Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08NF0573, David A. Thompson, Judge.
Gideon Margolis, 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, Assistant Attorney General, Peter Quon, Jr. and Chandra E. Appell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Rylaarsdam, Acting P.J., Aronson, J., and Ikola, J.
Jon William Downey appeals from his Three Strikes sentence following his conviction of certain drug offenses. He argues the court erred in denying his presentencing “Marsden motion” for the appointment of new counsel based on inadequate representation. (See People v. Marsden (1970) 2 Cal.3d 118.) Finding no error, we affirm.
Background
A jury convicted Downey of felony possession of methamphetamine and misdemeanor possession of drug paraphernalia. The court dismissed two of three charged “strike” convictions dating from 1983 in the interests of justice. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497; Pen. Code, § 1385; all further statutory references are to the Penal Code.) A week before the scheduled sentencing hearing, Downey, acting in pro per, filed a written Marsden motion requesting that the court appoint new counsel for the purposes of sentencing. He served the motion on his own attorney, Frederick McBride, and the prosecutor.
On the date set for sentencing, the court acknowledged receiving the written Marsden motion but stated it had not reviewed the document “substantively” out of concern that it could constitute “improper ex parte communication with the court.” The court explained it had merely “skimmed” the document to ascertain its “general nature[.]” Downey proceeded to assert a virtual laundry list of complaints against his counsel. His most significant complaint was McBride’s failure to obtain a section 1203.03 diagnostic report prepared in 1982 in connection with his 1983 conviction of the strike offenses.
These prior strikes were based on Downey’s 1983 guilty plea to conspiracy, assault with a deadly weapon, and attempted robbery. At the Marsden hearing,Downey asserted that the diagnostic report would establish he “was going through some severe mental problems” at the time he pleaded guilty to those charges. He contended the report would thus prove his mental incompetence and corresponding inability to understand the consequences of his guilty plea; armed with this evidence, he hoped to mount an effective challenge to the guilty plea as an unknowing waiver of his Boykin/Tahl rights (see Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122), thereby securing dismissal of the remaining strike. He complained that McBride’s failure to obtain the report, despite Downey’s repeated requests, sabotaged this crucial legal strategy for averting a Three Strikes sentence.
Downey made six additional assertions of inadequate representation against McBride: McBride had failed to get a preliminary hearing transcript from the 1983 case that evidenced Downey’s lack of criminal sophistication and would convince the court to dismiss the remaining strike; McBride had consistently ignored Downey’s request to copy and return various documents Downey had given him for safekeeping; McBride “never” talked to Downey about sentencing or about the Boykin/Tahl challenge Downey wanted brought based on the 1982 diagnostic report; McBride had failed to subpoena Downey’s parole officer or his boss for the sentencing hearing, despite Downey’s belief both would be helpful; and finally, that McBride has “done absolutely nothing for me for sentencing.... It’s been 51 days [since the jury trial ended] and he hasn’t done a day.”
The court then questioned McBride about his criminal defense experience, and the extent of his preparation for the sentencing hearing. McBride stated that in his 37 years as a defense attorney he had “handled hundreds and hundreds of sentencings” but admitted he had done “little [on Downey’s case] since the trial.” He explained he had been very busy on other trials and that he had requested a continuance of Downey’s sentencing hearing in light of his inability to prepare adequately. He explained it was his policy not to go forward unless he was ready. As for the 1982 diagnostic study, McBride outlined the steps he had taken to locate it. He stated he had “gone through all three or four court files that are Orange County [Superior Court] cases[,]” but was unable to find the study. He also did an “on-line” search of a federal district court case in which, according to Downey, the diagnostic study had been submitted. McBride reported that he found “no reference” to the study in his on line search, but “it doesn’t mean it’s not there.” He suggested he would have to seek a court order to obtain the report from the federal court because, “if it’s there..., it’s in a sealed condition.”
The court then offered Downey a chance to respond. Downey stated that the attorney-client relationship “is broken down” because McBride had not written in response to Downey’s letters (which Downey admitted are “voluminous” and numerous: “about 20”). Downey also complained McBride does not accept his phone calls from jail and once called Downey “a liar[.]”
The court denied the Marsden motion, finding that McBride had “properly represented Mr. Downey and will continue to do so.” The court further found there was no breakdown in the attorney-client relationship and “that any deterioration of relationship has been caused by the willfully recalcitrant and defiant attitude of Mr. Downey[.]” The court continued sentencing for nearly five weeks at the request of Downey’s counsel after Downey waived time for sentencing.
At the sentencing hearing, the court found Downey’s remaining strike prior conviction true and sentenced Downey to a four-year prison term. The court arrived at the sentence by selecting the mid-term of two years for the felony conviction, then doubling that term pursuant to the Three Strikes law. (Pen. Code, § 667, subd. (e)(1).) The court sentenced Downey to a concurrent “time served” sentence for the misdemeanor.
Discussion
Downey argues the court erred in its handling of his Marsden motion. He asserts first that the court breached its duty to “make further inquiry” into his complaint that McBride failed to obtain the 1982 diagnostic report. Downey also contends the court erred in refusing to consider his written Marsden motion. Downey concludes the court’s mishandling of his Marsden motion deprived him of effective assistance of counsel. None of his contentions has merit.
In regard to the court’s purported breach of its “duty of inquiry,” Downey essentially argues that the court did not dig deeply enough into the reason for McBride’s failure to obtain the diagnostic report, so important to Downey. According to Downey, it was crucial for the court to determine whether counsel’s failure to obtain the report “was due to his lack of time, rather than for tactical reasons[.]” Downey asserts that if the failure was indeed due to counsel’s “lack of time,” then “contrary to the trial court’s findings, counsel would not be able to represent [Downey] effectively at the sentencing hearing.” In other words, according to Downey, the court’s failure to make further inquiry “into counsel’s failure to obtain the 1982 diagnostic report” was error because it deprived the court of information crucial for ruling properly on his Marsden motion.
The argument lacks merit. McBride candidly admitted to the court that he had not prepared adequately for sentencing and for that reason was seeking a continuance. He reported the unsuccessful efforts he had made to obtain the diagnostic report, and identified a remaining avenue of investigation: a search of the federal court file Downey believed held a copy of the report. McBride acknowledged he might need to obtain a court order to unseal the diagnostic report if it was found in that file. McBride did not suggest he had refrained from obtaining the report for tactical reasons. Given that McBride stated his intention to do more work in preparation for the sentencing hearing, and specifically identified additional steps to be taken in the ongoing search for the diagnostic report, there was no need for the court “to make further inquiry into counsel’s failure to obtain the report[.]” The reason for that failure was manifest, as was counsel’s intent to correct that failure.
A court’s duty of inquiry when confronted with a Marsden motion is clearly defined by case law: “[T]he court must inquire on the record into the bases of defendant’s complaints and afford him an opportunity to relate specific instances of his attorney’s asserted inadequacy. [Citations.] Depending on the nature of the grievances related by defendant, it may be necessary for the court also to question his attorney. [Citations.]” (People v. Hill (1983) 148 Cal.App.3d 744, 753.)
The court provided Downey with ample opportunity to state his complaints with his counsel’s performance. Downey did so at length, setting forth no less than seven specific examples of what Downey perceived as inadequate representation. After listening and inquiring further of both Downey and McBride, the court decided there was no basis to replace McBride as counsel and denied the Marsden motion. That decision is reviewed under the deferential abuse of discretion standard. (People v. Jones (2003) 29 Cal.4th 1229, 1245.)
The court acted well within its discretion here. Not only did the court inquire adequately into the basis of Downey’s Marsden motion, but the court had sufficient grounds to deny that motion. McBride stated his intention to search further for the diagnostic report and otherwise to prepare fully for sentencing if granted the continuance he sought. Based on those assurances and McBride’s extensive experience in criminal defense, the court reasonably concluded McBride would competently represent Downey at the continued sentencing hearing.
Downey’s second claim of error also fails to persuade. Downey argues the court abused its discretion in refusing to read his written Marsden motion out of an unfounded concern for avoiding an “improper ex parte communication[.]” Without deciding the validity of the court’s concern about reading this “ex parte communication,” we conclude the court acted within its discretion in requiring Downey to present his Marsden motion orally rather than in writing.
Before conducting the Marsden hearing, the court observed that the written motion Downey submitted was “a fairly thick packet of information, handwritten.” Given the difficulty often associated with wading through a pro per defendant’s written assertions, we cannot fault the court here for eschewing Downey’s lengthy written motion in favor of an oral recitation of his claims. Importantly, the transcript of the hearing attests to Downey’s ability to be both articulate and assertive in his oral presentation.
Moreover, the thoroughness of the Marsden hearing that occurred further supports the court’s decision. As explained above, the court asked Downey to state specifically the basis of his claim of inadequate representation by McBride. Downey went on to describe in detail seven separate examples of what he perceived to be McBride’s failings as counsel. After questioning McBride, the court gave Downey the opportunity to respond further. This procedure allowed Downey to present fully the substance of his written motion and to obtain a thorough airing of his concerns. The court did not abuse its discretion in failing to read the written motion.
Disposition
The judgment is affirmed.