Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. 1064916, of Stanislaus County. Donald E. Shaver, Judge.
A.M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
A jury convicted Victor Lopez and his codefendant Antonio Barajas of first degree murder and found true criminal street gang allegations. The trial court sentenced Lopez to 25 to life for first degree murder and Barajas to 50 to life for first degree murder and a firearm enhancement the jury found true as to him. Lopez and Barajas appealed. In a partially published opinion, we rejected Lopez’s and Barajas’s evidentiary claims, challenges to jury instructions, and assertions of cumulative error. (People v. Lopez (2008) 168 Cal.App.4th 801, 803-804 (Lopez).) We agreed with their contention that the Penal Code section 1203.11 restitution fines the trial court imposed must be stricken from the judgments since neither Lopez nor Barajas received a grant of probation, and accordingly remanded with directions to the trial court to strike the fines. We otherwise affirmed Barajas’s judgment. (Lopez, supra, 168 Cal.App.4th at p. 804.)
With respect to Lopez, while we rejected his claim that “his deputy public defender’s representation of him after the disclosure of a prosecution witness’s prior representation by her office was a conflict of interest,” we agreed the trial court erred when it denied his midtrial motion, made pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), as untimely. (Lopez, supra, 168 Cal.App.4th at p. 804.) Accordingly, we reversed his judgment and remanded with directions to the trial court to conduct a posttrial Marsden hearing and exercise judicial discretion to order a new trial, reinstate the judgment, or proceed otherwise as authorized by law. (Lopez, supra, at p. 804.)
We previously granted Lopez’s request to take judicial notice of the appellate record in case No. F053389.
The trial court conducted the ordered Marsden hearing. At its conclusion, the trial court denied the motion, reinstated Lopez’s conviction and sentence and struck the Penal Code section 1203.11 restitution fine. Lopez again appeals, asserting the trial court erred in denying the motion. We will affirm.
FACTS
The facts of Lopez’s offenses are described in our prior opinion, Lopez, supra, 168 Cal.App.4th at p. 803.
As explained in our prior opinion, three in camera Marsden hearings were held before trial at which Lopez sought substitution of attorneys on the ground of a conflict of interest with the public defender’s office. (Lopez, supra, 168 Cal.App.4th at p. 809.) At the first hearing, on September 14, 2005, after Lopez stated he wanted to know if the public defender’s office had represented witnesses in his case, his attorney told the court she explained to Lopez the conflict checks she performed on potential witnesses did not show any conflicts her supervisor would accept and her supervisor would not approve declaring a conflict on former clients unless there was something very special about the situation. The trial court denied the motion, finding defense counsel had checked for conflicts and properly kept Lopez advised. (Lopez, supra, 168 Cal.App.4th at pp. 809-810.)
At the second hearing held eight days later, Lopez’s attorney revealed she found out the day before that another public defender and that defender’s client had attempted to negotiate a deal with the district attorney’s office in exchange for the client’s testimony against Lopez, and private counsel later substituted in for the other public defender. Private counsel refused to let Lopez’s attorney speak with the client. Lopez’s attorney explained that the county public defender told her she was not authorized to withdraw from this case but she should give Lopez all of the information she had about the situation. When the trial court asked if she was declaring a conflict, she replied she was not authorized to do that, but she “put on the record her own ‘considered opinion’ that ‘there was an ethical breach’” and explained her assignment from the county public defender was to equip Lopez with information so he could make a motion on a theory of conflict. (Lopez, supra, 168 Cal.App.4th at p. 810.) When Lopez did so, the trial court found no conflict of interest and denied the motion after noting the prosecutor did not intend to call the former client as a witness. (Lopez, supra, 168 Cal.App.4th at p. 811.)
At the third hearing on August 8, 2006, Lopez informed the trial court the county public defender refused to respond when he asked whether the public defender’s office had represented any codefendant or witness, and he had discovered the public defender’s office represented Hector Solis, a witness in custody on a pending murder case. Lopez’s attorney explained that once she brought the conflict to Solis’s attorney’s attention around the time of his preliminary hearing, the public defender’s office conflicted off the Solis case. Lopez also informed the court the public defender’s office had represented other witnesses against him. While his attorney acknowledged the public defender’s office had represented some of those witnesses at some time, she was not aware of any open cases other than the Solis case. The trial court denied the motion, finding neither a classic witness conflict, nor problems with defense preparation, nor a breakdown of the attorney-client relationship. (Lopez, supra, 168 Cal.App.4th at p. 811.)
During trial, it was disclosed that the public defender’s office had represented a prosecution witness. On May 11, 2007, day 26 of the 42-day jury trial, Lopez’s attorney and another public defender appeared in court. The other public defender said he learned days earlier that his office had represented prospective witness Carlos Chavez on an escape prior but Chavez did not show up as a witness on the case management system shared by the district attorney’s and public defender’s offices, and they did not know anything about that conviction other than that there was one. Neither the public defender nor Lopez’s attorney had spoken with Chavez's former public defender. Lopez’s attorney and her colleague requested a continuance to investigate and confer with the county public defender. The trial court put the matter over to the following week. (Lopez, supra, 168 Cal.App.4th at p. 805.)
Five days later, day 28 of the trial, the trial court and half a dozen attorneys — Lopez’s attorney, her colleague, the county public defender, the prosecutor, Barajas’s attorney and Chavez’s attorney — discussed the circumstances under which Chavez might testify. Chavez’s attorney advised that Chavez was willing to waive any conflict of interest arising from his prior representation by the public defender’s office and testify for the prosecution if he received use and transactional immunity, as well as a release from custody. The prosecutor agreed to the conditions. Lopez’s attorney stated that Lopez told them he did not intend to waive the conflict, which he believed existed due to the public defender’s office’s former representation of Chavez in juvenile court and adult superior court, as well as the representation of him as recently as April of that year. Lopez’s attorney further stated she could not put anything factually on the record because the county public defender, who she contacted when the issue first arose, opined there was no conflict, and had instructed her not to read the Chavez file, speak with Chavez’s former public defender who represented him on the escape case, or declare a conflict. The county public defender explained to the court that he did not see a conflict of interest because he had no information that the public defender’s office received anything confidential from Chavez in their prior representation of him and they did not intend to represent him in the future. (Lopez, supra, 168 Cal.App.4th at pp. 805-807.)
Lopez then asked if the court could put on the record that he “did not waive it” and stated he “want[ed] that conflict.” (Lopez, supra, 168 Cal.App.4th at p. 811.) When the court responded that Lopez’s position was clear, his attorney stated Lopez wanted something else and they were not quite finished. Lopez then asked for a Marsden motion, which Lopez’s attorney said arose from his position with respect to the conflict. (Lopez, supra, at p. 812.) The court stated it understood Lopez’s position, i.e. that he believed there was a conflict while his attorney did not, and that it found there was not a conflict. The court found the Marsden motion was “‘not timely at this point.’” (Lopez, supra, at pp. 812-813.)
The First Appeal
In his first appeal, Lopez argued, inter alia, that (1) his deputy public defender’s representation of him after the disclosure of a prosecution witness’s prior representation by her office was a conflict of interest, and (2) the court erred in denying his midtrial Marsden motion as “‘not timely.’” (Lopez, supra, 168 Cal.App.4th at pp. 805, 809.) On the conflict issue, we noted there was ample indicia of the absence of a conflict of interest, as Lopez’s attorney never represented Chavez or possessed confidential information about him, no one in the public defender’s office received anything confidential from Chavez, and the county public defender instructed Lopez’s attorney not to read Chavez’s file or speak with the public defender who represented Chavez. (Id. at p. 808.) We concluded Lopez failed to discharge his burden on appeal of showing an actual conflict that adversely affected counsel’s performance or “informed speculation with a factual basis in the record about a potential conflict that adversely affected counsel’s performance,” and that the trial court abused its discretion in denying his motion to disqualify counsel. (Id. at p. 809.)
On the Marsden issue, we agreed with Lopez and the Attorney General that the denial of Lopez’s Marsden motion as “‘not timely’” was error. (Lopez, supra, 168 Cal.App.4th at p. 815.) Noting that a criminal defendant is entitled to raise dissatisfaction with counsel at any point in the trial when it becomes clear a deteriorating attorney-client relationship has compromised the defendant’s right to effective legal representation, and that “[f]rom the record of colloquy in open court immediately before his motion, a deteriorating attorney-client relationship is arguably inferable,” we concluded Lopez was not given the opportunity to explain his request for new counsel. (Id. at p. 814.) Accordingly, we reversed the judgment and remanded the matter “with directions to the trial court to conduct a posttrial Marsden hearing and exercise judicial discretion to order a new trial, to reinstate the judgment, or to proceed otherwise as authorized by law.” (Lopez, supra, 168 Cal.App.4th at p. 815.)
The Marsden Hearing Held on Remand
Pursuant to this court’s remand, on April 27, 2009, the trial court conducted a hearing on Lopez’s Marsden motion, at which Lopez appeared with his trial attorney, her cocounsel, and the prosecutor. Before conducting the in camera hearing, the court explained the events that led up to the Marsden motion at issue and that in the Lopez opinion, the appellate court concluded the trial court should not have denied the motion without a hearing. The trial court stated its duty on remand as follows: “And essentially what [the Court of Appeal] said is I shouldn’t have assumed, you know, what Mr. Lopez was going to say at the Marsden motion, and I should have just had it to see if there was something more that should have been brought up at that time. So that’s what we’re going to be doing right now. I say all of that, just to make sure it’s clear that what they don’t want us to do in this motion is to try and relitigate the appeal. They don’t want to hear additional arguments on the conflict of [interest] involving Carlos Chavez or the three Marsden motions that occurred prior to the trial. The point of this hearing is not to review those and see if there was a decision made rightly or wrongly. None of those have been disturbed on appeal. The point of the Marsden is to see if there was some new information that should have been considered at that time that would have affected the public defender’s ability to continue the trial, not to just go back and open up that same can of worms that they already decided was appropriately held. [¶] So if there is any argument on what the scope of the Marsden is going to be pursuant to the appeal, it would be appropriate to do that now in open court, but, if not, we’ll go ahead and close the court and conduct the Marsden motion.”
Lopez’s attorney responded that she saw the hearing in a “slightly different way,” and that Lopez should be given the opportunity to present information to establish his objection that there was a conflict. The court stated Lopez could present any new information that wasn’t presented before, “[a]nd if it means that I do need to go back and reconsider the conflict because of that new information, absolutely. I’m not saying that that result can’t change. But it — it’s — the purpose of it is not just to come in and reargue what we already talked about on that day.”
The court then excused the prosecutor and held an in camera Marsden hearing. The court explained to Lopez that the hearing was confidential and he could speak with complete candor and confidence. The court told Lopez that “in telling me what your concerns are[,]” he should be “as specific as possible,” and if there was “new information that might change the outcome of that, certainly that’s what this hearing is for.” Lopez presented the court with a brief prepared by appellate counsel in the prior appeal. The court explained that the Court of Appeal wanted to “see whether there’s any factual information that they didn’t have before them that they should have had if I had conducted the Marsden hearing.” The court agreed with Lopez that it had prejudged his motion because it had assumed it knew what he was going to say, but stated that was not how it was done and instead it needed to wait and see what Lopez had to say, which was “why we’re here right now.” The court asked Lopez, “What is it you have to say that you couldn’t say then if you would have, if you had had an opportunity?”
Lopez’s attorney stated she thought Lopez was asking the document to become part of the sealed record. The court agreed it would be, but noted it did not contain any facts and was just argument Lopez’s appellate counsel already made to the Court of Appeal, which affirmed the trial court’s decision on the conflict issue with “[t]he only proviso... if [Lopez] was going to tell [me] something at that Marsden hearing that would have changed how [I] viewed it, we need to know that. So if you had something you didn’t get to say, then this is your chance to say it now.” The following exchange then occurred:
“[LOPEZ]: You made the witness waive conflict. If there was no conflict, why did you make him waive the conflict?
“THE COURT: I didn’t make him waive.
“[LOPEZ]: Yeah, you did. You made him waive conflict before you [sic] testified against me.
“THE COURT: His attorney voluntarily said he would waive it.
“[LOPEZ]: It was asked by you.
“THE COURT: May have been. It was his attorney’s choice. That’s not an issue for you, at any rate.
“[LOPEZ]: How can it not if his lawyers were from the public defender?
“THE COURT: Issue is whether or not your attorney had a conflict with you.
“[LOPEZ]: My lawyer was told not to, either of them was told not to by their boss regardless whether there was or wasn’t a conflict. They never had a chance, so they couldn’t even say nothing.
“[LOPEZ’S ATTORNEY]: That would be true.
“[LOPEZ]: So basically even if they felt there was one, they were told not to.
“THE COURT: Okay. Anything else?
“[LOPEZ]: That’s it pretty much.
“THE COURT: Okay, So that is pretty much what we went through on the day we had this hearing on May 16th.
“[LOPEZ]: No, I upset you, and you weren’t listening to me.
“THE COURT: Excuse me?
“[LOPEZ]: I upset you. You weren’t listening to me.
“THE COURT: You may be right about that. That’s why we’re here again.
“[LOPEZ]: I remember, you got mad and red and wouldn’t listen to me.
“THE COURT: Any time that happens, it’s inevitable the judge is going to make a mistake. I should have taken [a] ten-minute[] break, came back and said, Okay. Let’s go ahead, have our Marsden hearing and see what you have to say. So you are absolutely right about that. So that’s why the Appellate Court sent it back, to — to give you that opportunity. I just want to make sure you feel you have had a chance to say everything you want to say.
“[LOPEZ]: I ain’t got nothing else to say.”
The court asked if anyone else had anything. Lopez’s attorney asked the court to consider the factors set forth in People v. Rhaburn (2006) 140 Cal.App.4th 1566, for determining whether a conflict existed. The court looked at the case and reviewed the factors stated therein. The court noted one of the factors included the length of time that elapsed since the witness was represented by the public defender’s office, and stated that in this case, the public defender’s office did not have the file any longer and all they knew was there had been a conviction. Lopez’s attorney responded that was incorrect, as the Chavez matter was pending while Lopez’s case was in trial, and she understood the case was resolved, but she didn’t know “if it was resolved before or after a preliminary hearing.” Her cocounsel stated his recollection was that the escape charge had only very recently settled and had settled in such a way as to provide Chavez some benefits as far as his testimony in Lopez’s trial, and he thought “we represented Mr. Chavez,” in “both the underlying offense, and I’m not sure if we represented him on the escape. I think we might have. My memory is not 100 percent certain on that, but my recollection is the case was not very old. In fact, it would either have still been opened or had just settled.”
In reviewing the other factors, Lopez’s attorney stated she was a member of the public defender’s office at the time of Chavez’s case and the public defender who represented Chavez had left the office about a month before “all of this.” Lopez’s attorney said the county public defender had instructed her to not look at the file or discuss the case with Chavez’s former public defender, and to convey the same directives to cocounsel, which she did. Cocounsel acknowledged neither he nor Lopez’s attorney had information about Chavez’s case other than the fact there had been a conviction and another public defender had represented him. While Lopez’s attorney stated it was possible Chavez’s case was discussed in her presence, since attorneys in her office constantly talk about cases, she acknowledged that if it was, she didn’t remember that at the time of trial.
The court explained that in its view of the appellate court’s decision, representation in and of itself is not a conflict unless some confidential information is obtained that could be used at the expense of the current client and no one was able to precisely articulate what actual conflict there would have been other than the fact the public defender’s office was representing Lopez and Chavez at the same time. The court did not want to go back and reweigh the prior appellate court opinion and didn’t see that it had any more information now than before and “[e]ven if they didn’t have any specific items you mentioned just now, I assume they did, I wouldn’t have decided it any differently given that information.” Based on that, the court found there was not a conflict of interest and “[a]ny information here that is new wouldn’t change my opinion. It wouldn’t have any effect on the appeal.” Accordingly, the court denied the Marsden motion, affirmed the conviction and reinstated the judgment.
DISCUSSION
We remanded this case with directions to the trial court to conduct a Marsden hearing. “When a defendant seeks discharge of his appointed counsel on the basis of inadequate representation by making what is commonly referred to as a Marsden motion, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of counsel’s inadequacy. [Citations.] ‘A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.’ [Citations.] [¶] We review a trial court’s decision declining to discharge appointed counsel under the deferential abuse of discretion standard.” (People v. Cole (2004) 33 Cal.4th 1158, 1190.) A trial court does not abuse its discretion in denying a Marsden motion “‘unless the defendant has shown that a failure to replace the appointed attorney would “substantially impair” the defendant’s right to assistance of counsel.’” (People v. Smith (1993) 6 Cal.4th 684, 690-691; see also People v. Clark (1992) 3 Cal.4th 41, 104.)
Lopez first contends the trial court violated the remand order when it failed to explore the deterioration of his relationship with his attorney. We disagree. The trial court explained to Lopez the hearing’s purpose was to give him the opportunity to say what he would have said had the trial court held the Marsden hearing when Lopez requested it during trial, and the issue was whether his attorney had a conflict with him. The trial court gave Lopez ample opportunity to express any dissatisfaction with counsel he may have had. Lopez failed to do so. Instead, he revisited the conflict of interest issue relating to Chavez. Lopez said nothing to suggest that he and his trial counsel were embroiled in conflict or that the attorney-client relationship was deteriorating.
The trial court must give the defendant the opportunity to state his grievances against appointed counsel and relate specific instances of claimed deficiencies in counsel’s performance or in counsel’s attitude toward defendant potentially affecting the representation. (People v. Hill (1983) 148 Cal.App.3d 744, 753.) Here, the trial court gave Lopez such an opportunity. Nothing Lopez said established a breakdown in the attorney-client relationship. The trial court complied with our remand order in conducting the Marsden hearing and giving Lopez the opportunity to express his grievances.
Apparently recognizing he did not explicitly complain during the Marsden hearing that his relationship with his trial attorney had deteriorated, Lopez asserts his comments during the Marsden hearing indicate he lost faith in his trial attorney due to the public defender’s office’s concurrent representation of prosecution witnesses and his trial attorney’s orders prohibiting her from declaring a conflict or assisting him in presenting and pursuing his conflict claim. Lopez contends the conduct of the public defender’s office violated his trial attorney’s duty of loyalty to him. Even if a conflict of interest existed — an issue we resolved adversely to Lopez in his first appeal — or his trial attorney breached the duty of loyalty, there is nothing in Lopez’s comments that shows any conflict of interest or breach of duty, either actual or perceived, between Lopez and his trial attorney or a deterioration in their relationship.
We agree with the Attorney General that a defendant’s loss of confidence in his trial attorney, whether due to a claimed conflict of interest or breach of the duty of loyalty, without more, is insufficient to require the trial court to grant the Marsden motion. (See, e.g., People v. Memro (1995) 11 Cal.4th 786, 857 [“‘“[I]f a defendant’s 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”’”]; People v. Bills (1995) 38 Cal.App.4th 953, 961 [“The defendant must give specific examples of counsel’s inadequacies, and cannot rest upon mere failure to get alone with or have confidence in counsel”].) Unlike the cases Lopez relies on, Daniels v. Woodford (9th Cir. 2005) 428 F.3d 1181, 1998, United States v. Adelzo-Gonzalez (9th Cir. 2001) 268 F.3d 772, 779, and United States v. Nguyen (9th Cir. 2001) 262 F.3d 998, 1003, there is nothing in the record here to show that any loss of confidence Lopez might have had in his trial attorney resulted in a complete breakdown of communication or that his trial attorney took any position adverse or antagonistic towards him. We will not presume a breakdown in the attorney-client relationship solely because Lopez questioned his attorney’s ability to declare a conflict or stated his belief that a conflict existed in the public defender’s office.
Lopez cites a number of cases which he contends shows concurrent representation of clients with adverse interests constitutes a conflict of interest and breach of the duty of loyalty, including Flatt v. Superior Court (1994) 9 Cal.4th 275, 289, Anderson v. Eaton (1930) 211 Cal. 113, 116, Jeffrey v. Pounds (1977) 67 Cal.App.3d 6, 10-11, Cinema 5, Ltd. v. Cinerama, Inc. (2nd Cir. 1976) 528 F.2d 1384, 1386-1387, and Grievance Committee v. Rottner (1964) 152 Conn. 59, 65-66. He does not argue we should revisit our decision in the prior appeal that Lopez failed to satisfy his burden of showing a conflict of interest. He would be hard pressed to do so, as the scope of the issues before us is determined by the remand order, which limited the trial court’s consideration solely to Lopez’s Marsden motion. (See People v. Deere (1991) 53 Cal.3d 705, 713; People v. Murphy (2001) 88 Cal.App.4th 392, 396-397.) Instead, he asserts the conflict of interest and breach of duty of loyalty shows a breakdown in the attorney-client relationship. As we have explained, regardless of whether a conflict of interest or breach of duty existed, there is nothing in the record to suggest such a breakdown occurred.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Poochigian, J.