Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F10185
SIMS, Acting P. J.A jury convicted defendant Charles Grier of two counts of first degree robbery (Pen. Code, §§ 211, 212.5, subd. (b)) and found that he personally used a firearm during the commission of each offense (§ 12022.53, subd. (b)). He was sentenced to state prison for an aggregate term of 18 years eight months.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends his request to discharge his retained counsel was erroneously denied. We shall affirm the judgment.
FACTS
The facts of defendant’s November 18, 2004, offenses are not at issue and need not be set forth in this opinion. Relevant procedural facts will be set forth in the Discussion.
DISCUSSION
Defendant contends the trial court erred by applying Marsden standards to his requests to discharge his retained counsel and appoint the public defender. The Attorney General concedes that the application of Marsden standards was error but contends that it was harmless. We agree with the Attorney General.
People v. Marsden (1970) 2 Cal.3d 118.
Background
The jury returned its verdicts in June 2007. In October 2007, before defendant was sentenced, his retained counsel advised the court that defendant had a motion to relieve counsel and to appoint the public defender. The court responded, “since you are retained, I am going to consider this kind of a quasi-Marsden motion.” The court cleared the courtroom and handled the matter in camera with defendant and his attorney.
Once in camera, the trial court asked counsel, “is this your motion to be relieved, or is this a motion brought by [defendant]?” Counsel responded, “it’s not my motion to be relieved. It is a conjoint discussion between [defendant] and myself coming to a, what we perceive, or [defendant] perceives as a strategic resolution....” Counsel added that there was an economic issue, in that defendant was unable to pay counsel for the services that he needed. Counsel further advised the court that his primary ties were with the Stanislaus County court system, and defendant believed it would be more beneficial for him to have local counsel who knew the Sacramento County court system.
The trial court advised counsel that it was not clear whether counsel was bringing a motion to withdraw as defendant’s attorney or whether defendant was bringing a motion to relieve counsel. Counsel responded, “at this point, yes, I would have a motion to withdraw based on his inability to continue to retain counsel. [¶] And [defendant] also indicated his desire to relieve me as counsel and have somebody local appointed. So it is a combination.” As a result, the court determined that the motion raised two separate issues.
Regarding counsel’s motion to withdraw, counsel represented that he had been retained through trial, which included sentencing if necessary, and that defendant owed approximately $7,000 for services rendered. Although defendant had represented that he would pay the outstanding balance, counsel was not entirely sure if he would do so. The court denied counsel’s motion to withdraw because counsel was near the end of his representation of defendant; it would have been different if counsel had made the motion before a lengthy and costly trial had occurred. The court noted for the record that it felt counsel had done a good job representing defendant and there was nothing in the court’s mind that made it think that counsel was “holding back or somehow giving less than 100 percent.”
The trial court then addressed defendant’s request to relieve counsel. When asked by the court, defendant indicated that it was his desire to remove counsel because he could not pay counsel. The court confirmed its ruling that counsel would have to continue to represent defendant despite the financial arrangements. Thereafter, the court asked if there was any other reason defendant wanted counsel removed. In response, defendant stated that counsel did not know the local court system in Sacramento County and added that it would be to his advantage to have counsel who had such knowledge.
In support of defendant’s request, counsel indicated that he had never practiced in Sacramento County prior to being retained to represent defendant in this matter. In particular, counsel did not have any connections with the probation department or any knowledge of how a sentencing report is prepared in Sacramento County. As a result, defendant believed it would be better if the Sacramento County Public Defender’s Office represented him at that juncture since it had a better understanding of the probation department and how local sentencing reports are written.
The trial court denied the motion to relieve counsel, stating, “I will note for the record that the procedure in California for criminal law, there may be some variances from county to county on how calendars are called, or which judges are assigned to hear trials, but by in [sic] large[,] it is pretty standard. I don’t think there’s anything mysterious to it. If you practice criminal law in one county, you practice it in another. [¶] Again, I will state there was nothing in my observation of [counsel’s] representation of [defendant] that indicated that he didn’t have the experience to handle the type of case that [defendant] faced, the issues that arose in that trial, and in the Court’s opinion, did a stellar performance in representation of [defendant].”
Analysis
The Sixth Amendment right to counsel entitles both indigent and nonindigent defendants to discharge retained counsel. (People v. Ortiz (1990) 51 Cal.3d 975, 982-987 (Ortiz).) “[W]hen a criminal defendant makes a timely motion to discharge his retained attorney he should not be required to demonstrate the latter’s incompetence....” (Id. at p. 979.) However, “[t]he trial court, in its discretion, may deny such a motion if discharge will result in ‘significant prejudice’ to the defendant [citation], or if it is not timely, i.e., if it will result in ‘disruption of the orderly processes of justice.’” (Id. at p. 983.) The Ortiz standard applies to discharge motions made after conviction, but before sentencing. (People v. Munoz (2006) 138 Cal. App.4th 860, 863.) Where discharge is erroneously denied, the judgment is reversed and the case proceeds anew from the point defendant originally sought to discharge his attorney and obtain appointed counsel. (Id. at p. 871.)
The Attorney General concedes that the trial court erroneously applied the Marsden standard when ruling on defendant’s request to discharge his retained counsel and have new counsel appointed. The court denied the request because, in its opinion, (1) retained counsel had the experience to handle this type of case, and (2) counsel had done a stellar job in representing defendant at trial. Neither reason established prejudice to defendant or an unreasonable disruption of the orderly process of justice. (Ortiz, supra, 51 Cal.3d at p. 983.) We accept the Attorney General’s concession.
The Attorney General claims the trial court’s failure to address the Ortiz factors was not prejudicial because defendant’s “request to discharge retained counsel was untimely due to his own conduct.” We agree.
On June 27, 2007, after six days of trial, defendant failed to appear for the jury verdicts. Defendant’s counsel made several efforts to contact him to secure his presence in court for the reading of the jury verdicts, including telephoning defendant’s mother, but to no avail. Consequently, the court found defendant to be voluntarily absent and proceeded with the reading of the jury verdicts without him. The court noted it was “aware of the fact [defendant] at one point in the course of this trial failed to appear on this case and was absent from these proceedings for over a year.”
After the verdicts were read and the jury was dismissed, the court found that defendant had failed to appear. It revoked his bond and issued a bench warrant for his arrest.
Defendant was arrested on the warrant on September 28, 2007, approximately three months after he failed to appear during his jury trial. On October 1, 2007, the matter was called, at which time defendant requested that his counsel be relieved.
“A court faced with a request to substitute retained counsel must balance the defendant’s interest in new counsel against the disruption, if any, flowing from the substitution. [Citations.]” (People v. Lara (2001) 86 Cal. App.4th 139, 153.) Stated differently, the right to counsel can be forced to yield when it will result in a “disruption of the orderly processes of justice.” (Ortiz, supra, 51 Cal.3d at p. 982.)
Thus, a continuance may be denied if the defendant has been “‘unjustifiably dilatory’” in obtaining counsel. (People v. Courts (1985) 37 Cal.3d 784, 790-791.) In this case, defendant’s reasons for discharging his retained counsel existed prior to the three-month delay and could have been brought to the court’s attention immediately following the jury verdict. By instead absenting himself from the proceedings for three months, defendant was “unjustifiably dilatory” as a matter of law. (Ibid.)
Having twice absented himself from these proceedings, once for more than a year and then for three additional months, defendant ensured that virtually any further delay would disrupt the orderly process of justice. Had the trial court considered the Ortiz factors, it would have been duty bound to conclude that defendant’s request was untimely. (Ortiz, supra, 51 Cal.3d at p. 983.) The erroneous application of Marsden standards to defendant’s motion to discharge retained counsel was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].)
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J., CANTIL-SAKAUYE, J.