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Filed 2/23/15 P. v. Hill CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. RICHARD CLINT ON HILL, Defendant and Appellant. E060501 (Super.Ct.No. RIC10009408 )
OPINION

APPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge. Affirmed. Christopher Blake, under appointment by the Court of Appeal , for Defendant a nd Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.2

Defendant and appe llant Richard Clinton Hill was civilly committed to a state hospital under the Sexually Violent Predator Act. (Welf. & Inst. Code, § 6600 et seq. (the SVPA).) 1 In a prior appeal, People v. Hill (2013) 219 Cal.App.4th 646 [Fourth Dist., Div. Two] , Hill co ntend ed that he had a due process right to the effective assistance of
counsel , and that the trial court violated that right by refusing to consider his Marsden 2 motion to replace his court

- appointed attorney. We reversed the judgment and remanded the cau se for a hearing on Hill’s Marsden motion. We directed the trial court to conduct the hearing and exercise judicial discretion to order a new trial, to reinstate the judgment or to proceed otherwise as authorized by law. ( People v. Hill , at pp. 649

- 654 .) The current appeal follows the denial of Hill’s Marsden motion after a hearing and the subsequent reinstatement of the judgment. Hill now contends that the court erred in denying the Marsden motion because the court failed to focus on the state of the

re lationship between Hill and his trial attorney , Richard Quintino, at the point in the proceedings when Hill filed the Marsden motion , i.e., before the probable cause hearing, but instead examined the quality of counsel’s representation at the subsequent tr ial . Hill also contends that the court’s failure t o appoi nt an attorney to represent him for purposes of the Marsden hearing mandates reversal

.

1 All statutory citations refer to the Welfare and Institutions Code unless another code is specified.

2 People v. Marsden (1970) 2 Cal.3d 118.3

We will affirm the judgment.
BACKGROUND In connection with his Marsden motion, Hill related the following bac kground. After serving a term in prison for his conviction for one or more sexual offense s , Hill was released on parole in 2008

. He was released without being evaluated as a possible sexually violent predator, or SVP

. Shortly thereafter , he was convicte d of cultivating marijuana and served a nother term in prison. He was released on parole in 2009 following service of that sentence. Hill violated his parole three times and was returned to custody each time. He said that the first violation, for living w ithin 2,000 feet of a park, was “bogus.” He was sleeping in a motor home, which he had parked less than 2,000 yards from a site which was labeled “Boulder Park” on Google maps. However, although the site had been dedicated to the city or county as a park , as of the date of the violation it had not yet been developed into a park. He was unable to obtain evidence of that fact before the parole violation hearing, however, and the court found him in violation of his parole. At the Marsden hearing, Quintino confirmed that the site was merely designated as a future park and was not yet developed. The second violation was for possession of pornography. Hill had placed all of his property into a storage unit while he was in prison on the cultivation charge. Af ter his4

release, he d iscovered what he described as adult nude images. 3 He was in the process of erasing them when his parole officer walked in and saw them. The images were on the computer before he was released on parole with a condition that he could not possess pornography, and he said he was merely trying to erase the pre existing images in order to comply wit h the parole condition. The third violation was for failing to register with th e police within five days after changing his residence. He went to the police department three times, but was told that he had to make an appointment and that no appointment was available in less than 30 days. He had told his parole officer that he had attempted to register

. One of the violations also involved his fa i lure to attend a mandated parole outpatient clinic , or POC, but he did attend all but one session, and he was merely a few minutes late to that session. Nevertheless, he was found in violation of paro le for failure to attend. Although the chronology of e vents Hill described is not entirely clear, it appears that before his release on parole following t he marijuana cultivation sentence in 2009, he was evaluated by two psychologists to determine whether he qualified as an SVP. One evaluator concluded that he did qualify, while the other concluded that he did not. Two more evaluators examined him, and again, one found that he qualified as an SVP while the other did not. He was not deemed an SVP at that time and was released on parole.

3 Evidence at the SVPA trial apparently showed that there were thousands of nude images on Hill’s computer, including some which at least appeared to be minor boys engaged i n sexual activity.5

After his first paro le violation, he was evaluated again, with the same split result. Then after his second or third parole violation, the evaluators found him to meet the criteria of the SVPA. One reason they gave was that he was unable to follow directions and as a result kept violating his parole. Another was that because one of his parole violations was for living within 2 , 000 feet of a park, he was trying to be near children. A third was that because Hill had failed to attend any of the POC sessions, he was n ot amenab le to

treatment. LEGAL ANALYSIS

HILL HAS NOT SHOWN THAT THE TRIAL COURT

ABUSED ITS DISCRETION The purpose of a Marsden hearing is to permit the defendant to request substitution of counsel if the defendant is dissatisfied with the representation he or she is currently receiving. A defendant has no absolute right to more than one appointed attorney, and a trial court is not bound to accede to a request for substitute counsel unless the defendant makes a “‘“sufficient showing . . . that the right to the assi stance of counsel would be substantially impaired”’” if the original attorney continued to represent the defendant. ( Marsden , supra , 2 Cal.3 d at p. 123.) The trial court must afford the defendant the opportunity to explain the reasons for the request for new counsel and to give specific instances of misconduct. ( Id . at p. 124.) If the trial court does not allow the defendant to state his or her reasons for dissatisfaction with the attorney, the error is reversible if a reviewing court cannot conclude be yond a reasonable doubt that denial of6

the effective assistance of counsel did not contribute to the defendant’s conviction. ( People v. Hill , supra , 219 Cal.App.4th at p. 653 .) If, however, the trial court does afford the defendant an adequate opportunit y to explain why substitution of counsel is necessary, we review the denial of the motion solely for abuse of discretion. ( People v.
Barnett (1998) 17 Cal.4th 1044, 1085.) Here, the court afforded Hill a full opport unity to explain why he believed that h is attorney was not representing him adequately, and Hill does not contend otherwise. Accordingly, we review the denial of the motion for abuse of discretion. Denial of a Marsden motion “‘is not an abuse of discretion unless the
defendant has shown that a failure to replace the appointed attorney would “substantially impair” the defendant’s right to assistance of counsel . [Citations.]’ ” ( People v. Barnett , at p. 1085. )
Hill contends that it was error not to appoint an attorney to represent him in
presen ting the Marsden motion and , as a result , the hearing was not limited to the state of his relationship with h is attorney as of the date the motion was filed

. Hill filed his
Marsden motion after the probable cause hearing but before the trial

. 4 In the mot ion, he stated that his attorney had failed to file a motion to dismiss at the probable cause hearing based on the assertion that “ [ a ] n evaluator’s recommendation for or against commitment

4 We take judicial notice of the record on appeal in People v. Hill , supra , 219 Cal.App.4th 646. (Evid. Code, § 452, s ubd. (d).) The clerk’s transcript in that case shows that the probable cause hearing took place on September 14, 2010, and that Hill filed his Marsden motion on January 6, 2011. The record in the current appeal does not contain a file

- stamped copy of the Marsden motion.7

is invalid if there appears a reasonable probability it was influen ced by the evaluator’s legal error including misinterpretation of the ‘likely to reoff end’ standard.” H ill also stated that his attorney did not impeach prosecution witnesses, did not allow him to challenge the accuracy of the experts’ conclusions that he met the criteria for an SVP commitment, did not allow him to call other witnesses who had relevant evidence bearing on the issue of probable cause, and failed to provide him with all relevant medical and psycholog ical records and reports. H ill now compla ins that instead of focusing on the breakdown in communications between himself and his attorney before the probable cause hearing, the court veered into examining the attorney’s performance at trial.
Hill is correct that in hearing the Marsden motion, the trial court addressed counsel’s performance at trial as well as his performance at the probable cause hearing. However, the court ’s ruling focused on Quintino’s performance at the probable cause hearing : T he court found that if it had heard the Marsden motion at the time it was made, it would have told Quintino that Hill’s concerns should be addressed, but that it would not have discharged Quintino. 5 And, the court found that following the probable cause hearing, Quintino did address the concerns Hill r ais ed. As we discuss below, this was not an abuse of discretion. ( Marsden , supra , 2 Cal.3 d at p. 123.)

5 On remand, the Marsden motion was hea rd by the Hon orable Mark E. Johnson. The original proceeding in which the trial court held that Hill did not have the right to a Marsden hearing ( People v. Hill , supra , 219 Cal.App.4th at p. 649) w as heard by the Hon orable Ja mes T. Warren.8

Hill believed that Quintino should have been able to get the petition dismissed at the probable cause hearing. He explained to the court that since he was originally released on parole following his sentence for the sexual offenses , he had lived in the community for 27 years without committing another sexual offense. He believed that his explanations concerning his parole violations vitiated the evalua tors’ opinions that he was unable to comply with the terms of his parole, particularly since none of the violations was for a “hands

- on” sexual offense. He asked Quintino’s office repeatedly for copies of the evaluators’ reports but did not receive them. He finally received the report of the second evaluator who was to testify and found numerous legal errors in his report, but was unable to contact Quintino to dis cuss it with him. He summarized his complaint as follows: “He didn’t do anything. He didn’ t provide any defense whatsoever at the probable cause. His words to me were: This is just a formality; you’re going to be found guilty. He didn’t call one witness for my affect [ sic ]. He didn’t explain to the j udge. He didn’t contest any of the evalu atio ns of falsification in there.

. . . [ H ] e didn’t get the parole records showing that I did [attend] POC classes, that I did try to register, that I wasn’t sleeping. No defense whatsoever. And . . . he never talked to me ahead of time ,

so I didn’t kno w. Only because there was a break of a week between the two evaluators was I able to take and evaluate because I kept asking, which was my right, to have copies
of the eval uations to see what they said.” Quintino also failed to call as witnesses a ny of

t he evaluators who said Hill did n ot meet the SVP criteria.9

When the court asked Quintino to respond to Hill’s complaints about the probable cause hearing, Quintino said that he did not bring in the parole records because they would have shown that Hill in fact did violate his parole conditions. He said that Hill “consistently failed to understand that the parole violations, although he disputed them, he went to hearing on them and then we really can’t undo what was done.” He also said that he had lined up the three “negative” evaluators, i.e., the ones who concluded that Hill
did not meet the criteria , to testify at the probable cause hearing. He said that the evaluators were not aware of the parole violation for possession of pornography when they perfor med their original evaluations , and that when they learned about Hill’s possession of pornography , they all said that if they had known about it, they would have concluded that he did meet the criteria. He arranged for two more evaluations, and both evalu ators said that Hill met the criteria

. Accordi ngly, those evaluators could not challenge the prosecution’s witnesses at the probable cause hearing

. The Marsden hearing was continued to a later date, and after having reviewed his case file, Quintino amende d his prior statement to explain that the three negative evaluators were originally aware of the possession of pornography violation , but that the only information they had at that time was the charge sheet, which contained only a vague description of an i mage of a “young appearing male.” It was only shortly before
the SVPA trial that he received a more detailed report ab out the images, which indicated the computer contained many such images, including male minors apparently engage d in sexual activities. At that point, all of the evaluators except one said that this information10

changed their opinion as to the likelihood that Hill would reoffend. Accordingly, his decision not to call those evaluators as witnesses at the probable cause hearing was not the r esult of the change in their opinions. Rather, he said, it was his strategy to defer any affirmative defense until the trial because the standard of proof at the probable cause hearing is so low

. He felt that Hill’s best chance was to argue that because he had gone 20 or more years without reoffending, the prosecution had failed to meet its burden to show that he was likely to reoffend. But even that defense was undermined by the
poss ession of pornography. The trial court concluded that Quintino’s perfor mance at the probable cause hearing was not deficient because of the low st andard at that type of hearing. This was not an abuse of discretion. Probable cause is a low standard of proof, below the preponderance of the evidence standard that applies in mo st civil proceedings. ( Cooley v. Superior Court (2002) 29 Cal.4th 228, 250

- 251.) At a probable cause hearing, the magistrate does not determine whether the defendant is an SVP. Rather, the magistrate’s function is “ simply [to] decide whether a reasonabl e person could harbor a strong suspicion ” that the defendant meets the criteria of the SVPA, “ i.e., whether such a person could reasonably weigh the evidence, resolve conflicts, and give or withhold credence to particular witnesses in favor of harboring su ch a suspicion.” ( Id. at pp. 251

- 252.) Even giving maximum credence to defendant’s contention that his parole violations do not validly support any of the SVP A criteria, particularly because he went 27 years wi thout a “hands on” sexual offens e, it is cle ar that reasonable minds could differ: E ven given the11

pornography possession issue, one evaluator did not believe he met the criteria, while approximately five other evaluators believed that he did meet the criteria. Accordingly, even if Quintino had pre sented the one evaluator who later testified at trial in Hill’s favor,
and even if he had addressed the defects Hill asserted as to his parole violations, the evidence presented at the probable cause hearing would have been sufficient to permit a reasonabl e person to harbor a strong suspicion that Hill did meet the SVP A criteria, and would have compelled a finding of probable cause to take the matter to trial

. It was also not an abuse of discretion not to appoint counsel to represent Hill at the Marsden hea ring. ( People v. Clark (2011) 52 Cal.4th 856, 914

- 917 [trial court has discretion to appoint counsel for Marsden hearing].) The court reserved decision as to whether it would appoint counsel until the court understood the complexity of the issues Hill wa nted to raise. If, after hearing what Hill had to say, the court felt that the assistance of counsel was necessary “to develop the full weight” of what Quintino allegedly failed to do, it would appoint counsel. After listening to the entire hearing, the court concluded that appointment of counsel was not necessary because Hill ha d presented every issue intelligently and coherently, and the court understood his contentions. The court’s conclusion is supported by the record. Hill presented his case
articu lately and intelligently, and there is no basis for concluding that he might have achieved a different result if he had been represented by an attorney.12 DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J

. We concur:

HOLLENHORST J.

RICHLI J.