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California Supreme Court:
Failure to Conduct Conflict Inquiry Was Reversible Error
Liu Says Where Motion to Dismiss Was Premised on Ineffective Assistance of Counsel, Disqualifying Counsel Without Appointing Substitute Compounded Error
By Kimber Cooley, Staff Writer
The California Supreme Court held yesterday that where a defendant filed a Marsden motion seeking substitution of counsel and a motion to dismiss based on a delay of more than 12 years in getting to trial, the judge erred in failing to adequately examine whether a conflict precluded the accused’s present counsel from pressing for a dismissal and compounded the error by telling the defendant to pursue the motion on his own.
Justice Goodwin H. Liu wrote the opinion for a unanimous court.
The decision comes in a case where the defendant, Ishmael Carter, was committed in 2007 to Coalinga State Hospital pending trial on a petition to declare him a sexually violent predator (“SVP”).
Carter was represented by then-Chief Deputy Public Defender Allison Zuvela, now a Sacramento Superior Court judge, and Deputy Public Defender Brett Bandley, now retired, during the long pendency of his case. Carter waived time for trial in order to receive treatment, a process which was often repeated at his counsel’s request.
Trial Court’s Actions
Yolo Superior Court Judge David W. Reed on Jan. 15, 2020, denied the Marsden motion, declining to rule on the motion to dismiss. He told Carter that if he wanted to pursue that motion, “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 defendant responded that “I can’t represent myself to that extent” and did not follow through on the motion to dismiss. On Sept. 27, 2021 he was found to be a SVP and committed to the hospital indefinitely.
Affirmance came in a Dec. 21, 2022 opinion by Third District Court of Appeal Justice Stacy E. Boulware Eurie, with a concurring and dissenting opinion by Acting Presiding Justice Ronald B. Robie.
Liu’s opinion conditionally reverses the judgment of the Court of Appeal with instructions to remand the case to the Superior Court, directing that the order determining Carter to be a SVP be conditionally vacated, the order denying the Marsden motion be vacated, and that a new Marsden hearing be conducted.
Interrelated Motions
Liu noted that the Marsden motion and the motion to dismiss “are interrelated in the circumstances here, though they are governed by different legal frameworks.” Carter’s Marsden motion was based on his statutory right to effective assistance of counsel, and his motion to dismiss was based on an asserted violation of his due process right to a timely trial.
Finding the interrelated nature of the motions to be significant to the analysis, the justice wrote:
“Having both motions before it, the trial court should have considered Carter’s Marsden motion in the context of his proposed motion to dismiss. In other words, the court should not have simply determined whether Zuvela had ‘done her job’ up to that point but should have asked whether a conflict of interest would have prevented Zuvela from effectively investigating and potentially litigating Carter’s motion to dismiss.”
Liu pointed out that recent appellate cases had dismissed petitions of SVPs where the individual deputy public defenders had fulfilled their duties to their clients, but “institutional breakdowns” in the public defender system caused unwarranted delays, such as staffing cuts and heavy workloads.
Finding the situation in the present case to be analogous to the facts of those cases, Liu remarked:
“Zuvela confirmed the hospital had repeatedly changed the sex offender treatment program, prolonging Carter’s treatment. In addition, Carter asserted in his motion to dismiss that the trial court ‘never exercised reasonable control over all the proceedings connected with this pending litigation’ and had not fulfilled its ‘obligation to act proactively to protect [his] right to a timely trial.’ He also identified ‘communication between [Zuvela] and the DA’s office’ as a reason for the delay.”
Conflict Question Unanswered
Liu acknowledged that “[t]hese claims had nothing to do with Zuvela’s performance” and said “the record does not reveal any reason why she could not have investigated and potentially litigated these issues on Carter’s behalf.”
He continued:
“The Attorney General points out that Zuvela may have been unable to litigate delays allegedly caused by Bandley due to a potential conflict of interest. But it is also possible that delays by Bandley were due to institutional deficiencies or to his strategy for Carter to complete treatment before requesting trial. Under the latter circumstances, Zuvela might not have had any reason to litigate her colleague’s performance.”
Under these circumstances, he declared:
“Given the trial court’s lack of inquiry into whether Zuvela had any conflict that would have prevented her from litigating Carter’s motion to dismiss, its denial of the Marsden motion rests on error of law, constituting an abuse of discretion.”
Compounded Error
Liu reasoned that reversal was required due to the lack of inquiry, and said:
“On this record, reversal is required no matter the applicable standard of prejudice because it cannot be said whether Bandley’s delay was a ‘tactic’ or whether Carter ‘had previously assented to’ it.”
He was concerned with Reed’s instruction that Carter must represent himself on the motion to dismiss, saying “the trial court compounded its error when it left Carter to pursue his motion to dismiss without the assistance of counsel.” Noting that parties are entitled to represent themselves on Marsden motions, he nevertheless opined:
“Carter’s motion to dismiss, which was distinct from his Marsden motion, was not a request for new counsel. Indeed, in response to the trial court’s instruction that Carter would have to proceed on his own, Carter made clear that he wanted the assistance of counsel in preparing and filing his motion to dismiss.”
The case is People v. Carter, 2024 S.O.S. 1656.
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