People v. Bowen CA2/7 ( 2023 )

Filed 2/15/23 P. v. Bowen CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B306889
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA475606)
v.
BLAKE LOUIS BOWEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Ray G. Jurado, Judge. Reversed and
remanded with directions.
James Koester and Berangere Allen-Blaine, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, and David A. Wildman, Deputy
Attorney General, for Plaintiff and Respondent.
__________________________________
INTRODUCTION
After a first trial ended in a hung jury, a second jury
convicted Blake Louis Bowen of a single count of stalking (Pen.
Code, § 646.9).1 During the second trial Bowen repeatedly sought
Marsden2 hearings in an effort to replace his court-appointed
counsel. At the start of one such hearing, after the jury returned
a guilty verdict but prior to sentencing, the trial court declared a
doubt as to Bowen’s competency to assist his counsel or stand for
sentencing. The court suspended criminal proceedings and
appointed two doctors to examine Bowen and opine regarding his
competency. The court declined to consider any Marsden motion
pending a determination of Bowen’s competency. Weeks later,
without an informed opinion from either doctor, or an evidentiary
hearing or trial, the court reversed its declaration of doubt as to
Bowen’s competency. The court then refused to hear or rule on
Bowen’s request to replace his counsel and ordered him removed
from the courtroom. With Bowen absent, the court denied his
1 All further statutory references are to the Penal Code.
2 Originating with the seminal decision in People v. Marsden
(1970) 2 Cal.3d 118 (Marsden), litigants and courts now short-
handedly reference a “Marsden motion” as the request a
defendant makes for a new appointed lawyer that triggers the
right to a confidential hearing outside the presence of the
prosecutor.
2
new trial motion and sentenced him to the upper three-year state
prison term.
Bowen appeals from that judgment. Bowen contends (1) we
must reverse the judgment due to ineffective assistance of
counsel and prosecutorial misconduct; (2) the court erred by
deciding the new trial motion and sentencing Bowen in his
absence; (3) the sentence violates the Eighth Amendment
prohibition on cruel and unusual punishment; and (4) the court
erred by not hearing his Marsden motion. In addition, during the
pendency of this appeal Senate Bill No. 567 (2021-2022 Reg.
Sess.) (Stats. 2021, ch. 731, § 1.3) modified the sentencing law by,
among other changes, requiring a defendant to stipulate to, or
the jury to find true beyond a reasonable doubt, any facts
underlying any circumstance in aggravation before the court
imposes an upper term. In supplemental briefing, the parties
agree Senate Bill No. 567 applies to Bowen retroactively, but
they disagree as to whether the new law requires resentencing
here.
Finding no ineffective assistance of counsel, prosecutorial
misconduct, or error in excluding Bowen from the hearing on the
new trial motion, we affirm the conviction. However, we reverse
the judgment and remand with directions to resentence Bowen
pursuant to the newly amended section 1170, subdivision (b)(2),
and any other newly enacted ameliorative legislation. Since the
issues may arise again on remand, we also provide guidance for
the trial court with respect to the court’s improper refusal to hear
Bowen’s Marsden motion or conduct a competency hearing or
trial.
3
FACTUAL AND PROCEDURAL HISTORY
A. Bowen’s Underlying Offense and the First Trial
Bowen briefly dated Lydia W. When she ended the
relationship in November 2018, he unleashed a torrent of abusive
text messages and phone calls toward her, her family, her friends
and, ultimately, even her co-workers. Scared, Lydia left town,
blocked Bowen’s phone number, stopped leaving her apartment,
and bought pepper spray, among other countermeasures. Bowen
continued to harass Lydia through social media and alternative
phone numbers, at one point calling her 73 times in one day.
Bowen set up at least 24 fake online dating profiles in
Lydia’s name. The profiles solicited sex in vulgar terms, with the
result that random, strange, men appeared at Lydia’s apartment
lobby expecting sex. Bowen messaged Lydia on social media
threatening to send more men to her apartment if she did not call
him.
On January 25, 2019, Lydia secured a permanent
restraining order against Bowen. By information filed August 7,
2019, the People charged Bowen with stalking, in violation of
section 646.9. The information did not allege any prior conviction
or other sentencing enhancement allegations, and the court did
not instruct the jury on any. A two-week jury trial commenced on
October 7, 2019 and ended in a hung jury and mistrial.
B. The Second Trial
The case proceeded to trial for a second time on
February 11, 2020. Bowen requested his first Marsden hearing
on February 18, 2020, claiming ineffective assistance by his
counsel, deputy public defender Lloyd Handler. The court denied
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the motion. After Lydia testified as summarized above, Bowen
testified in his own defense. He claimed that his mother suffered
from bipolar disorder and severe depression, resulting in
hospitalization, which required Bowen to care for his younger
siblings.
Forensic psychologist Dr. Lydia Bangston also testified for
the defense. Dr. Bangston originally had examined Bowen prior
to the first trial. After that initial assessment, Dr. Bangston
concluded Bowen “didn’t exhibit any signs or symptoms of any
major mental disorder such as a mood disorder, organic disorder
or psychotic disorder” and that his thought process was “logical”
and not delusional. At the time, Dr. Bangston believed Bowen
“didn’t meet the full criteria for either personality disorder,
narcissistic or borderline.” Dr. Bangston later prepared a second
report based on letters and other materials received from people
who knew Bowen. The letters contained information about
childhood trauma—risk factors for certain personality
disorders—undisclosed by Bowen in his prior meeting with
Dr. Bangston. Again, Dr. Bangston did not diagnose Bowen with
any mental disorder.
Dr. Bangston met with Bowen a third time for an hour in
January 2020, in advance of the second trial. On February 13,
2020, Dr. Bangston issued her third report. Now armed with the
additional materials provided by Bowen’s friends and having
heard from Bowen essentially the same history he conveyed in
his trial testimony, Dr. Bangston associated the type of childhood
trauma suffered by Bowen with certain types of psychological
disorders. While she did not “formally” diagnose Bowen (she
would need more time for that), she did opine that he exhibited “a
number of characteristics” of narcissistic personality disorder and
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borderline personality disorder, which “impair[ed] his
functioning.”
On February 28, 2020, the second jury convicted Bowen of
one count of stalking, and the court remanded him with no bail
pending sentencing. As before, the court did not instruct the jury
or elicit any finding on any sentencing enhancements.
C. Bowen’s Post-conviction Conduct and Requests for New
Counsel
On March 9, 2020, while awaiting sentencing, Bowen again
sought to replace Handler. The court convened another Marsden
hearing that went nearly an hour. Bowen came prepared with an
eight-page list of issues. Those issues included Bowen’s perceived
lack of merit in the People’s case, prosecutorial misconduct, and
the ineffectiveness of his counsel for failing better to exploit those
issues. Bowen claimed that the police falsified the original report
leading to his arrest, a conspiracy his lawyer had failed to
uncover. He further claimed Handler failed properly to impeach
Lydia with perceived inconsistencies in her testimony. The court
denied the Marsden motion, finding Bowen was “nitpicking at so
many different things. [He didn’t] have a perspective of this case,
a proper perspective on this case, the strength of this case, [his]
attorney’s performance.”
On April 22, 2020, the People filed their sentencing
memorandum seeking a three-year suspended sentence and five
years on probation. The court continued Bowen’s sentencing
hearing due to his COVID-19 quarantine status.
Handler then sought a bail hearing on April 29, 2020,
because more than 60 days had passed since the jury verdict
without a sentencing hearing. In advance of the April 29
6
hearing, Bowen wrote the court complaining about Handler: “He
is the worst attorney I’ve ever come across and why I tried to fire
him two times now and will attempt to again as I have many
additional reasons why he should be discharged.” The court
construed the letter as a request for a Marsden hearing, but
Handler represented that he and Bowen agreed that if the court
heard the bail motion and released Bowen, then Bowen would
defer his Marsden motion. The court overruled that proposal,
stating, “The Marsden is a Marsden, and I believe it takes
precedence over any other legal ruling or issue.” At the ensuing
Marsden hearing, however, Bowen requested time to review the
“50 or so letters” he had written to his counsel “in order to make
an exhaustive Marsden motion, listing all the reason[s] of
ineffective assistance.” The court granted Bowen’s request “to
continue the Marsden hearing to a short convenient date.”
Without ruling on the Marsden motion, the court went back
into general session to hear the bail motion. Handler sought
Bowen’s release due to his time spent in custody (approximately
14 months at that point on a maximum 36-month sentence), the
failure to sentence Bowen within 60 days, and Bowen’s potential
exposure to COVID-19 while in custody. In the course of
extended argument on the bail motion, the court asked if Bowen
would agree to the People’s recommended sentence of, among
other terms, a suspended upper term with five years of probation,
domestic violence classes, and a waiver of all back time (by then
over a year of actual time in custody). The People urged the court
to sentence Bowen that day, then grant his release into
probation.
7
The court denied the bail motion and scheduled the
Marsden hearing for 1:30 p.m. that same day, giving Bowen
“several hours” to prepare for the hearing.
D. The Court Declares a Doubt as to Bowen’s Competency To
Stand Trial, Then Changes Its Mind
At 1:30 p.m. on April 29, 2020, the court reconvened for
Bowen’s third Marsden hearing. After some discussion about
limiting Bowen to issues that had arisen since the extended
Marsden hearing six weeks prior, Bowen raised what he
characterized as “something more important” than “all the
specifics of the legal issues that [counsel] is ineffective on:”
“[Bowen]: On the day that I testified, the multiple
days leading up to it, I was being trailed, followed by,
and harassed by shadow people. The shadow people
are multi-dimensional creatures who can take any
shape or form. They’re also a superior being that are
secretly in control of the nature and controlling
powers of the world – highest ranking members of
the U.S. intelligence agencies, NSA, CIA, Special
Operations Systems Black Letter, and even hired
insurgents in the so-called social justice movements.
“These are the leaders, that is, Gloria Steinem-type
characters funded by multi-dimensional beings like
George Soros and others and sometimes mistakenly
masonic. These are creatures or beings that
controlled me and are not known to man because
they can take any form any time. Some call them
8
shape shifters. These are those all the way from
Bilderberg Group that meet annually to decide the
fate of the world and the fate of the world – people
that have – that meet annually to decide the fate of
the world and people they have close watch over it to
more relaxed yet very private Bohemian Grove
retreats where these same people engage in
homosexual orgies with young boys, homosexual
pedophilia being their most desired bias or pleasure.
Dick Cheney along with the Clintons and Bush senior
and junior attend such pagan retreats where they
actually worship a 60-foot stone owl named Enoch,
their God of Wisdom.”
Bowen accused Handler of serving as a “helper for the
shadow people” and identified the prosecutor as “a high-ranking
shadow person in female form . . . . This is all on record.” Bowen
explained, “Even though there was three hours that I had to
sleep, for the four nights before my testimony, the shadow people
would not let me sleep, oftentimes sending electric impulses to
the RFID chip they implanted in my brain many years ago. It is
why I have a misshaped head.”
Handler asked if the court would declare a doubt as to
Bowen’s competency, effectively explaining that he, Bowen’s
counsel, had not previously “seen any sign of psychotic illness” or
“any sign of psychotic symptomology” and had no reason (other
than what Bowen had just said) based on speaking with
Dr. Bangston and people who knew Bowen, and based on
conversations with Bowen that very morning, to suspect a
9
condition other than the personality disorders described by
Dr. Bangston.
The court explained, “I’ve seen many, many defendants
who have presented in the court with mental health conditions
that have been confirmed by doctors. I believe that what
Mr. Bowen has just said about shadow people, shape shifters, and
elite world order – all of these forces in his opinion that have
conspired against him, I believe that he believes these things;
therefore, based on some of the things that he just said, I find a
doubt under Penal Code Section 1368 as to his competency to
stand for sentencing.”
After discussing the appointment of a doctor to examine
Bowen, the court ended the confidential portion of the proceeding
without ruling on the Marsden motion. In response to questions
from the court clerk and Bowen about a Marsden ruling, the
court responded only to Bowen that “I have a doubt as to your
mental health.” The court appointed Dr. Bangston and Dr. Kory
J. Knapke to evaluate Bowen.
The parties reconvened on May 28, 2020, without Bowen
due to a COVID-19 quarantine in the jail. Handler reported that
neither appointed doctor had yet evaluated Bowen, explaining
that it could take another two weeks for the quarantine to lift so
that the doctors could evaluate Bowen. The court set a further
date of June 11. The question then arose as to the status of
Bowen’s most recent Marsden motion, pending for a month at
that point. As Handler explained, “I have spoken to Mr. Bowen
at length in the intervening time since we were last in court
together, and I’ve gotten a number of messages from him. And I
know it’s his desire to speak to the court at length about a
number of different issues. [¶] Should I pass on to him that his
10
ability to do that would be contingent on getting through this
evaluation process?” The court responded, “Excellent
suggestion.”3 The court set June 29, 2020, for receipt of the
reports from Drs. Bangston and Knapke.
On June 29, 2020, the court received a letter from
Dr. Knapke but no report from Dr. Bangston. It also had four
new letters from Bowen. Dr. Knapke’s letter indicated—and
Bowen confirmed in no uncertain terms—that Bowen refused to
meet with any doctors “as long as I’m being represented by a
criminal attorney.” Dr. Knapke indicated he had reviewed
various materials, including Dr. Bangston’s three reports,
Bowen’s trial and protective order hearing testimony, and various
police reports and interview transcripts. Although appointed for
the purpose of evaluating Bowen’s competency, Dr. Knapke
instead relied on a legal presumption for his conclusion:
“Because Mr. Bowen refused to participate in this clinical
interview, I am unable to overcome the presumption that
Mr. Bowen is competent to stand trial.”
Bowen objected to discussing Dr. Knapke’s report with his
counsel present, stating, “this shouldn’t be going on with him in
my presence. There is an ongoing investigation. It’s improper for
him even to be here.” The court explained to Bowen that it
“needed” Dr. Knapke’s opinion regarding Bowen’s competency
“before we can move further forward” and requested that Bowen
sign a release for his mental health records. In response, Bowen
renewed his request for a new lawyer, refused to sign the release
3 As the court had earlier explained, it did not believe it
could conclude the Marsden hearing until it ruled on Bowen’s
competency; otherwise, “if we hear Marsden motions from people
that are incompetent, we get nowhere fast.”
11
allowing his counsel to review the records, but explained, “I’d be
more than happy to do that with a new attorney.” The court
repeated its view that the issue of Bowen’s competence must be
resolved before proceeding with another Marsden hearing and
reiterated its request that Bowen sign a release form for his
medical records.
When Bowen again refused to sign the release form, the
court told Bowen, “You’re being obstreperous . . . . You’re being
stubborn.” Bowen responded, “This is not stubborn. This is
someone [Handler] being investigated for criminal conduct [based
on Bowen’s complaint to the State Bar]. I should be granted a
new attorney. Don’t I have a right to adequate representation,
not someone who’s in an ongoing investigation right now?” The
court reiterated, “I have to resolve the issue about whether or not
you’re competent to be sentenced.”
Amid this discussion, the prosecutor “clarified” the People’s
position that “we believe that he’s competent” and “based on his
refusal to and Dr. Knapke’s report, the People are also changing
their recommendation for sentencing” on the recommendation of
a “supervisor” from a probation sentence to instead “requesting
that the court sentence him to high term.”
This statement prompted Bowen to request the People’s
updated sentencing memorandum for himself and a copy sent to
the “State Bar at their request” because “I think I have a right to
the memorandum, right, and review it with my fucking sheister
[sic] attorney.” After the court admonished Bowen to be
respectful, Bowen continued, “Well, if I could get a new attorney,
I would really appreciate it. This guy is being investigated. I’m
not getting the joke on why I’m not being granted a new attorney.
Am I really supposed to go forward on a sentencing hearing and
12
all the other motions I need to have done with somebody who has
violated multiple codes of professional responsibility and ethics
violations?”
After Bowen again asserted that any sentencing would be
unfair if he did not have a new attorney, the court invited both
counsel to submit on the section 1368 issue so the court could
rule on it. The People submitted, and Handler declined to
submit, given Bowen’s objection. Bowen then confirmed with the
court that the court had both his letter to the State Bar
complaining about Handler, and the State Bar’s response that
the complaint had been forwarded for investigation.
The court then asked Bowen directly if he would submit on
Dr. Knapke’s letter and allow the court to decide Bowen’s
competency, or alternatively, if he would insist on a jury trial on
the competency issue. The court explained that if Bowen agreed
to submit on Dr. Knapke’s letter (i.e., waive his jury trial right)
and allow the court to decide Bowen’s competence “right now” the
court would then “go into a closed hearing where you can tell me
more about your complaints about Mr. Handler’s performance.”
Bowen then asked, “So is this criminal procedure that
because I’m incompetent and somebody is being investigated for
criminal – I still don’t have a right to adequate representation?”
The court responded that due to Bowen’s statements in court and
in his letters, the court had to “resolve the issue now because you
caused me to find I had a doubt as to your competency.” Bowen
inquired whether Handler would be the one representing him in
a jury trial to determine competency, which the court confirmed
would be the case. Bowen declared that proposition “absurd,
with all due respect” and chose to proceed with a jury trial on the
competency issue. Bowen then attempted to discuss another
13
“follow-up letter from the State Bar of California,” leading to an
objection from the People that the court sustained and then went
off the record.
When the court went back on the record, it explained that
“we had to clear Mr. Bowen from the courtroom because he was
not going to let anyone else speak.” After conferring with counsel
about how to proceed, including concerns about COVID-19
impacts to setting jury trials, and Handler’s concern that Bowen
would soon (September 21, 2020) be time-served even on a
maximum sentence, the court then set a further date of July 30
as a “[section] 1368 readiness conference” and to decide then
“when to set it for a jury trial with regard to competency.”
E. The Court Declines To Hear or Rule on Bowen’s Marsden
Motion
When the parties reconvened on July 30, 2020, Handler
had subpoenaed and obtained Bowen’s mental health records, but
he objected on Bowen’s behalf on privacy grounds to the court
reviewing them. Handler also reported that Bowen “told me not
to have any ex parte proceedings in his case.” In response to the
privacy objection, the court excluded the prosecutor from the
courtroom. In the confidential session, Bowen maintained his
objection to sharing the mental health records with the court.
After Handler confirmed the records did contain mental health
information, the court ordered Handler to provide the records to
the court for in camera review over Bowen’s objection “because
they may shed light on the issue of competency.”
Back in open session, the court invited Handler to address
a bail motion seeking Bowen’s release primarily on the grounds
that the appointed doctors needed the transcript from one of the
14
sealed Marsden hearings to complete an evaluation of Bowen’s
competence, which would in turn delay the competency trial past
the date when Bowen would be time-served on a maximum
sentence. In the course of that discussion, Handler disclosed that
Dr. Bangston believed Bowen “might be incompetent due to the
stress he’s currently under with the pandemic, being incarcerated
and having been convicted.”
The court then reported that after its review in camera of
the mental health records it saw “nothing in the records” that
“contain a definitive diagnosis. It’s all about possibilities.”
Handler agreed, “They refer to a possible diagnosis that
sometimes can have psychotic features that weren’t present at
that time.”
The court then reversed its position regarding Bowen’s
competency:
“Court: I realize that we’ve all, over the last three
months since April 29th when I declared a doubt
based on Mr. Bowen’s bizarre statements in court,
and we’ve done a lot of work on this issue, but I have
to tell you that I am at this point of a different mind.
I do not believe that there was substantial evidence
to support a reasonable doubt as to his incompetence
back then on April 29th nor do I believe it now.”
Citing People v. Danielson (1992) 3 Cal.4th 691, overruled
on other grounds in Price v. Superior Court (2001) 25 Cal.4th
1046, 1069, fn. 13, the court declared “more is required to raise a
doubt of incompetence than mere bizarre actions or bizarre
statements or an indication of possible underlying depression.”
15
(Id. at pp. 726-727.) Finding “that’s what we have here,” the
court stated it was “in a position to appraise whether Mr.
Bowen’s conduct in court amounts to incompetence or an attempt
to delay the proceedings.” The court proceeded to find the latter:
“Court: Given that his bizarre statements were made
in the context of repeated requests for the court to
appoint another attorney, and the fact that his
requests for a new attorney had been written in a
manner that shows he understands the nature of the
proceedings, because he has coherently recited
instances in his mind of his attorney’s mistakes, I
now find that the defendant could cooperate with his
attorney at sentencing if he wanted to do so.
“I also now find that the defendant understands the
nature of his sentencing hearing because he has
made clear his preference to be released on probation.
The bizarre statements he made in court do not
support a doubt as to his incompetence, but simply,
in my mind, amount to an attempt to manipulate the
court to delay the proceedings and give him the new
attorney that he wants.
“Based on these findings, I now find that there does
not exist and never existed substantial evidence of a
reasonable doubt as to the defendant’s incompetence
to be sentenced.
“We will now proceed to sentencing.”
16
Handler then confirmed that “if he’s – the court is deeming
him competent, the next thing we would have to do is do his
Marsden hearing before proceeding to sentencing –” and the court
agreed, “Yes.” After a recess, Handler disclosed that Bowen had
“authorized me to let the court know that he believes he has a
prior diagnosis of schizoaffective disorder” and other locations
existed that may have related mental health records. In
addition, Handler explained the defense had not completed its
investigation of places that may have treated Bowen for mental
illness, nor had Dr. Bangston completed her evaluation because
she did not yet have the transcript of the prior Marsden hearing.
Dr. Bangston did believe that Bowen’s “narcissistic or borderline
personality disorders when they come up against a factual
situation where they aren’t expecting, such as, being convicted in
a case where they didn’t expect to be convicted, can place
someone into a state of psychosis.”
The court rejected these arguments, stating, “I believe and
I still find that his dragging his feet and refusing to cooperate
and meet with the doctors is part and parcel of his attempt to
delay the proceedings.” With the prosecutor present, the court
then asked Bowen if he wanted another Marsden hearing, to
which Bowen responded that he did, and that it would take “the
greater part of a day” based on “50 pages plus” he had prepared,
leading to the following colloquy:
“Court: Without telling me the details, these are
errors that you say he committed when? At what
stage?
17
“[Bowen]: When? All throughout the fucking trial,
nonstop.
“Court: I’ve heard all of your complaints –
“[Bowen]: No, you haven’t. You heard some of them.
“Court: -- about errors at the trial. This is –
“[Bowen]: You heard about very little –
“Court: -- this is not about the trial.
“[Bowen]: -- and I’m about to give you the mother lode
of corruption, and I have hard evidence of collusion.
This is going to come down on the DA, I can tell you
that. I would be hard pressed if [the DA] will have a
job after this is revealed to the public, but this
collusion that is taking place between the public
defender’s office and the DA, I have hard evidence . . .
I mean, we’re talking – this is career ending shit I
have. It’s really bad. Collusion since day one, and
I’ve caught Mr. Handler in quite –”
At this point Handler interceded to ask if the court should
go into confidential session without the prosecutor present. The
court responded that Bowen “does not get to choose . . . . We have
dedicated hour upon hour upon hour regarding his complaints
about the trial . . . . He’s had more than enough opportunity for
that. I’m denying the Marsden.” Then this colloquy:
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“[Bowen]: Oh, my fucking God, this is corruption.
Goddamn. This shit is going to come down on the –
you bet your ass. Watch this shit. Watch when
everybody sees the kind of corruption that – I have
hard evidence—
“Court: Mr. Bowen, unless you can control yourself
and let proceedings take place, I’m going to exclude
you.
“[Bowen]: Well, you’re excluding me from having my
right to a Marsden hearing and from making a proper
record of – I have evidence of corruption, Your Honor,
and I have many matters –
“Court: This is my fourth warning. I can and will
remove you from the courtroom unless you’re quiet
and let proceedings take place.”
Handler then interceded again to argue that Bowen had
the “due process right to at least be heard as to a Marsden
hearing,” that Bowen had been preparing for the Marsden
hearing “for months now” and urged the court “at least give him
an opportunity to see if he has anything new” because “this case
was calendared once for a Marsden hearing, I think at the very
least we need to give him an opportunity outside the presence of
the People.”
After denying Handler’s suggestion the court was
“frustrated,” the court stated, “I’m denying your request and
overruling your objection. There will be no Marsden hearing.
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We’ve had enough already.” After more profanity from Bowen,
the court ordered Bowen removed from the courtroom.
F. The Court Adopts the People’s Changed Recommendation
and Sentences Bowen to State Prison
With Bowen excluded from the courtroom, the court
proceeded with sentencing. Handler objected to proceeding in
Bowen’s absence, urging the court to consider Bowen’s outburst
as possible corroboration of a “psychological problem.” Handler
requested a one-day recess to “give [Bowen] a chance to calm
down” so he could be present for the new trial motion and
sentencing because “I think it would be a violation of due process
that might cause reversal to sentence him without at least giving
him overnight to calm down.” Finding that Bowen would “be the
same obstreperous person” who “would just make it impossible to
conduct any sentencing or to conduct any hearing on a motion for
a new trial” the next day, the court overruled the objection,
denied the motion for a new trial, denied Handler’s request to
bring Bowen back to court, denied the defense request for
probation (also the original recommendation from the People),
and adopted the People’s revised recommendation by sentencing
Bowen, in his absence, to the “high term of three years in state
prison.” The court cited mitigating and aggravating factors. In
mitigation, the court referenced that Bowen was not armed and
his “relative minor criminal history.” In aggravation, the court
cited the “nature, seriousness and circumstances of the crime,
that the defendant inflicted substantial emotional injury to the
victim, that the manner in which the crime was carried out
demonstrated sophistication,” and that “the defendant committed
similar conduct against three prior victims.” The court also
20
stated it was “not reasonable to believe that he would comply
with terms of probation” and cited “danger to the public” as
reasons to deny probation.
When Handler noted, “Your Honor, I think the court has a
legal obligation to read him his appellate rights. I have prepared
a notice of appeal for him,” the court responded “Okay. Then file
it and that should take care of it.”
Bowen timely appealed.
After initial briefing on appeal, Bowen sought and received
leave to file supplemental briefing due to a change in counsel,
and also to request resentencing pursuant to a change in the law,
Senate Bill No. 567 and section 1170, subdivision (b). The People
filed a combined supplemental opposition. Bowen also filed a
request for judicial notice of three items omitted from the record
on appeal. We treated that request as a motion to augment the
record, which we granted over the People’s objection.
DISCUSSION
A. Bowen Has Not Shown Ineffective Assistance of Counsel or
Prosecutorial Misconduct
Bowen contends we must reverse his conviction due to
ineffective assistance of counsel and prosecutorial misconduct.
The People respond that Bowen has waived most of the
arguments he raises now on appeal and that he has shown no
basis for relief regardless.
1. Bowen has not proven ineffective assistance of counsel
Bowen contends his counsel provided ineffective assistance,
primarily by not further pursuing a motion for mental health
21
diversion (§ 1001.36) after the court rejected the initial request at
the preliminary hearing.
“The Sixth Amendment guarantees competent
representation by counsel for criminal defendants.” (People v.
Holt (1997) 15 Cal.4th 619, 703.) “‘“To establish ineffective
assistance of counsel, a defendant must show that (1) counsel’s
representation fell below an objective standard of reasonableness
under prevailing professional norms, and (2) counsel’s deficient
performance was prejudicial, i.e., there is a reasonable
probability that, but for counsel’s failings, the result would have
been more favorable to the defendant. [Citation.] ‘A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.’”’” (People v. Rices (2017) 4 Cal.5th 49, 80, citing
Strickland v. Washington (1984) 466 U.S. 668, 694.) “We
presume that counsel rendered adequate assistance and
exercised reasonable professional judgment in making significant
trial decisions.” (Holt, at p. 703.) Where the record on appeal
does not disclose why counsel made certain decisions, “a
reviewing court has no basis on which to determine whether
counsel had a legitimate reason for making a particular decision,
or whether counsel’s actions or failure to take certain actions
were objectively unreasonable.” (People v. Mickel (2016)
2 Cal.5th 181, 198.)
Bowen has failed to establish either that Handler’s
representation fell below an objective standard of reasonableness
or the reasonable probability of a more favorable outcome.
Bowen contends the court erroneously denied his request for
pretrial diversion because the court mistakenly believed the
stalking charge did not qualify. Bowen then faults his counsel for
not pursuing the diversion request further. However, to make
22
this argument Bowen concedes counsel did pursue the mental
health diversion. The record does not reflect why counsel did not
pursue it further, leaving us with no basis to question that
decision. Perhaps counsel did not want to antagonize the court
by arguing against a ruling the court already had made. Perhaps
counsel knew it stood little chance of prevailing given that
Dr. Bangston’s report offered no formal diagnosis of any
qualifying mental condition.4 Perhaps counsel knew, because at
the preliminary hearing Bowen had rejected a time-served
probation offer that included counseling, that Bowen would not
accept a diversion disposition that included years of treatment.
We have no basis to evaluate these decisions, any one of which
was a reasonable strategic choice.
Accordingly, Bowen has failed to overcome the presumption
that counsel acted reasonably (People v. Mickel, supra, 2 Cal.5th
at p. 198) or show he would have achieved any better result.
2. Bowen has not shown ineffective assistance of counsel
in responding to prosecutorial misconduct sufficient to
warrant a new trial
Bowen contends the People committed prosecutorial
misconduct by, among other things, directly addressing counsel
outside the presence of the jury, expressing contempt toward the
defense, packing the courtroom with female attorneys, and
exceeding the scope of the court’s pretrial rulings. Bowen
4 The report at issue is Dr. Bangston’s February 13, 2020,
supplemental report that finds Bowen has “characteristics” of
certain disorders but does not diagnose him as having them. One
of these disorders mentioned by Dr. Bangston, borderline
personality disorder, is excluded by section 1001.36.
23
forfeited the bulk of these arguments by not raising them below.
(People v. Prieto (2003) 30 Cal.4th 226, 259 [“‘As a general rule a
defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion—and on the same
ground—the defendant made an assignment of misconduct and
requested that the jury be admonished to disregard the
impropriety.’”]; accord, People v. Crow (1993) 6 Cal.4th 952, 960,
fn. 7.) Bowen concedes as much, suggesting these instances
amount to ineffective assistance of counsel and cumulative error.
Regardless, none of the issues Bowen raises has merit.
“‘Conduct by a prosecutor that does not render a criminal
trial fundamentally unfair is prosecutorial misconduct under
state law only if it involves “‘“the use of deceptive or
reprehensible methods to attempt to persuade either the court or
the jury.”’”’” (People v. Ochoa (1998) 19 Cal.4th 353, 427.) “‘A
prosecutor is allowed to make vigorous arguments and may even
use such epithets as are warranted by the evidence, as long as
these arguments are not inflammatory and principally aimed at
arousing the passion or prejudice of the jury.’” (People v.
Fernandez (2013) 216 Cal.App.4th 540, 563.) To result in the
denial of a fair trial, a prosecutor’s conduct must “‘[infect] the
trial with such unfairness as to make the conviction a denial of
due process.’” (People v. Coffman and Marlow (2004) 34 Cal.4th
1, 111; accord, People v. Prieto, supra, 30 Cal.4th at p. 260.)
None of the instances identified by Bowen comes close to
violating these standards. Comments to defense counsel outside
the presence of the jury obviously can have no effect on the jury
or the fairness of the trial. The comments made about Bowen as
an alcoholic and drug user fall within the scope of permissible
“vigorous arguments” and reflected the evidence at trial,
24
including from Bowen’s own testimony. Regarding “packing the
courtroom,” nothing in the record reflects who was in the
courtroom, but regardless the courtroom is open to the public and
both sides generally may invite supporters. (See, e.g., People v.
Ramirez (2021) 10 Cal.5th 983, 1015, 1019 [presence of nearly
two dozen uniformed officers did not violate a defendant’s right to
a fair trial].) Regarding exceeding the scope of the court’s pretrial
rulings, Bowen’s counsel made no such objection at trial, thereby
forfeiting the argument on appeal. Moreover, the prosecutor did
not exceed the court’s rulings. The court ruled that neither side
could go into the details of a prior sexual assault against Lydia.
The prosecutor referenced Lydia as having survived a prior
sexual assault, but not more. This reference did not violate the
court’s ruling. Finally, the prosecutor’s cross-examination of
Bowen did not unfairly prejudice Bowen. Nothing in the cross-
examination rose to the level of being deceptive or reprehensible;
it was merely vigorous, as the law allows.
B. Senate Bill No. 567 Requires Resentencing
We turn next to Bowen’s argument that Senate Bill No. 567
requires a new sentencing hearing. At the time the trial court
sentenced Bowen, the court had discretion to select a lower,
middle, or upper term of imprisonment if it denied probation and
if it explained its reasons on the record. (People v. Sandoval
(2007) 41 Cal.4th 825, 847 (Sandoval).) The court here did just
that, citing factors in mitigation and aggravation and exercising
its discretion to select an upper term. In doing so, the court
complied with the law as it existed at the time.
25
The law has since changed. Relevant here, during the
pendency of this appeal Senate Bill No. 567 amended
section 1170, subdivision (b). (See Sen. Bill No. 567 (2020-2021
Reg. Sess.), Stats. 2021, ch. 731, § 1.3; Assem. Bill No. 124 (2020-
2021 Reg. Sess.), Stats. 2021, ch. 695, § 5.) In particular,
effective January 1, 2022, the amendments make the middle
term the presumptive term of imprisonment absent certain
circumstances not present here.5 Ameliorative changes, such as
those to section 1170, subdivision (b), which limit a court’s ability
to impose an upper term, apply retroactively to nonfinal
judgments. (People v. Frahs (2020) 9 Cal.5th 618, 628.) Bowen
argues the ameliorative changes to section 1170, subdivision (b),
apply retroactively to his sentence. The People concede the point,
and we agree. (See People v. Zabelle (2022) 80 Cal.App.5th 1098,
1109 (Zabelle) [“section 1170’s current statutory language applies
retroactively in all nonfinal cases”]; People v. Flores (2022)
73 Cal.App.5th 1032, 1038-1039 [section 1170 amendments apply
retroactively to a defendant whose conviction is not yet final].)
Bowen contends we must remand for resentencing in light
of Senate Bill No. 567 because he did not stipulate to, and the
People did not prove beyond a reasonable doubt to the jury, any
of the circumstances in aggravation upon which the trial court
5 Section 1170, subdivision (b)(2), now provides in relevant
part: “The court may impose a sentence exceeding the middle
term only when there are circumstances in aggravation of the
crime that justify the imposition of a term of imprisonment
exceeding the middle term, and the facts underlying those
circumstances have been stipulated to by the defendant, or have
been found true beyond a reasonable doubt at trial by the jury or
by the judge in a court trial.”
26
relied when imposing the upper term. The People concede they
did not plead and prove by a reasonable doubt at trial, and
Bowen did not stipulate to, specific “circumstances in
aggravation.” However, relying on Chapman v. California (1967)
386 U.S. 18 and Sandoval, supra, 41 Cal.4th 825, the People
argue the resulting error is harmless beyond a reasonable doubt
because a jury would have found the aggravating circumstances
true beyond a reasonable doubt. Bowen has the better argument.
The trial court may not impose an upper term sentence
based on facts not determined by the jury beyond a reasonable
doubt. (Cunningham v. California (2007) 549 U.S. 270, 274.)
However, as the People argue, we may consider so-called
“Cunningham error” harmless if we conclude “beyond a
reasonable doubt, that the jury, applying the beyond-a-
reasonable-doubt standard, unquestionably would have found
true at least a single aggravating circumstance had it been
submitted to the jury.” (Sandoval, supra, 41 Cal.4th at p. 839;
Zabelle, supra, 80 Cal.App.5th at p. 1111.) The Supreme Court
has granted review in People v. Lynch (May 27, 2022, C094174
[nonpub. opn.], review granted August 10, 2022, S274942), to
determine the appropriate standard of prejudice applied by a
reviewing court when deciding if it should remand a case for
resentencing in light of the amendments to section 1170,
subdivision (b). Pending that decision, we rely primarily on the
analysis set forth in Zabelle, as follows: If the trial court relied
on more than one aggravating circumstance, we must determine
“for each aggravating fact, . . . whether it is reasonably probable
that the jury would have found the fact not true” and “then, with
the aggravating facts that survive this review, . . . whether it is
reasonably probable that the trial court would have chosen a
27
lesser sentence” had it considered only the smaller subset of
aggravating facts. (Zabelle, at p. 1112.)
The trial court cited four circumstances in aggravation.
Three of them—the nature, seriousness and circumstances of the
crime, the infliction of substantial emotional injury, and
sophistication of the crime—involve subjective determinations by
the jury that require “an imprecise quantitative or comparative
evaluation of the facts.” (Sandoval, supra, 41 Cal.4th at p. 840.)
As Sandoval warned, these types of “vague or subjective
standard[s]” make it difficult to “conclude with confidence that,
had the issue been submitted to the jury, the jury would have
assessed the facts in the same manner as did the trial court.” (Id.
at p. 840.) We also cannot “assume that the record reflects all of
the evidence that would have been presented had aggravating
circumstances been submitted to the jury.” (Id. at p. 839.)
These warnings resonate here. While the jury convicted
Bowen of the single stalking count, we cannot conclude it would
also have found the “nature, seriousness and circumstances” of
the crime as an aggravating factor. Bowen put forward
mitigating evidence that could have influenced the jury, such as
that he struggled with alcoholism and engaged in the conduct at
issue here while drunk and did not intend to harm or scare
Lydia. Similarly, “substantial” emotional injury includes the
type of vagueness and subjectivity that lessens our “confidence”
about what the jury would find. The same is true regarding
whether Bowen acted with “sophistication.” Jurors conceivably
could regard as sophisticated Bowen’s creation of multiple online
dating profiles and his use of social media websites to
communicate with Lydia after she blocked him. However, as
Bowen points out, whether a particular juror would consider that
28
conduct “sophisticated” may depend on the juror’s own
background or perception about baseline computer competency in
today’s digital world. Bowen’s counsel may also have approached
that evidence differently had he known the People needed to
prove those facts beyond a reasonable doubt to the jury, rather
than by a preponderance of the evidence to the court.
But even if we concluded that the jury would have found
one of these factors true beyond a reasonable doubt, unless we
make that same finding for all factors upon which the trial court
relied (which we do not), we must still reverse unless we can
conclude it is reasonably probable the trial court “would have
imposed the upper term sentence even absent the error” of
relying on improper circumstances. (Zabelle, supra,
80 Cal.App.5th at p. 1112.) Here, we cannot say with confidence
it is reasonably probable the court would have reached the same
sentencing decision if it could rely on fewer than the four
aggravating circumstances it applied. First, some evidence
suggests the state prison sentence was a “close call.” (Id. at
p. 1115.) For the duration of the case up to that point, the People
had sought a probation sentence. The probation department also
recommended probation, not state prison. The change to
recommending a state prison sentence occurred only when the
People perceived Bowen as malingering, refusing to meet with
the doctors, and insisting on multiple, long Marsden motions. At
a minimum, the record does not disclose any other changes in
circumstances to explain the new recommendation. With fewer
factors in aggravation, both the People and the court may have
reverted to the original recommendation. In addition, the court
did not weigh any factor against the other, leaving us to
speculate about any impact fewer aggravating facts may have
29
had on the trial court’s decision-making. (Ibid.; People v. Lopez
(2022) 78 Cal.App.5th 459, 468 [remand required where trial
court relies on “long list” of aggravating factors but gives no
indication of what decision it would make if fewer factors are
available].) Finally, the court did consider certain factors in
mitigation (Bowen’s insignificant criminal record and that he was
not armed). We cannot say with any certainty how the court
would have balanced fewer aggravating factors against these
existing mitigating factors.
Accordingly, although the court properly sentenced Bowen
under the law as it existed at the time (subject to our discussion
about the Marsden hearing, below), subsequent amendments to
section 1170, subdivision (b), have rendered that sentence
erroneous. We cannot say that error is harmless.
Because we remand for resentencing, Bowen’s argument
that the court erred by excluding him from the sentencing
hearing is moot.6 We also need not reach Bowen’s argument that
6 Bowen also contends the court erred by excluding him from
the hearing on the new trial motion (although he does not
contend that the court erred by hearing the new trial motion
prior to a hearing on Bowen’s Marsden motion). The court has
broad discretion to remove a disruptive defendant. (People v. Bell
(2019) 7 Cal.5th 70, 116.) The record here amply supports the
court’s decision to remove Bowen. The court gave at least four
warnings while Bowen continued to interrupt and use profane
language, as he also did at prior hearings. Although the better
practice would have been to adopt Handler’s suggestion to give
everyone a day to cool off, we cannot say the court abused its
discretion by excluding Bowen. Regardless, given the
overwhelming evidence of guilt, any error was harmless in that it
was not reasonably probable Bowen would have achieved a better
30
his sentence violates his Eighth Amendment right to be free from
cruel and unusual punishment. Bowen asserts he would
normally receive two-for-one credit pursuant to section 4019 but
has been in custody (combining pre-sentence and post-sentence
credits) “nearly two years on a maximum sentence of three years,
nearly the ratio required for a violent felony.” Bowen, of course,
may renew his Eighth Amendment argument if, after
resentencing, he again believes his sentence exceeds
constitutional boundaries. However, we note that Bowen does
not appear to contend the sentence itself violates the Eighth
Amendment. To the extent he does, a statutorily permitted
upper term sentence, considering all the circumstances of the
case, would not appear to violate the “concept of proportionality”
that is “central to the Eighth Amendment” or appear “grossly
disproportionate” to Bowen’s crime. (Graham v. Florida (2010)
560 U.S. 48, 58-59; accord, In re Palmer (2021) 10 Cal.5th 959,
965.) Whether any new sentence violates the proportionality rule
in light of Senate Bill No. 567 will be for the trial court to
determine on remand. Bowen also offers no specifics as to why he
believes his credit calculation violates the Eighth Amendment.
In that regard, we further note that section 4019, cited by Bowen
for the proposition that his sentence violates “his most basic
constitutional right to have a punishment that fits the crime,”
does not automatically confer double credit to any prisoner. To
earn the credits, a prisoner must comply with reasonable rules
and regulations, among other metrics, as determined by the
sheriff. (§ 4019, subd. (c).) The record submitted by Bowen
discloses no details about these calculations. To the extent
result if he attended the hearing. (See People v. Watson (1956)
46 Cal.2d 818, 836.)
31
Bowen again asserts error in the calculation of his credits after
resentencing, he must demonstrate an effort to correct the error
first in the trial court. (People v. Fares (1993) 16 Cal.App.4th
954, 958 [“The most expeditious and, we contend, the appropriate
method of correction of errors of this kind is to move for
correction in the trial court.”].)
C. The Marsden Motion and Competency Hearing
Bowen also contends the court erred by refusing to consider
his Marsden motion after the court suspended criminal
proceedings pursuant to section 1368 and prior to then finding
him competent. Because Bowen’s “unequivocal” requests for new
counsel occurred after the guilty verdict, but before sentencing,
and because he will have a new sentencing hearing, we need not
decide whether any error by the court in handling the Marsden
and competency hearings prejudiced Bowen.7 However, because
these issues may arise again on remand, we provide guidance for
the trial court on each of them.
7 Even if we find that the court erred in failing to hear
Bowen’s Marsden motion, the People “must carry the burden of
showing” that error “is harmless beyond a reasonable doubt.”
(Gamache v. California (2010) 562 U.S. 1083; accord, Marsden,
supra, 2 Cal.3d at p. 126, citing Chapman v. California, supra,
386 U.S. 18.) The People contend any error in not conducting a
Marsden hearing is harmless. Bowen argues the error cannot be
harmless because evidence suggests he may have obtained a
different sentencing outcome, he never had the chance to actually
air his grievances, and evidence supported his claims of
ineffective assistance of counsel. We addressed the ineffective
assistance of counsel issues above. Bowen will have the
opportunity to argue for a different sentencing outcome now in
light of our remand pursuant to Senate Bill No. 567.
32
1. The court must provide a confidential Marsden
hearing, even during section 1368 proceedings
“The law governing a Marsden motion ‘is well settled.
“When a defendant seeks to discharge [the defendant’s] appointed
counsel and substitute another attorney, and asserts inadequate
representation, the trial court must permit the defendant to
explain the basis of [the defendant’s] contention and to relate
specific instances of the attorney’s inadequate performance.’””
(People v. Memro (1995) 11 Cal.4th 786, 857, overruled on other
ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.) The
refusal to consider a defendant’s request for the appointment of a
new lawyer directly implicates the Sixth Amendment right to a
fair trial. (People v. Abilez (2007) 41 Cal.4th 472, 490.)
We review the denial of a Marsden motion under an abuse
of discretion standard. (People v. Barnett (1998) 17 Cal.4th 1044,
1085.) Denying a Marsden motion “‘is not an abuse of discretion
unless the defendant has shown that a failure to replace the
appointed attorney would “substantially impair” the defendant’s
right to assistance of counsel. [Citations.]’” (Ibid.) However,
denial of a Marsden motion—let alone the failure to hold such a
hearing—implicates federal constitutional issues, namely “‘the
defendant’s Sixth Amendment right to counsel.’” (People v. Smith
(2003) 30 Cal.4th 581, 606.)
“[T]he 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, and a defendant
has no absolute right to more than one appointed attorney.”
(Marsden, supra, 2 Cal.3d at p. 123.) However, “a judge who
denies a motion for substitution of attorneys solely on the basis of
his courtroom observations, despite a defendant’s offer to relate
33
specific instances of misconduct, abuses the exercise of his
discretion to determine the competency of the attorney.” (Id. at
p. 124.)
Here, the court mistakenly believed it needed to decide
Bowen’s competence prior to hearing his Marsden motion. The
law is the opposite. In the section 1368 context, a trial court errs
when it “brushe[s] aside . . . requests for substitution of counsel
in the belief” that it must first resolve “the question of
defendant’s competence to stand trial.” (People v. Taylor (2010)
48 Cal.4th 574, 600.) A defendant’s right to a Marsden hearing
survives the declaration of a doubt as to the defendant’s
competency to stand trial pursuant to section 1368 when “‘there
is a sufficient showing that the defendant’s right to the assistance
of counsel would be substantially impaired if [the defendant’s]
request was denied.’” (People v. Stankewitz (1990) 51 Cal.3d 72,
87-88.) Before hearing Bowen’s Marsden motion the court needed
only to decide whether Bowen had made a sufficient showing that
a denial of his request could substantially impair his right to the
assistance of counsel. He had.
When a Marsden request involves a breakdown in the
attorney-client relationship, we consider three factors:
““‘(1) timeliness of the motion; (2) adequacy of the court’s inquiry
into the defendant’s complaint; and (3) whether the conflict
between the defendant and his attorney was so great that it
resulted in a total lack of communication preventing an adequate
defense.”’” (People v. Smith, supra, 30 Cal.4th at p. 606.)
As to the first factor, Bowen timely made his request –
repeatedly. The court had ruled on two prior requests when
Bowen made a third request the court started to hear on April 29,
2020. But the court never finished that hearing or ruled on
34
Bowen’s request because in the middle of that hearing the court
declared a doubt as to Bowen’s competence, then mistakenly
believed it could not proceed with a Marsden hearing during the
resulting suspension of criminal proceedings. Each succeeding
time Bowen appeared in court, he again requested new counsel.
He wrote lengthy letters to the court requesting new counsel. He
objected to the court considering various substantive matters –
the bail hearing, his mental health records, his motion for new
trial, sentencing – without first hearing and ruling on his
Marsden request. In each instance, Bowen timely objected.
As to the second factor, the court did not adequately
investigate Bowen’s complaint. Following the aborted Marsden
hearing on April 29, 2020, the court never afforded Bowen an
actual hearing at which the court listened to and evaluated
Bowen’s complaints. At subsequent hearings in May and June,
the court put off Bowen’s repeated requests for a Marsden
hearing, erroneously believing it could not proceed without first
resolving the issue of competency. On at least two occasions, the
court used Bowen’s pending Marsden hearing request to attempt
to coerce Bowen into cooperating with the psychiatrists appointed
to evaluate him and into releasing his mental health records to
Handler. In doing so, the court improperly sought Bowen’s
waiver of a constitutional right “not subject to negotiation by the
court.” (Cf. People v. Collins (2001) 26 Cal.4th 297, 309 [court
could not bargain with defendant over waiver of right to jury
trial].)
At the final appearance on July 30, 2020, after the court
withdrew its declaration of incompetency, the court turned to the
Marsden motion but failed to give Bowen an opportunity to air
his complaints in a confidential setting. This, despite the court’s
35
repeated earlier acknowledgements that Bowen had a right to a
hearing on his Marsden motion. (“The Marsden is a Marsden,
and I believe it takes precedence over any other legal ruling or
issue.”) Instead, finding Bowen had “more than enough
opportunity” to articulate his complaints about the trial, the
court denied the Marsden motion and stated, “There will be no
Marsden hearing. We’ve had enough already.”
We acknowledge the court had received multiple lengthy
letters from Bowen by then. (In fact, the court used those letters
as a basis to declare Bowen competent and reinstate criminal
proceedings.) We further acknowledge Bowen disrupted multiple
proceedings with his accusations against Handler (among others),
his interruptions, and his profanity. Nevertheless, refusing to
hear Bowen in a confidential hearing violated the constitutional
mandate for an “adequate inquiry.”
Finally, the court had ample evidence to support the
conclusion that the relationship between Handler and Bowen had
deteriorated beyond repair. For example, Bowen had submitted
multiple complaints about Handler to the State Bar. Bowen also
had leveled multiple accusations of unethical conduct against
Handler, including collusion with the district attorney. Bowen
advertised a purportedly long list of complaints about Handler’s
performance. We cannot predict how the court would have ruled
had it convened an actual Marsden hearing (in part because we
do not know what more Bowen would have said if given the
required hearing). The court may well have concluded that
Handler had behaved appropriately, and that Bowen’s purported
complaints about Handler amounted to, as the court concluded in
open session, “foot dragging” and an “attempt to delay the
proceedings.” But the court had the obligation to consider
36
Bowen’s complaints in a confidential Marsden hearing, at least
until the court could satisfy itself that Bowen had no new or valid
complaints to raise. (Marsden, supra, 2 Cal.3d at p. 123 [“the
trial court cannot thoughtfully exercise its discretion . . . without
listening to [the defendant’s] reasons for requesting a change of
attorneys.”].)
Bowen’s motions “straightforwardly invoked the court’s
duty to hold a hearing on his Marsden motion before adjudicating
his competency.” (People v. Solorzano (2005) 126 Cal.App.4th
1063, 1070.) The court had an obligation to decide that issue in a
confidential hearing and to do so before deciding the competency
issue.
2. The court must hold a section 1368 hearing after
declaring a doubt as to defendant’s competency
Bowen does not expressly challenge the court’s failure to
hold a competency hearing. However, in his Marsden argument,
Bowen criticizes the court for “abruptly chang[ing] course” and
finding Bowen “competent without any additional evidence or
information, including the court ordered doctor’s report.” The
People responded to that comment by defending the court’s
handling of the competency issue. Given that the issue may arise
on remand, we note for any further proceedings that once the
court declares a doubt as to a defendant’s competence to stand
trial, even if “the court’s initial expression of doubt . . . was
mitigated” by subsequent evidence, that does not “permit the
trial court to vacate or otherwise ignore its previous order for a
section 1368 hearing.” (People v. Hale (1988) 44 Cal.3d 531, 541.)
Thus, prior to sentencing Bowen, the court should have first held
a confidential Marsden hearing, then held a competency hearing
37
or trial, depending on Bowen’s preference after the court and
parties had received the reports from both doctors ordered by the
court.
A competency hearing (or trial) may well have proved the
court correct in its assessment that Bowen feigned incompetence
to delay the proceedings. However, once the court declared a
doubt and suspended proceedings, other than as to the Marsden
issue it had “no jurisdiction to proceed with the case against the
defendant without first determining his competence in a
section 1368 hearing.” (People v. Hale, supra, 44 Cal.3d at p. 541;
accord, People v. Westbrook (1964) 62 Cal.2d 197, 204 [“It is no
answer that the trial judge may have resolved his previously
expressed doubt on receipt of [additional evidence]. [¶] The trial
judge having once expressed his doubt, and set the machinery in
motion, could not divest defendant of his right to have the issue
tried as contemplated by the statute.”]; see People v. Stankewitz,
supra, 51 Cal.3d at pp. 87-88.)
The trial court relied on People v. Danielson, supra,
3 Cal.4th 691, when it reversed its declared doubt. In Danielson,
the trial court did not err when it failed to hold a competency
hearing. However, unlike here, the court in Danielson never
declared a doubt as to the defendant’s competence in the first
place, never suspended criminal proceedings, and never formally
ordered psychological reports pursuant to section 1368 to
determine the defendant’s competence.8 Thus, the rules
8 People v. Ghobrial (2018) 5 Cal.5th 250, relied on by the
People, is distinguishable for a similar reason. In Ghobrial, as in
Danielson, the trial court never declared a doubt in the first
place. The issue on appeal involved whether the trial court
38
regarding the jurisdictional impact of declaring a doubt as to
competence never entered the equation in Danielson. We doubt
the court can avoid those jurisdictional issues with a simple
“never mind” ruling—weeks later—that no basis existed for its
declaration of doubt in the first place. Moreover, unlike the court
here, the judge in Danielson did consider expert psychological
reports in deciding whether to declare a doubt as to the
defendant’s competence.9
In Bowen’s case, although Dr. Bangston had issued a prior
report, neither of the two experts appointed by the court to
render an opinion regarding Bowen’s competence had yet
provided those reports. As to Dr. Bangston, Handler represented
that she believed Bowen might now qualify as incompetent due to
the changed circumstances since her last report, but the court did
not allow her time to render that opinion. As to Dr. Knapke, the
court correctly assessed that he had overstepped his role when he
opined that a legal presumption of competence applied merely
because Dr. Knapke could not interview Bowen after the first try.
But the correct response was not then to jettison the opinions of
Drs. Knapke and Bangston altogether. The court had an
obligation to work with both appointed experts in an effort to get
abused its discretion in not ordering a competency hearing, a
decision accorded “‘“great deference.”’” (Ghobrial, at p. 269.)
9 Although the court stated it based its doubt only on
Bowen’s in-court statements, other objective indicia supported
the court’s doubt: a history of mental illness in Bowen’s family, a
history of mental health treatment (albeit apparently
inconclusive), indications from at least one doctor he may have a
mental health diagnosis, and, arguably and as urged by Handler,
the basis for the last Marsden not heard by the court.
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an actual opinion regarding Bowen’s competence, and to then
hold an actual competency hearing.
DISPOSITION
The conviction is affirmed. The judgment of the superior
court is reversed, and the sentence is vacated. The cause is
remanded with instructions to hold a Marsden hearing if Bowen
is represented by Handler on remand (or upon any appropriate
motion made as to any other counsel).10 If Bowen demonstrates
either ineffective assistance of counsel or an irreconcilable
conflict at a Marsden hearing, the court shall appoint new
counsel and allow that counsel an opportunity to file any
appropriate motions. Once the Marsden issue is resolved, then
the court shall resentence Bowen consistent with the provisions
of section 1170, subdivision (b)(2), and any other applicable
recent ameliorative legislation. If either the court or defense
10 We do not conditionally reverse the judgment, as we did in
People v. Armijo (2017) 10 Cal.App.5th 1171, because here Senate
Bill No. 567 requires a new sentencing hearing and judgment
regardless.
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counsel declares a doubt pursuant to section 1368 and the court
suspends criminal proceedings, doing so shall not delay any
pending or subsequent Marsden motion.
HOWARD, J.*
We concur:
PERLUSS, P. J.
SEGAL, J.
* Judge of the Marin County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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