
    [No. E054823.
    Fourth Dist., Div. Two.
    Sept. 11, 2013.]
    THE PEOPLE, Plaintiff and Respondent, v. RICHARD CLINTON HILL, Defendant and Appellant.
    [CERTIFIED FOR PARTIAL PUBLICATION]
    
      Counsel
    Chris Truax, under appointment by the Court of Appeal, for Defendant and Appellant.
    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.
    
      
      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 ID.
    
   Opinion

McKINSTER, J.

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.) 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 Marsden 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 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 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 [79 Cal.Rptr.3d 530] (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 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 [148 Cal.Rptr. 30, 582 P.2d 117], 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.” (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 [109 Cal.Rptr.2d 327, 26 P.3d 1061] (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 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 comers 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.” ’ [Citation.] 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.)

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, citation omitted.) 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 Addington v. Texas (1979) 441 U.S. 418, 419-420, 425-431 [60 L.Ed.2d 323, 99 S.Ct. 1804] [due process clause of the 14th Amend, requires at least clear and convincing evidence in a state civil commitment 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 [17 L.Ed.2d 705, 87 S.Ct. 824] {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 [299 P.2d 243] (Watson), which governs the majority of state law errors.

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 [123 Cal.Rptr.2d 535] [Fourth Disk, Div. Two].) Federal constitutional violations in such proceedings are reviewed under Chapman. (People v. Hurtado (2002) 28 Cal.4th 1179, 1194 [124 Cal.Rptr.2d 186, 52 P.3d 116]; People v. Fisher (2009) 172 Cal.App.4th 1006, 1014 [91 Cal.Rptr.3d 609].) 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 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.” (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918 [119 Cal.Rptr.2d 1, 44 P.3d 949].) Rather, it means “merely a reasonable chance, more than an abstract possibility.” (Ibid.) 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 [251 Cal.Rptr. 880]; People v. Lopez (2008) 168 Cal.App.4th 801, 815 [85 Cal.Rptr.3d 675].) As we discuss below, we reject defendant’s other claims of error. Therefore, we conclude that limited remand is appropriate in this case.

II., III.

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.

Hollenhorst, Acting P. J., and Richli, J., concurred. 
      
      All statutory citations refer to the Welfare and Institutions Code unless another code is specified.
     
      
      
        People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44] (Marsden).
      
     
      
      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.)
     
      
      See footnote, ante, page 646.
     