Opinion
A100905.
11-6-2003
In re CRYSTAL G. et al., Persons Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. GEORGE G., Defendant and Appellant.
George G. (appellant) appeals from three orders of the juvenile court, made prior to the hearing at which his parental rights were terminated with respect to three of his four children. Specifically, appellant contends the juvenile court abused its discretion when it denied his Marsden motion for substitution of counsel, his attorneys request to withdraw as counsel, and his Faretta motion for self-representation. We shall affirm the juvenile courts orders.
Faretta v. California (1975) 422 U.S. 806.
Because of the limited relevance of the facts from the underlying dependency case, we shall only very briefly summarize the factual history of this matter.
Appellants four children, T. G. (then age 13), C. G. (then age 10), B. G. (then age 9), and R. G. (then age 7) were removed from appellants custody on August 10, 2000. Police officers had responded to a call regarding a family dispute and had found appellant displaying bizarre, unpredictable behavior and signs of prolonged methamphetamine use. In addition, the condition of the house in which the children were living was deplorable and the children themselves were filthy.
These initial facts regarding the childrens removal are taken from our unpublished opinion in In re Tina G., et al (October 3, 2001, A093614). In that opinion, we rejected appellants contentions that the reunification plan was unreasonable, that the juvenile court erred in failing to conduct a Marsden hearing, and that the court abused its discretion by denying appellants request for a continuance.
The children were detained on August 16, 2000, and were made dependents of the juvenile court at the contested jurisdictional/dispositional hearing held on December 12, 2000. The court ordered family reunification services for both appellant and the childrens mother. Six-month review hearings were held on April 11, 2001, October 10, 2001, and April 10, 2002. The court terminated reunification services as to appellant on December 4, 2001.
The matter was set for a permanency planning hearing, pursuant to Welfare and Institutions Code section 366.26, on September 26, 2002. On September 26, the juvenile court addressed both appellants Marsden motion and his attorneys request to withdraw as counsel, ultimately denying both motions. The matter was then continued to October 9, 2002.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On October 9, 2002, the matter was continued to October 16, 2002, to hear appellants Faretta motion. At the October 16 hearing, appellant requested time to respond to the opposition of the Sonoma County Human Services Department (Department) to his Faretta motion. The court gave appellant one and one-half days to file a response. The court also denied appellants request for another Marsden hearing.
Appellant did not submit a written response to the Departments opposition to his Faretta motion, nor did he appear at the October 21, 2002 hearing scheduled on the motion. At that hearing, the juvenile court denied appellants Faretta motion, and the matter was continued to October 28, 2002, for the section 366.26 hearing.
Throughout the proceedings in this matter, there had been numerous continuances due to frequent changes in counsel for appellant.
On November 21, 2002, appellant filed a notice of appeal relating to the denial of his Marsden motion, his attorneys request to withdraw as counsel, and his Faretta motion.
On December 2, 2002, at the section 366.26 hearing, the juvenile court ordered appellants parental rights terminated. That order is not a part of this appeal. (The mothers parental rights were also terminated at the December 2, 2002 hearing.)
DISCUSSION
I. Marsden Motion and Request to Withdraw as Counsel
Appellant contends the juvenile court abused its discretion when it denied his Marsden motion and his attorneys request to withdraw as counsel.
The juvenile court addressed both appellants Marsden motion and counsels request to withdraw at the hearing on September 26, 2002. First, with respect to the Marsden motion, appellant complained that counsel had not acted on his requests to file motions or appeals, had not contacted people he had told her to contact, had misadvised him, had not responded to his phone calls, and had not met with him to put time into figuring out a strategy in the case. He also said that counsel had written "a lot of nasty things . . . in [her written opposition to the motion] to make me look like some kind of paranoid nut. . . . I think, basically, shes covering herself which goes on to show we have a pretty bad relationship here." The court followed up with detailed questions to appellant about his concerns.
Counsel responded thoroughly to appellants complaints, both in a written response and orally at the hearing. She stated that she had spent many hours reviewing the case file and that she had tried to discuss the case with appellant and explain his limited legal options at this late stage of the proceedings, but that appellant was very closed-minded to hearing anything other than what he wanted to hear.
In her written request to withdraw, counsel noted that appellant had asked her to help file administrative complaints against Commissioner Carla M. Bonilla, who had presided over the present matter and who would be presiding at the section 366.26 hearing. Appellant also had said he wanted to remove Commissioner Bonilla from hearing the section 366.26 hearing. Counsel believed that the administrative complaints would be brought with the intent to harass Commissioner Bonilla and that a motion to disqualify her from the section 366.26 hearing would be without a legal basis. In addition, counsel felt that appellant had behaved in an "intimidating, hostile and bullying" manner toward counsel, which had made it difficult for counsel to effectively represent him.
A superior court judge, not Commissioner Bonilla, presided at the September 26, 2002 hearing regarding substitution of counsel.
When the court asked counsel whether, if she remained appellants attorney, she would be prepared to go forward with the next step in the case, counsel responded, "I would continue to do my best as I believe I have done my best by Mr. G[.] all along. As I said to him, I think the chances of him obtaining what he wants from the [section 366.26] hearing, which is the return of his children, is just not likely under the facts and history of this case, but I can certainly continue to do the best within the legal boundaries that Ive outlined. Again, I dont believe Mr. G[.] takes that as satisfactory representation."
The court denied appellants Marsden motion and counsels request to withdraw. It observed that most of appellants complaints concerned issues, such as what witnesses to call that were for his attorney to decide. The court found that counsel had evaluated everything appellant had told her, had reviewed the files extensively, was professional with him, and clearly would continue to do the best she could to present appellants case. The court also said it was convinced that counsel had met with appellant and that she knew what she was doing. The court expressed concern that appellant was not cooperating with counsel, and urged him to do so.
A. Denial of Appellants Marsden Motion
Parents in dependency cases have a statutory right to competent counsel under section 317.5, subdivision (a). In addition, the principles set forth in People v. Marsden, supra, 2 Cal.3d 118 (Marsden), have been held applicable to juvenile dependency cases. (In re Ann S. (1982) 137 Cal.App.3d 148, 150.)
The requirements of Marsden have been explained, in the context of criminal proceedings, by our Supreme Court: "When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorneys inadequate performance. . . . A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation . . . or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. . . ." (People v. Crandell (1988) 46 Cal.3d 833, 854.) The trial courts denial of a request for substitution of counsel is reviewed under the abuse of discretion standard. (Id. at p. 859.)
In the present case, appellant was given the opportunity to express his concerns in detail, and counsel responded in equal detail. Based on the record, we believe that the juvenile court reasonably found that counsels representation had been adequate and that counsel had worked diligently on behalf of appellant, especially in light of his limited options. As the court explained, most of appellants complaints involved tactical decisions, which did not justify substitution of counsel. That is because, as our Supreme Court has stated, in the context of criminal proceedings, "[a] defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. [Citation.] Tactical disagreements between the defendant and his attorney do not by themselves constitute an `irreconcilable conflict. `When a defendant chooses to be represented by professional counsel, that counsel is "captain of the ship" and can make all but a few fundamental decisions for the defendant. [Citation.]" (People v. Welch (1999) 20 Cal.4th 701, 728-729.)
In addition, appellants complaints about his poor relationship with counsel did not justify substitution of counsel. The court did not agree with appellants assertion that counsel showed animosity toward appellant, but instead found that counsel behaved in a professional manner. It is apparent that any animosity was on appellants part, which counsel acknowledged did make it difficult for her to communicate with him. However, his lack of cooperation and the resulting discord "does not demonstrate an `irreconcilable conflict that would require the trial court to replace appointed counsel. [Appellant] cannot simply refuse to cooperate with his appointed attorney and thereby compel the court to remove that attorney." (People v. Michaels (2002) 28 Cal.4th 486, 523.) As the Supreme Court in People v. Michaels, supra, explained, again in the criminal context: `"[I]f a defendants claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment . . . ." [Citations.]" (Ibid.)
Here, the court reasonably found that counsels representation was adequate and that it was appellants failure to cooperate that was making it difficult for his attorney to do her job. (See People v. Michaels, supra, 28 Cal.4th at p. 523.) We find there was no abuse of discretion in the juvenile courts denial of appellants motion for substitution of counsel. The court fully explored the basis for the motion, and reasonably concluded that substitution was not warranted. (See People v. Crandell, supra, 46 Cal.3d at p. 859.)
Any negative observations by counsel about appellants behavior and attitudes merely show the difficulty counsel had faced in trying to represent appellant in light of his lack of cooperation and his unreasonable demands regarding trial tactics. Counsel stated, and the juvenile court found, that she would continue to do her best if she remained appellants attorney. Again, no irreconcilable conflict was demonstrated justifying substitution of counsel. (See People v. Michaels, supra, 28 Cal.4th at p. 523.)
Appellant also complains that counsel for the Department improperly interfered with the courts consideration of the Marsden motion. Immediately before the court cleared the courtroom for the Marsden hearing, counsel for the Department said he wanted to make sure the court, which had not been involved with the case since the beginning, was aware that this was, "perhaps, a fourth or fifth Marsden, fourth or fifth attorney for Mr. G[.] and there is a 26 hearing . . . [¶] pending this afternoon." The record makes clear, however, that before the actual Marsden hearing began, everyone left the courtroom except appellant, his attorney, and court staff. Once the Marsden hearing began, appellant stated that his Marsden motion had been "granted in the past so, obviously, there was some validity to it. In fact, [if] we had one Marsden Motion or two or ten. If they were granted there was some validity to have a Marsden Motion."
Appellant cites no authority for the proposition that such background comments by an attorney for another party constitute improper interference with a courts consideration of a Marsden motion. We do not believe that counsels comments were improper or interfered with the Marsden hearing.
B. Denial of Counsels Request to Withdraw
Appellant contends the juvenile court erred in denying his attorneys request to withdraw.
Counsel requested to withdraw from representing appellant pursuant to the California Rules of Professional Conduct, rule 3-700(B)(1) and 3-700(C)(1)(a) and (d). Rule 3-700(B) provides, in relevant part: "A member representing a client before a tribunal shall withdraw from employment with the permission of the tribunal, if required by its rules, and a member representing a client in other matters shall withdraw from employment, if: [¶] (1) The member knows or should know that the client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person . . . ."
All further rule references are to the California Rules of Professional Conduct unless otherwise indicated.
Rule 3-700(C) provides, in relevant part: "If rule 3-700(B) is not applicable, a member may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in other matters, unless such request or such withdrawal is because: [¶] (1) The client [¶] (a) insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law, or . . . [¶] d) by other conduct renders it unreasonably difficult for the member to carry out the employment effectively . . . ."
"The determination whether to grant or deny a motion by an attorney to withdraw is within the sound discretion of the trial court and will be reversed on appeal only on a clear showing of abuse of discretion. [Citations.]" (People v. Sanchez (1995) 12 Cal.4th 1, 37.)
In her written request to withdraw, counsel cited appellants repeated demands for "help in making administrative complaints against Commissioner Bonilla, which appear not only unfounded, but intended to harass. And he has indicated that he wants to remove the commissioner from hearing the upcoming 366.26 hearing. [¶] Moreover, Mr. G[.]s conduct renders it unreasonably difficult for the undersigned to carry out my employment effectively. His course of conduct with the undersigned has repeatedly been intimidating, hostile and bullying, when attempts at flattery or charm did not yield the desired response."
Appellant has not shown an abuse of discretion on the part of the juvenile court. During the hearing on counsels request to withdraw, which was combined with the Marsden hearing, the court made an in-depth inquiry into the issues between appellant and counsel. The court was convinced that, in spite of counsels concerns about appellants demands and behavior, she could continue to effectively represent him. This conclusion is supported by the record.
First, with respect to Commissioner Bonilla, counsel stated in her written request to withdraw that appellant had obtained complaint forms from the Sonoma County grand jury and "judicial performances offices in San Francisco." Counsel had explained to appellant that her representation was limited to the proceedings in juvenile court, and did not encompass such outside matters. Thus, contrary to appellants argument, his request was outside the scope of counsels representation, and so did not implicate rule 3-700(B)(1), which makes withdrawal from employment mandatory when "the client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person . . . ."
Moreover, even if appellants desire to file the complaints had implicated the mandatory withdrawal rule, the juvenile court was not required to grant the request to withdraw. Rather, it was for the court to decide whether the request should be granted in the circumstances. (See, e.g., People v. Brown (1988) 203 Cal.App.3d 1335, 1341 [even where disagreement between counsel and client "is over the defendants intent to commit perjury, in the absence of evidence that the disagreement has resulted in `a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendants right to effective assistance of counsel [citation], a trial court may still deny a motion for withdrawal in its discretion."].)
Second, counsels other concerns, including appellants request that she move to disqualify Commissioner Bonilla from presiding at the section 366.26 hearing and his behavior toward counsel, implicated the permissive withdrawal provisions of rule 3-700(C)(1)(a) and (d). Under that rule, counsel was not required to request withdrawal, and the court certainly was not required to grant her request. Late in the hearing, the court asked counsel whether, if the court denied her request to withdraw, she "would be prepared to go forward with the next step in this case which youve outlined to the Court is very limited?" Counsel responded, "I would continue to do my best as I believe I have done my best by Mr. G[.] all along. As I said to him, I think the chances of him obtaining what he wants from the [section 366.26] hearing, which is the return of his children, is just not likely under the facts and history of this case, but I can certainly continue to do the best within the legal boundaries that Ive outlined."
Counsels comments indicated her ability and willingness to proceed with appellants representation in spite of her concerns over appellants demands and his behavior toward her. We find the courts ruling reasonable as to these issues as well. (See People v. Sanchez, supra, 12 Cal.4th at p. 37 [no abuse of discretion in denying counsels motions to withdraw where defendant did not show "that any disagreement with counsel resulted in a complete breakdown in the attorney-client relationship that jeopardized his right to a fair trial"].)
Finally, we believe the request to withdraw was properly denied given the likelihood that appellant would continue to have similar conflicts with any substitute counsel. In light of his history of replacing attorneys, the apparent unreasonableness of his expectations, and his behavior toward counsel, it is unlikely that any substitute attorney would manage to escape the problems faced by this counsel. As the appellate court said in Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1136, "there was no assurance here that it was unlikely there would be a conflict should new counsel appear on behalf of the [appellant]. [Citation.] [¶] For example, had the motion been granted as framed, it is possible that a new attorney, if faced with the same conflict, would move to withdraw, resulting in a perpetual cycle of eleventh-hour motions to withdraw."
II. The Motion for Self-Representation
Appellant contends the juvenile court improperly denied his motion for self-representation.
A criminal defendant has a federal constitutional right to represent himself. (Faretta v. California, supra, 422 U.S. 806.) In juvenile dependency cases, there is a statutory, rather than constitutional, right to self-representation. (In re Angel W. (2001) 93 Cal.App.4th 1074, 1082; see § 317, subd. (b) [mandating appointment of counsel for indigent parent or guardian "unless the court finds that the parent or guardian has made a knowing and intelligent waiver of counsel as provided in this section"].) The right to self-representation, however, is not absolute. A parent does not have the right to intentionally disrupt or delay the proceedings, though the mere possibility of delay is not a sufficient ground to deny self-representation. (In re Angel W., supra, 93 Cal.App.4th at p. 1084.)
In the present case, the juvenile court set a hearing for October 16, 2002, to address appellants motion for self-representation. At that hearing, the court went over a questionnaire with appellant to determine his understanding of the law and his ability to represent himself. Appellant then requested more time to respond to the Departments opposition to his request for self-representation. The court gave him one and one-half days to prepare a written response. The court denied appellants request for another Marsden hearing. It then set a hearing for October 21, 2002, to rule on appellants motion.
Appellant neither filed any written response to the Departments opposition, nor did he appear at the October 21 hearing on his motion for self-representation. At that hearing, his attorney said she had gotten a telephone message from him a few days previously indicating that he wanted to make another Marsden motion. The court then stated that it had found that appellant did not understand the legal issues at hand, but that that was not the basis for denying his motion for self-representation. Instead, "the real crux of this that comes to me is as I went through the litany of attorneys in this case, theres a pattern that presents as changing attorneys or objecting to something as a matter of working out a delay."
After then reciting the history of the case and describing the circumstances in which appellants five attorneys had come and gone, the court noted appellants failure to file any response or appear at the hearing, and concluded, "So part of what all of this presents as a pattern of basically delaying as much as possible. And its not just a recent event, its rife throughout the entire case." The court consequently denied appellants motion for self-representation.
We conclude that the juvenile courts exercise of discretion in denying appellants motion for self-representation is supported by the record. (See In re Angel W., supra, 93 Cal.App.4th at p. 1085.) First, we observe that appellants failure to respond to the Departments opposition or to appear at the hearing on his motion, along with the message to his attorney requesting another Marsden hearing, show that appellant was equivocal about his desire to represent himself. (See § 317, subd. (b) [requiring a "knowing and intelligent waiver" of the right to an appointed attorney]; cf. People v. Barnett (1998) 17 Cal.4th 1044, 1087 [finding, in criminal context, any invocation to right of self-representation must be unequivocal].)
Second, the court reasonably found that appellant was attempting to delay the proceedings. Although appellant argues that there is no evidence that the proceedings would be further delayed if the court granted his motion for self-representation, it is difficult to imagine that further delay would not result from such a ruling. Appellant was already on his fifth attorney when he moved to represent himself, and the frequent changes in counsel had contributed to the section 366.26 hearing being set for a date over two years after the children were removed from the home. The court properly was concerned about permitting any further delay of the proceedings.
Finally, even had the courts ruling been error, we find that the ruling did not prejudice appellant in any way. "Since the right of self-representation in a dependency proceeding is statutory rather than constitutional, denial of the right is analyzed under the ordinary principles of harmless error." (In re Angel W., supra, 93 Cal.App.4th at p. 1085.) Appellants sole argument for prejudice is that if he had been able to represent himself and present his argument as to why he believed Commissioner Bonilla was biased against him, he might have been able to persuade the commissioner to voluntarily recuse herself from the case. Appellant further states that this perhaps would have been the turning point in the case, which would have allowed him to make belated progress on his reunification plan and to argue for additional services by way of a section 388 petition.
The likelihood of the scenario envisioned by appellant actually taking place is, in the circumstances of this case, so remote as to be almost absurd. After reviewing the entire record, it does not appear reasonably probable that a result more favorable to appellant would have been reached had he represented himself. (See In re Angel W., supra, 93 Cal.App.4th at p. 1085.)
We note that appellant did file a motion, through his attorney, to disqualify Commissioner Bonilla for cause, pursuant to Code of Civil Procedure section 170, on October 28, 2002, the day scheduled for the section 366.26 hearing. The proceedings were suspended while the motion was considered. Commissioner Bonilla denied any bias against appellant, and, on November 13, 2002, a superior court judge found no evidence supporting disqualification and denied the motion to disqualify the commissioner.
DISPOSITION
The juvenile courts orders are affirmed.
We concur: Haerle, J. and Ruvolo, J.