Ineffective Assistance of Counsel & SVP Commitment?

On May 20, 2024, the California Supreme Court ruled on the case of People v. Ishmael Michael Carter, wherein Mr. Carter appealed the trial court’s denial of his motion to dismiss based on a Marsden motion. People v. Marsden (1970) 2 Cal. 3d 118.

We present this article because while the fact pattern in Mr. Carter’s case may seem extreme and unusual, it is sadly not and therefore should be noted by those awaiting Sexually Violent Predator SVP) commitment trials following completion of their underlying prison sentence.  We find while such crimes are often unspeakable, the poor representation that often follows is equally regrettable.

In May 2007, the Yolo County District Attorney filed a petition to commit Mr. Carter as an SVP.  In August 2007, the trial court found probable cause to commit Mr. Carter to the custody of the State Department of State Hospitals at Coalinga State Hospital pending his SVP trial.

After Mr. Carter waived time for trial to receive treatment, his trial was repeatedly continued for over 12 years, often at the request of Carter’s counsel.  During that period, Mr. Carter was continually represented by the Yolo County Public Defender’s Office. 

Finally, on December 12, 2019, Mr. Carter filed a pro se Marsden motion to dismiss the petition to commit him as an SVP.  The Marsden motion requested disqualification of the Yolo County Public Defender’s Office, asserting that the 12 year delay in his trial was a violation of People v. Vasquez (2018) 27 Cal. App. 5th 36, wherein a person awaiting an SVP trial was released from Coalinga due to excessive delays of 17 years.  A person facing commitment under the SVP Act has a due process right to a timely trial. Camacho v. Superior Court (2023) 15 Cal.5th 354, 379.

On January 15, 2020, the trial court held a hearing on the Marsden motion.  Carter explained that he filed the motion because “I’ve been sitting here for 12 and a half years and there’s been multiple delays that was not at my request.”  He explained that he was frustrated.

The judge denied Mr. Carter’s motion, explaining, “From what Ms. Zavala [Mr. Carter’s then public defender] has told us today, I’m satisfied she’s been diligent trying to push the case forward.  She hasn’t necessarily delayed the process.  She’s promptly communicated with you [Mr. Carter] and described what happened.  From my vantage point she has done her job as your lawyer” and went on to attribute the delays in Mr. Carter completing the SVP program at Coalinga and the need to get an update psychological profile as also contributing to the delays.  

This analysis by judge was guided by his evaluation of the factors set forth in Barker v. Wingo (1972) 407 U.S. 514, 530-531, which include the reason for the delay.

Moreover, there was a conflict of interest in that her attorney would have to testify that she did not do her job properly to represent his position on the Marsden motion and then, if that were granted, Mr. Carter would have to represent himself moving forward.

Mr. Carter then stated he could not represent himself well and the judge denied the motion.  The judge then conducted the SVP trial and Mr. Carter was found to be an SVP and was committed back to Coalinga as an SVP.  The court of appeals then affirmed the trial court on Mr. Carter’s appeal.

Mr. Carter then appealed the two rulings to the California Supreme Court, which reversed in Mr. Carter’s favor.  The court began its analysis by explaining that individuals subject to SVP petitions should have new counsel appointed upon demonstrating that failure to replace appointed counsel would substantially impair the right to effective assistance of counsel. Welfare & Institutions Code § 6603(a); People v. Hill (2013) 219 Cal. App. 4th 646, 652. 

Importantly, a claim of conflict of interest is a form of ineffective assistance of counsel. People v. Perez (2018) 4 Cal. 5th 421, 435.  Although delays sought by the defense generally weigh against a speedy trial claim, appointed counsel’s failure to move a case forward due to a systematic breakdown in the public defender system changes the analysis. 

Here, Mr. Carter moved for new counsel and to dismiss the SVP petition, claiming that there were multiple delays not attributable to him.  Since the reason for the delays were not apparent from the record, it was appropriate to remand for inquiry into whether new counsel should be appointed and to allow new counsel to evaluate Mr. Carter’s motion to dismiss.