People v. Hubbs CA4/1

Filed 12/19/14 P. v. Hubbs CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D063955

Plaintiff and Respondent,

v. (Super. Ct. No. FBABS700108,
FBABS05997)
NORMAN JAMES HUBBS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Bernardino County,

Steve C. Malone, Judge. Reversed.

Rudy Kraft, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Joy

Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
 Norman James Hubbs appeals a judgment committing him to the Department of

State Hospitals at Coalinga for an indeterminate term for treatment and confinement as a

sexually violent predator (SVP) under the provisions of the Sexually Violent Predators

Act (Welf. & Inst. Code,1 § 6600 et seq.) (SVPA) following a court finding that he is an

SVP.

Hubbs contends (1) his trial counsel was ineffective; (2) the trial court erroneously

denied his motion under People v. Mardsen (1970) 2 Cal.3d 118 (Marsden); (3) the trial

court erred in granting the prosecution's motion to consolidate the two SVP petitions; (4)

the trial court abused its discretion by denying Hubbs the right to represent himself; (5)

the trial court erred when it allowed Hubbs's trial counsel to waive his right to a jury trial

over Hubbs's objection; (6) he had a constitutional right to a jury trial; (7) cumulative

errors require reversal; and (8) the recent amendments to the SVPA are unconstitutional.

We agree with Hubbs there were numerous errors leading up to his trial and these

cumulative errors rendered his trial fundamentally unfair. We therefore reverse the

judgment and remand this matter for a new trial. In reaching this conclusion, we do not

address any of the constitutional issues Hubbs raises.

1 Statutory references are to the Welfare and Institutions Code unless otherwise
specified.

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 FACTUAL AND PROCEDURAL BACKGROUND

A. Hubbs's Underlying Convictions of Sex Offenses2

In the underlying criminal prosecution (People v. Hubbs (Super. Ct.

San Bernardino County, 1991, No. BCR-2641), a jury convicted Hubbs of a total of 11

counts of committing lewd and lascivious acts upon, and three counts of engaging in oral

copulation with five boys under the age of 14 years in violation of Penal Code sections

288, subdivision (a), and 288a, subdivision (c), respectively.

B. Hubbs's Previous Commitment

On April 13, 2006, a jury found Hubbs was an SVP and the court recommitted

Hubbs to Atascadero State Hospital for a two-year period for treatment and confinement.

Hubbs appealed the related judgment, and we reversed the judgment on the grounds that

Hubbs's trial counsel was prejudicially ineffective. In making this determination, we

noted that Hubbs's trial counsel did not obtain funding to retain an expert on Hubbs's

behalf. In addition, we observed that Hubbs's trial counsel did not subpoena any expert

witnesses to appear at trial. Because the statutory framework shows that SVP

commitment petitions are generally decided on the basis of expert testimony (see People

v. Angulo (2005) 129 Cal.App.4th 1349, 1358), we concluded Hubbs's utter failure to

secure any expert to testify at trial was prejudicially ineffective assistance of counsel.

2 The following brief history of Hubbs's prior sexual offense convictions is taken
from this court's unpublished opinion in his prior appeal (People v. Hubbs (Oct. 11, 2005,
D043625), hereafter referred to as Hubbs I).

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(See People v. Hubbs (Feb. 20, 2008, D048607) [nonpub. opn.] (Hubbs II).) We issued a

remittitur on April 21, 2008.

C. Hubbs's Most Recent Recommitment Hearing

On March 27, 2007, the district attorney filed a petition seeking to commit Hubbs

as an SVP for a period of two years. In a series of continuances, many revolving around

Hubbs's apparent problems with appointed counsel, the probable cause hearing was

delayed until December 3, 2007 when it was waived by Hubbs's counsel.

On May 7, 2008, the district attorney amended the March 27 petition seeking to

commit Hubbs as an SVP for an indefinite period of time. The prosecution also moved to

consolidate the instant petition with the previous petition that resulted in a judgment,

which was reversed in Hubbs II. The court granted the motion. The matter eventually

proceeded to trial on March 14, 2013.

1. Prosecution

The prosecution presented the testimony of two experts, Drs. Robert Owen and

Carolyn Murphy. Owen, a licensed clinical psychologist, testified he first met Hubbs in

August 2001. He had conducted seven evaluations of Hubbs from August 2001 through

2012. He interviewed Hubbs in 2005. Owen also reviewed police reports, probation

reports, and medical records regarding Hubbs.

Owen diagnosed Hubbs with pedophilia with a sexual attraction to males and

personality disorder with antisocial features. He defined pedophilia as "a condition

involving at least six months of deviant fantasies, urges or behaviors directed towards

children who are preadolescent, generally 13 years and younger." Owen highlighted

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several factors that supported his diagnosis. He noted that Hubbs went to great lengths to

molest his victims by creating a "boy[-]friendly environment." Hubbs had a boy living in

his home who brought other boys to the home. Owen opined that Hubbs then exploited

the boys that were particularly vulnerable and molested them. Owen also noted that

while Hubbs was in the state hospital in 2008, he drew a collage that included a nude

child.

Murphy, a clinical psychologist, first met and evaluated Hubbs in 2007. She

updated her report in November 2009 and September 2010. She reevaluated Hubbs in

October 2012. Murphy diagnosed Hubbs with pedophilia, depressive disorder, and

personality disorder not otherwise specified with narcissistic traits. She noted that

Hubbs's sheer number of offenses and pattern of conduct evidenced his pedophilia and

demonstrated that the disorder affected his volitional control. She also observed that

Hubbs had not attempted to modify his behavior or seek treatment, and that he continued

to offend despite consequences and sanctions.

Both Owen and Murphy evaluated Hubbs using the Static 99-R, an actuarial tool

that measures the risk of sexual reoffense. Owen scored Hubbs at a 3, but stated that his

score could also be a 4 depending on whether he actually had a significant live-in

relationship with a partner. The score placed Hubbs in the low to moderate risk of

reoffending, indicating a 15 percent risk of reoffending within five years and 24 percent

within 10 years. Murphy scored Hubbs with a 4, which placed him in a moderate to high

category and indicated that his risk of recidivism was higher than 63 to 77 percent of

offenders.

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 Based on their interviews, evaluations, and assessment of Hubbs's criminal

background and risk scores, Owen and Murphy opined that Hubbs's pedophilia affected

his volitional control, predisposed him to committing sexual offenses, and that he was

likely to reoffend in a sexually violent predatory manner in the future if released. They

ultimately opined that Hubbs met the criteria for commitment as an SVP.

2. Defense

Hubbs testified in his defense at trial. He stated that he had never been attracted to

children, had never engaged in any sexual act with a child, and was wrongfully accused

and convicted in all 12 instances. He said the children in Indiana made up the allegations

possibly to "get even for something." He filed a lawsuit against the San Bernardino

County Sheriff's Department prior to being arrested and accused of child molestation.

Hubbs testified that the reason he has not expressed remorse for the events that led

to his convictions is because they are false allegations. He was wrongfully convicted and

he has not done the things for which he has been convicted.

DISCUSSION

I

INEFFECTIVE ASSISTANCE OF COUNSEL

Hubbs contends that his trial counsel was ineffective, and thus, violated his Sixth

Amendment due process rights. Specifically, Hubbs asserts his trial counsel was

6
ineffective for: (1) failing to offer an expert witness in defense of Hubbs at trial and

(2) waiving Hubbs's right to a jury trial.3

A. Background

On December 3, 2007, James Gass was appointed as Hubbs's defense counsel. On

November 3, 2009, at a status conference hearing, Gass stated that he had a list of doctors

to contact as potential defense experts, but would need to request additional funds from

the county administration.

At a status hearing held on January 12, 2010, Gass stated that he had not yet

retained an expert because he had just received the prosecutor's latest evaluation and

would need to send it out to a potential expert to review. Counsel submitted to the court

an application to appoint Dr. Jay Adams as a defense expert. The trial court granted the

order, which included funds for the expert to conduct an initial evaluation.

On March 12, 2010, at another status conference, Gass stated that he had a male

expert lined up who had looked at the evaluations and was willing to help. He stated he

would be submitting a new request for funding. Following several continuances, at a

status hearing on December 16, 2010, Gass told the court that his request for funds had

been denied. Following the probable cause hearing on January 18, 2011, Gass again

explained that his request for more expert funds had been denied, but that he planned to

have a hearing before the judge who denied the funds.

3 We discuss the waiver of jury trial and its impact on Hubbs's trial later in this
opinion.

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 At a status hearing on September 7, 2012, Gass informed the court that he had

spoken with a female expert who reviewed some of Hubbs's records. She told him she

could not help.

On the day of trial, in a Marsden hearing, Gass explained his efforts in attempting

to secure a defense expert. He stated that though he had contacted Adams, she ultimately

indicated that there was not much she could say that would help Hubbs's case.

B. Law and Analysis

To show that trial counsel's performance was constitutionally defective, an

appellant must prove: (1) counsel's performance fell below the standard of

reasonableness, and (2) the "deficient performance prejudiced the defense." (Strickland

v. Washington (1984) 466 U.S. 668, 687-688.) Competency is presumed unless the

record affirmatively excludes a rational basis for trial counsel's choice. (People v. Ray

(1996) 13 Cal.4th 313, 349; People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.)

Here, Hubbs's trial counsel did not retain or present an expert witness on behalf of

Hubbs at trial. As Hubbs points out, the failure of his previous trial counsel to obtain

funding to retain an expert on Hubbs's behalf was the primary reason we reversed his

previous judgment on the grounds that his trial counsel was prejudicially ineffective.

However, there exist differences between the instant matter and Hubbs II.

In Hubbs II, it was clear that Hubbs's counsel did very little to retain an expert. He

did not attempt to obtain funding to retain an expert. He did not subpoena an expert

although he was aware of two who would possibly testify favorably on behalf of Hubbs.

In contrast, here, Gass at least made some effort to retain an expert. He obtained funding

8
for Adams, but Adams apparently could not help Hubbs's case. There is some indication

in the record that Gass contacted at least one other potential expert and there is a

reference to failed attempts to obtain additional funding. However, the record does not

shed much light on these additional efforts as it does not contain Gass's additional

requests for funding or the court's denial of same.

There simply is not enough in the record on which we can evaluate Hubbs's claim

of ineffective assistance of counsel. Gass's efforts to retain an expert surpass what we

concluded was prejudicially ineffective in Hubbs II, but here we are left to guess as to the

extent of Gass's efforts. Without more in the record, we cannot adequately address this

issue.4 An appellate court generally cannot fairly evaluate counsel's performance at trial

based on a silent record. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) In

many instances, like here, evaluation of a claim of ineffective assistance of counsel will

have to await a petition for writ of habeas corpus, should the defendant believe there is a

viable claim that can be pursued. (Ibid.) Accordingly, we conclude that Hubbs's claim of

ineffective counsel is without merit.

4 Hubbs also claims his counsel was ineffective because he waived jury trial over
Hubbs's objection. We address counsel's waiver of jury trial below, but for purposes of
our analysis of the ineffective of assistance claim, this waiver does not help Hubbs's
assertion on the record before us. As we explain in more detail in a later section of this
opinion, there is little in the record to explain Gass's decision to waive jury trial. As
such, we cannot sufficiently examine Hubbs's claim on the record before us.

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 II

MARSDEN HEARING

Hubbs contends the trial court erroneously denied his Marsden motion. We agree.

The trial court did not adequately probe Hubbs's alleged problems with Gass's

representation of him and the record strongly implies that the trial court had decided it

was going to deny the motion prior to even hearing it. On this record, it appears the court

did not exercise its discretion by failing to hold an adequate Marsden hearing.

A. Background

On the morning of his trial, Hubbs reminded the court that he had a Marsden

motion pending. The trial court acknowledged that Hubbs had filed the motion. The

prosecutor objected to the timeliness of the motion, but the trial court interrupted her,

reassuring her: "If you give me five minutes, I could get this done in less time than you

would by making a record."

The court then held a hearing on Hubbs's Marsden motion. The court permitted

Hubbs to state some of his complaints:

"Mr. Gass has not contacted me in two years. As a matter of fact,
over two years ago he moved his office and never even bothered to
tell me. He gave me no notice that I'd even had a probable cause
hearing. He waived my rights to be present at that hearing and
presenting evidence. He has presented me with no defense
evaluations which under the statute I have a statutory right to have
those. Mr. Gass has just had a complete breakdown in
communication, plus the fact that now he has waived my rights to
have evaluators here at this trial for the defense. I have no experts at
all because he has not made any arrangements for any.

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 "Mr. Gass has waived my rights to the jury trial, which I have copies
of the letters that I have sent him over the years and he should be
very well aware of I had witnesses to be called. I wanted to be
present at the probable cause hearing. I wanted to be present
telephonically at all of the other hearings and I have a court order
from a previous judge in this case that granted me that right. And
yet Mr. Gass hasn't contacted me at all. He had all of these hearings
without me even knowing about them. I mean, Mr. Gass has waived
all of my rights without even contacting me, and I feel that this is a
complete denial of due process."

The court offered Gass an opportunity to respond:

"I got a letter from Mr. Hubbs, I believe in 2010 he told me that his
second knee replacement failed and he was going to be in the
medical ward for an extended period of time pretty much unable to
move around and do much. I did speak with an expert recommended
or requested by Mr. Hubbs. Her name is Jay Adams. She indicated
that there wasn't really much she could say that would help in this
particular case. I told Mr. Hubbs that. I spoke to him on the phone
probably close to two dozen times in the last four years, let him
know what was happening when it was happening.

"We had a probable cause hearing. I tried to make telephone contact
with him and were [sic] unable to. I sent him a copy of the
transcript, which he has. He says there are witnesses he called. I'm
not aware of any witnesses. Mr. Hubbs wants to attack the
underlying conviction and we're not able to attack the underlying
conviction. They are findings by two juries that he has qualifying
convictions, so that's the situation."

After listening to Gass's response, the trial court denied the Marsden motion.

Hubbs tried to object, claiming a right to call a witness. The court attempted to silence

Hubbs, leading to the following exchange:

"THE COURT: Mr. Hubbs, we have a court reporter that's here.
You've stated what your complaints are. They are part of the record.

"[Hubbs]: No sir. No, sir, I haven't stated all of them.

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 "THE COURT: That's all the time you have for this at this point.
It's part of the record. When we get done with this, if you are—if it
does not go in your favor I'll advise you of your appellate rights. I'm
not going to allow—

"[Hubbs]: I have orders filed before the Court.

"[THE COURT]: There are.

"[Hubbs]: I have other motions involved before the Court.

"[THE COURT]: I'm going to say this one time. If you keep
shouting over me, I'm going to mute you because I'm not—we can't
hold the proceedings if you keep yelling into the microphone.

"[Hubbs]: Are you going to hold a trial without me?

"THE COURT: You can hear it. We won't hear you until it's time
for you to speak.

"[Hubbs]: Your Honor, this is not right. This is unfair entirely. Mr.
Gass is not even qualified. He's never done a hearing.

"THE COURT: I'm going to turn the volume down on our end and
we'll get back to you.

"[Hubbs]: I have a motion filed against [the prosecutor] that's in the
court.

"[Hubbs]: Thank you, Mr. Gass. You are a son of a bitch.

"THE COURT: We'll seal the record of the Marsden hearing. The
Marsden hearing [sic] was denied."

B. Law and Analysis

A trial court has broad discretion to grant or deny a motion. When the court

denies a Marsden motion, we review the denial under an abuse of discretion standard. A

denial is not an abuse of discretion unless the defendant shows the failure to replace the

appointed attorney would " ' "substantially impair" ' " the defendant's right to competent

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counsel. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) A trial court's discretionary

decision will not be disturbed on appeal if there exists a reasonable or even fairly

debatable justification under the law for the action taken. (Gonzales v. Nork (1978) 20

Cal.3d 500, 507.) Consequently, we will interfere with the trial court's exercise of

discretion only when we conclude that under all the circumstances, viewed most

favorably in support of the trial court's action, no judge could have reasonably reached

the challenged result. (Smith v. Smith (1969) 1 Cal.App.3d 952, 958.)

Under the Marsden standard, a defendant must show that appointed counsel is not

providing competent representation or that there is an irreconcilable conflict such that

ineffective representation is likely to result. (People v. Dickey (2005) 35 Cal.4th 884,

917.) However, "a defendant does not have the right to the appointment of new counsel

absent a clear showing of inadequate representation." (People v. Silva (1988) 45 Cal.3d

604, 622.) 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. (Marsden,

supra, 2 Cal.3d at p. 124.) A trial court may not deny a request for substitution of

attorneys without giving the defendant the opportunity to explain his reasons through

presentation of argument and evidence. (Ibid.) "Marsden explains that 'the trial court . . .

cannot thoughtfully exercise its discretion in this matter without listening to [defendant's]

reasons for requesting a change of attorneys. A trial judge is unable to intelligently deal

with a defendant's request for substitution of attorneys unless he [or she] is cognizant of

the grounds which prompted the request. . . . Thus, a judge who denies a motion for

substitution of attorneys solely on the basis of his [or her] courtroom observations,

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despite a defendant's offer to relate specific instances of misconduct, abuses the exercise

of his [or her] discretion to determine the competency of the attorney. . . .' [Citation.]"

(People v. Leonard (2000) 78 Cal.App.4th 776, 787.) "Failure to inquire adequately into

a defendant's complaints results 'in a silent record making intelligent appellate review of

defendant's charges impossible.' " (People v. Hill (1983) 148 Cal.App.3d 744, 755, citing

People v. Cruz (1978) 83 Cal.App.3d 308, 318.)

Here, we are troubled by the trial court's comments preceding the Marsden

hearing. When the prosecutor started to object to the motion, the trial court told her that

it would only take "five minutes" to "get this done." The fact that the court stopped the

prosecutor from making a record of her objections to the Marsden motion as well as the

court's comments that the hearing itself would not take much time raises the inference

that the trial court was planning, at best, to hold a perfunctory hearing and had already

decided the issue against Hubbs.

The transcript of the Marsden hearing does not alleviate our concerns, but instead

underscores the superficial nature of the hearing. The trial court allowed Hubbs to state

some of his complaints about Gass: (1) Gass had not contacted Hubbs in two years;

(2) Gass did not provide Hubbs with defense evaluations; (3) Gass had not retained an

expert on behalf of Hubbs; (4) Gass did not inform Hubbs of hearings or let him

participate in them; (5) Gass was not intending to present any witnesses on behalf of

Hubbs at trial; and (6) Gass waived all of Hubbs's rights for the trial. The court then

asked Gass to respond to the complaints, but Gass did not directly respond to them. For

example, Gass stated that he has talked to Hubbs 14 times in the past four years, but said

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nothing about his communications with Hubbs in the past two years. Gass failed to

adequately explain why he had not retained an expert. He only stated that he talked to

one expert who could not help. In addition, Gass did not explain why he waived many of

Hubbs's rights for trial, including his right to jury trial.

Despite Gass's cursory response, the trial court did not further inquire into Hubbs's

complaints and quickly denied the Marsden motion "[b]ased on the record." The court

did so despite Hubbs's claim to have not stated all of his complaints. The court informed

Hubbs: "That's all the time you have for this at this point."

The People argue that there is no time requirement for a Marsden hearing. We

agree, but logically a court must devote sufficient time to understand a defendant's

complaints against his attorney and reasonably inquire about them. (See People v.

Leonard, supra, 78 Cal.App.4th at p. 787.) On the record before us, we cannot conclude

that the court did so.

The People also argue Hubbs's written Marsden motion lessened the need for the

court to hold a more complete hearing. (See People v. Horton (1995) 11 Cal.4th 1068,

1103 ["[U]nder circumstances in which a defendant has set forth in a 'self-contained

document' in sufficient detail the basis for his dissatisfaction with appointed counsel, . . .

a 'full-blown hearing' on the alleged inadequate representation is not required."].) We

agree with this general proposition of law, but observe there is no indication in the record

that the trial court actually considered Hubbs's written Marsden motion. That motion

contained 17 examples of Gass's alleged representation shortcomings. The court did not

ask Hubbs about these assertions or request that Gass respond to any of them. The court

15
did not read any of the motion's claims into the record. Instead, the court merely

acknowledged that Hubbs had filed a Marsden motion. The trial court's failure to

adequately inquire into Hubbs's complaints results in a "silent record" undercutting our

ability to review Hubbs's charges. (See People v. Hill, supra, 148 Cal.App.3d at p. 755;

People v. Cruz, supra, 83 Cal.App.3d at p. 318.)

The People do not address the impact of the trial court's error in failing to hold an

adequate hearing on Hubbs's Marsden motion. Although Marsden error is subject to a

harmless error review (see Marsden, supra, 2 Cal.3d at p. 126), typically such error may

be treated as prejudicial per se, since the very nature of the error precludes meaningful

appellate review of its prejudicial impact. (People v. Hill, supra, 148 Cal.App.3d at

p. 755; see Marsden, supra, at p. 126.) This case is no exception to this general rule. In

addition, the effect of this error will be considered in connection with the claim of

cumulative error.

III

CONSOLIDATION OF SVP PETITIONS

A. Background of SVPA

The SVPA, as originally enacted effective January 1, 1996 (Stats. 1995, ch. 763,

§ 3, p. 5922), provided for the involuntary civil commitment for a two-year term of

confinement and treatment of a person who was found beyond a reasonable doubt to be

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an SVP. (See former § 6604;5 Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1147

(Hubbart).) A person's commitment could not be extended beyond that two-year term

unless a new petition was filed seeking a successive two-year commitment. (Former

§ 6604; People v. Shields (2007) 155 Cal.App.4th 559, 562 (Shields).) The SVP

extension hearing was a "new and independent proceeding at which the [People] must

prove the person [committed] meets the [SVP] criteria," including that he or she has a

currently diagnosed mental disorder that renders the person dangerous. (Bourquez v.

Superior Court (2007) 156 Cal.App.4th 1275, 1289 (Bourquez); see § 6605, subds. (d),

(e); People v. Munoz (2005) 129 Cal.App.4th 421, 429.)

On September 20, 2006, the Legislature enacted urgency legislation amending the

SVPA, and on November 7, 2006, California voters approved Proposition 83 (also known

as "Jessica's Law") effective November 8, 2006. (Shields, supra, 155 Cal.App.4th at

pp. 562-563.) Among other changes, "former section 6604 was amended to eliminate the

two-year [commitment] term provision and to provide for an indeterminate term of

confinement. . . ." (Id. at p. 562.) Amended section 6604 provides in part: "If the court

or jury determines that the person is [an SVP], the person shall be committed for an

indeterminate term to the custody of the [DMH] for appropriate treatment and

confinement. . . ."

5 Former section 6604 provided in part: "[T]he person shall not be kept in actual
custody longer than two years unless a subsequent extended commitment is obtained
from the court incident to the filing of a [new] petition for extended commitment under
this article or unless the term of commitment changes pursuant to subdivision (c) of
Section 6605."

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 B. The Consolidation of Hubbs's Petitions

In 2006, Hubbs was recommitted to a two-year term in the state hospital, in case

number FBABS5997 (prior petition). In Hubbs II, on February 20, 2008, we reversed the

judgment and remanded the matter for a new trial. We issued the remittitur on April 21,

2008. However, more than a year prior to the issuance of the remittitur, the district

attorney filed the current petition. It was amended over a year later on May 7, 2008 to

account for the change in the SVPA. The prosecution then moved to consolidate the

prior and current petitions. At that time, neither the prior petition nor the current petition

had been set for trial.

On May 9, 2008, the trial court held a hearing on the motion to consolidate. The

prosecution argued that the trial court had authority under Code of Civil Procedure

section 187 to consolidate the petitions and that consolidation would not cause prejudice

or delay since neither case had a trial date set. Defense counsel opposed consolidation

and stated that Hubbs had a right to have a trial on the prior petition. The prosecution

explained the petitions encompassed the same prior convictions, and the same

requirement of finding a current mental disorder and likelihood of predatory reoffense,

and that a trial under the prior petition alone would result in an indeterminate term, and

not a two-year term, because of the recent changes to the SVPA.

When the trial court asked defense counsel what the point was then in objecting to

the consolidation, Hubbs asked to be heard and stated that because the case was reversed

it "reverts it right back to as if it never happened." He further stated that he was entitled

to a trial on the prior petition under the law that was in effect at the time of the prior trial.

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He argued that consolidating the cases would prejudice him because he would be subject

to an indeterminate term and not the two-year term he claimed was applicable under the

prior petition. The court explained to Hubbs that even if he was tried on the prior petition

that originally indicated a two-year term, if found to be an SVP, he would be committed

to an indeterminate term, but Hubbs maintained that a new trial should be "under the

same circumstances, same law as the original" trial. The trial court subsequently granted

the prosecution's motion and ordered the petitions consolidated.

C. Law and Analysis

Hubbs contends the trial court erred when it consolidated the prior and current

petitions because he was entitled to a retrial under the law as it existed at the time the

prior petition was first tried. We disagree.

In Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, 1174 (Litmon), the

court concluded that "the trial court has the inherent power to consolidate" trials held

pursuant to the SVPA. There are limits, however, to that power. "[U]nless an SVP

consents to it, resort to consolidation should rarely be necessary. If a recommitment

petition is tried at or near the commencement of the commitment period to which it

relates, there will be no overlapping petition and thus no need for consolidation. If, for

some compelling reason, the first recommitment petition cannot be tried before a second

recommitment petition is also ready to be tried by both sides, it may well be that

consolidation does not violate this legislative intent. However, when the trial on the

earlier petition can be held within the two-year commitment period to which it relates,

and the SVP has announced ready for trial and has objected to consolidation or a

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continuance, consolidation appears to be at odds with the legislative intent codified in the

SVPA. The SVPA is designed to ensure that the continued confinement of an SVP is

justified, if at all, at least every two years. The legislative scheme's emphasis on frequent

justification for the confinement of each SVP demands that an SVP not be confined

without an adjudication of the justification for that confinement, solely because judicial

resources will thereby be conserved." (Litmon, supra, at pp. 1175-1176.) "[B]ecause the

SVPA evidences a legislative intent to provide a trial on every filed recommitment

petition as close in time to the expiration of the prior commitment as practicable, it is

error to order consolidation over objection when a consolidated trial can occur only if the

earlier petition is further delayed." (Id. at p. 1176.)

Hubbs asserts his petitions could not be consolidated under Litmon, supra, 123

Cal.App.4th 1156. He argues that Litmon stands for the proposition that it is

inappropriate to deprive a defendant of his opportunity for an additional trial when the

delays that led to the consolidation were over his objection and imposed by the

prosecution. Hubbs notes that here trial on the prior petition occurred during the two-

year commitment period, but the judgment was reversed because he was appointed an

ineffective counsel. He insists the delay that led to the decision to consolidate the two

petitions occurred because the government failed to provide him with a competent

attorney. We are not persuaded.

In the instant matter, there were no delays caused by the consolidation of the

previous and current petitions. The current petition had not been set for trial. Since the

remittitur, the previous petition had not been set for trial. Accordingly, the consolidation

20
of the two petitions did not run afoul of the holding of Litmon, supra, 123 Cal.App.4th

1156. The "delay" Hubbs complains of occurred because we reversed the judgment

recommitting him as an SVP in Hubbs II. The reversal is not a delay of the type that the

court warns trial courts to be careful of in Litmon, supra, 123 Cal.App.4th 1156. Indeed,

instead of a delay, the reversal in Hubbs II is simply Hubbs's prior petition running its

course. After remittitur, a new trial would have to be set in any event. As a trial had not

been set, it was not delayed by the consolidation with the current petition.

In addition, we agree with the trial court that judicial economy is well served by

the consolidation of the two petitions. They concern the same prior convictions, the same

requirement of finding a current mental disorder and likelihood of predatory reoffense,

and the same witnesses and evidence in general. It makes little sense to make the

prosecution try two separate cases.

Nevertheless, Hubbs contends two separate trials are required because, based on

the reversal in Hubbs II, he is entitled to a trial on a petition that only seeks a two-year

commitment. Hubbs, however, offers no compelling authority to support his position.

In People v. Carroll (2007) 158 Cal.App.4th 503 (Carroll), the Court of Appeal

evaluated how and when the SVPA amendment imposing an indeterminate term of

confinement applied to SVPs. In Carroll, at the time the recommitment petition was filed

against the defendant, the SVPA mandated a two-year commitment for SVPs. However,

at the time of trial, the People asked to amend the petition to seek an indeterminate term,

to reflect the amendments to the SVPA. The trial court granted the request and ruled that

if the petition were found true, the commitment would be for an indeterminate term. The

21
defendant was found to be an SVP. On review, the court recognized that "[b]y changing

SVP terms from two years to an indeterminate period of time, the Legislature

unequivocally conveyed an intent to continue the confinement of persons adjudicated to

be SVPs." (Id. at p. 510.) The court observed that "because 'the trial on any petition for

commitment or recommitment must focus on the person's current mental condition,' "

"the significant point with respect to retroactivity is not the filing of the petition, but trial

and adjudication under the SVPA." (Carroll, supra, at pp. 513-514; accord, Bourquez,

supra, 156 Cal.App.4th 1275, 1288.)

We see no difference between the defendant in Carroll and Hubbs here. As

Carroll made clear, the dispositive factor in determining when an SVP is subject to the

amended SVPA is the time when the person's current mental condition establishes he is

an SVP. (Carroll, supra, 158 Cal.App.4th at pp. 513-514.) Our reversal in Hubbs II

entitled Hubbs to a new trial on the determination of whether he is currently an SVP.

Hubbs received that. In his new trial, the court determined that Hubbs presently suffers

from a qualifying mental disorder that makes him an SVP. Hubbs thus was subject to

recommitment for an indeterminate term because at the time he was determined to be an

SVP, the amendments had become effective. (People v. Taylor (2009) 174 Cal.App.4th

920, 933; Carroll, supra, at pp. 513-514; Bourquez, supra, 156 Cal.App.4th at p. 1288.)

There was no error.

22
 IV

RIGHT TO SELF-REPRESENTATION

Hubbs contends that the trial court erroneously denied his request to represent

himself and failed to exercise its discretion in denying his request because the court did

not "follow[] any appropriate procedure."

A. Background

On April 20, 2007, the trial court had a hearing on the current petition. At the

hearing, the Public Defender's Office declared a conflict. When the trial court indicated

that Lorene Mies would be appointed as Hubbs's defense counsel, the following exchange

occurred:

"[Hubbs]: I do not want that, your Honor.

"THE COURT: You no longer have a right to represent yourself in
a sexually violent predator proceeding. There is a new case on the
subject, and you may not represent yourself at this time.

"[Hubbs]: Well, I refuse this attorney.

"THE COURT: Feel free.

"[Hubbs]: It says you cannot force me to take an attorney.

"THE COURT: Yes, the law does say I can. So with that, we need
to set different dates.

Hubbs again objected and the court stated that his objection was noted for the

record. Later during the proceedings, Hubbs asked to speak with his attorney, and when

the trial court told him, "be quiet," Hubbs stated that he wished to enter a peremptory

challenge against the trial judge. The court replied, "[t]hat's up to your attorney, not up to

23
you. You're not representing yourself." Hubbs stated that he had been representing

himself and added that he objected to the whole proceeding.

On September 17, 2007, Mies was relieved as Hubbs's counsel and the court

appointed the conflict panel to represent Hubbs. On December 3, 2007, Gass was

appointed as Hubbs's attorney. Gass appeared on behalf of Hubbs and waived both

Hubbs's presence and the probable cause hearing.6

B. Analysis

Section 6603, subdivision (a) states that a person subject to SVP proceedings is

"entitled . . . to the assistance of counsel." Implied in that statutory right to assistance of

counsel is the right to refuse counsel and proceed pro per.

In People v. Williams (2003) 110 Cal.App.4th 1577 (Williams), we determined

that the language of the mentally disordered offender (MDO) commitment statutes

implicitly provided a statutory right to self-representation. We noted that Penal Code

section 2972 states that in a hearing for continued involuntary commitment as an MDO

the, " 'court shall advise the person of his or her right to be represented by an attorney.' "

(Williams, supra, at p. 1588, italics omitted.) We reasoned that "[section 2972] expressly

gives the right to counsel to defendants in MDO proceedings and surely they have by

implication the right to refuse appointed counsel and represent themselves." (Williams,

supra, at p. 1591.)

6 Although not explained why in the record, a probable cause hearing was held over
three years later.

24
 Here, the trial court twice told Hubbs that he "no longer ha[d] a right to represent

[himself]" because there was a new case on the subject and that he could force Hubbs to

proceed with an attorney. Although the trial court did not cite to a specific case, the

parties agree that it appears the trial court was relying on the holding of People v. Fraser

(2006) 138 Cal.App.4th 1430. In that case, the Court of Appeal determined that a

defendant in an SVPA proceeding did not have a Sixth Amendment right to self-

representation. (Fraser, supra, at p. 1446.) However, the court acknowledged Williams,

supra, 110 Cal.App.4th 1577, and never reached the issue of whether the defendant had a

statutory right to self-representation. (Fraser, supra, at p. 1450.) As such, Fraser does

not stand for the proposition that Hubbs could not represent himself in the SVP

proceeding. Thus, the trial court erred when it told Hubbs twice that he was legally

prohibited from representing himself.

The People argue that we review the trial court's denial of Hubbs's request for an

abuse of discretion and should " 'reverse only if it is more probable than not that [Hubbs]

would have received a better result had he been allowed to represent himself.' " (People

v. Hannibal (2006) 143 Cal.App.4th 1087, 1092 citing Williams, supra, 110 Cal.App.4th

at pp. 1592-1593.) We agree with the People that the abuse of discretion is the proper

standard, and if this was the only error in this matter, we would not be likely to reverse

the judgment on the record before us. However, as we explain below, because of the

multitude of errors in this matter, we discuss the impact of this specific error in the

cumulative error section below.

25
 V

WAIVER OF JURY TRIAL

Hubbs maintains the trial court erred by allowing Hubbs's trial counsel to waive

his right to a jury trial over his objection. We agree based on the specific facts in the

record before us.

A. Background

On October 19, 2012, at a hearing at which Hubbs was not present, Hubbs's trial

counsel waived Hubbs's right to a jury trial. There is no indication in the record that

Hubbs consented to this waiver. The court did not inquire about Hubbs's position on the

matter, and at this hearing, Hubbs's trial counsel made no representation that Hubbs had

consented to the waiver.

At a hearing on December 5, 2012, the attorneys and the court discussed

arrangements for the trial given Hubbs's medical problems. These problems effectively

prevented Hubbs from traveling to participate in person at trial. As such, the attorneys

and court were discussing the possibility of using video conference technology to allow

Hubbs to participate in his trial remotely. During the hearing, Hubbs's trial counsel and

the court engaged in the following exchange:

"[Mr. Gass]: One issue that I don't know the answer to is I can
waive a jury for Mr. Hubbs over his objection. I don't know that I
can agree to a trial over the phone over his objection, and I don't
know for sure if he's going to object. I know he objected to anything
happening without him either being here or on the phone, but I don't
know for sure if he'll say, yeah, let's proceed to trial. I'm happy on
the phone.

26
 "THE COURT: Oh, I thought your request—I thought we started
down this road because Mr. Hubbs wanted the trial to go forward,
and he wanted to participate by phone. I thought that was your
representation to the court.

"[Mr. Gass]: That's half accurate and half not accurate. If he was
going to have a trial, he wants to at least be here by phone. But I'm
anticipating that he may say he doesn't want to have a trial if it has to
be by phone, but he had not said that to me. He, on one hand is
getting older. I've delayed his case for a long time, and I think it
benefits him because his recidivism possibilities go down as he gets
older. But I'm in the position where he could complain that he hasn't
had a trial, and he could complain he wants to have a trial.

"THE COURT: Mr. Gass, it's not often that I would disagree with
counsel, but I have to disagree. I believe your representation was
you announced ready and requested that your client be allowed to
participate by phone. That's the representation you made to the
Court. It's only recently since then that you mentioned that you
might now have an objection to what I thought was his request in the
first place."

The court and Hubbs's counsel did not focus on Hubbs's right to a jury trial during

their exchange. Instead, they centered on whether Hubbs would agree to a trial where he

would participate by phone. When Hubbs's counsel mentioned his concern that he might

not be able to waive jury trial over Hubbs's objection, there was no discussion of the

issue. In addition, Hubbs's counsel's comment about waiver over Hubbs's objection was

all the more odd because he already had waived Hubbs's right to a jury trial almost two

months earlier.

B. Law and Analysis

SVP commitment proceedings are not criminal cases; they are civil in nature.

(Hubbart v. Superior Court (1999) 19 Ca1.4th 1138, 1171-1172.) An SVP proceeding is

a "special proceeding of a civil nature, because it is neither an action at law nor a suit in

27
equity, but instead is a civil commitment proceeding commenced by petition

independently of a pending action." (People v. Superior Court (Cheek) (2001) 94

Cal.App.4th 980, 988.) In a "special proceeding," the right to a jury trial is generally a

matter of legislative grant, and not constitutional right. (Corder v. Corder (2007) 41

Cal.4th 644, 656, fn. 7 [state constitutional right to a jury trial not applicable in special

proceedings]; Cornette v. Department of Transp. (2001) 26 Cal.4th 63, 76; People v.

Rowell (2005) 133 Cal.App.4th 447, 452 (Rowell); People v. Williams (2003) 110

Cal.App.4th 1577, 1590 [no constitutional right to trial in civil commitment

proceedings].) In an SVP commitment proceeding, section 6603, subdivision (a)

provides the defendant with a statutory right to a jury trial.7

The People agree that Hubbs had a statutory right to a jury trial, but argue that a

person facing an SVP commitment proceeding must demand a jury trial. (§ 6603,

subd. (f).) They reason that a valid jury demand in a civil proceeding must be made

either "at the time the cause is first set for trial . . . or within five days after notice of

setting . . . ." (Code Civ. Proc., § 631, subd. (e)(4).) The People assert that Hubbs failed

to timely request a jury trial, and thus, he cannot now contend his attorney improperly

waived his right to a jury trial.

7 Hubbs also contends that he has a constitutional right to a jury trial. We note that
Hubbs's argument runs counter to existing precedent, but he urges us to reconsider this
issue. We decline to do so on the record before us.

28
 Hubbs counters that there is no authority indicating Code of Civil Procedure

section 631 applies to SVP proceedings. However, we do not need to resolve this dispute

here. The court set trial in this matter on May 27, 2011. Although we do not have a

transcript of the May 27 hearing, the minutes from this hearing indicate that a jury trial

was set. Thus, it appears from the record, that Gass, Hubbs's attorney, requested a jury

trial at that point.

Moreover, other portions of the record support the inference that Hubbs's counsel

requested a jury trial. On October 19, 2012, Gass waived jury trial. The trial court

accepted the waiver. At that point, the prosecution did not argue that Hubbs had never

requested a jury trial. As such, on the record before us, it appears that Hubbs or his

counsel requested a jury trial, the court set a jury trial, and then Gass later waived the jury

trial. Therefore, we conclude a jury trial was timely requested, and now we must address

whether Gass's waiver of jury trial without Hubbs's consent and/or over his objection was

valid.

The parties concede that no reported decision has addressed the issue presented

here. However, at least one court has determined that a defendant in an SVP proceeding

does not have to personally waive his right to a jury trial. (See Rowell, supra, 133

Cal.App.4th at p. 454.)

In Rowell, supra, 133 Cal.App.4th 447, the defendant objected on appeal to his

trial attorney's waiver of his right to a jury trial. Yet, the attorney had filed a written

declaration under penalty of perjury stating that the defendant no longer wanted a jury

trial. On appeal, the defendant did not argue that the declaration was false or that the

29
attorney was without the actual authority to waive the jury trial. Instead, he claimed that

he had the right to make a personal waiver and the attorney's waiver was invalid. (Id. at

pp. 452-453.) The Court of Appeal rejected this argument concluding that "a defendant's

personal waiver of a jury trial in an SVP proceeding is not required, and the trial court

properly accepted defense counsel's declaration that the defendant wanted a court trial."

(Id. at p. 454.)

Although we do not quibble with the holding of Rowell, supra, 133 Cal.App.4th

447, it is of little help in the instant action. In contrast to the defendant in that case,

Hubbs does not claim his statutory right to jury trial can only be personally waived.

Further, there is no indication in the record that Hubbs ever consented to a waiver of jury

trial or that Gass represented Hubbs had consented to waiver. In fact, the record implies

the opposite conclusion: Gass waived Hubbs's right to a jury trial over Hubbs's objection.

The holding of Rowell therefore does not resolve the issue presented here.

Outside the SVP context, but in other special proceedings, courts have accepted a

defendant's counsel's waiver of a jury trial without the defendant's consent or over his

objection. For example, a defendant's trial counsel can raise a doubt as to defendant's

competency and can even waive a jury trial over a defendant's objection in a competency

proceeding. (People v. Masterson (1994) 8 Cal.4th 965, 971-973 (Masterson). In

Masterson, after determining that a defendant's right to a jury trial in a competency

hearing was statutory not constitutional (id. at p. 969), the California Supreme Court

reasoned it would make no sense to grant the defendant authority to make basic decisions

30
regarding the conduct of the proceeding because the very competency of the defendant is

in question at such a proceeding (id. at p. 971).

However, the conclusion in Masterson was driven, in part, by the recognition that

in proceedings to determine competency to stand trial in a criminal case (ref. Pen. Code,

§ 1368 et seq.), it is presumed that the person whose competence is in question cannot be

entrusted to make basic decisions regarding the conduct of that proceeding. (Masterson,

supra, 8 Cal.4th at p. 974.) Civil commitments under the SVPA do not necessarily

involve individuals whose competence is in question, so, absent anything in the record

showing there was some question as to Hubbs's competence to make decisions regarding

his defense, we cannot extend the holding of Masterson to the issue before us. As neither

party has pointed to Hubbs's competence being at issue, beyond the mental illness of

pedophilia, we find no indication in the record that would support application of

Masterson, supra, 8 Cal.4th 965 here.

Courts also have addressed jury waiver issues in commitment proceedings

involving MDOs and defendants found not guilty by reason of insanity (NGI). In People

v. Otis (1999) 70 Cal.App.4th 1174 (Otis), the court dealt with Penal Code section 2966,

subdivision (b), which requires a jury trial when a person challenges his or her MDO

status unless the jury is "waived by both the person and the district attorney." There,

counsel waived a jury trial. The defendant objected and requested a jury trial, but at the

time, he was delusional and said he was being sexually assaulted by invisible police. The

court denied the request. (Id. at pp. 1175-1176.)

31
 In upholding counsel's waiver, the court found that "nothing in the requirement

that the waiver must be by 'the person' precludes the person's attorney from acting on his

behalf" and noted that "[t]he Legislature did not say the waiver had to be made

'personally.' " (Otis, supra, 70 Cal.App.4th at p. 1176.) The court opined that if the

Legislature had intended to require a personal waiver, it would have made its intent clear

and unambiguous. (Ibid.)

The court further explained that Penal Code "[s]ection 2966 concerns persons who

have been found by the Board of Prison Terms to be mentally disordered. The

Legislature must have contemplated that many persons, such as Otis, might not be

sufficiently competent to determine their own best interests. There is no reason to

believe the Legislature intended to leave the decision on whether trial should be before

the court or a jury in the hands of such a person." (Otis, supra, 70 Cal.App.4th at

p. 1177.)

In People v. Montoya (2001) 86 Cal.App.4th 825, the court reached the same

conclusion concerning identical language in Penal Code section 2972, subdivision (a),

which requires a jury trial on an MDO commitment extension unless waived "by both the

person and the district attorney." There too, counsel waived a jury. (Montoya, supra, at

pp. 828-829.)

The court concluded that the constitutional waiver requirements in criminal cases

were inapplicable because a commitment trial is fundamentally a civil proceeding.

(Montoya, supra, 86 Cal.App.4th at pp. 829-830.) The court further observed that in civil

actions, where there is a state constitutional right to a jury trial, and in ancillary criminal

32
proceedings, where the right to a jury trial is statutory, not constitutional, a jury trial can

be waived by either the client or counsel. (Ibid.) Accordingly, the court looked to the

waiver provision to see if it permitted or prohibited counsel to waive. (Id. at p. 830.)

In upholding counsel's waiver, the court followed Otis, supra, 70 Cal.App.4th

1174. It too noted that the statutory language did not expressly require a personal waiver

or clearly preclude a waiver by counsel and agreed that the Legislature could not have

intended to require a personal waiver and thereby deny counsel the authority to act on

behalf of an incompetent MDO such as the MDO in Otis. (Montoya, supra, 86

Cal.App.4th at pp. 830-831.)

The court acknowledged that "a patient might be mentally disordered for some

purposes and not for others." (Montoya, supra, 86 Cal.App.4th at p. 831.) However, it

noted that the defendant's mind was not functioning normally (he was diagnosed with

schizophrenia), and he had repeatedly and recently demonstrated poor judgment and

aberrant behavior. In upholding counsel's waiver, the court found "no reason to believe

that defendant was capable of making a reasoned decision about the relative benefits of a

civil jury trial compared to a civil bench trial." (Ibid.)

In People v. Powell (2004) 114 Cal.App.4th 1153 (Powell), the defendant, who

was found NGI, objected to counsel's waiver, and requested a jury. When the court

denied the request, the defendant became so argumentative, belligerent, and disruptive

that he had to be removed from the courtroom. On appeal, the defendant claimed that

counsel's waiver was ineffective because Penal Code section 1026.5, subdivision (b)(4)

required his personal waiver. (Powell, supra, at pp. 1157-1158.)

33
 In rejecting this claim, the court cited Otis, supra, 70 Cal.App.4th 1174 and noted

that "[t]he Legislature, in enacting [Penal Code] section 1026.5, did not say that the jury

waiver must be 'personally' made by the NGI committee." (Powell, supra, 114

Cal.App.4th at p. 1159.) Moreover, mirroring the Otis court's view concerning

incompetent persons, the court opined generally that "[a]n insane person who is 'a

substantial danger of physical harm to others' [citation] should not be able to veto the

informed tactical decision of counsel." (Id. at p. 1158.) The court pointed out that the

defendant had been found insane twice, medical staff had diagnosed him with paranoid

schizophrenia, and there was no evidence he had regained his sanity. The court further

noted that the defendant had a history of violence, believed certain people should be

killed, and sought release to do so. (Ibid.) The court asked, "Can such a person

intelligently invoke or waive the right to a jury trial? Is such a person competent to

meaningfully understand who should make the determination of whether his commitment

should be extended?" (Ibid.) The court answered, "Common sense dictates that appellant

should not be able to veto his attorney's decision to waive a jury. The record

demonstrates that appellant was suffering from a severe mental disorder. On the day of

the purported demand for jury, appellant was medicated, experiencing mood swings, and

was so belligerent and disruptive that he had to be removed from the courtroom." (Ibid.)

In addition to Masterson, supra, 8 Cal.4th 965, the People here rely on Montoya,

supra, 86 Cal.App.4th 825 and Powell, supra, 114 Cal.App.4th 1153, and to a more

limited extent, Otis, supra, 70 Cal.App.4th 1174. However, Otis, Montoya, and Powell

34
must be viewed in light of their particular facts and the issues raised in them.8 (See

Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 ["[l]anguage used in any opinion is of

course to be understood in the light of the facts and the issue then before the court"].) As

noted, in Otis, the defendant was delusional, and the court upheld counsel's jury waiver

over the defendant's objection, opining that the defendant was not capable of making a

reasoned decision. (Otis, supra, 70 Cal.App.4th at pp. 1175-1176.) In Montoya, the

court also upheld counsel's waiver, noting that the defendant's mind was not functioning

normally, and he, like the defendant in Otis, was not capable of making a reasoned

decision. (Montoya, supra, 86 Cal.App.4th at p. 831.) Likewise, the court in Powell

upheld counsel's waiver over the defendant's objection because the defendant was

medicated and his disruptive conduct demonstrated his incompetence. (Powell, supra,

114 Cal.App.4th at p. 1158.)

Given the particular facts concerning the mental state of these defendants, we read

these cases for the proposition that when it reasonably appears that an MDO or defendant

who is NGI is incapable of determining whether a bench or jury trial is in his or her best

interests, he or she must act through counsel, and counsel has exclusive authority to

decide even over an objection. We do not read these cases more broadly to hold that

counsel controls the jury issue in an SVP proceeding, regardless of whether the defendant

8 We are mindful that two cases pending before the California Supreme Court
(People v. Blackburn, S211078; and People v. Tran, S211329) may impact the
precedential value of Otis, supra, 70 Cal.App.4th 1174; Montoya, supra, 86 Cal.App.4th
825 and Powell, supra, 114 Cal.App.4th 1153. However, at this time, these three cases
remain good law and we apply them here accordingly.

35
is incompetent. Simply put, there is a difference between the respective mental states of

the defendants in Otis, Montoya, and Powell on the one hand and Hubbs on the other.

Although the record indicates that Hubbs can be a difficult client and often argues with

the court, we find nothing in the record implying Hubbs was incapable of determining

whether a bench or jury trial was in his best interest. Indeed, such an argument was never

made at trial or on appeal.

Citing People v. Barrett (2012) 54 Cal.4th 1081 (Barrett), the People argue that a

distinction between Hubbs's mental capability and the respective mental capabilities of

the defendants in Otis, Montoya, and Powel does not matter. We do not read Barrett as

determining this issue.

In Barrett, supra, 54 Cal.4th 1081, the Supreme Court concluded counsel had

exclusive control in a proceeding to commit a mentally retarded person who is dangerous

under section 6500. In that case, the court conducted a bench trial and committed the

defendant. (Barrett, supra, at pp. 1088-1092.) On appeal, she claimed that the federal

Constitution provided the right to a jury trial and required a jury advisement and personal

waiver. (Id. at p. 1093.) Although the statute did not provide the right to a jury trial, the

Supreme Court agreed that constitutional considerations warranted recognizing an

implied statutory right to a jury trial. (Id. at pp. 1097, 1100.) However, the court rejected

advisement and waiver requirements because it found that counsel had exclusive control

over whether to have a jury trial. In reaching this conclusion, the court relied primarily

on Masterson, supra, 8 Cal.4th 825.

36
 The court explained that mental retardation is a developmental disability that

originates when an individual is a minor and continues, or can be expected to continue,

indefinitely, and constitutes a " 'substantial disability for that individual.' " (Barrett,

supra, 54 Cal.4th at p. 1103.) Moreover, for purposes of a commitment under section

6500, mental retardation involves " ' " 'significantly subaverage general intellectual

functioning existing concurrently with deficits in adaptive behavior,' and appearing in the

'developmental period.' " ' [Citations.]" (Ibid., italics omitted.) The court opined that

"the significant cognitive and intellectual deficits that the condition entails, which appear

early in life and never recede, affect the ability to 'make basic decisions' regarding the

conduct of the section 6500 proceeding. [Citation.] Such an individual thus plays a

limited 'personal role' in the case, and must rely on counsel to decide all tactical and

procedural matters, such as whether to exercise the jury trial right." (Id. at pp. 1103-

1104.)

The court rejected a claim that this approach "improperly 'presumes' that a person

is mentally retarded before the fact finder has decided the issue." (Barrett, supra, 54

Cal.4th at p. 1104.) The court noted that a commitment petition is filed at the request of

"a responsible and interested party (e.g., parent, conservator, correctional or probation

official, or regional center director), who presents specific information (reasons) for

supposing that the person is mentally retarded and dangerous, in need of treatment, and

eligible for commitment. The significance of this request, and its role in providing a

foundation for the petition and commitment process, is underscored by the verification

requirement. (§ 6502.) . . . [¶] Second, where a section 6500 petition is filed, the trial

37
court is entitled to a written report prepared by, or at the behest of, the director of the

regional center, following an examination of the alleged mentally retarded person.

(§ 6504.5.) Regional centers specialize in assessing and assisting mentally retarded and

other developmentally disabled persons on an individual basis. [Citation.] Thus, the

regional center report obviously serves as a professional pretrial evaluation of the

person's history, condition, and behavior, and includes informed recommendations on

treatment and placement, including any interim placement pending the hearing. . . .

[¶] In light of these principles and authorities, we conclude that someone like Barrett,

who is alleged to be mentally retarded and dangerous under section 6500, is not in a

position to personally assert or waive the right to jury trial, to sufficiently comprehend

the jury trial advisement, or to override the views of counsel on the subject. Sole control

over such tactical and procedural decisions rests with counsel, whether or not the client

has been consulted or objects." (Barrett, supra, at pp. 1104-1105.)

Barrett can be read with Masterson to establish that in certain types of

commitment proceedings, the defendant's alleged mental state—e.g., incompetency and

mental retardation—disables him or her from making reasoned decisions about what is in

his or her best interests, including whether to request or waive a jury trial. Put

differently, it is reasonable to categorically assume that such defendants lack the capacity

to make a rational decision about a jury trial. Accordingly, they must act through

counsel, and counsel has exclusive control over the jury issue. Nevertheless, we do not

read these cases to hold that defense counsel controlled the jury issue here in an SVP

proceeding regardless of Hubbs's mental capabilities. Nor do we read Barrett to render

38
Hubbs's capability of determining whether a bench or jury trial was in his best interest

irrelevant.

In short, we read nothing in Barrett or Matterson (or Otis, Montoya, or Powell for

that matter) that creates a bright line rule in an SVP proceeding that, simply because of

the nature of the proceeding, and the possibility that the defendant is suffering from the

mental illness pedophilia, defense counsel absolutely controls the right to jury trial over

the defendant's objection. This said, we are mindful that there may be situations in an

SVP proceeding where a defendant lacks the capacity to make a reasonable decision

about whether to have a jury or bench trial. This is not that case. In addition, we do not

discard the possibility that a jury waiver may be appropriate over the objection of a

defendant in an SVP proceeding if the waiver is a tactical decision of defense counsel,

depending on the circumstances of the specific case. Again, the record in this case does

not allow us to address this issue to create a general rule that applies beyond the specific

facts of this case.

There is no indication that Hubbs was incapable of determining whether a bench

or jury trial was in his best interest. The People do not make such an argument in their

respondent's brief, and neither the prosecution nor Hubbs's counsel raised this issue with

the trial court. And the record is silent as to why Hubbs's counsel waived jury trial. With

virtually no discussion, Hubbs's counsel and the prosecution waived jury trial on

October 19, 2012. Curiously, almost two months later, when discussing the logistics of

trial considering Hubbs's medical issues and inability to travel, Hubbs's counsel exhibited

concern that he might not be able to waive a jury trial over his client's objection. This

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issue was never probed by the trial court despite the fact that Hubbs used his attorney's

jury trial waiver as grounds to support his Marsden motion. Simply put, on the record

before us, it is not clear that Gass waived jury trial for any tactical purpose to benefit

Hubbs whatsoever.9 Instead, as best as it can be implied from the record, it appears

Hubbs's counsel did so either for his convenience or the court's convenience.

Based on the specific facts before us here, we conclude that the trial court erred in

accepting Hubbs's counsel's waiver of jury trial without any indication that Hubbs

consented to the waiver or Hubbs was incapable of determining whether a bench or jury

trial was in his best interest. The People argue that any error would be harmless. We

discuss this error in the cumulative error section below.

VI

CUMULATIVE ERROR

Hubbs contends that even if no individual errors were prejudicial alone, the

cumulative effect of multiple errors require reversal. When a defendant claims

cumulative error the "test is whether defendant received due process and a fair trial."

(People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.) "[W]e review each allegation

and assess the cumulative effect of any errors to see if it is reasonably probable the jury

would have reached a result more favorable to defendant in their absence." (Ibid.) The

9 Ostensibly, it could make sense that Gass waived jury trial because he thought a
bench trial would better serve Hubbs if Hubbs was not going to be present in person at
the trial. However, Gass's questioning of whether he could waive jury trial over his
client's objection when the parties and court were discussing the logistics of a trial
because Hubbs could not travel belies that notion.

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cumulative effect of the errors discussed ante—the failure to conduct a proper hearing on

the Marsden motion, the court informing Hubbs that he was prohibited by California law

from representing himself, and the waiver of jury trial without Hubbs's consent and/or

over his objection—require reversal.

This is one of those rare cases where, simply put, too much went wrong,

undermining our confidence that Hubbs received a fair trial. The court did not

sufficiently explore Hubbs's complaints about Gass in the Marsden motion. It did not

allow Hubbs to discuss all his complaints. The court did not have Gass respond to all the

complaints. The court appeared to ignore the substance of Hubbs's written motion. And,

most egregiously, the court appears to have predetermined the result and did not provide

a sufficient amount of time for the hearing.

In addition, the court incorrectly told Hubbs twice that he was prohibited from

representing himself. These incorrect statements of the law colored Hubbs's interactions

with the court and his counsel. He wanted to represent himself. He was entitled to do so.

(See Williams, supra, 110 Cal.App.4th at p. 1591.) The court would not permit him to do

so. Perhaps if the court had permitted Hubbs to represent himself, he would have been

able to retain an expert or would not have waived jury trial. We cannot answer these

questions because the trial court erred in informing Hubbs he could not represent himself

and never appropriately considered Hubbs's request.

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 The trial court also erred in allowing Gass to waive jury trial. There is no

indication in the record that Hubbs lacked the capacity to determine whether a jury or

bench trial would be in his best interest. Hubbs did not consent to the waiver. And there

is nothing in the record showing that the waiver was the product of Gass's trial strategy.

Added to these three errors are other issues before and during trial that cause us to

question the fairness of the trial here. Although we were unable to determine that Gass

was constitutionally ineffective, we remain very concerned that Gass did not retain an

expert despite his representations to the court that he had consulted with multiple experts.

Also, we do not discount the fact that it took over six years after the original, current

petition was filed to get the matter to trial.

We understand that Hubbs was convicted of odious crimes. We appreciate that he

does not come across as a pleasant person in the record. Yet, despite Hubbs's flaws, he is

still entitled to a proper SVP proceeding. He did not receive one here. This case is an

example of the wheels of justice falling off the track and never quite being able to get

back on. Hubbs was a 68-year-old man at the time of his most recent trial who has been

confined as an SVP since 2006 after serving his prison sentence. Considering the errors

discussed above as well as other irregularities in the record, we cannot be confident that it

is reasonably probable the jury would not have reached a result more favorable to Hubbs

in their absence. (See People v. Kronemyer, supra, 189 Cal.App.3d at p. 349.)

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 DISPOSITION

The judgment is reversed.

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

McDONALD, J.

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