Filed 6/9/22 P. v. Parker CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DEWAYNE KEITH PARKER,

Defendant and Appellant.

F083152

(Super. Ct. No. F21902503)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Gary R. 

Orozco, Judge.

Candace Hale, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally 

Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Poochigian, Acting P. J., Franson, J. and DeSantos, J.
2.

INTRODUCTION

In a felony complaint filed on March 26, 2021, defendant Dewayne Keith Parker 

was charged with murder (Pen. Code,1 § 187, subd. (a)). The complaint further alleged 

that he personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). At his 

arraignment on April 26, 2021, defendant pled not guilty and denied the special 

allegation. In addition, the trial court—pursuant to section 1368—expressed doubt as to 

his mental competence, suspended criminal proceedings, and appointed a licensed 

psychologist to examine him. At a May 26, 2021 competency hearing, the court 

reviewed the psychologist’s report, declared defendant mentally incompetent, and 

referred the matter to the regional Conditional Release Program for a written 

recommendation in accordance with section 1370. After reviewing said 

recommendation, the court ordered that defendant be committed to the State Department 

of State Hospitals and specified that “[t]he maximum term of commitment exceeds 2 

years.” The commitment order was filed on July 7, 2021. On August 6, 2021, defendant 

filed a notice of appeal. 

DISCUSSION

Defendant makes two contentions. First, “[t]he court violated California law and 

[his] Fourteenth Amendment due process and equal protection rights by setting his 

maximum commitment at a time ‘exceeding two years.’ ” Second, the court “erred by 

refusing to hold a Marsden[2] hearing.” 

1 Unless otherwise indicated, subsequent statutory citations refer to the Penal 

Code.

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

I. Length of commitment

“The maximum period of commitment under section 1370 is ‘two years from the 

date of commitment.’ ” (Rodriguez v. Superior Court (2021) 70 Cal.App.5th 628, 648, 

quoting § 1370, subd. (c)(1).)

Defendant correctly points out that section 1370, subdivision (c)(1) “provide[s] 

that the maximum commitment for determining or restoring competence is two years.” 

He requests a remand “so the court may set the proper maximum time of commitment 

. . . .” The Attorney General concedes that “the commitment order should be amended to 

reflect a maximum two-year term of commitment.” We accept this concession.

II. Marsden motion

a. Background

At the May 26, 2021 competency hearing, the court indicated that it had read and 

considered the psychologist’s section 1368 report. After counsel submitted on the 

report’s findings of incompetence, the court concluded that defendant “is not competent 

to stand trial.” The following colloquy transpired:

“THE DEFENDANT: Can I get on record right now and put 

myself on record, because I have document – a document statement as far 

as a certificate already filed by the clerk, Y dot –

“THE COURT: Let me just interrupt you real quick to tell you, 

sir. I would advise that you not say anything on the record. If you say 

anything that’s incriminating – let me finish. If you say anything that’s 

incriminating, the People can use any of your statements against you at 

trial.

“THE DEFENDANT: I understand that, and I understand – I 

agree with you, and I agree that none of these proceedings is administrative 

at all. And I also have the document, you know, the stamp that’s notified 

documents right here in my request to represent myself at this time in a 

Marsden motion fashion, and I would like the district attorney to sit in the 

Marsden motion at this time, and I would like to represent myself the third 

time because I said this three previous times on the People vs. Parker, 
4.

vehicular manslaughter case,[3]in which the Court had to make a 

documented hearing, not just deny it on your own opinion. You’ve got to 

read the documents to, you know – a Faretta,[4] you know, application, and 

that’s what I wanted to provide to the Court in, you know, my letter of 

proposal.

“THE COURT: So you want a Marsden motion and have the 

district attorney present; is that correct?

“THE DEFENDANT: Yes.

“THE COURT: All right. That’s a conditional request for a 

Marsden motion. I’m denying it.

“You want a Faretta motion, you want to represent yourself; is that 

correct?

“THE DEFENDANT: I have documents that says that – a 

stamped document in which I want to provide to the Court and also provide 

to, you know, the district attorney, . . . and this report is documented to put 

myself on calendar today, and so this is my argument for today against not 

only the plea that my attorney put in that said that I was not guilty, but also 

where enter that plea that says, you know what I’m saying, I’m not guilty to 

my priors, which is my past record of mental incompetency or my past 

conduct.

“And for the record, I’m also using the burden of proof of – that you, 

under 1368, you appointed a non-psych evaluation for a person to see me, 

and that wasn’t part – I think it was about checking my lungs, and I think 

you abused your – my constitutional right when you said – when you didn’t 

ask me, you know, was I willing to participate in that, and I think you – the 

district attorney didn’t make an appeal on that. And any time you use a 

1368 outside 1370, you abuse my constitutional right, because 1370 allows 

an institution to be on a minute order, which means you facilitated second 

floor and you facilitated a jail. Under 1368 that is not probable cause in 

any event, and today is my argument, you know, of the 1367 that says that 

today, you know, whether – if I’m found incompetent for today argument, 

you know, you can hear it today in a 1368, and under 1369, which is right 

3 The record shows that defendant was convicted of vehicular manslaughter with 

gross negligence (§ 192, subd. (c)(1)) on March 27, 2012. 

4 Faretta v. California (1975) 422 U.S. 806.
5.

now saying that I’m not agreeing with the plea of not guilty, and I would 

like to have a hearing.

“[DEFENSE COUNSEL]: Mr. Parker –

“THE DEFENDANT: I would like to have a hearing on my 

plea because I would like to be present any time I make a plea, and you 

know what saying. And, furthermore, he just said that he was not 

competent to assist me or I was not competent to assist him in any kind of 

way.

“[DEFENSE COUNSEL]: Mr. Parker, we can speak later.

“THE COURT: Mr. Parker, I asked you if you wanted to 

represent yourself. I can’t get a straight answer out of you. [¶] . . . [¶]

“THE DEFENDANT: I’m requesting a dismissal.

“THE COURT: Your request for dismissal is denied. . . . 

“THE DEFENDANT: Notice to appear, letter of modification.

“THE COURT: Excuse me, sir, you’re on the verge of 

contempt. I’ve warned you once. Quit interrupting the Court. [¶] . . . [¶]

“THE DEFENDANT: Are you denying me my Marsden 

motion?

“THE COURT: Well, you didn’t ask for a Marsden motion. 

Your Marsden motion was conditional on your demand that the district 

attorney be present.

“THE DEFENDANT: Well, that – so you’re denying me my 

Marsden motion?

“THE COURT: I’m saying that you’ve made a conditional 

Marsden motion, and it’s not proper, and I’m denying the request for a 

conditional Marsden motion.

“THE DEFENDANT: So to my recognition, it don’t say that 

the district attorney can’t be present at the Marsden motion.

“THE COURT: Once again, you requested –

“THE DEFENDANT: And I want that –
6.

“THE COURT: Excuse me, sir. We’re done here.

“THE DEFENDANT: So are you saying this on your opinion or 

the authority of the documented statements?

“THE COURT: Sir, we’re done here.

“Anything further?

“THE DEFENDANT: I request a dismissal.

“[DEFENSE COUNSEL]: No, Your Honor.

“THE COURT: Okay. Thank you, deputies.” 

b. Analysis

“When a defendant seeks new counsel on the basis that his appointed counsel is 

providing inadequate representation—i.e., makes what is commonly called a Marsden

motion [citation]—the trial court must permit the defendant to explain the basis of his 

contention and to relate specific instances of inadequate performance.” (People v. Smith

(2003) 30 Cal.4th 581, 604.) “Although no formal motion is necessary, there must be ‘at 

least some clear indication by defendant that he wants a substitute attorney.’ [Citation.]” 

(People v. Mendoza (2000) 24 Cal.4th 130, 157 (Mendoza), quoting People v. Lucky

(1988) 45 Cal.3d 259, 281, fn. 8; see People v. Sanchez (2011) 53 Cal.4th 80, 83-84, 89-

90.)

“We review the trial court’s denial of defendant’s Marsden motion under the 

abuse of discretion standard.” (People v. Orey (2021) 63 Cal.App.5th 529, 568.) 

“ ‘Under the abuse of discretion standard, “a trial court’s ruling will not be disturbed . . . 

unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd 

manner that resulted in a manifest miscarriage of justice.” [Citation.]’ [Citations.]” 

(People v. Lewis (2009) 46 Cal.4th 1255, 1286.) In other words, “[a] court abuses its 

discretion when its ruling ‘falls outside the bounds of reason.’ [Citation.]” (People v. 

Kipp (1998) 18 Cal.4th 349, 371; see People v. Brown (2004) 33 Cal.4th 892, 901 

[“ ‘ “No rule of decision is better or more firmly established by authority, nor one resting
7.

upon a sounder basis of reason and propriety, than that a ruling . . . , itself correct in law, 

will not be disturbed on appeal merely because given for the wrong reason.” ’ ”].)

We conclude that the court’s ruling did not fall outside the bounds of reason. At 

the May 26, 2021 competency hearing, defendant initially stated that he wanted “to 

represent [him]self at this time in a Marsden motion fashion . . . .” Shortly thereafter, he 

reiterated that he “would like to represent [him]self” and alluded to a Faretta motion for 

self-representation. Both times, defendant “did not request a different appointed 

attorney” (People v. Gonzalez (2012) 210 Cal.App.4th 724, 741) and “clearly expressed 

his preference for self-representation” (id. at p. 742). While he “used the term ‘Marsden

. . .’ at [the hearing], . . . he was actually seeking . . . self-representation—not new 

counsel.” (People v. Carter (2010) 182 Cal.App.4th 522, 528.) Later, when asked by the 

court if he wanted “a Faretta motion” and “to represent [him]self,” defendant proceeded 

to argue on his own behalf. He briefly mentioned that defense counsel either was “not 

competent to assist [him]” or had deemed him “not competent to assist . . . in any kind of 

way” (see Mendoza, supra, 24 Cal.4th at p. 157 [“fleeting reference to dissatisfaction 

with counsel”]), but this remark does not amount to a “clear indication that [he] was 

requesting a substitute appointed attorney so as to require the court to conduct a Marsden 

hearing” (People v. Gonzalez, supra, at p. 741).

Defendant also conspicuously stated that he wanted “the district attorney to sit in 

the Marsden motion at this time.” “Typically, when conducting a Marsden hearing, trial 

courts exclude the district attorney upon defendant’s request [or] ‘whenever information 

would be presented during the hearing to which the district attorney is not entitled, or 

which could conceivably lighten the prosecution’s burden of proving its case.’ ” (People 

v. Knight (2015) 239 Cal.App.4th 1, 6, quoting People v. Madrid (1985) 168 Cal.App.3d 

14, 19.) This is because “there are situations in which the district attorney’s presence 

would inhibit defendant or his counsel from freely discussing the facts surrounding the 

specific allegations.” (People v. Madrid, supra, at p. 18.) Given the peculiarity of 
8.

defendant’s wish, in tandem with his “insistence on self-representation” (Mendoza, 

supra, 24 Cal.4th at p. 157), one could reasonably infer that he did not appreciate what a 

Marsden motion entailed.

“Under these circumstances, the trial court was not required to hold a Marsden

hearing.” (People v. Carter, supra, 182 Cal.App.4th at p. 528.) Accordingly, we uphold 

the court’s denial.

DISPOSITION

The matter is remanded to the trial court with directions to prepare an amended 

July 7, 2021 order reflecting a maximum commitment term of two years and transmit 

copies thereof to the appropriate entities. As amended, the order is affirmed.