Filed 1/28/21 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TAYLOR,

 Defendant and Appellant.

2d Crim. No. B303044

(Super. Ct. No. ZM016857)

(Los Angeles County)

Eugene Taylor appeals an order recommitting him for an 

indeterminate term to the California State Department of State 

Hospitals as a sexually violent 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 recommitted him for 

treatment. Taylor now raises two procedural challenges to those 

proceedings. First, he contends that the trial court erred by not 

1 All statutory references are to the Welfare and 

Institutions 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 counsel. (People v. Marsden (1970) 2 Cal.3d 118.) We 

reject these contentions and affirm.

FACTUAL AND PROCEDURAL HISTORY2

In 1986, Taylor was convicted of numerous felony sexual 

offenses against a child under 14 years old, and was sentenced to 

28 years 8 months 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 cause 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 doctors testified and opined 

that based upon their frequent evaluations of Taylor, he suffers 

from pedophilic disorder, nonexclusive type, and a grandiose-type 

delusional disorder. Taylor also informed the doctors 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 indeterminate 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 

requested by the defendant or petitioning attorney, and 2) the 

trial court abused its discretion by denying his Marsden motion.

DISCUSSION

I.

Taylor argues that section 6603, subdivision (f), requiring a 

defendant or the petitioning attorney to demand a jury 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 advisement 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. 1169.)

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 by 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 

inquired 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 entitled to a trial by 

jury.” (§ 6603, subd. (a).) The attorney “petitioning for 

commitment” also “has the right to demand that the trial be 

before a jury.” (Id., subd. (b).) If 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 statutory 

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, judicial 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 defendant’s right to a jury trial in an SVP 

proceeding 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 presume 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. 

Blackburn interpreted Penal Code section 2972, 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 

jury 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 requires 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 of 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-factor 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 erroneous deprivation 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 forfeited 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 argument below 

deprived the respondent of an opportunity to set forth reasons 

and produce evidence justifying 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 

tactical decision that the trial judge would better dispassionately 

evaluate the evidence and apply the law than a jury. Taylor has 

not established that his attorney was ineffective for not requiring 

an advisement and personal waiver. 

II.

Taylor argues that 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. Superior Court (Vasquez) (2018) 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 complaints 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 encourage 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 Marsden 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 allow 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 it had been circulated among patients at the state 

hospital and may have been drafted by a patient. Taylor’s 

counsel informed the trial court that 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 Marsden 
8

motion. Counsel 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 of 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 representation is 

likely to ensue. (Ibid.) Marsden hearings also apply in SVP 

proceedings pursuant to the defendant’s statutory and due 

process rights 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, allegations 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 substitute 
9

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

years and agreed to some continuances of the proceedings. 

Taylor did not claim that 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 trial

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 General, 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.