Filed 11/10/15 P. v. Engel CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050074

         v.                                                            (Super. Ct. No. 11HF1297)

ROBERT BRUCE ENGEL,                                                    OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County,
Gregg L. Prickett, Judge, and Vickie L. Hix, Commissioner. Affirmed. Request for
judicial notice. Granted.
                   Richard Schwartzberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
                                     INTRODUCTION
              Robert Bruce Engel appeals from an order of commitment determining him
to be incompetent and committing him to the State Department of State Hospitals. The
order is appealable as a final judgment in a special proceeding. (People v. Christiana
(2010) 190 Cal.App.4th 1040, 1045.) Engel argues the trial court erred by denying his
motion for new counsel made pursuant to People v. Marsden (1970) 2 Cal.3d 118
(Marsden) without conducting a hearing. We affirm. The trial court did not abuse its
discretion by denying the Marsden motion, and any error in not conducting a Marsden
hearing was harmless beyond a reasonable doubt.


                           FACTS AND PROCEDURAL HISTORY
              On May 9, 2011, two teenage girls saw Engel masturbating while he was
seated at a public library. His pants were unzipped, he was breathing heavily, and,
although a newspaper was on his lap, one of the girls saw his erect penis. The girls
reported the incident to the librarian, who contacted law enforcement, but Engel had
already left the library. On May 16, 2011, an Orange County Sheriff’s deputy was
dispatched to the same library, where the deputy arrested Engel, who had four prior
convictions for indecent exposure.
              Engel was charged by information with one count of indecent exposure in
violation of Penal Code section 314, subdivision 1. In October 2012, following a bench
trial, Engel was convicted as charged. Sentencing was continued. In November 2012,
the trial court granted Engel’s motion to be relieved of retained counsel and to appear in
propria persona. Counsel for Engel was reappointed in August 2013.
              In October 2013, Engel’s trial counsel announced that Engel wanted to
bring a Marsden motion (the first Marsden motion) and represent himself. A Marsden
hearing was conducted, following which the trial court denied the first Marsden motion.



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              In November 2013, Engel’s trial counsel declared a doubt as to Engel’s
competence within the meaning of Penal Code section 1368, and the trial court suspended
criminal proceedings.
              On January 14, 2014, Engel made another Marsden motion (the second
Marsden motion). The second Marsden motion was in writing and laid out Engel’s
complaints about his appointed counsel. A Marsden hearing was conducted by
Commissioner Vickie L. Hix on February 3, 13, and 27, 2014. On February 27, at the
end of the hearing, the court denied the motion. The court stated: “I find that there has
not been a breakdown. I find that any deterioration in this [attorney-client] relationship
has been caused by the willful recalcitrant and defi[ant] attitude of Mr. Engel, and there is
no reason why in the future, however, that [counsel] cannot effectively represent him.”
              On February 28, 2014, the trial court found Engel to be mentally
incompetent under Penal Code section 1368 and ordered the Orange County Mental
Health Department to conduct an evaluation of Engel and make recommendations
regarding his placement.
              On March 28, 2014, Engel filed a request to “reopen” the second Marsden
motion (the third Marsden motion). The third Marsden motion was, like the second
Marsden motion, in writing and laid out Engel’s complaints about his appointed counsel.
On March 28, 2014, Commissioner Christopher Evans, who initially reviewed the third
Marsden motion, stated it appeared to be a rehash of Engel’s second Marsden motion and
continued the matter to April 2, 2014, to permit Commissioner Hix to consider the third
Marsden motion. On April 2, Commissioner Hix noted that Engel had requested a
“further re-hearing on the Marsden motion” (italics added) and denied the motion without
conducting a hearing. Commissioner Hix explained a Marsden hearing was not
appropriate because Engel already had been found incompetent and “the competency
hearing is no longer pending.”



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              Based on the recommendation of the Orange County Mental Health
Department, the trial court committed Engel to Patton State Hospital for a maximum term
of commitment of three years with 819 days of credit for time served. An order of
commitment was entered on April 4, 2014. Engel appealed from the commitment order,
which was signed by Judge Gregg L. Prickett.


                                       DISCUSSION
                                            I.
                                        Mootness
              The Attorney General asserts the appeal should be dismissed as moot
because Engel has regained competence and is awaiting sentencing. The Attorney
General has requested we take judicial notice of certified court minutes showing that
Engel’s competence has been restored, criminal proceedings have been reinstated, and a
sentencing hearing had been scheduled for March 24, 2015. The request for judicial
notice is granted. (Evid. Code, §§ 452, subds. (c) & (d), 459.)
              Engel concedes his competence has been restored, but contends his appeal
is viable because the commitment order and the finding of incompetence could somehow
affect future proceedings and remain a stigma on his character. We agree with Engel and
decline to dismiss the appeal as moot. (See People v. Feagley (1975) 14 Cal.3d 338, 345
[temporary commitment as mentally disordered offender may be challenged after
discharge]; see also Conservatorship of Roulet (1979) 23 Cal.3d 219, 228-230 [stigma
attaches to person found disabled due to mental disorder].)
                                            II.

       Denial of Engel’s Third Marsden Motion Was Not Erroneous. Any Error in
                  Not Conducting a Marsden Hearing Was Harmless.
              “When a defendant seeks discharge of his appointed counsel on the basis of
inadequate representation by making what is commonly referred to as a Marsden motion,


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the trial court must permit the defendant to explain the basis of his contention and to
relate specific instances of counsel’s inadequacy. [Citations.] ‘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. Cole (2004) 33 Cal.4th 1158, 1190.)
              We review denial of a Marsden motion under the abuse of discretion
standard. (People v. Cole, supra, 33 Cal.4th at p. 1190.) “‘[A]ppellate courts will not
find an abuse of that discretion unless the failure to remove appointed counsel and
appoint replacement counsel would “substantially impair” the defendant’s right to
effective assistance of counsel.’ [Citation.]” (People v. Abilez (2007) 41 Cal.4th 472,
488.)
              Citing People v. Solorzano (2005) 126 Cal.App.4th 1063 and People v.
Harrison (2001) 92 Cal.App.4th 780, Engel argues Commissioner Hix erred by denying
the third Marsden motion without conducting a hearing. In Solorzano, supra, 126
Cal.App.4th at pages 1069-1070, the Court of Appeal concluded a trial court must
conduct a Marsden hearing even though the defendant’s complaints about counsel arose
during the pendency of competency proceedings. In Harrison, supra, 92 Cal.App.4th at
page 789, the Court of Appeal concluded, “the fact [the defendant] had been declared
incompetent did not mean the court was entitled to ignore [the defendant]’s Marsden
motions.” The Attorney General argues a hearing on the third Marsden motion was not
required because by April 2, 2014 (when Commissioner Hix denied the third Marsden
motion), Engel had been declared incompetent. The Attorney General argues Harrison
was wrongly decided to the extent it requires a Marsden hearing after a defendant has
been declared incompetent.
              The trial court did not abuse its discretion by denying the third Marsden
motion without a hearing. A Marsden hearing is conducted because “[t]he defendant

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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.” (Marsden, supra, 2 Cal.3d at p. 123.) The third Marsden
motion was in writing and laid out at length Engel’s complaints about his counsel,
including events, such as attorney-client meetings, that would not have been apparent to
the trial court.
               In addition, both Engel and the Attorney General overlook the fact that the
trial court conducted a Marsden hearing over three days in February 2014 before denying
the second Marsden motion on February 27. The three days of hearings span over
92 pages of the reporter’s transcript. Engel filed the third Marsden motion just one
month later, on March 28. The third Marsden motion was labeled a request to reopen the
second Marsden motion and raised essentially the same complaints about trial counsel,
which Commissioner Hix had previously rejected. In denying the second Marsden
motion, Commissioner Hix found that Engel had been the cause of any deterioration of
the attorney-client relationship and there was no reason his current appointed counsel
could not effectively represent him. Engel does not challenge that finding. Because the
trial court permitted Engel to explain the basis of the second Marsden motion and to
relate specific instances of counsel’s alleged inadequacy in a lengthy hearing, given this
record as described above, the court did not abuse its discretion by denying the third
Marsden motion without a hearing.
               If the court should have conducted a hearing, the error was harmless
beyond a reasonable doubt. (Marsden, supra, 2 Cal.3d at p. 126 [beyond reasonable
doubt standard for determining prejudice].) 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. (People v. Reed (2010) 183 Cal.App.4th 1137, 1148.)
Here, the record demonstrates beyond a reasonable doubt that the trial court would have
denied the third Marsden motion if a hearing had been conducted because, just one

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month earlier, Commissioner Hix had denied essentially the same motion following a
lengthy hearing.
                                    DISPOSITION
             The order of commitment is affirmed.




                                              FYBEL, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



IKOLA, J.




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