Filed 1 / 2 8 / 21 P. v. Taylor CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

EUGENE T AYLOR

,
Defendant and Appellant. 2d Crim. No. B 30 3 044 (Super. Ct. No. ZM016857 ) ( Los Angeles County)

Eugene Taylor appeals an order re committing him for an
indeterminate term to the California State Department of State Hospitals as a sexually viole nt predator ( SVP). (Welf. & Inst. Code, § 6600 et seq.) 1 Following proceedings pursuant to the SVP law, the trial court found that Taylor was an SVP and re committed him for treatment. Taylor now raises two procedural challenges to those proceedings. F irst, he contends that the trial court erred by not

1 All statutory references are to the Welfare and In stitutions Code unless stated otherwise

.2

advising him sua sponte of his right to a jury trial and obtaining a personal waiver of that right. Second, he contends that the court erred by denying his Marsden motion for substitute or conflict couns el. ( People v. Marsden (1970) 2 Cal.3d 118.) We reject these contentions and affirm.

FACTUAL AND PROCEDURAL HISTORY 2
In 198 6, Taylor was convicted of numerous felony sexual offenses against a child under 14 years old, and was senten ced to
28 years 8 mon ths in prison. Following a 2008 jury trial, Taylor
was found to be an SVP and ordered to a two

- year commitment. In 2010, the prosecutor sought to recommit Taylor as an SVP for
an indeterminate term . In 2013, the trial court found there was probable caus e that Taylor continued to meet the SVP criteria. In 2019, the present proceedings commenced.
At a lengthy court trial, the prosecutor presented documentary evidence and victim testimony regarding Taylor’s prior sexual offense convictions involving many victims . (Pen. Code, § 288, subds. (a) & (b).) Two do ctors testified and opined
that based upon their frequent evaluations of Taylor, he suffers from pedophilic disorder, nonexclusive type, and a grandiose

- type delusional dis order. Taylor also informed the doctor s that he presently sees himself as a spiritual healer who teaches sex to children. Based upon this evidence, the court determined that Taylor satisfied the criteria of the SVP law beyond a reasonable doubt, and ordered his commitment for an ind eterminate term. (§ 6600 , subd . (a)(1) [definition of SVP].)

2 We present an abbreviated version of the extensive evidence received at trial given the limited nature of Taylor’s appellate procedural claims

.3 Taylor appeals the recommitment order and contends that: 1) section 6603 violates principles of due process of law and equal protection by presuming a waiver of jury trial unless expressly

r equested by the defendant or petitioning attorney, and 2) the
trial court abused its discretion by denying his Marsden motion.
D ISCUSSION
I. Taylor argues that section 6603, subdivision (f), requiring a defendant or the petitioning attorney to demand a ju ry trial, violates his federal and state due process rights to a judicial advisement and personal waiver of his right to a jury trial. He relies upon People v. Blackburn (2015) 61 Cal.4th 1113 ( Blackburn ), People v. Tran (2015) 61 Cal.4th 1160 ( Tran ), and People v. McKee ( 2010) 47 Cal.4th 1172 ( McKee ). Taylor asks
that we “read into ‘ the statute ’ ” a requirement of a dvisement and personal waiver. He asserts that the trial court’s failure to provide an advisement and accept a personal waiver requires per
se reversal. ( Tran

, at p. 116 9 .) Taylor also contends that section 6603 violates equal protection of the law because the Mentally Disordered Act (MDO) and the statutory scheme for extending involuntary commitment for persons who have pleaded not guilty b y reason of insanity (NGI) expressly provide for judicial advisement and personal waiver of the right to jury trial. Prior to trial, Taylor waived his right to appear at trial in writing and orally in court. At the next court date, the trial court inqui red whether either party was requesting a jury trial. Taylor was not present; his counsel and the prosecutor replied no. The court then stated the matter would proceed as a court trial which
it did

.4 In SVP proceedings, the defendant “is enti tled to a tr ial by jury.” ( § 6603, subd. (a).) T he attorney “petitioning for commitment” also “has the right to demand that the trial be before a jury.” ( Id. , subd. (b).) I f an SVP defendant or a petitioning attorney “does not demand a jury trial, the trial shall be before the court without a jury.” ( Id. , subd. (f).) The SVP law
does not expressly require the trial court to advise or obtain from the defendant a personal waiver of the right to a jury trial. The right to a jury trial in an SVP proceeding is a sta tutory right, not a constitutional one. ( People v. Rowell (2005) 133 Cal.App.4th 447, 452 ( Rowell ) .) SVP proceedings are special proceedings that are civil in nature and unknown to the common law. ( Id. at pp. 451

- 452.) Thus

, because an SVP defendant’s right to a jury trial is based only on statute, j udicial advisement and personal waiver of the right to a jury trial are not constitutionally required in SVP proceedings. ( Id. at p. 452 [“Under section 6603, a defe ndant’s right to a jury trial in an SVP

p roceeding is waived by the simple failure to demand one

. There is no requirements that the statutory right to a jury trial be personally waived ”] .) “The requirement of an express waiver applies to the constitutional right to a jury trial, but not to jury trial rights that are established only by statute.” ( People v.
French (2008) 43 Cal.4th 36, 46.) Since 2005, the Legislature has amended the SVP law in several respects, but has not required the trial court to advise the defendant of the right to a jury trial and require a personal
waiver. We p resume that the Legislature was cognizant of the
Rowell decision and implicitly approved it. ( People v. Garcia (2006) 39 Cal.4th 1070, 1087

- 1088.)5 Blackburn and Tran do not require a different result here.
Blac kburn interpreted Penal Code section 29 72, subdivision (a) and MDO recommitment proceedings. That section expressly requires the trial court to advise the defendant of the right to a jury trial. Subdivision (a)(2) provides that “[t]he trial shall be by j ury unless waived by both the [defendant] and the district attorney.” ( Blackburn

, supra , 61 Cal.4th 1113
, 1116.)
Tran interpreted Penal Code section 1026.5 and proceedings extending the involuntary commitment of a NGI person. That section expressly req uires the trial court to inform a defendant personally of the jury trial right and obtain a personal waiver before conducting a court trial. ( Id., subd. (b)(3)

, (4); Tran

, supra , 61 Cal.4th 1160
, 1163 .) Thus, the requirement
of an advisement and waiver o f the right to a jury trial
established in Blackburn and Tran derives not from constitutional principles, but from the express language of the pertinent Penal Code statutes.
McKee

, supra , 47 Cal.4th 1172, does not assist Taylor.
That decision concerned the appointment of a mental health expert in an SVP proceeding. Our Supreme Court did not reach the due process challenge to the statute, but instead decided the issue through statutory interpretation. ( Id. at p. 1192.) Taylor asserts that the four

- fact or balancing test of People
v. Otto (2001) 26 Cal.4th 200, 210, requires a judicial advisement preceding a personal waiver of the right to a jury trial. The four factors include the private interest affected by the official action ; risk of erroneo us depri vation of such interest and the value of additional or substitute safeguards ; the government’s interest including fiscal or administrative burdens involved ; and the dignitary interest in informing individuals of the nature,6

grounds, and consequences of the action. Only the first factor weighs in favor of adding the advisement and personal waiver procedures as they affect an SVP’s liberty and freedom. The remaining factors do not weigh in favor of adding the requested procedures. Taylor has also forfeit ed his equal protection challenge by not raising it in the trial court. ( People v. Alexander (2010) 49 Cal.4th 846, 880, fn. 14.) Failure to raise the argume nt below deprived the respondent of an opportunity to set forth reasons and produce evidence just ifying different treatment in MDO and
NGI proceedings as contrasted to SVP proceedings. We decline to
exercise our discretion to address this issue because it is not a pure question of law. Moreover, it is likely Taylor’s counsel made a reasonable

tact ical decision that the trial judge would better dispassionately evaluate the evidence and apply the law than a jury. T aylor has not established that his attorney was ineffective for not requiring an advisement and personal waiver.
II. Taylor argues tha t the trial court abused its discretion by denying his Marsden motion, asserting that he had an
irreconcilable conflict with counsel resulting in inadequate representation. In particular, he contends that the court erred by not appointing conflict counsel to prepare a dismissal motion based upon unreasonable delay (nine years post

- petition) in holding the SVP proceeding. ( In re Butler (2020) 55 Cal.App.5th 614 [13

- year delay in SVP proceedings violates sexual offender’s due process rights]; People v. Supe rior Court (Vasquez) (20 18) 27 Cal.App.5th 36 [trial court dismissed SVP proceeding where 17

-7

year delay between filing petition and trial regarding a two

- year commitment ] .) On January 28, 2019, Taylor read a form statement in

court listing many general c omplaints against the public defender’s office. Among the complaints were unjustified delays, failure to fully communicate with clients, failure to timely secure expert witnesses, concealing misconduct and material facts from clients, and failure to encou rage clients to file motions pursuant

to People v. Litmon (2008) 162 Cal.App.4th 383 [SVP petition dismissed on grounds of excessive delay] , among other asserted shortcomings. Taylor requested that the court appoint different
counsel to assist him in his Marsde n motion , or else dismiss the proceedings : “I request that counsel be appointed to assist me in obtaining and producing the records which will be offered as evidence in support of my Marsden Motion

. . . . ” In response, the trial court set a date for a Marsden motion. Taylor replied that he preferred that the court a llow him to
return to Indiana. On March 4, 2019, the trial court held a Marsden hearing. Taylor provided the court with a written copy of his general grievances against counsel and the public defender’s office. The trial judge commented that he had seen the list of grievances
before because i t had been circulated among patients at the state hospital and may have been drafted by a patient

. Taylor’s
counsel informed the trial court t hat he was unaware of Taylor’s demand for trial but that he would set a trial date after speaking to the prosecutor. Counsel also stated that he already had engaged a favorable expert witness. Taylor declined to add to his previous statement. The court then denied Taylor’s Marsden8

motion. C ounsel requested that the court then set a trial date
which it did

. Trial occurred in October 2019 , seven months later

. The decision whether to grant a motion for substitution of
counsel rests within the trial court ’s discretion. ( People v. Myles (2012) 53 Cal.4th 1181, 1207.) The court does not abuse its discretion by denying a Marsden motion unless defendant has established that a failure to replace counsel would substantially impair his right to the assistance o f counsel. ( Ibid. ) Substantial impairment of the right to counsel can occur when appointed counsel is providing inadequate representation or when defendant and his attorney have become embroiled in irreconcilable conflict such that ineffective representa tion is likely to ensue. ( Ibid. ) Marsden hearings also apply in SVP proceedings pursuant to the defendant’s statutory and due process right s to effective assistance of counsel . ( People v. Hill (2013) 219 Cal.App.4th 646, 652.) The trial court properly denied Taylor’s Marsden motion without first appointing conflict counsel. Taylor did not request a substitute attorney; he merely requested a conflict counsel to gather records and assist him in providing evidence at a later
Marsden hearing. Taylor also stated that he did not want to proceed to trial ; he requested a dismissal, and asked to be sent to
Indiana. His written list of general complaints stated that he has experienced most of the grievances listed but he did not state any specific complaints

, a llegations of misrepresentation against his
current counsel , or specific claims of unreasonable delay

. Taylor also did not describe any irreconcilable conflict with counsel to the court. ( People v. Myles

, supra , 53 Cal.4th 1181, 1207 [defendant’s claimed lack of trust or inability to get along with appointed counsel does not compel appointment of substitute9

counsel].) Taylor experienced only one change of counsel over the

years and agreed to some continuances of the proceedings. Taylor did not claim tha t he had asked his current counsel to file

a Litmon motion based upon unreasonable delay. He also did not specifically request the court to appoint conflict counsel for that

reason ; complaints of delay by the public defender were included
in the form list of grievances presented to the court

. The tria l court did not abuse its discretion by denying the Marsden motion
and not appointing conflict counsel.
DISPOSITION
The recommitment order is affirmed.
NOT TO BE PUBLISHED.

GILBERT, P. J.
We concur:

YEGAN , J.

PERREN , J.10 Marcelita V. Haynes, Judge

Superior Court County of Los Angeles

______________________________

Christian C. Buckley , under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney Gener al, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael C. Keller and William N. Frank, Deputy
Attorneys General, for Plaintiff and Respondent.