P. v.
Cormier
Filed 3/5/12 P. v. Cormier CA4/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
IAN
LAMONTE CORMIER,
Defendant and Appellant.
E053579
(Super.Ct.No. RIF10004698)
OPINION
APPEAL
from the Superior Court of
County. James T.
Warren, Judge. (Retired judge of the
Riverside Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.)
Affirmed.
Richard
Jay Moller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, James D. Dutton, and Emily
R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Ian Lamonte Cormier was charged with assault with a deadly weapon
likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).) After the court ordered some psychiatric
evaluations, it found defendant was incompetent to stand trial, and suspended
the proceedings. Defendant has appealed,
however, contending that the trial court erred in refusing to hear his motion,
under People v. Marsden (1970) 2
Cal.3d 118 (Marsden), to appoint a
new attorney. We conclude that any error
in failing to hold a hearing is harmless.
FACTS
AND PROCEDURAL HISTORY
On
October
21, 2010, Oracio
Zambrano was at the home of his friend, Leo Giron. They were busy changing a tire on Giron’s
car, which was parked in Giron’s driveway inside his fenced yard. Giron’s tire wrench did not fit the wheel
bolts, however, so Zambrano went to his own car, which was parked on the
street, to fetch a different tire wrench.
While
Zambrano was getting the wrench from his car, he saw defendant walking on the
opposite side of the street; defendant was yelling angrily and loudly at Giron,
saying, “‘Come on,’” or “‘I’m gonna get you.
Watch your back.’” Zambrano
approached defendant to ask, “‘What happened’” or “‘What’s the problem’” As Zambrano came close to him, defendant made
a sudden move with his hand and struck Zambrano in the head or neck, causing
Zambrano to fall. As Zambrano scrambled
immediately to his feet, he saw that defendant held a screwdriver in his
hand. Zambrano retreated to the safety
of Giron’s yard. Defendant pointed at
Giron and said, “‘I want you.’”
As
a result of the attack, Zambrano suffered a
a staple to close.
Defendant
was charged by information with one count of assault with a deadly weapon other
than a firearm, by means of force likely to produce great bodily injury. The information also alleged two 1986
convictions of committing a lewd act with a child under age 14 (Pen. Code,
§ 288, subd. (a)), and alleged both prior convictions both as prison
priors, and as strike priors.
On
December
16, 2010,
shortly after defendant was held to answer, his attorney declared a doubt as to
defendant’s competence to stand trial, pursuant to Penal Code section
1368. The court immediately suspended
the proceedings and ordered two doctors appointed to evaluate defendant’s
competency. On the heels of the court’s
pronouncement, suspending proceedings and appointing the evaluators, defendant
interrupted, telling the court that he wanted to make a Marsden motion. He asserted
that his attorney was “inadequate. She’s
incompetent.” He alleged that counsel
had taken 52 days to visit him, he objected to her pursuit of “this insanity
defense,” and he complained that she had not followed up his suggestions for
obtaining evidence (videotapes from commercial establishments, which he
asserted would bear out his allegations that the victim had stalked and
harassed him).
The
court stopped defendant’s statement:
“Mr. Cormier, let me stop you.
Criminal proceedings have been suspended.” Defendant protested that he did not want the
proceedings suspended, but the court went on to other business. As he was being taken from the courtroom, defendant
yelled epithets at his attorney and repeated that he did not want her on his
case; he wanted to pursue a defense of self-defense, and not insanity.
Pursuant
to the court’s orders, Dr. Assandri and Dr. Walsh examined defendant and
provided reports to the court. Dr.
Assandri concluded that defendant was not competent to stand trial. Dr. Walsh concluded that defendant was
competent. The court then appointed a
third expert to examine defendant, Dr. Suiter.
Dr. Suiter’s report concluded that defendant was not competent to stand
trial. The court reviewed the reports
and concluded that defendant was then mentally incompetent, and ordered that
the proceedings remain suspended. The
court appointed a psychiatrist to recommend an appropriate placement for
defendant, and to determine whether defendant was competent to decide for
himself whether to take any prescribed antipsychotic medication. On receipt of the psychiatrist’s report, the
court ordered defendant placed at Patton State Hospital until competency could be restored, and
authorized involuntary administration of medication.
Defendant
filed a notice of appeal, purporting to appeal from the court’s “decision
deeming defendant incompetent/insane, and sentencing defendant to three years
at Patten [sic] State Hospital, while force feeding defendant
psychotropic medication. Grounds for
appeal is ineffective assistance of counsel.
Defendant request [sic] a
thorough investigation by the Department of Justice. Plaintiff [sic] appeals Dept. 51 May 9, 2011, decision.”
Appellate
counsel has construed the claim of ineffective assistance of counsel (IAC), as
a claim that the trial court erred in failing to hold a hearing on defendant’s
proposed Marsden motion. We turn to an examination of this claim.
ANALYSIS
I. Any Error in Failing to Hold a
In
People v. Marsden, supra, 2 Cal.3d
118, the California Supreme Court held that “the decision whether to permit a
defendant to discharge his appointed counsel and substitute another attorney
during the trial is within the discretion of the trial court.” (Id.
at p. 123.) Further, “‘The law governing
a Marsden motion “is
well-settled. ‘When a defendant seeks to
discharge his appointed counsel and substitute another attorney, and asserts
inadequate representation, the trial court must permit the defendant to explain
the basis of his contention and to relate specific instances of the attorney's
inadequate performance. [Citation.] A defendant is entitled to relief if the
record clearly shows that the first appointed attorney is not providing
adequate representation [citation] or that defendant and counsel have become
embroiled in such an irreconcilable conflict that ineffective representation is
likely to result [citations].’ [Citations.]” [Citation.]’
(People v. Memro (1995) 11
Cal.4th 786, 857 [47 Cal.Rptr.2d 219, 905 P.2d 1305]; see People v. Panah (2005) 35 Cal.4th 395, 431 [25 Cal.Rptr.3d 672, 107
P.3d 790].)” (People v. Jackson (2009) 45 Cal.4th 662, 682.)
Here,
defendant was able to articulate his reasons before the court. He complained that his appointed attorney had
delayed 52 days before meeting with him.
He stated that she refused to pursue evidence he wanted her to
investigate; that is, he claimed that videotapes from two local businesses
might provide footage showing that the victim, Zambrano, had engaged in a
pattern of stalking defendant. Finally,
defendant was angry because he believed that defense counsel was pursuing an
insanity defense, whereas defendant wanted the case tried on the issue of
self-defense. At that point, the court
should have held a Marsden
hearing.
“
. . . . First, if
‘defendant complains about the adequacy of appointed counsel,’ the trial court
has the duty to ‘permit [him or her] to articulate his [or her] causes of
dissatisfaction and, if any of them suggest
ineffective assistance, to conduct an
inquiry sufficient to ascertain whether counsel is in fact rendering
effective assistance.’ [Citations.]
. . . [¶] . . . [¶]
Second, if a ‘defendant states facts sufficient to raise a question
about counsel’s effectiveness . . . ,’ the trial court has a
duty to ‘question counsel as necessary
to ascertain their veracity.’
[Citation.] . . .
[¶] Third, the trial court has
the duty to ‘make a record sufficient
to show the nature of [a defendant]’s grievances and the court’s response to
them.’ [Citation.] . . . [¶]
Fourth, the trial court must ‘“allow the defendant to express any
specific complaints about the attorney and the
attorney to respond accordingly.”’
[Citation.]” (
1362, 1367-1368.)
Defendant’s
complaint here was sufficient to trigger the duty to conduct a hearing. The court erred in brushing aside the request,
on the ground that proceedings had been suspended. That proceedings have been suspended to
determine the defendant’s competency to stand trial does not preclude hearing a
Marsden motion. (See People
v. Govea (2009) 175 Cal.App.4th 57, 61 [trial court declined to hold a
requested Marsden hearing on the
ground that the defendant’s mental competence had to be determined first, but
this was incorrect].)
The
court’s failure to conduct a Marsden
hearing, however, was not prejudicial under the circumstances. When the court has erroneously failed to
comply with Marsden, we determine
whether the record shows beyond a reasonable doubt that the error was
harmless. (People v.
v. Eastman (2007) 146 Cal.App.4th 688, 697.) Here, the record is sufficient to show the
gist of defendant’s complaints about his attorney, matters which he repeated to
the mental health examiners. He
complained about the attorney’s conduct of the defense to the substantive
charge, such as investigating the victim, and gathering evidence (the
videotapes). He also wanted to pursue a
defense of self-defense; his complaint that the attorney was pursuing an
insanity defense was misdirected, as the competency proceedings were a wholly
separate issue from the defense strategy to be pursued at trial. Even though the court erred in failing to
conduct a Marsden hearing to address
defendant’s concerns about counsel’s conduct of the defense, he is not
precluded from renewing the motion, should the time ever come when he is
restored to sanity and is able to be tried on the charge.
Defendant
relies on People v. Solorzano (2005)
126 Cal.App.4th 1063, to argue that the court’s order determining the question
of competency must be reversed.
defendant’s counsel was the failure to marshal evidence which would have
supported the claim that the defendant was incompetent to stand trial. In the absence of that evidence, the
defendant was found competent, and he was tried and convicted. Under those circumstances, the failure to
hear the Marsden motion before ruling
on the competency question was prejudicial; because of the passage of time, the
defendant was precluded from being able to prove that he was incompetent at the
time of trial. Thus, he may have been
forced to stand trial even though he was incompetent, which would constitute a
due process violation. There is no
potential for such a due process violation in this case.
Because
the court’s failure to hear his Marsden
motion did not prejudice defendant, no intervention or reversal is
required.
DISPOSITION
Although
the trial court erred in failing to conduct a Marsden hearing below, we find beyond a reasonable doubt that defendant
was not prejudiced by the error. If and
when defendant is restored to competence, he remains free to renew the motion
at that time. The judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MCKINSTER
J.
We concur:
HOLLENHORST
Acting
P.J.
MILLER
J.
