleged that the
―entire [Santa Clara County] Public Defender‘s office‖ had a conflict, and attorney
O‘Keefe submitted the competency determination on the psychologists‘ evaluations.
On this record, we cannot say that defendant got ―everything he sought‖ (Govea, supra,
175 Cal.App.4th at p. 62) and thus we cannot say that the trial court‘s failure to hold a
Marsden hearing was harmless beyond a reasonable doubt. (See Reed, supra, 183
Cal.App.4th at p. 1148; Marsden, supra, 2 Cal.3d at p. 126; Taylor, supra, 48 Cal.4th at
p. 601; Solorzano, supra, 126 Cal.App.4th at p. 1071.)

                                      DISPOSITION
       The April 19, 2012 order committing defendant to the Department of Mental
Health is reversed and the matter is remanded with directions to the trial court to conduct
a Marsden hearing. If the court grants the Marsden motion, substitute counsel shall be
appointed, and a new trial shall be held on the issue of defendant‘s competency. If the
court denies the Marsden motion, it shall reinstate the order of commitment.




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                             ___________________________________________
                             BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MÁRQUEZ, J.




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