Opinion
F041724.
10-17-2003
THE PEOPLE, Plaintiff and Respondent, v. JOE ED EARP, Defendant and Appellant.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Stan Cross and Patrick J. Whalen, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Wiseman, Acting P.J., Levy, J. and Gomes, J.
Appellant Joe Ed Earp was convicted by jury trial of deterring an executive officer from performing a lawful duty (Pen. Code, § 69) (deterring). The jury acquitted appellant of charges of attempted robbery and battery upon a peace officer. In a bifurcated trial, the jury found true allegations that appellant had previously suffered three prior serious felony convictions within the meaning of section 667, subdivisions (c)-(j). After the trial court struck two of the three prior convictions, the court sentenced appellant to the upper term of six years in prison.
On appeal, appellant contends: (1) the trial court erred when it failed to instruct the jury on the offense of resisting a peace officer in the discharge of an official duty (§ 148, subd. (a)(1)) (resisting), and he received ineffective assistance of counsel when his attorney requested instruction on resisting as a lesser related offense to deterring; and (2) the trial court erred when it denied his Marsden motion. We disagree with appellants contentions and will affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118.
FACTS
A sheriffs deputy, who was looking for a suspect in an attempted robbery, saw appellant on a street not far from the scene of the attempted robbery. Appellant refused to comply with the deputys commands to come over to him; instead, he put his hands in his pockets and yelled profanities. Appellant ripped open his shirt, yelled "Bring it on, pig," and assumed a fighting stance with his fists clenched by his sides.
Other deputies arrived and positioned themselves around appellant. Appellant continued to refuse to comply with the deputies commands to get down on the ground, yelled profanities, and put his hands back in his pockets. Not knowing whether appellant had a weapon, two deputies began hitting appellant with their batons. Appellant swung his fist twice at the head of one of the deputies, hitting him in the right cheek and knocking his glasses off. Eventually, appellant was taken to the ground, and although he refused directions to put his hands behind his back, the deputies were able to pull appellants arms from beneath his body and place handcuffs on him.
Appellant, who testified in his own defense, claimed that he put his hands in his pockets because he did not want the deputy to feel threatened, and he refused to comply with the commands to take his hands out of his pockets because he believed the deputy would then shoot him. Appellant denied trying to hit anyone, but acknowledged that when he was struck with a baton, his hand "automatically" went up.
DISCUSSION
A. Jury Instructions on Resisting an Officer
At trial, defense counsel requested the trial court to instruct the jury on the offense of resisting as a lesser related offense to deterring. The prosecutor objected. The trial court refused the instruction, stating that it could instruct on lesser related offenses only "in the absence of objection and/or under some other circumstances which dont appear to apply here." Appellant contends this was error, arguing that resisting is a lesser included offense to deterring. On that basis, appellant contends the trial court was required to instruct the jury on resisting and, to the extent we might treat his claim as waived because his attorney requested instruction on resisting as a lesser related, instead of a lesser included, offense to deterring, his attorney was ineffective. Finally, appellant contends that failure to instruct the jury on resisting deprived him of his federal constitutional right to have the jury instructed on the defense theory of the case.
As appellant notes, the trial court has a sua sponte duty to instruct on lesser included offenses supported by substantial evidence. (People v. Lee (1999) 20 Cal.4th 47, 61; People v. Breverman (1998) 19 Cal.4th 142, 154, 161-162; People v. Barton (1995) 12 Cal.4th 186, 201, 203.) "Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117.)
Appellants claim that the trial court was required to instruct on the offense of resisting fails because resisting is not a lesser included offense of deterring. We recently held, in a case published after appellant filed his opening brief, that resisting is not a lesser included offense of deterring under either the statutory elements test or the pleadings test. (People v. Belmares (2003) 106 Cal.App.4th 19, 22-26.) Since resisting is not a lesser included offense of deterring, the trial court was not required to instruct the jury on resisting on that basis, and defense counsel was not ineffective for requesting the instructions as a lesser related offense.
This leaves appellants contention that the trial court was required to instruct the jury on resisting because it was a defense theory of the case. Appellant acknowledges that the court in People v. Birks, supra, overruled People v. Geiger (1984) 35 Cal.3d 510, which had permitted courts to give instructions on lesser related offenses. In Birks, our Supreme Court held that the trial court may not instruct the jury on lesser related offenses requested by the defendant without the prosecutors permission, because to allow such instruction would give "the defendant a superior trial right to seek and obtain conviction for a lesser uncharged offense whose elements the prosecution has neither pled nor sought to prove." (People v. Birks, supra, 19 Cal.4th at pp. 112-113.) Thus, under Birks, the trial court is forbidden from modifying the charging process by instructing on related but uncharged offenses.
Appellant attempts to avoid the force of the Birks holding by arguing that the failure to instruct on resisting was federal constitutional error because it deprived him of his right to present a defense. Appellant claims his theory of defense was that he resisted the officers merely by refusing to comply with their instructions and putting his hands in his pockets, and he unintentionally struck one of the deputies in a reflex action when the deputy struck him with a baton.
We disagree. As one of the reasons for its conclusion, the Birks court stated: "At the outset, we observe that since Geiger was decided, all arguable federal support for its conclusions has been withdrawn. In two post-Geiger cases, the rationale of that decision has been unequivocally repudiated by the United States Supreme Court. [Citations.]" (People v. Birks, supra, 19 Cal.4th at p. 123, italics added.) Birks discussed Schmuck v. United States (1989) 489 U.S. 705, in which the Supreme Court "expressly disapproved the contrary inherent relationship test of [United States v.] Whitaker [(D.C.Cir. 1971)] 447 F.2d 314, on which Geiger had heavily relied. [Citation.]" (People v. Birks, supra, at p. 124.) Birks also discussed Hopkins v. Reeves (1998) 524 U.S. 88, in which the court held that constitutional principles were not violated when a state "denies a capital defendant instructions on a lesser nonincluded offense pursuant to a general rule barring such instructions in all cases, both capital and noncapital. Reeves stressed, among other things, that most states provide for instructions `only on lesser necessarily included offenses in both capital and noncapital cases, and `[w]e have never suggested that the Constitution requires anything more. [Citation.] Like Schmuck, Reeves also identified serious legal and practical difficulties with any requirement that instructions on nonincluded offenses be given in criminal cases. [Citation.]" (People v. Birks, supra, p. 124, italics added.)
Thus, there is no federal constitutional right to an instruction on lesser related offenses in noncapital cases. No federal constitutional rights were violated by the trial courts refusal to instruct on resisting. Furthermore, the Birks court stated that nothing in its holding prevented the defendant "from arguing in any case that the evidence [did] not support conviction of any charge properly before the jury, and that complete acquittal [was] therefore appropriate." (People v. Birks, supra, 19 Cal.4th at p. 136, fn. 19.) Similarly, here, appellant was not prevented from presenting his defense that he did not resist the officers by means of force or violence. In fact, he vigorously argued that theory at trial. Accordingly, we are bound to conclude the trial court was not required to instruct the jury on the lesser related offense, pursuant to Birks.
The federal cases appellant relies on do not address the issue of whether there is a federal constitutional right to an instruction on lesser related offenses, and therefore have no bearing here. (United States v. Escober De Bright (9th Cir. 1984) 742 F.2d 1196; U.S. v. Sarno (9th Cir. 1995) 73 F.3d 1470, 1484-1488.)
B. The Marsden Motion
Immediately after the jury returned its verdict, defense counsel told the court that appellant wanted to hire private counsel to represent him during the bifurcated trial on his prior convictions. The court treated the request as a Marsden motion, conducted a hearing and denied the motion. Appellant argues the court erred in denying his Marsden motion, contending that the court was required to grant the motion because defense counsel stated that it appeared to him that the attorney-client relationship had completely broken down. In the alternative, appellant contends that defense counsels statement required the court to inquire further into the nature of that breakdown before denying the motion. Respondent questions whether appellants request was governed by Marsden, but contends that whether or not it was, the trial court did not err in denying the request.
TRIAL PROCEEDINGS
After the court received a note from the jury that it had reached a verdict, defense counsel, a deputy public defender, told the court that appellant had elected to waive a jury trial on the prior conviction allegations. Before the court took appellants waiver, the court stated that it needed to place on the record the fact that during jury deliberations, the jury had asked for a definition of "moral turpitude," he had met with counsel to discuss the response, all parties agreed what the response would be, and the court wrote out the response, read it to the attorneys, and sent it in to the jury. Appellant wanted to know what the response was. The court read the response to him. Appellant disagreed with the response, and stated "I think we better go to a jury trial on this." The court accepted appellants statement as a request for a jury trial on the prior convictions.
The jury was then called in and its verdict taken. After the jury was polled, the court asked the jury to leave the courtroom for a few minutes and allowed defense counsel to confer with appellant. When proceedings resumed outside the jurys presence, defense counsel told the court that appellant "has just told me that he wishes to hire private counsel to do the bifurcated portion." The court responded it would handle the request as a Marsden motion.
The court began the Marsden hearing by asking appellant if it was correct that he wanted to hire a private attorney to handle the second phase of the trial. Appellant responded: "Yes, sir. I want somebody else. This is bullshit here." The court explained that appellant needed a basis for changing counsel during trial. Appellant responded that he had a basis for it because "anybody à could see I was set up on the whole thing." Appellant explained that he was offered a "deal of six years with 80 percent" if he pled guilty to assault, that the jury came "out with the same thing that they offered me in the beginning," and questioned how the jury found him not guilty of robbery and guilty of assault when there was no evidence supporting the assault. Appellant believed he was convicted of assault "because of the fact of it is now I cant sue." Defense counsel stated that appellant could sue, but appellant responded, "I cant sue because of the fact of it is I was found guilty of the assault on the police officer. If I had been found guilty of the robbery, they would have left me open for a lawsuit against the police. Now I cant sue the police. And you will end up giving me what, the same sentence that you was going to give me in the first place, six years and eight months. I mean, six years with 80 percent." Defense counsel stated it "[c]ould be 25 to life." Appellant responded that it made no difference whether it was six or 25 years because of his age. Appellant further explained that "something is not right here à because the fact of it is if you make somebody a deal and they dont accept that deal, and then 12 people goes in and comes out with the same thing that you offered them, that you offered, dont you think thats a little—looks like something—somebody has been doing something?"
The court asked appellant if he had told the court his reasons for wanting another attorney. Appellant explained that he did not think he had "been represented right," based on the things he had just told the court. The court asked defense counsel if he had any comment. Defense counsel stated:
"Before the court came out he made it clear that he is dissatisfied with my representation. And if I heard him correctly, he has no confidence in me at this point because he thinks there was some collusion somehow involved with the sending back of the note that was sent back. So it seems as though the attorney-client relationship, in my opinion, appears to have broken down to the extent that he has absolutely no confidence in me. During the five minutes that the court gave us alone, although I will not get into what we discussed, the fact of the matter was that it appeared to me that the attorney-client relationship had completely broken down."
The court then denied the Marsden motion.
ANALYSIS
A defendant is entitled to the substitution of counsel if the record clearly shows the defendant is being denied adequate assistance of counsel or the defendant and counsel "`"`have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result ...."" (People v. Barnett (1998) 17 Cal.4th 1044, 1085, quoting People v. Memro (1995) 11 Cal.4th 786, 857.) A trial court must afford a defendant an opportunity to explain and provide specific instances of inadequate performance when the defendant seeks substitution of appointed counsel. The courts denial of a Marsden motion will not be disturbed on appeal unless the trial court abused its discretion. (People v. Barnett, supra, at p. 1085.) The trial court does not abuse its discretion in denying such a motion unless the defendant shows that failure to substitute counsel would "`substantially impair" the defendants right to assistance of counsel. (Ibid., quoting People v. Webster (1991) 54 Cal.3d 411, 435.)
Although appellant did not raise the issue in his opening brief, respondent questions whether Marsden even applies here, since appellant asked to hire private counsel. When a defendant who is represented by a court-appointed attorney requests that he or she be allowed to retain private counsel in place of the court-appointed attorney, the court has a duty to inquire into the reasons why a defendant seeks to discharge counsel, i.e., hold a Marsden hearing, "only when the defendant asserts directly or by implication that his counsels performance has been so inadequate as to deny him his constitutional right to effective counsel." (People v. Molina (1977) 74 Cal.App.3d 544, 549.) In the absence of an assertion of inadequate performance, the court may treat the request as a motion for a continuance to obtain new counsel, which motion the court may deny, in its discretion and without further inquiry, if it is made during trial. (Id. at pp. 548-549.)
Here, in deciding to handle appellants request as a Marsden motion, the court presumably concluded that appellant had asserted, at least indirectly, that his counsels performance was so inadequate as to deny him his constitutional right to effective counsel. Neither party contends that the trial court erred in handling appellants request as a Marsden motion. The question remains whether the trial court abused its discretion in denying the motion.
We find no abuse of discretion. Appellant admits that he did not demonstrate by his own statements sufficient cause under Marsden for substitution of counsel. Instead, appellant contends that his counsels statements that there was a complete breakdown in the attorney-client relationship left no support for a contrary ruling. We disagree.
The existence of an irreconcilable conflict making ineffective representation likely to result was a question for the court. Counsel saying so did not make it so, as shown by a recent capital case where the defendant urged error in denial of his motion to remove his attorney, which was made after the guilt phase was completed but before the penalty phase began. He raised various disputes, and stated that the "relationship has broken down" and "[h]e had no `trust or `confidence in counsel." (People v. Smith (2003) 30 Cal.4th 581, 605, petn. for cert. filed Oct. 9, 2003.) Defense counsel agreed that, based on the defendants statements, the relationship had broken down. (Ibid.) The trial court found that the defendants specific complaints were insufficient because they involved tactical decisions, and "`the apparent breakdown in the relationship was not `controlling, because defendant `could not have reasonably expected, based upon the law and the facts of this matter, defense counsel to have done anything other than what was done to this stage of the proceedings." (Ibid.) No error was found.
Our high court wrote:
"Defendant cites his claim that his relationship with counsel had `broken down and counsels statement that he could not disagree that the `relationship [has] broken down to the extent that I can no longer competently represent [defendant]. However, counsels statement was based on what defendant had told the court and does not itself compel the court to grant new counsel. 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. (People v. Berryman (1993) 6 Cal.4th 1048, 1070 à.) 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. (People v. Barnett[, supra,] 17 Cal.4th 1044, 1086 à.) 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. (People v. Smith (1993) 6 Cal.4th 684, 696 à.)" (People v. Smith, supra, 30 Cal.4th at p. 606.)
The court concluded that the "defendant did not make such a compelling showing of a conflict between himself and counsel that the court had to grant the motion." (People v. Smith, supra, 30 Cal.4th at p. 607.)
Similarly here, appellant did not make such a compelling showing of a conflict between himself and counsel that the court had to grant the motion. Appellants asserted distrust arose from his disagreement with the response given to the jury about the definition of "moral turpitude." When the court asked for the basis of appellants complaints against his attorney, appellant explained that he believed he was "set up" because the jurys verdict deprived him of the ability to sue the police, and he was suspicious because, in his mind, the verdict resulted in the same sentence he was offered in a plea bargain before trial. None of appellants complaints focused on his attorneys performance. Although defense counsel stated that appellant thought he was involved in "some collusion" with respect to the note, the trial court could reasonably conclude that appellant was using the note issue as an excuse for noncooperation and manipulating the court with a Marsden motion during trial. (See People v. Smith, supra, 30 Cal.4th at p. 607 ["A court may not automatically deny a motion for new counsel during trial no matter what the showing, but it should grant such a motion only when the defendant demonstrates that counsel is truly providing inadequate representation or that a total breakdown in the relationship has occurred that the defendant did not cause"].)
The court could also reasonably conclude that appellant caused any breakdown in his relationship with defense counsel, and that any conflict that existed could be worked out. Appellants difficulties with his attorney were due in some measure to communication problems, whether real, perceived or manufactured. We do not see the professed communication difficulties as compelling the trial court to grant appellants motion. Such problems are not uncommon whenever an attorney is required in a lawsuit to communicate with a client untrained in the complexities and technicalities of the law. In this case, appellants dissatisfaction was based on his belief that he was "set up" because he was acquitted of the robbery charge but convicted of "assault" and his disagreement with the definition of "moral turpitude" given to the jury. These beliefs, however, do not compel a finding that appellant could not cooperate with his attorney in the future, or that any conflict was irreconcilable.
Defense counsels view that the lawyer-client relationship had broken down was equally not compelling. The trial court is not bound to accept the appraisal of a defense counsel who may be only too happy to get out from under a difficult representation. In fact, the asserted breakdown was apparently a product of appellants distrust about the jurys verdict. There was nothing concrete adduced at the hearing which supported a conclusion that defense counsel could not adequately represent appellant despite the difficulties he had with appellant. Appellants general expression of his lack of confidence in his attorney was not sufficient as a matter of law to authorize a change in appointed counsel. (People v. Smith, supra, 30 Cal.4th at p. 606.)
Appellants contention that the court had a duty to inquire further into the asserted breakdown is also without merit. The chief basis for the asserted breakdown was the jurys note requesting a definition of "moral turpitude" and the response given. The court was well aware of the circumstances surrounding the formulation of the response to the note, and knew that there was no basis for appellants belief that collusion was involved. As this was the only asserted basis for the breakdown in communication, no further inquiry was necessary, unlike the case cited by appellant, People v. Cruz (1978) 83 Cal.App.3d 308, where the courts failure to inquire further into the defendants assertion that there was conflict of interest with the public defenders office left a "silent record making intelligent appellate review of defendants charges impossible." (Id. at p. 318.)
In sum, the record does not support a conclusion as a matter of law that the trial courts failure to replace defense counsel would "`substantially impair" appellants right to the effective assistance of counsel. (People v. Webster, supra, 54 Cal.3d at p. 435.) There was no showing either that defense counsel was not providing adequate representation or that appellant and his counsel had become embroiled in such an irreconcilable conflict that ineffective representation was likely to result. (People v. Memro, supra, 11 Cal.4th at p. 857.)
DISPOSITION
The judgment is affirmed.