Opinion
E041423
4-18-2008
THE PEOPLE, Plaintiff and Respondent, v. DANNY DALLAS, Defendant and Appellant.
Irma Castillo, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Eric A. Swenson, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant Danny Dallas was convicted of one count of possession of cocaine base, a violation of Health & Safety Code section 11350, subdivision (a). He admitted nine prior convictions which constituted strikes under the three strikes law and admitted three prior prison term allegations under Penal Code section 667.5, subdivision (b).
Defendant was sentenced to a term of 25 years to life in prison under the three strikes law. He appeals, contending that the trial court abused its discretion in denying 12 Marsden motions he made in the 11 months before trial. Finding no abuse of discretion, we affirm.
The trial court struck the three 1-year prison priors at sentencing.
People v. Marsden (1970) 2 Cal.3d 118.
I
FACTS
On January 23, 2004, Moreno Valley police officers arrested several persons who had been selling drugs from a home. The officers then began a reverse sting operation targeting drug purchasers. The officers installed two cameras on the premises and began selling drugs. The officers also wore recording devices to record their conversations with customers. Undercover officers in the yard were instructed to remain within camera range. They were also told that they could contact the public, but they could not bring up the subject of drugs or drug sales.
An officer testified that defendant came on the property, selected a bag of rock cocaine, and gave the officer $20. Defendant was arrested immediately. A videotape of the transaction was played for the jury. An audiotape recording was also played for the jury.
On cross-examination of the officer, defense counsel elicited testimony that suggested that the officer selling the drugs may have violated instructions by bringing up the subject of drugs first, thus raising the possibility of an entrapment defense. However, defense counsel did not rely on an entrapment defense, although the jury was instructed on that defense and the prosecutor discussed entrapment in his final closing argument.
Defendant admitted purchasing rock cocaine from the undercover police officer. His defense was that he did not know "of the substances nature or character as a controlled substance." In other words, defendant argued that he could not tell that the substance he was sold was actually rock cocaine until he used it and, because he was arrested immediately, he never got the opportunity to use it. Nevertheless, the jury convicted him of possessing a controlled substance.
II
PROCEDURAL HISTORY AND MARSDEN HEARINGS
A first trial was held in this case in April, 2005, before Judge Ronald Taylor. Defendant was represented by Deputy Public Defender Magno. However, the jury deadlocked, and a mistrial was declared on April 8, 2005.
On April 14, 2005, defendant filed a petition to act as his own attorney. The motion was granted by Judge Morgan. Defendant then filed several motions, including a Pitchess motion.
Pitchess v. Superior Court (1974) 11 Cal.3d 531. The procedures for discovery of peace officer personnel records were subsequently codified in Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045. (See generally Chambers v. Superior Court (2007) 42 Cal.4th 673, 679.)
At a hearing on May 6, 2005, before Judge Schwartz, defendant requested transcripts of the first trial and a transcript of a Marsden motion made before that trial. The motion for a transcript of the Marsden hearing was denied. Defendant also requested copies of unedited videotapes, which had not been presented at the first trial. Defendant believed that the tapes of the sales transaction had been altered, and he requested unredacted copies of the videotapes. The trial court ordered that a tape of the entire transaction be given to defendants investigator, i.e., the videotape that would be used at trial. The court ordered the prosecution to provide a copy of the audiotape of the sales transaction.
The prosecutor represented that several videotapes, showing all the reverse sting transactions on that day, had been given to the defense for the first trial. Two redacted tapes were also provided. They showed the sale to defendant from two different cameras.
Defendant also represented himself in other hearings held in May and June, 2005.
Defendant has some legal knowledge, as shown by a thorough hand-printed motion for discovery with accompanying points and authorities he filed on May 6, 2005. He also filed other motions, including a Pitchess motion with points and authorities.
On June 3, 2005, defendant requested appointment of counsel. Judge Morgan appointed Deputy Public Defender Petersen to represent defendant.
On July 1, 2005, Judge Schwartz ordered defendants Pitchess motion off calendar. Defendant was represented by "DPD O.G. Magno by K. Mullins."
A trial readiness conference was held before Judge Thierbach on July 8, 2005. Defendant was represented by Mr. Magno. However, defendant told the court that he did not want Mr. Magno to represent him. Nevertheless, Mr. Magno represented defendant in three further hearings before Judge Schwartz.
At the third hearing, held on August 23, 2005, defendant requested a Marsden hearing. Judge Schwartz held the Marsden hearing, at which defendant presented the videotape and the audiotape of the sales transaction and argued that they had been tampered with.
Specifically, defendant claimed that a first contact with the officer had been deleted. According to defendant, the officer had solicited him when he first went by the home, and he had replied "I dont need nothing. Im looking for somebody." Defendant argued that the section had been deleted because it showed that he was not looking for drugs. He argued that the videotape and the audiotape were different than those he was shown at the first trial.
More significantly, defendant stated that he believed Mr. Magno and the district attorney were conspiring against him. Judge Schwartz rejected the argument. The court believed that the prosecutor had merely played part of the videotape at the first trial and that defendant was not precluded from using other portions in his defense.
Mr. Magno then explained the reasons why he hadnt played the other portions of the videotape for the jury in the first trial. Mr. Magno felt that the omitted portions would not help defendant, even though defendant thought that they would. Mr. Magno stated that he was not communicating with defendant, and he blamed the breakdown on his refusal to file a suppression motion, which defendant wanted filed.
Defendants proposed suppression motion was based on People v. Wisely (1990) 224 Cal.App.3d 1130. In that case, the defendant filed a motion under Penal Code section 995 and argued that a reverse sting operation, as conducted, violated his due process rights. The appellate court disagreed.
Judge Schwartz considered defendants arguments and told him that an entrapment defense could be raised at trial, "[i]f ... your attorney thinks thats appropriate." Judge Schwartz, recognizing defendants differences with Mr. Magno, including "some difficulty in communication," denied the Marsden motion and found that the disagreement was not at a level which required that a new attorney be appointed for defendant.
Mr. Magno represented defendant at hearings on September 7 and 13, 2005. At a hearing on September 14, 2005, defendant requested a Marsden hearing, and Judge Morgan held the hearing. Defendant told Judge Morgan that he had irreconcilable differences with Mr. Magno and that there had been a breakdown of communication between them: "We dont talk to one another." Defendant reiterated his beliefs that the videotapes had been altered and that Mr. Magno had failed to file a suppression motion and had failed to contact a witness. Mr. Magno acknowledged that he had had no communication with his client.
Judge Morgan denied the motion, noting his belief that Mr. Magno "defend[ed] his clients very, very well" and was "a very capable advocate." Judge Morgan then denied defendants motion to represent himself. Judge Morgan found that the motion was merely a dilatory tactic to avoid trial.
Mr. Magno continued to represent defendant and filed a lengthy Pitchess motion on defendants behalf. The motion was heard and denied on January 9, 2006, by Judge Schwartz.
On March 17, 2006, before Judge Tranbarger, defendant requested another Marsden hearing. Judge Helgesen heard the motion on March 20, 2006. Defendant stated that he had irreconcilable differences with counsel and that there had been a complete communication breakdown. Defendant alleged that Mr. Magno had cut or destroyed portions of the video- and audiotapes that had exculpatory value. He further argued that the destruction of evidence would allow the police officers to give false testimony, in violation of his due process rights.
Mr. Magno replied that he had not shown defendant the full videotape in jail and had not used it at trial. Although defendant felt it was exculpatory, Mr. Magno felt it was not. Mr. Magno then proceeded to give the reasons why he did not want to use the omitted portions of the videotape at trial. Mr. Magno acknowledged that "we dont really talk about the case. He doesnt talk to me about that anymore." Mr. Magno also said, "But based on Mr. Dallas and my history, we do not talk about the case. He refuses to talk to me about it. Obviously, I am willing."
Judge Helgesen then asked the relevant question: "Do you feel that the relationship has broken down to the point that you cannot effectively represent him?" Mr. Magno responded, "I cant say that, your Honor. I am willing to listen to him. He will not talk to me about the case. He refuses to talk to me about the case. But I must say that I am willing to listen, and I am willing to talk to him. I dont want to say broken down. From my point of view, I dont think it has. But Mr. Dallas has refused to talk to me regarding the case. It makes my job a bit more difficult." Defendant then explained why he believed that he was solicited by the undercover officers. Mr. Magno explained why he believed an entrapment defense was untenable.
Judge Helgesen denied the Marsden motion but instructed Mr. Magno to review the videos in their entirety with defendant and to explain to defendant the trial strategies he intended to use.
Defendant made another oral Marsden motion on April 7, 2006, before Judge Tranbarger. Defendant reiterated that Mr. Magno had told him, in their first meeting in December 2004, that he would not address the facts of the case and would not file appropriate motions before trial. More significantly, defendant argued that Mr. Magno had ignored Judge Helgesens order and had only brought one partial videotape to the jail. Defendant accused Mr. Magno of conspiring with the prosecutor to destroy the original unedited video- and audiotapes. Mr. Magno responded that he had discussed the videotape with the prosecutor, and they both had the same tape.
Defendant insisted that there had been a tape showing the officer flagging down his vehicle and asking him what he needed. His response was that he was looking for a mechanic. Defendant asserted he had seen that videotape with his private attorney before the first trial but that he had not seen it since.
Judge Tranbarger denied the motion, finding no evidence of destruction of evidence or other unethical conduct. However, Judge Tranbarger did order Mr. Magno to contact defendants prior private attorney, Mr. Pike, to ask him if he would look at the videotape Mr. Magno had to determine if there had been any changes from the videotapes that he had at the beginning of the controversy.
Defendant objected to this procedure, claiming that the transcripts of the videotape he had showed that there had been deletions from the videotape.
Defendant forcefully told the court and Mr. Magno that he did not want to be represented by Mr. Magno. Defendant also told the court that there had been a communication breakdown with his attorney and that they had irreconcilable differences. Nevertheless, Judge Tranbarger told defendant that his choice was to be represented by Mr. Magno or to represent himself.
Defendant requested a further Marsden hearing before Judge Schwartz on April 10, 2006. Defendant complained that the prosecution was aware of the fact that defendant had alleged a conspiracy between his counsel and the prosecutor, and the only way the prosecutor could have learned that was from Mr. Magno. Defendant also argued that the videotape had been edited. Judge Schwartz found that, even if there was editing, it was not evidence of a conspiracy. Defendant persisted, but Judge Schwartz found only a dispute over trial tactics.
On April 27, 2006, defendant filed another Pitchess motion. After review of police personnel records, one name was provided to the defense. No other information was provided, and the transcript was sealed.
Judge Schooling heard another Marsden motion on June 6, 2006. Defendant raised the same grounds as he had raised previously, and the motion was denied.
Judge Zellerbach heard a Marsden motion on June 26, 2006. Defendant began by arguing that he had had a communication breakdown with his counsel for over a year. He stated that they did not communicate at all, and there had been no tactical discussions about defense strategy.
Mr. Magno then stated the reasons why he had not used portions of the videotape at the first trial. He reiterated that, although defendant thought the omitted portions were exculpatory, he did not. Mr. Magno also stated that, early in the case, he refused to file a suppression motion for defendant, and defendant then refused to speak with him further. However, defendant mentioned other possible witnesses at the hearing, and a continuance of trial was granted to allow Mr. Magno to contact them. The Marsden motion was denied. After the hearing, in open court, Mr. Magno noted that he only communicated with defendant through Marsden hearings.
On July 17, 2006, while a jury trial was trailing, Judge Cahraman heard another Marsden motion. Defendant again relied on the alleged destruction of the videotape evidence. Judge Cahraman also elicited the fact that Mr. Magno had not seen defendant in jail for three to five months, and they were not on good communicating terms. Judge Cahraman denied the Marsden motion, concluding, "What weve heard today is that Counsel chose to permit an edited version of the tape to be shown at the first trial, not that he destroyed the tape by editing [it]."
Jury voir dire then commenced. A jury was selected on July 19, 2006, and Judge Cahraman heard testimony on July 20, 2006. At the end of the day, the prosecution rested, and defendant made another Marsden motion. At the hearing, defendant again complained about the alleged destruction of exculpatory evidence. Mr. Magno explained his reasons for showing the portion of the videotape he used at trial. After defendant argued that the transcript of his first Marsden hearing would support his argument, the trial court agreed to review a transcript of the first Marsden hearing. The hearing was then continued until July 24, 2006.
Three Marsden hearings were held on July 24, 2006. First, Judge Cahraman asked defendant if he had any new issues to raise. Defendant produced a picture of the undercover officer, which he argued showed the officer was disregarding orders and removing the cocaine from his pocket before the defendant asked to buy drugs. Defendant also argued that Mr. Magno should have called the undercover officer as a witness. The motion was denied.
The second hearing was after Judge Cahraman heard reporters read the testimony from the January 10 and March 28, 2005, Marsden hearings. Mr. Magno explained one apparent discrepancy in the testimony, and the Marsden motion was denied.
Defendant then testified and, upon concluding his testimony, sought a third Marsden hearing. At the hearing, defendant complained that his attorney was not presenting witnesses in his defense. Mr. Magno explained his reasons for not calling the witnesses, and the motion was denied.
The following day, defendant was convicted and admitted his prior convictions. Subsequently, defendant filed a Romero motion. Judge Cahraman struck three prison term priors but declined to dismiss the strike priors. Defendant was sentenced to a term of 25 years to life in prison.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
III
DISCUSSION
"The governing legal principles are well settled. `Under the Sixth Amendment right to assistance of counsel, "`"[a] defendant is entitled to [substitute another appointed attorney] if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result."" [Citation.] Furthermore, "`"When a defendant seeks to discharge 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."" [Citations.] `"[S]ubstitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would `substantially impair the defendants right to assistance of counsel." [Citations.] [Citation.] [¶] `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." [Citation.]" (People v. Valdez (2004) 32 Cal.4th 73, 95.)
Accordingly, defendant argues that he became embroiled in an irreconcilable conflict because of a total breakdown in communications. Defendant relies on a number of Ninth Circuit decisions that tend to support his position.
Brown v. Craven (9th Cir. 1970) 424 F.2d 1166 was decided a month and a half after Marsden. The court found that the California court had summarily denied defendant Browns motions for new counsel, "making no adequate inquiry into the cause of Browns dissatisfaction with his counsel or taking any other steps which might possibly lead to the appointment of substitute counsel in whom Brown could repose his confidence. The result was that Brown was forced into a trial with the assistance of a particular lawyer with whom he was dissatisfied, with whom he would not cooperate, and with whom he would not, in any manner whatsoever, communicate. Thus, the attorney was understandably deprived of the power to present any adequate defense in Browns behalf." (Id. at p. 1169.) The court also said, "Since Brown would not communicate with him, it is understandable that the attorney performed his duty under the gravest handicap. We think, however, that to compel one charged with grievous crime to undergo a trial with the assistance of an attorney with whom he has become embroiled in irreconcilable conflict is to deprive him of the effective assistance of any counsel whatsoever. [Citations.]" (Id. at p. 1170.)
Defendant relies on a number of other irreconcilable-conflict cases that followed Brown. He cites Schell v. Witek (9th Cir. 2000) 218 F.3d 1017, in which the court said, "Thus, the ultimate constitutional question the federal courts must answer here is not whether the state trial court `abused its discretion in not deciding Schells motion, but whether this error actually violated Schells constitutional rights in that the conflict between Schell and his attorney had become so great that it resulted in a total lack of communication or other significant impediment that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment." (Id. at 1026.)
The court acknowledged that the Supreme Court had held that the Sixth Amendment only requires competent representation, and it does not guarantee a meaningful relationship between a defendant and his counsel: "It may be the case, for example, that because the conflict was of Schells own making, or arose over decisions that are committed to the judgment of the attorney and not the client, in fact he actually received what the Sixth Amendment required in the case of an indigent defendant, notwithstanding the State trial courts failure to inquire." (Schell v. Witek, supra, 218 F.3d at p. 1026, fn. omitted, citing Morris v. Slappy (1983) 461 U.S. 1, 13-14 [103 S.Ct. 1610, 75 L.Ed.2d 610].) "[T]he basic question is simply whether the conflict between Schell and his attorney prevented effective assistance of counsel." (Schell v. Witek, supra, 218 F.3d at p. 1026.)
Morris specifically rejected the claim "that the Sixth Amendment guarantees a `meaningful relationship between an accused and his counsel." (Morris v. Slappy, supra, 461 U.S. at p. 14, fn. omitted.)
In United States v. Nguyen (9th Cir. 2001) 262 F.3d 998, a direct review of the District Court in Guam, the appellate court found that there had been a complete breakdown in the attorney-client relationship. It said, "Even if present counsel is competent, a serious breakdown in communications can result in an inadequate defense. [Citation.] Similarly, a defendant is denied his Sixth Amendment right to counsel when he is `forced into a trial with the assistance of a particular lawyer with whom he [is] dissatisfied, with whom he [will] not cooperate, and with whom he [will] not, in any manner whatsoever, communicate. [Citation.]" (Id. at pp. 1003-1004.) Thus, the issue in these cases is the nature of the conflict between defendant and his attorney, not the competency of counsel.
We therefore agree with defendants point that most of the trial judges failed to focus on this issue, instead directing their attention to whether defendants attorney was competent. Nevertheless, Judges Schwartz and Helgesen did address the proper issue, and Judge Schwartz found that the communication breakdown was not "at the level where Mr. Magno should be relieved."
As noted above, Judge Helgesen denied the Marsden motion but instructed Mr. Magno to review the videotapes in their entirety with defendant and to explain to defendant the trial strategies he intended to use.
Defendant cites United States v. Moore (9th Cir. 1998) 159 F.3d 1154 and United States v. Adelzo-Gonzales (9th Cir. 2001) 268 F.3d 772. In each of these cases an irreconcilable conflict was found, and the case was remanded. Defendant also cites United States v. Williams (9th Cir. 1979) 594 F.2d 1258, in which the trial court summarily denied the defendants motion for new counsel despite a prima facie showing of an irreconcilable conflict, forcing the defendant to elect to represent himself. The effect was to deprive the defendant of his right to effective assistance of counsel, and the judgment was reversed. (Id. at pp. 1260-1261.)
Defendant primarily relies on the more recent case of Daniels v. Woodford (9th Cir. 2005) 428 F.3d 1181. In that case, the trial court removed the defendants attorney and substituted inexperienced cocounsel. (Id. at p. 1189.) The defendant did not trust his new counsel and sought to remove them. (Id. at p. 1190.) As a result of his lack of trust in counsel, the defendant did not communicate with them and went to trial with defense counsel who lacked the time and experience to adequately try a capital murder case. (Id. at p. 1191.)
The court found a constructive denial of the right to counsel after assessing the nature and extent of the conflict between the defendant and his counsel. (Daniels v. Woodford, supra, 428 F.3d at pp. 1197-1198, 1201.) It applied a three part test: "The court must consider: (1) the extent of the conflict; (2) whether the trial judge made an appropriate inquiry into the extent of the conflict; and (3) the timeliness of the motion to substitute counsel. [Citation.]" (Id. at pp. 1197-1198.) In considering the extent of the conflict, the court said, "Where a criminal defendant has, with legitimate reason, completely lost trust in his attorney, and the trial court refuses to remove the attorney, the defendant is constructively denied counsel. [Citation.] This is true even where the breakdown is a result of the defendants refusal to speak to counsel, unless the defendants refusal to cooperate demonstrates `unreasonable contumacy. [Citations.]" (Id. at p. 1198.) Since defendant here clearly lost trust in his attorney, defendant finds a constructive denial of his right to counsel.
Defendant argues that the same factors are considered by California courts in determining whether a Marsden motion should be granted. He cites People v. Smith (2003) 30 Cal.4th 581, which so holds. Nevertheless, our Supreme Court rejected defendant Smiths claim under the facts of that case, holding that "[a] defendant may not effectively veto an appointment of counsel by claiming a lack of trust in, or inability to get along with, the appointed attorney. [Citation.] Moreover, the trial court need not conclude that an irreconcilable conflict exists if the defendant has not tried to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness. [Citation.] Defendant did not show that defense counsel did anything to cause any breakdown in their relationship. `[A] defendant may not force the substitution of counsel by his own conduct that manufactures a conflict. [Citation.]" (Id. at p. 606.)
Many other California Supreme Court cases reiterate these principles. (See, e.g. People v. Panah (2005) 35 Cal.4th 395, 431; People v. Cole (2004) 33 Cal.4th 1158, 1192-1193; People v. Valdez, supra, 32 Cal.4th, at p. 95; People v. Jones (2003) 29 Cal.4th 1229, 1244-1245; People v. Michaels (2002) 28 Cal.4th 486, 523; People v. Hart (1999) 20 Cal.4th 546, 603; People v. Welch (1999) 20 Cal.4th 701, 728-729; People v. Berryman (1993) 6 Cal.4th 1048, 1070, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Hamilton (1989) 48 Cal.3d 1142, 1162; People v. Silva (1988) 45 Cal.3d 604, 622.)
We therefore focus on the extent of the conflict here. First, defendant made it abundantly clear for over a year before his second trial that he did not trust his attorney. He repeatedly accused his attorney of conspiring with the prosecutor to delete exculpatory material from the videotape of the sales transaction.
According to defendant, the original videotape showed that he was not at the home to buy drugs during his first encounter with the undercover officer. For example, defendant stated at the April 7, 2006, Marsden hearing, "I then asked Mr. Magno, wheres the original video tapes that show me shaking my head in an overwhelmingly no position to [the] undercover [officer] soliciting me to purchase this drug and at the same time clearly hear me telling [the officer], I dont need nothing. Im looking for the mechanic. Which that evidence was destroyed in some way. [¶] And then I asked Mr. Magno, what happened to the original video tapes that clearly show [the officer] motioning his hand for me to come over to him while at the same time clearly hear [the officer] saying to me, whats up? Come holler at me, which was destroyed in some way as well. But Mr. Magno says thats all he has." The defendant believed that the videotape evidence had been destroyed by his counsel, and that the evidence would have shown that he was solicited by the officer, thus contributing to an entrapment defense.
Defendants counsel explained that he did want to use that portion of the videotape because he did not want to present an entrapment defense. Counsel thought that the elements of entrapment could not be established. In a subsequent hearing, Mr. Magno again explained why he believed an entrapment defense was untenable.
Nevertheless, as noted above, an entrapment instruction was given at trial, and the prosecution argued that there was no entrapment. Although a solicitation and entrapment defense may well have been stronger than the defense which was used, i.e., the argument that defendant did not know the substance he purchased was crack cocaine, it is clear that the decision was a tactical decision.
The basic disagreement between counsel and defendant was whether there was sufficient evidence to support an entrapment defense or to file a suppression motion alleging that the reverse sting operation, as conducted, violated defendants due process rights. Upon counsels refusal to pursue these matters, defendant refused to communicate with counsel further and, as counsel noted, the communication breakdown occurred. Defendants insistence that a portion of the videotape had been destroyed also arose from his counsels refusal to show the portion of the videotape relevant to the entrapment defense at trial.
Tactical decisions are made by counsel, and the fact that counsel makes a tactical decision defendant does not like does not mean there is an irreconcilable conflict between counsel and client: "`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, supra, 20 Cal.4th at p. 729.)
"Indeed, 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.] `Nothing in the record here shows that [counsel] was incompetent or would not provide adequate representation if he received defendants cooperation." [Citation.] Rather, defendants complaints mostly show disagreement as to tactics, which, by itself, is insufficient to compel discharge of appointed counsel. [Citation.]" (People v. Cole, supra, 33 Cal.4th at p. 1193.)
"A disagreement concerning tactics is likewise insufficient to compel the discharge of appointed counsel, unless it signals a complete breakdown in the attorney-client relationship. [Citations.] In determining whether defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result, trial courts properly recognize that if 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 and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law. A trial court is not required to conclude that an irreconcilable conflict exists if the defendant has not made a sustained good faith effort to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness." (People v. Crandell (1988) 46 Cal.3d 833, 859-860.)
The same principles apply in the Ninth Circuit: "The main source of [defendants] dispute with [counsel] centered around defense and litigation tactics. While the district court emphasized [counsels] competence when ruling on the motion, it also viewed the conflict as one related to `defense tactics. `Litigation tactics are decisions generally left to defense counsel. [Citation.] Considering the context of the dispute, and weighing the three relevant factors, we conclude that the district court did not abuse its discretion in this case." (United States v. Franklin (9th Cir. 2003) 321 F.3d 1231, 1239, fn. omitted.)
The trial court, Judge Cahraman, cited People v. Silva, supra, 45 Cal.3d 604 in denying one of defendants Marsden motions. The situation in Silva was similar to the situation here: The defendant believed that his attorney was incompetent and did not have his best interests at heart; the defendant thought that his attorney should have made certain motions; and the defendant did not relate well to his attorney, who had only seen him once. (Id. at p. 622.) The court replied that counsel was competent and acting in the defendants best interests. The court also explained why the motions had not been made. Our Supreme Court responded to the third point by saying, "[T]he number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence. Defendant was required to show more." (Ibid.)
We agree with the People that the issues leading to the communication breakdown all arose from tactical decisions by defendants counsel. Defendant could not force a change in counsel, or a change in tactics, by simply refusing to discuss the case further with his counsel. Defense counsel was ready and willing to discuss the case with defendant, and the trial court was entitled to conclude that there was no irreconcilable conflict that substantially impaired his constitutional right to the effective assistance of counsel. (People v. Smith, supra, 30 Cal.4th at p. 606; People v. Hart, supra, 20 Cal.4th at p. 603; People v. Silva, supra, 45 Cal.3d at p. 622.) We therefore conclude that defendant has not shown that the trial court abused its discretion in collectively denying his Marsden motions.
As noted above, some of the Marsden hearings failed to focus sufficiently on the question of whether the communication breakdown was an irreconcilable conflict. Nevertheless, defendant considers the hearings as a whole, and it is clear that at least two of the hearings did focus on the proper issues.
IV
DISPOSITION
The judgment is affirmed.
We Concur:
HOLLENHORST, Acting P.J.
KING, J.