The Supreme Court yesterday denied review in In re Gates, but Justice Joshua Groban — joined by Justices Carol Corrigan, Goodwin Liu, and Kelli Evans — wrote a concurring statement explaining why it was OK that the court wasn’t taking the case even though admitting he was “troubled by the result here.” He also explained that this is not the end of the story for Gates. Chief Justice Patricia Guerrero was recused.

The superior court had refused to rule on Gates’s Marsden motion to change lawyers until after a hearing to determine whether Gates was competent to stand trial, a decision Justice Groban says all parties now agree “was clear error.” Once Gates was declared competent, he “made a series of what later proved to be disastrous decisions” — first deciding to represent himself and then rejecting a prosecution offer of probation — that led to a 17-year prison sentence for assault and battery after a bench trial.

The Fourth District, Division One, Court of Appeal summarily denied Gates’s habeas corpus petition, albeit in a detailed order. It said the superior court “likely did err” by delaying the Marsden hearing, but found the error harmless because, even if the delay “initially motivated” Gates to represent himself, he “had a constitutional right to conduct his own defense” and “he understood the dangers of doing so and knowingly and intelligently waived his right to counsel.”

Justice Groban’s statement says review wasn’t necessary “[g]iven the Court of Appeal’s finding of no prejudice.” But it also “clarif[ies]” that the denial “is without prejudice to seeking other appropriate relief, including filing a renewed habeas petition should new, timely, material, and credible information become available demonstrating that counsel’s performance was deficient or that petitioner was prejudiced by the trial court’s delay in hearing his Marsden motion. (See Pen. Code, § 1473, subd. (b)(3)(A))” and that the denial “is also without prejudice to petitioner’s ability to be referred for recall and resentencing. (Pen. Code, § 1172.1.)” (Links added.)

This wasn’t the first time the Supreme Court has seen Gates’s case. A year ago, the Supreme Court granted review of an earlier habeas petition summary denial (Guerrero, then a justice on Division One, was on the panel that denied the petition, hence her recusal now) and directed issuance of an order to show cause, returnable in the superior court. The superior court denied relief, which led to the most recent habeas petition.