Opinion
B296809
05-21-2020
THE PEOPLE, Plaintiff and Respondent, v. SAMUEL P. BURNS, Defendant and Appellant.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and Kristen J. Inberg Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. ZM008870) APPEAL from a judgment of the Superior Court of Los Angeles County, Douglas W. Sortino, Judge. Affirmed. Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and Kristen J. Inberg Deputy Attorneys General, for Plaintiff and Respondent.
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Thirteen years after the People filed a petition to have Samuel P. Burns civilly committed under the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.), trial was held on the petition. While the matter was pending for trial, Burns made unsuccessful Marsden motions because his counsel would not file a motion to dismiss the petition for failure to timely bring the matter to trial. He now contends that the judgment must be reversed because his Marsden motions should have been granted. We reject this contention.
People v. Marsden (1970) 2 Cal.3d 118.
BACKGROUND
I. Commitment under the SVPA
In 1982, Burns pleaded guilty to assault with the intent to commit rape (Pen. Code, § 220). Thereafter, in 2000, he pleaded no contest to committing lewd acts on two children under the age of 14 (Pen. Code, § 288, subd. (a)) and was sentenced to 10 years in prison. Those convictions qualified Burns for potential classification as a sexually violent offender under the SVPA. Therefore, when he came up for parole, the People filed a petition on June 16, 2005 to civilly commit Burns as a sexually violent predator. A week later, the trial court found probable cause that Burns was a sexually violent predator within the meaning of the pertinent statutory scheme; hence, he was transferred to a state hospital for treatment.
A second probable cause hearing was held in May 2015.
Until March 2009, a series of public defenders represented Burns. In March 2009, private counsel Michael Platt substituted in as counsel. He later withdrew in August 2013 and the public defender substituted back in. By May 31, 2016, public defender Todd Montrose was representing Burns. II. The motions to substitute counsel
From the time Montrose began representing Burns to the day trial began on the SVPA petition in 2018, Burns made multiple Marsden motions and what he calls Litmon/Vasquez motions, which we now summarize. (People v. Litmon (2008) 162 Cal.App.4th 383; People v. Superior Court (Vasquez) (2018) 27 Cal.App.5th 36 (Vasquez).)
Burns raised numerous complaints in his Marsden motions but does not cite all of them as grounds for reversal on appeal. We therefore do not summarize them all in depth.
A. September 15, 2016: Marsden No. 1 before Judge Roberto Longoria
As grounds for the motion, Burns merely alleged that Montrose was generally failing to investigate available defenses. Burns declined to give specifics. Judge Longoria therefore denied the motion.
B. January 9, 2017: Marsden No. 2 before Judge Longoria
Burns raised numerous complaints about Montrose, who responded to each one. First, Burns complained that Montrose had not provided him with transcriptions of Burns's medical evaluations. Montrose responded that he gave transcripts of all evaluations in his possession to Burns and would give others to him as they were obtained.
Second, Burns said that Montrose had not investigated records favorable to Burns, specifically the result of a penile plethysmography. Montrose indicated he had the results, some favorable, others not. Montrose did not think the evidence would be admissible but had a plan to deal with them if they were admitted. He explained that subpoenaing prior reports would make them available to the prosecution, so he was hesitant to request reports other than those Montrose knew would be used against Burns.
Third, Burns complained that Montrose had not investigated whether the hospital staff's animus toward Burns led to false complaints about him. Montrose responded that he had in fact investigated this claim.
Fourth, Burns believed Montrose failed to get four boxes of discovery from Burns's former attorney, Platt. Montrose responded that he had a vast file and was not certain what was specifically from Platt. However, he would continue to reach out to Platt. In any event, he had a complete file containing other attorneys' notes and transfer memos. He believed he had all the information necessary to proceed to trial.
Fifth, Burns said he had not been advised by counsel who represented him on the pleas of the potential risk of civil commitment arising from his pleas. Montrose told the court it was his understanding that there was no obligation to advise that pleading to a Penal Code section 288 offense would subject the client to the SVPA law, but if there were such an obligation, Montrose would investigate remedies, including having another defense counsel attack the plea.
Sixth, Burns noted that six public defenders had represented him over the years. Burns said, "I feel it needs to end here. I want a conflict-free attorney appointed to bring this case to a final conclusion." As to this concern, Judge Longoria told Burns it was common in these types of cases to have multiple public defenders.
Judge Longoria denied the motion.
C. April 4, 2017: Marsden No. 3 before Judge Longoria
Burns asserted that a conflict of interest existed among him, Montrose, and the Los Angeles County Public Defender's Office, because he was seeking civil and criminal penalties against members of the office. Also, a declaration Burns wrote about being raped in jail was never delivered to the intended recipient. Montrose failed to follow-up on his allegation he had been molested as a child. He therefore again requested "conflict-free" counsel. Montrose responded that he was unaware of any declaration and that it was the first he had heard of the jail assault. He knew about Burns's claim he was molested as a child, and Burns's evaluators would appropriately consider that information.
Judge Longoria denied the motion.
D. April 2, 2018: Marsden No. 4 before Judge William C. Ryan
This Marsden motion was again based on the alleged failure to advise Burns of the collateral consequences of his plea agreement, to which Montrose responded that he was not aware of any law requiring courts to advise of SVPA consequences. Burns also again raised his purported conflict with the public defender's office, which he believed was violating his constitutional rights, and Montrose's failure to get unspecified files from Platt. When specifically asked why Burns wanted the public defender removed, Burns replied with the nonsequitur that he could not receive a fair hearing unless several material witnesses were compelled to be present. Judge Ryan denied the motion.
E. October 1, 2018: Litmon/Vasquez motion before Judge Ryan
Burns asked to make a Litmon/Vasquez motion, as his petition had been pending since 2005. Because the case was then being sent to trial, Judge Ryan denied the motion.
F. October 24, 2018: written Marsden motion
The clerk's transcript contains a written Marsden motion, dated October 24, 2018, the day before trial. As grounds for the motion, Burns again raised Montrose's alleged failure to obtain Platt's files and to move to have the petition dismissed based on the invalidity of Burns's plea to the qualifying offenses. Burns also represented that he had never asked for an extension of time or to delay the proceedings, and all delays resulted from Montrose's requests. Further, Montrose had a conflict of interest due to the unconstitutional delay in bringing the matter to trial, resulting from the systemic breakdown in the public defender's office.
It does not appear that the trial court ruled on the written motion.
G. October 25, 2018: Marsden No. 5 before Judge Douglas Sortino
On the first day of trial, Burns asked for another Marsden hearing, expressing that there had been "little or no progress moving forward," except in the last few weeks. He specifically faulted Montrose for not filing a Litmon/Vasquez motion. He also raised Montrose's failure to investigate discovery from Platt's office. Montrose explained that he did not file a Litmon/Vasquez motion because a demand for a trial was a prerequisite to such a motion, and such a demand had never been made. Trial had been scheduled the previous year, but it was delayed for several reasons, including defense litigation regarding whether an evaluator would be allowed to testify and to provide counsel time to take a writ on that issue. Also, a defense witness was unavailable due to surgery, so Burns consented to continue trial.
Judge Sortino denied the motion, finding there were tactical and logistical reasons why Montrose had not filed the motion, and that part of the delay was due to a strategic decision to prevent a witness from testifying. III. Trial
Because Burns does not challenge the sufficiency of the evidence or otherwise raise an issue implicating the evidence adduced at trial, we do not summarize the evidence.
Burns's final Marsden motion having been denied, a bench trial commenced before Judge Sortino on October 25, 2018. Judge Sortino found that Burns met the criteria for commitment as a sexually violent predator and ordered him committed to a two-year term.
DISCUSSION
I. Marsden
Burns contends on appeal that an irreconcilable conflict arose between himself and Montrose because Montrose refused to make a Litmon/Vasquez motion, failed to obtain discovery from prior counsel, and failed to attack the validity of Burns's pleas; hence, his Marsden motions, individually and collectively, should have been granted. After setting forth the applicable law, we explain why we disagree.
A. The right to counsel and Marsden
To be committed under the SVPA, the People must prove that the defendant has been convicted of a qualifying sexually violent offense and has been diagnosed with a mental disorder that makes him a danger to the health and safety of others because he is likely to engage in sexually violent predatory criminal behavior. (Welf. & Inst. Code, § 6600, subd. (a)(1).) An alleged sexually violent predator is entitled to assistance of counsel. (Welf. & Inst. Code, 6603, subd. (a); Reilly v. Superior Court (2013) 57 Cal.4th 641, 648.) That right includes the right to discharge or to substitute appointed counsel, if the failure to do so would substantially impair the accused's rights. (People v. Marsden, supra, 2 Cal.3d at p. 123.) The right to counsel also "includes the right to representation free of conflicts of interest that may compromise the attorney's loyalty to the client and impair counsel's efforts on the client's behalf." (People v. Mai (2013) 57 Cal.4th 986, 1009.) A defendant is entitled to relief if the record clearly shows that appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v Jackson (2009) 45 Cal.4th 662, 682.) However, tactical disagreements between client and counsel do not by themselves constitute an irreconcilable conflict. (Id. at p. 688.)
When the petition was filed, the SVPA defined a sexually violent predator as a person convicted of a qualifying offense against two or more victims. (Former Welf. & Inst. Code, § 6600, subd. (a).) It now defines a sexually violent predator as a person convicted of a qualifying offense against one or more victims. (Welf. & Inst. Code, § 6600, subd. (a)(1).)
Whether to grant a Marsden motion is within the trial court's discretion. (People v. Smith (2003) 30 Cal.4th 581, 604.) The trial court does not abuse its discretion when denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel. (Ibid.)
B. Failure to bring a Litmon/Vasquez motion
Burns first argues that his counsel's failure to file a motion to dismiss the petition for violation of Burns's due process right to a timely trial created an irreconcilable conflict between them. Stated otherwise, Burns's Marsden motions should have been granted so that substitute counsel could evaluate and bring a Litmon/Vasquez motion. We disagree.
A Litmon/Vasquez motion is one made to dismiss a petition brought under the SVPA for failing to bring the matter to trial in a timely manner. As those cases point out, the SVPA does not delineate a time within which trial must be held once a trial court has found probable cause to support the petition. (People v. Litmon, supra, 162 Cal.App.4th at p. 399; Vasquez, supra, 27 Cal.App.5th at p. 57.) Further, a trial under the SVPA is a civil proceeding, not a criminal proceeding to which the Sixth Amendment right to a speedy trial attaches. (Vasquez, at p. 57.) Nonetheless, a defendant in a SVPA proceeding has a due process right to a timely trial. (Litmon, at p. 399.) The California Supreme Court and United States Supreme Court have not decided what test applies to decide a due process and timely-trial claim in a sexually violent predator civil proceeding. But, our courts of appeal have reviewed such claims under the tests established by Mathews v. Eldridge (1976) 424 U.S. 319 (Mathews) and Barker v. Wingo (1972) 407 U.S. 514 (Barker)). (See, e.g., People v. Landau (2013) 214 Cal.App.4th 1, 33; Litmon, at pp. 396-399; Vasquez, at p. 56.)
Barker, supra, 407 U.S. at page 530 established a four part balancing test to determine whether a defendant's speedy trial right has been violated: length of the delay, whether the state or the defendant is more to blame for the delay, whether the defendant asserted his or her right to a speedy trial, and prejudice. None of these factors is either a necessary or sufficient condition to finding a deprivation of the speedy trial right but must be considered with other circumstances as may be relevant. (People v. Williams (2013) 58 Cal.4th 197, 233.)
Mathews, supra, 424 U.S. at page 333 described the fundamental requirement of due process as the opportunity to be heard at a meaningful time, in a meaningful manner. To make that determination, Mathews balanced, first, the private interest affected by the official action; second, the risk of an erroneous deprivation of that interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, third, the government's interest, including the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. (Id. at pp. 334-335.)
Employing those tests, a court found that a one-year delay necessitated by the prosecutor's schedule and witness availability violated due process. (People v. Litmon, supra, 162 Cal.App.4th at pp. 404-406.) In Vasquez, supra, 27 Cal.App.5th at page 40, the defendant awaited trial on his SVPA petition for 17 years. Vasquez upheld the trial court's order dismissing the petition. However, other substantial delays of up to seven years did not violate due process, where the majority of the delays were made at the defendant's request. (People v. Landau, supra, 214 Cal.App.4th at p. 27.)
The procedural posture in this case is different than those in Litmon and Vasquez. In those cases, motions to dismiss were filed; hence, evidence supporting them was fleshed out. We do not have such a record. Thus, while the bare fact that 13 years elapsed between the filing of the petition to have Burns civilly committed and trial on that petition tends to raise due process concerns, his speedy trial and due process claims must be viewed through the prism of Marsden. In that context, we focus on whether trial counsel's failure to file a motion to dismiss the petition is indicative of either inadequate representation or of an irreconcilable conflict.
As to the adequacy of representation, Montrose explained why he had not filed a motion to dismiss the petition: Burns, unlike the Litmon and Vasquez defendants, had not demanded a trial. The record supports that explanation, as the record does not contain a clear assertion of the right to a speedy trial. At the January 2017 Marsden hearing, Burns, after noting multiple public defenders had represented him over the years, said, "I feel it needs to end here. I want a conflict-free attorney appointed to bring this case to a final conclusion." This, if a demand for trial, was not an unambiguous one, and Burns does not claim it was. Instead, he argues that he asserted his right to trial on October 1 and 25, 2018, when he said he wanted to bring a Litmon/Vasquez motion. However, these were requests to bring a motion based on violation of the right to a timely trial; there were not prior demands for trial on which such a motion would have been premised. In other words, Burns put the cart before the horse.
Even so, a demand for trial is a consideration to be weighed in the due process analysis, not a necessity. (People v. Williams, supra, 58 Cal.4th at p. 235.) Other considerations must also be weighed, for example, length of the delay. Here, although 13 years elapsed between the filing of the petition and trial, Burns does not argue that trial was improperly delayed the entirety of those 13 years. He makes no specific argument that any delay before 2016, when Montrose began representing him violated his due process right to a speedy trial, recognizing instead that private counsel represented him for four of those 13 years, from March 2009 to August 2013.
As to the period commencing with Montrose's representation, Montrose explained that trial had been set to begin on December 6, 2016. It was delayed, with Burns's consent, to litigate a witness issue. The record supports this representation. On October 31, 2016, trial was continued by stipulation. Burns was present via video at that hearing, and the minute order does not show he voiced any objection. Thus, there is no showing that Montrose was to blame for any delay. And, given Montrose's reasoning for continuing trial, which the record supports, we cannot agree that his refusal to file a motion to dismiss the petition is itself conclusive evidence of a conflict. Rather, the record shows that whether to file such a motion was a tactical disagreement between client and counsel. Such a disagreement is insufficient to constitute an irreconcilable conflict.
Nor can we agree that the record shows more than just a tactical disagreement between client and counsel, i.e., a systemic breakdown. Delay resulting from a systemic breakdown in the Los Angeles County Public Defender's Office is charged to the state, not to the defendant, and will support dismissal of a petition brought under the SVPA. (Vasquez, supra, 27 Cal.App.5th at p. 66.) In Vasquez, the record included evidence that severe staffing cuts in the public defender's office hampered Vasquez's counsel's trial preparation. (Id. at p. 72 & fn. 23.) The Public Defender's Office then transferred Vasquez's counsel to another department over counsel's objection and even though she was ready for trial, causing further delay. (Id. at p. 72.)
Because the staffing cuts referenced in Vasquez occurred during the time of Burns's commitment, Burns surmises that the systemic issues referenced in Vasquez similarly impeded his ability to get to trial. Surmise is speculation. (People v. Davis (2013) 57 Cal.4th 353, 360.) Other than the fact that Burns had multiple public defenders from the time the petition was filed, and then private counsel, until finally being represented by Montrose, our record contains no evidence of such issues. Instead, the record shows that Montrose pursued bringing the matter to trial. In the absence of a record, we cannot extrapolate from the bare fact Burns had multiple lawyers that a systemic breakdown contributed to any delay in bringing this matter to trial. (See People v. Williams, supra, 58 Cal.4th at p. 249 [no facts to support finding of systemic breakdown].)
C. Failure to obtain files
A second ground for Burns's Marsden motions was Montrose's alleged failure to get Platt's files. Although Montrose claimed he had tried to contact Platt, Platt was unaware of any attempt by Montrose to contact him. To the extent this raised an issue as to whether Montrose pursued Platt's files, the trial court was entitled to credit Montrose. (See People v. Smith (1993) 6 Cal.4th 684, 696.) In any event, Platt confirmed that he sent the four boxes of unspecified materials to the public defender's office in 2013. Montrose represented that he had everything he needed to prepare for trial. Therefore, there was no showing that Montrose inadequately represented Burns by failing to obtain relevant matter.
D. Failure to attack validity of pleas
Finally, Burns contends that his Marsden motions should have been granted because Montrose failed to attack the validity of his pleas to the qualifying offenses on the ground he was never advised civil commitment under the SVPA was a possibility. Montrose explained he did not pursue this tactic based on his understanding that the trial court had no obligation to advise Burns of this collateral consequence. However, he said he would research the issue and take any appropriate action.
On appeal, Burns concedes that counsel "ultimately may have been factually correct had the issue been argued," but nonetheless argues that the issue had potential merit.
A defendant who enters into a plea must be advised of the direct consequences of the plea. (People v. Gurule (2002) 28 Cal.4th 557, 634.) A direct consequence is one that is penal in nature and has a definite, immediate, and largely automatic effect on the range of the defendant's punishment. (Harris v. Appellate Division of Superior Court (2017) 14 Cal.App.5th 142, 149.) However, the defendant need not be advised of the collateral consequences of the plea. (Gurule, at p. 634.) Collateral consequences are those that do not inexorably follow from a conviction of the offense involved in the plea. (Harris, at p. 150.) They include the possibility of enhanced punishment in the event of a future conviction. (People v. Moore (1998) 69 Cal.App.4th 626, 630.)
A commitment under the SVPA does not inexorably follow from a conviction for a sexually violent offense. (People v. Moore, supra, 69 Cal.App.4th at p. 632; accord, People v. Ibanez (1999) 76 Cal.App.4th 537, 546.) Rather, the People must file a petition to have a defendant committed under that law and, if probable cause is found to sustain it, prove beyond a reasonable doubt that the defendant had a diagnosed mental disorder making it likely he or she would engage in future predatory acts of sexually violent criminal behavior. (Welf. & Inst. Code, § 6600, subd. (a)(1); Moore, at p. 632.) Possible future civil commitment is a collateral consequence of a plea, and a trial court therefore has no duty to advise a defendant of that possibility. (Moore, at pp. 628, 632.)
However, a trial court's duty to advise a defendant is different than a counsel's duty to advise his or her client. Padilla v. Kentucky (2010) 559 U.S. 356, 365, for example, considered whether trial counsel must advise his or her client of the immigration consequences of a plea. Noting that deportation is not, in the strictest sense, a criminal penalty, it is "nevertheless intimately related to the criminal process." (Id. at p. 365.) Where a deportation consequence is clear, counsel has a duty to advise about it. (Id. at pp. 369, 374.) Further, where ineffective assistance of counsel results in a defendant's decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea. (In re Resendiz (2001) 25 Cal.4th 230, 239.) Thus, under Padilla and Resendiz, a trial attorney may have a duty to advise a client that a collateral consequence of a plea may be civil commitment under the SVPA law.
However, we need not decide whether trial counsel must advise of the possibility of commitment under the SVPA. Here, to attack the underlying pleas, Burns would have had to bring a motion to withdraw them based on ineffective assistance of counsel. For ineffective assistance of counsel claims, there is no distinction between direct and collateral consequences to define the scope of reasonable professional assistance under Strickland v. Washington (1984) 466 U.S. 668, 689. An ineffective assistance of counsel claim, as well as one to withdraw a plea, requires the defendant to show error and prejudice. (People v. Breslin (2012) 205 Cal.App.4th 1409, 1416, 1418; Strickland, at pp. 691-692.) As to prejudice, the defendant must show he or she would have rejected the plea and insisted on trial had the defendant been advised of the possibility of commitment under the SVPA. (See Breslin, at p. 1416.)
Burns pleaded guilty to one of the qualifying offenses (assault with intent to commit rape) in 1982, before the SVPA was enacted in 1995. (Welf. & Inst. Code, § 6600, added by Stats. 1995, ch. 763, § 3.) Moreover, Montrose told the trial court at the January 9, 2017 Marsden hearing that he would research whether there was a basis to attack the pleas and, if there was a remedy, he would have another defense counsel pursue it. The trial court, in its discretion, was entitled to credit that explanation. (See People v. Taylor (2010) 48 Cal.4th 574, 600.) Therefore, on this limited record and given the standard of review, we cannot say the trial court abused its discretion.
Burns makes no argument regarding any precursor law to the SVPA.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J. We concur:
EDMON, P. J.
EGERTON, J.