Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA350947, Jose I. Sandoval, Judge.
California Appellate Project, Jonathan B. Steiner, Executive Director, and Nancy Gaynor, Staff Attorney, under appointments by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Susan D. Martynec, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
Defendant and appellant Michael Perez, also known as Michael Lopez, was convicted by jury of sale of a controlled substance in violation of Health and Safety Code section 11352, subdivision (a). Defendant was sentenced to the mid-term of four years, plus two additional years for service of prior prison terms pursuant to Penal Code section 667.5, subdivision (b).
In this timely appeal, defendant argues he was denied effective assistance of counsel as a result of the trial court’s denial of his motion to substitute appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We affirm.
FACTS
Officer Hector Diaz was working in plain clothes as part of a “buy bust operation” on the evening of December 30, 2008. He was wearing a one-way transmitter that allowed his conversations to be monitored. As he was walking with Officer Michael Saragueta, defendant asked Officer Diaz if he was straight, which is street vernacular for being interested in purchasing narcotics. The officer said he was interested in “black, ” which means heroin.
The operation consisted of two detectives, two field processors, eight undercover officers, and six uniformed officers.
Defendant told Officer Diaz to follow him to his girlfriend. After walking one block, defendant approached a female identified as Provencio and told her Officer Diaz needed “one, ” meaning one balloon of heroin.
Provencio told Officer Diaz to put the money on top of the shopping cart. He placed two $5 bills, which had prerecorded serial numbers, onto the shopping cart. Provencio took the money, reached inside her left breast area and removed an orange balloon containing heroin, which she placed on the shopping cart. Officer Diaz picked up the balloon and walked away, giving a signal to let other officers on the team know a transaction was complete. Defendant did not give the officer any narcotics, nor did he exchange money with him. The officer did not see defendant receive money or narcotics from Provencio.
Sometimes persons in that area, who direct others to drug sellers, ask for something in return, but defendant did not do so. A syringe was found on defendant after he was arrested.
Officer Luisa Sanchez was working as a uniformed chase officer for the buy team. She detained Provencio, recovering narcotics and money, including the two prerecorded $5 bills.
Defense Evidence
Defendant testified he saw Officer Diaz walking toward him as defendant was on his way to a friend’s store. The officer approached defendant and asked if he knew where to find “black, ” which defendant understood to mean heroin. Defendant asked where Officer Diaz was coming from and was told from Hollywood. Defendant asked why he did not get the heroin in Hollywood, but was told “it was dry, ” meaning he could not find heroin there. Defendant said he would take the officer to his “girl, ” because defendant just found out “she had some.” Defendant did not know the girl, but he had needed some heroin and she was pointed out to him. He had made one purchase of heroin from her, earlier on that day.
Defendant took Officer Diaz to Provencio, where they did a transaction. He told Provencio that Officer Diaz “needed one, ” meaning one balloon of heroin. Defendant never had possession of the drugs or the money, and did not ask the officer for anything in return for directing him to the seller. Defendant did not have any conversation with Provencio regarding receiving anything for introducing her to a buyer.
After the transaction, defendant walked across the street to the Midnight Mission, where he was detained. Defendant has been using heroin for about ten years and has been in trouble with the law during his adult life, including suffering two felony convictions for stealing and one for possession of a knife. He has no convictions for sale of drugs. Officer Saragueta was not with Officer Diaz. In fact, defendant recognized Officer Saragueta because defendant was arrested by Officer Saragueta on January 28, 2008.
Defendant helped Officer Diaz find a seller because “that’s how it is done down there.” He did not know whether the female would still be there to sell heroin. He did not tell her to sell heroin or set the price, and he had no control over her.
DISCUSSION
Defendant argues the trial court erred in denying his Marsden motion because counsel demonstrated he was not providing constitutionally effective representation. Defendant reasons that counsel advised the trial court of his intent to defend on the basis that defendant did not handle the money or heroin, and thus he did not participate in the transaction. Counsel in fact stuck with that defense at trial, but it was no defense at all, as it was an admission that defendant did everything necessary to be found guilty of furnishing heroin. We reject the contention that the trial court should have removed appointed counsel before trial.
The Marsden Proceedings
On March 3, 2009, defense counsel advised the trial court that “negotiations have stalled” and asked the case be set on day 50 of 60 for trial. Defendant asked to address the trial court “[o]n a conflict of interest” he had with defense counsel. The trial court cleared the courtroom to consider defendant’s claim of conflict of interest in an in camera hearing.
In response to the trial court’s question as to why defendant wanted a new lawyer, defendant said defense counsel “is not putting in his full capability into my case. And we keep bumping heads on a few things.” When the trial court asked for specifics, defendant said he “asked him to file a few motions for me and he’s not granting that.” Defendant said he asked counsel to file a Pitchess motion and “to look into some things.” Defendant believed counsel had “too many cases to put his full capability in my case because I’m looking at some time here.”
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
The trial court questioned what defendant had asked counsel to do other than file the Pitchess motion. Defendant said he was interested in a drug rehabilitation program, as Provencio had already been placed in one. He wanted a program that “can work with me and dismiss my case or give me some other kind of action here. He’s not really putting his full capability into my case and he’s not talking to me. He’s not pulling me out. He’s not doing nothing like that.” The trial court pressed defendant for information, and defendant indicated he is a drug user with a disease and going back to prison would not help him.
Defense counsel told the trial court he had spoken to defendant several times since the preliminary hearing date. Defendant and a codefendant were charged with selling heroin. After discussing the situation with defendant “and based on his account of what happened[, counsel] did not see a factual basis for a Pitchess motion.”
Defendant also asked counsel to file a motion to dismiss based on Penal Code section 1140. Defendant thought Penal Code section 1140 required dismissal of his case once a codefendant pleads guilty, but counsel researched the statute and found it inapplicable. Counsel was unfamiliar with any code section requiring dismissal if a codefendant’s case is resolved by plea.
Penal Code section 1140 provides as follows: “Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.”
Counsel said he had explained to defendant that he did address the trial court and ask the prosecution for an offer involving a program. As to Provencio, who defendant said was placed in a program, counsel discovered she had instead been sentenced to state prison for four years.
Counsel did tell defendant he understood it was codefendant who handled the drugs and the money, and defendant did not participate in any conversation regarding the exchange. He intended to pursue a defense that defendant did not actually participate in the transaction, and that would be supported by the fact that defendant was found with a syringe but no money or drugs.
In conclusion, counsel told the trial court he did not see any basis for a Pitchess motion or a motion under Penal Code section 1140. The trial court denied the motion.
After denying the motion for appointment of new counsel, the trial recommenced public proceedings. In response to the trial court’s inquiry as to the status of settlement, the prosecutor indicated the trial court on an earlier date had offered defendant the low term of three years, but the offer was rejected. The prosecution offer was for the mid-term of four years.
Controlling Principles and Standard of Review
“‘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.’ (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.) When the defendant seeks to remove appointed counsel ‘the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of counsel’s inadequacy. (People v. Cole [(2004)] 33 Cal.4th [1158, ] 1190.) The trial court’s ruling is reviewed for abuse of discretion. (Ibid.)” (People v. Panah (2005) 35 Cal.4th 395, 431.)
Complaints consisting of “nothing more than tactical disagreements between defendant and counsel” do not constitute a basis for substitution of appointed counsel. (People v. Panah, supra, 35 Cal.4th at pp. 431-432.) Where the evidence of a defendant’s guilt is overwhelming, defense counsel is “not obliged to pursue futile lines of defense simply because defendant demanded them, and his refusal to do so did not justify his removal as counsel. (People v. Welch (1999) 20 Cal.4th 701, 728-729 [‘Tactical disagreements between the defendant and his attorney do not by themselves constitute an “irreconcilable conflict”’].)” (People v. Panah, supra, at pp. 431-432.)
“The issue in a Marsden hearing is whether the continued representation by an appointed counsel would substantially impair or deny the right to effective counsel. (Marsden, supra, 2 Cal.3d at p. 123; see also People v. Carr (1972) 8 Cal.3d 287, 299.) ‘Ineffective assistance of counsel is the underlying plank which supports the Marsden rule.’ (People v. Maese (1980) 105 Cal.App.3d 710, 723.) In contrast, when a defendant attacks a verdict on the ground of inadequate assistance of counsel the focus is not just upon whether the representation actually received was competent. The inquiry is also focused on whether counsel’s challenged acts or omissions were prejudicial to the defendant. (People v. Pope [(1979)] 23 Cal.3d [412, ] 424-426[, disapproved on a different ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10]; see also Hill v. Lockhart (1985) 474 U.S. 52.) Thus, the Marsden rule is preventative while the Fosselman rule is remedial. Marsden looks to the future; Fosselman evaluates the past. Although both cases are based on the right to counsel, a ruling in one does not ipso facto support a ruling in the other.” (People v. Dennis (1986) 177 Cal.App.3d 863, 870-871.)
People v. Fosselman (1983) 33 Cal.3d 572, 582-583 held that a defendant could base a motion for new trial on ineffective assistance of counsel grounds.
Discussion
We reject defendant’s argument that the trial court should have removed counsel as being constitutionally ineffective on the basis of counsel’s statements at the Marsden hearing regarding the potential defense. As we read the record, trial counsel did the best he could in the face of a seemingly insurmountable prosecution case and an intractable defendant, who rejected reasonable settlement offers and insisted on going to trial and testifying unless he were placed in a drug program and the charge dismissed. The trial court had no basis for concluding at the Marsden hearing that defense counsel was ineffectively representing defendant, because the record was entirely to the contrary.
The trial court gave defendant every opportunity to express his dissatisfaction with counsel at the Marsden hearing. Defendant’s primary complaint was that he was not being offered a drug program and dismissal of the charge, as codefendant had received. His other specific complaints were that counsel was not giving a complete effort on the case, there were disagreements between them, and counsel had not made motions requested by defendant.
In response to defendant’s complaints, counsel explained that he had asked the trial court and prosecutor for a drug program for defendant, but was unsuccessful. In addition, defendant was incorrect when he told the trial court codefendant had been placed into a drug program, because she had been sentenced to state prison for four years. Contrary to defendant’s claims, counsel had spoken with defendant several times following the preliminary hearing. Finally, there was no legal or factual basis for the motions pursuant to Pitchess or Penal Code section 1140.
We reject the notion that the trial court should have removed defense counsel at the Marsden hearing on the basis that his proposed defense was no defense at all. First, the trial court was in no position to make such a determination at the pretrial stage, as the facts had not been developed. Second, counsel was following the only possible defense, in view of the prosecution and defense evidence. Third, the record at the Marsden hearing demonstrated that counsel was zealously representing defendant, but that defendant’s rejection of reasonable settlement offers forced counsel into a position of having to assert a defense that was a long shot to succeed. Fourth, defendant did not suggest to the trial court that a more effective defense was available-in other words, had counsel been replaced and new counsel appointed, defendant could not explain what a new attorney might do differently that would result in a more favorable result to defendant.
Although defendant on appeal characterizes trial counsel’s strategy as being destined to lose, defendant does not offer an alternative, even with the benefit of hindsight, and none is apparent in light of defendant’s decision to exercise his constitutional right to testify. (See People v. Robles (1970) 2 Cal.3d 205, 215 [right to testify is of such fundamental importance that the defendant, not defense counsel, determines if the defendant takes the stand]; People v. Johnson (1998) 62 Cal.App.4th 608, 618 [“A criminal defendant has the right take the stand even over the objections of his trial counsel.”].) Considering defendant’s testimony was essentially consistent with the prosecution evidence as to the material facts with only minor discrepancies, defense counsel had little room to maneuver at trial. Defendant’s decision to reject settlement placed counsel in the impossible position of defending what proved to be an indefensible case.
Given the limited options available to defense counsel, he took the only reasonable approach at trial, hoping to create a reasonable doubt that defendant’s conduct rose to the level of criminal involvement in a drug transaction. Throughout trial, counsel stressed defendant’s lack of involvement in the actual drug sale and the fact defendant was a heroin user rather than a seller. Counsel pointed out inconsistencies in the prosecution case. He argued that had a recording been made of defendant’s conversation with Officer Diaz, it would have impeached the officer’s version of that conversation. Counsel questioned the excuse for not having a recording-purportedly that it would be too expensive-in light of commitment of up to 20 officers to the operation.
In sum, this is simply not a case in which defense counsel abandoned his client. To the contrary, counsel zealously represented defendant in the pretrial stages, as well as at trial. That the case resulted in a guilty verdict is not the product of counsel’s representation, but rather the result of defendant’s aiding and abetting the sale of heroin, and his unreasonable decision to reject pretrial settlement offers.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.