People v. Carter

320 Cal.Rptr.3d 833

548 P.3d 294

The PEOPLE, Plaintiff and Respondent,

v.Ishmael Michael CARTER, Defendant and Appellant.

S278262

Supreme Court of California.

May 20, 2024

Third Appellate District, C094949, Yolo County Superior Court, CRF19987081, Daniel M. Wolk, Judge

John L. Staley, San Diego, under appointment by the Supreme Court, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Clara M. Levers, Julie A. Hokans, Rachelle A. Newcomb and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Liu, J.

In 2007, defendant Ishmael Michael Carter was committed to Coalinga State Hospital pending trial on a petition to commit him as a sexually violent predator (SVP) under Welfare and Institutions Code section 6600 et seq., the Sexually Violent Predator Act (SVP Act). After awaiting trial for over 12 years, Carter sought to enforce his due process right to a timely trial by filing a motion to dismiss the petition. In addition, Carter filed a motion under People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 (Marsden) to replace the Yolo County Public Defender’s Office and his deputy public defender as his counsel because he believed the office would be disqualified from litigating the motion to dismiss on his behalf.

Following a hearing, the trial court denied Carter’s Marsden motion, declined to rule on the motion to dismiss, and conducted a trial resulting in Carter’s indeterminate commitment as an SVP. The Court of Appeal affirmed. Carter contends the trial court’s Marsden inquiry was insufficient and requires full reversal of the judgment or, in the alternative, conditional reversal pending reconsideration of his Marsden motion and potential litigation of his motion to dismiss. The Attorney General asserts that the trial court properly denied the Marsden motion with respect to Carter’s public defender at the time but concedes that the trial court should have investigated whether a potential conflict of interest would have prevented her from litigating the motion to dismiss. The Attorney General contends that remand should be limited to investigating that potential conflict.

We hold that the trial court conducted an insufficient Marsden inquiry and erred in instructing Carter to file his motion to dismiss pro se. But we agree with the Attorney General that "[f]ull reversal at this stage would be premature." We conditionally reverse the judgment of the Court of Appeal and remand with directions to conditionally vacate the SVP judgment and remand to the trial court for further proceedings consistent with this opinion.

I.

On May 29, 2007, the Yolo County District Attorney’s Office filed a petition to commit Carter as an SVP. In August 2007, the trial court found probable cause to commit Carter to the custody of the State Department of State Hospitals at Coalinga State Hospital pending his SVP trial. After Carter waived time for trial to receive treatment, his trial was repeatedly continued for over 12 years, often at the request of Carter’s counsel. During that period, Carter was continually represented by the Yolo County Public Defender’s Office. Chief Deputy Public Defender Allison Zuvela primarily appeared as counsel for Carter for the first two years after the petition was filed. Deputy Public Defender Brett Bandley primarily appeared as counsel for Carter for the following six years. Zuvela resumed as counsel in October 2015.

On December 13, 2019, Carter filed a pro se Marsden motion and a pro se motion to dismiss the petition. The Marsden motion requested "disqualification of the public defenders office and the Chief Deputy Public Defender, Allison Zuvela." The motion to dismiss asserted that Carter "has been at Coalinga state Hospital for … 12 years, in violation of [People v. Superior Court (Vasquez) (2018) 27 Cal. App.5th 36, 238 Cal.Rptr.3d 14]."

On January 15, 2020, the trial court held a hearing on the Marsden motion. Carter explained that he filed the motion because "I’ve been sitting here for 12 and a half years and there’s been multiple delays that was not at my request." Carter further explained that when he was represented by Bandley, there were times "when I had to leave messages that it feels like the Public Defender’s Office abandoned us because we’re not hearing from nobody. And a lot of times when he was supposed — when the trials or my court hearings was delayed, I wouldn’t find out until I called in and the secretary was telling me. So I wasn’t being informed a lot of times when he was on the case." With respect to Zuvela, Carter acknowledged that "[a]side from having a trial," there was nothing "she should be doing that she hasn’t done yet." He said, "Every time I requested something she’s actually pushed to get it done if she could. If there’s some kind of delay, when she had the opportunity she notified me and let me know either by letter or she’s called me."

In response, Zuvela explained that "it was my understanding from Mr. Bandley that they were — he wanted Mr. Carter to do as much [of] the [sex offender treatment] program as possible …. One of the issues and problems with what is going on in Coalinga is they keep on [changing] the program so they can’t finish the program. But in November of 2017, Mr. Carter indicated to me, he’s like, ‘Okay, I’m ready. I have it together and I want my trial.’ " Zuvela explained that at that time Carter had to be reevaluated by medical professionals. That process took over two years and had just been completed days prior to the Marsden hearing. She added, "I understand that it’s frustrating for Mr. Carter, but I think we’re in a good position to go to trial."

Carter clarified that he "was informed that this process was necessary in order to get the other portion of the claim taken care of." He said that Zuvela was "aware of everything that is going on and the continual delays that have been hampering the functioning of this hospital." He concluded, "I give her credit when I did give her information she needed I — she went after it. It’s getting the hospital to conform to what the law says which is the prob- lem." Zuvela added, "I think Coalinga State Hospital is extremely frustrating and … they keep changing the [sex offender treatment program]. It’s my opinion it’s so no one can ever graduate, but that’s my opinion."

The court denied Carter’s Marsden motion, explaining, "From what Ms. Zuvela has told us today, I’m satisfied that she’s been diligent trying to push the case forward. She hasn’t necessarily delayed the process. She’s promptly communicated with you and described what happened. From my vantage point she has done her job as your lawyer. It doesn’t mean in a perfect world this couldn’t have happened sooner, but many of the reasons of why it’s so slow is not because of what she did or didn’t do, it’s because of what other people did or didn’t do."

The court then asked Zuvela if she had discussed Carter’s motion to dismiss with him, and she confirmed she had. She explained, "he’s saying he’s frustrated he hasn’t had his trial, and so I would have to say that I am not living up to my ethical duties to pursue this for trial, and — in order to have that — have that be granted. [¶] So in essence, the first step was a Marsden hearing. I don’t think I’ve breached my ethical duties and I think I’ve been trying to fight for speedy trial." Zuvela then described Vasquez as "the case where he said he wanted a speedy trial and he didn’t get the speedy trial and case is dismissed and Mr. Vasquez was released from Coalinga State Hospital on those grounds because his lawyer didn’t push for a trial in a timely manner and his lawyer did not meet their ethical duties." Zuvela explained, "if the Court did not grant the Marsden motion, and that I have done what I need to do, I don’t think I can ethically pursue [the motion to dismiss]."

The trial court said to Carter, "Based on what Ms. Zuvela has said, you could still pursue this motion, but I don’t think she can represent you and advocate for it. So you would be representing yourself and I would give the DA an opportunity to respond. Do you wish to pursue this motion representing yourself?" Carter replied, "I can’t represent myself to that extent …. " He then described Vasquez as the case in which "he was sitting here for 17 years and never given the trial he requested, and they didn’t just put it on his attorney, but they put it also on the DA’s office for the delay …." The court said to Carter, "You can pursue that if you wish. One thing the Court would need to see is a declaration — a statement by you under oath saying these are the facts and the dates and the events that support this request. [¶] In the text of the motion you’ve made reference to things but I can’t necessarily say that I can tell from that there are facts that would justify the result that you’re asking for." The court continued, "If you want to pursue [the motion to dismiss]," "you may have to do it on your own because it sounds like your attorney’s position is since she is still your attorney and she would have to say she didn’t do her job right and she doesn’t believe that’s true, she can’t argue on behalf of you on this motion because at least it in part requires her to say she didn’t do her job right."

The court reiterated, "If you want to pursue this, I would ask that you submit at least a declaration to add to your motion. [¶] Until you do that, I won’t be asking the district attorney to file a response because there isn’t enough here right now to grant your motion, and I don’t know if there will be or not, but we need a declaration for the motion to be presentable." Carter said, "It’s just I have to have help in doing that stuff because I’m not really versed in the law." The court responded, "I’ll leave that issue in your hands, and I won’t receive anything more from...