Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 05WF3084, Nho Trong Nguyen, Judge. Affirmed.
Anita P. Jog, 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, Jeffrey J. Koch, Deputy Attorney General, for Plaintiff and Respondent.
SILLS, P. J.
A jury found Patricia Lyn Reush guilty of possessing methamphetamine. The trial court suspended imposition of sentence and placed Reush on formal probation for three years, which included a requirement she complete a drug treatment program pursuant to Penal Code section 1210, subdivision (a), also known as Proposition 36 (Prop. 36). Reush contends the trial court violated her Sixth Amendment right to counsel and abused its discretion by denying her motion to substitute counsel made on the first day of trial. We find no merit in her contention and affirm the judgment.
I
FACTS AND PROCEDURAL HISTORY
On August 25, 2005, Cypress Police Officer Jody Kozakowski and her partner were dispatched to investigate a report of a mentally ill person causing a disturbance in a Cypress neighborhood. The officers drove to the neighborhood and found Reush and her husband together in the front yard of their home. Reush was crying and visibly upset. Kozakowski heard Reush say to her husband, “Don’t leave me.” Kozakowski’s attempt to speak to Reush failed because Reush was crying, “babbling,” and repeatedly said she was “going to fly away.” At one point, Reush dropped a small baggie containing a white powder. Kozakowski recognized the white powder as methamphetamine and placed Reush under arrest. A search of Reush’s person yielded another baggie of methamphetamine and $200.
Paramedics arrived at the scene and examined Reush. They determined she needed to go to the hospital, but she resisted, “thrashing around wildly” and screaming to the point the paramedics used physical restraints to control her. After the paramedics took Reush away, Kozakowski interviewed Reush’s husband and son. She got permission from Reush’s husband to search their home. In Reush’s home, Kozakowski found methamphetamine inside a woman’s purse in a room Reush’s husband said his wife used. Later that night, Reush’s husband found another baggie of methamphetamine and turned it over to police.
On November 4, 2005, the district attorney filed a felony complaint alleging one count of possession of methamphetamine for the purpose of sale. On November 21, Reush, who was not in custody, appeared in propria persona for her arraignment. She requested the appointment of the public defender and completed a financial declaration form, but the court denied her request. On December 6, she appeared without an attorney and the case was continued. Sometime before her next appearance date of December 21, Reush retained an attorney. On December 21, with the assistance of counsel, Reush pleaded not guilty to the charge, and the court set a pretrial date in January 2006. Reush and her retained attorney made five additional court appearances before the preliminary hearing was held on April 17.
On April 26, Reush was charged by information with possession of methamphetamine for the purpose of sale. On May 5, Reush appeared in court without her retained attorney. Reush again requested the appointment of the public defender, and the court reviewed her financial declaration. However, this time the court determined she was qualified for appointed counsel. The court appointed the public defender and set a May 30 trial date. This date was vacated at a pretrial conference and reset for July 24. The trial was continued again on July 24 and August 28. On August 28, another attorney made a special appearance for Reush’s appointed attorney. Substitute counsel requested the trial be trailed to August 30. Reush and her appointed attorney appeared on August 30, but the trial was continued to September 11 for reasons not reflected in the record.
On September 11, Reush and her appointed attorney appeared for trial. Defense counsel informed her client of the district attorney’s stated intention to amend the information and allege simple possession of methamphetamine, dismiss the charge of possession of methamphetamine for the purpose of sale, and offer Reush diversion in exchange for a guilty plea. Reush told appointed counsel she wanted a new attorney. Her attorney relayed this information to the court. Without further inquiry, the court ordered the deputy district attorney and audience members to leave the courtroom for a Marsden hearing.
See People v. Marsden (1970) 2 Cal.3d 118.
At the hearing, Reush explained that she wanted to “change” her attorney because her appointed attorney had not made every court appearance, failed to telephone her home or make appointments with her, failed to ensure that her husband and son were subpoenaed for trial, and failed to follow up on facts and circumstances Reush thought pertinent to her case. Reush told the court, “They are waiting until the last minute to do everything and I don’t feel that she’s — she even knows my case.” The court pointed out that Reush’s attorney had been in trial on the one day another attorney made a substitute appearance, and explained that the deputy district attorney had already subpoenaed her husband. The court told Reush that both sides do not have to subpoena the same witnesses.
Reush continued to complain, saying she felt “railroaded” and like she had been charged for a crime she did not commit. The court tried to explain the procedural background of Reush’s case and observed, “Only you know, and then maybe others know, whether you were in possession of controlled substances or not.” Reush responded, “Well, of course they found it on me. But my husband had also called and they picked some up off of him . . . .” The court tried to differentiate between the concepts of possession and ownership. Although Reush seemed to understand, she said, “I got it out of my house and I was confronting my husband about it.” After several minutes of discussion between Reush and the court, Reush asked for the first time if she could “possibly seek [her] own counsel?” The court responded, “Today is your trial date,” and reminded Reush that her case had been pending since November 2005 before steering the conversation back to the question of whether Reush’s current attorney was providing adequate counsel. After a brief discussion of maximum penalties and the pending plea offer, the court told Reush her attorney had been in court many times and was well qualified to take her case to trial. After a few more minutes of discussion, Reush said, “My sister was willing to lend me some money to get my own attorney and after I spoke to Mr. Freeburg and I think I would like to get him. If I could.” The court responded, “The People are ready to proceed and because of this age of the case — [¶] . . . [¶] . . . They are looking for wanting me to look for a courtroom to run — do some motions and come back tomorrow morning and start your jury selection.”
Reush continued to complain that her current attorney had not properly investigated her case. She accused the arresting officer, the emergency room doctor, and the ambulance attendants of lying and claimed the arresting officer lost the evidence against her. Reush’s attorney explained what steps she had taken to prepare for trial, explained her decision to forgo subpoenaing Reush’s son, and assured Reush and the court that the district attorney had the evidence and could prove chain of custody. Then the court took several more minutes to explain trial practices, jury instructions, the admissibility of evidence and the burden of proof. After this lengthy discussion, the court stated, “All right. So, I’m going to assume, then, that you want to go forward with your trial versus taking the offer.” Reush responded, “Not with her I don’t. I don’t think she’s representing me properly. I would rather get Mr. Freeburg.”
Reush repeated her claims against her attorney, which the deputy public defender again addressed before simply announcing she was ready for trial. The court directed the following comments to Reush: “Let me tell you about case law out there: That the defendant does not have the right to present a defense of his own choosing but merely the right to adequate and competent defense. [¶] Tactical disagreements between the defendant and his attorney, her attorney, do not — by themselves do not constitute irreconcilable conflict, all right. The case law and what I’ve heard today would be a denial of the Marsden hearing. So you have two options to consider.” Reush responded, “I guess I’ll go to trial with her, then, I guess, if that’s all I have: If I cannot get Mr. Freeburg and I have an appointment with him this afternoon.” The court pointed out that Reush would be in trial that afternoon, made some concluding remarks, and ordered the transcript of the hearing sealed.
Jury selection started on the morning of September 12, 2006. The prosecution called the arresting officer, the officer who retrieved additional methamphetamine from Reush’s husband after her arrest, and the county criminalist who analyzed the chemical material.
Reush testified on her own behalf. She claimed the methamphetamine belonged to her husband, and she was merely confronting him about it when she had an anxiety attack. The $200 was her mortgage payment. She did not know Kozakowski arrested her before she left for the hospital, and she thought the methamphetamine Kozakowski found in the purse might have been belonged to her son or his girlfriend.
The jury reached its verdict on September 14, 2006. The court granted Reush’s request for immediate sentencing, and granted Reush formal probation for three years under the terms and conditions required by Prop. 36.
DISCUSSION
Reush’s sole issue on appeal is to challenge the trial court’s ruling on her motion to substitute appointed counsel with retained counsel. She claims the court erroneously considered factors applicable to Marsden proceedings in denying her request, and that the court should have analyzed her motion as a request to substitute retained counsel. The Attorney General counters that no matter how the issue is framed, Reush’s motion for a new attorney was untimely and meritless. We agree.
The substitution of counsel is guided by well-established principles. If the court has appointed an attorney to represent an indigent defendant, “[t]he defendant must demonstrate either that his appointed defense counsel is providing inadequate representation, or that he [or she] is embroiled in an irreconcilable conflict with defense counsel.” (People v. Lara (2001) 86 Cal.App.4th 139, 150; see also People v. Ortiz (1990) 51 Cal.3d 975, 982.) Without this showing, substitution is not warranted.
On the other hand, if the defendant has retained an attorney of his or her own choice, he or she may discharge that counsel at any time with or without cause. (People v. Lara, supra, 86 Cal.App.4th at p. 152.) A trial court cannot deny a defendant this right to discharge retained counsel, and reversal on appeal is automatic should this occur. (Id. at p. 154.)
However, substitution of retained counsel with newly retained counsel is another matter. The trial court has the duty to ensure “orderly and expeditious judicial administration[.]” A court confronted with a request for substitution is justified in denying that request if the defendant has been “‘unjustifiably dilatory or . . . arbitrarily desires to substitute counsel at the time of trial.’ [Citations.]” (Id. at p. 153.) “[T]he ‘fair opportunity’ to secure counsel of choice provided by the Sixth Amendment ‘is necessarily [limited by] the countervailing state interest against which the sixth amendment right provides explicit protection: the interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of “assembling the witnesses, lawyers, and jurors at the same place at the same time.”’” (People v. Ortiz, supra, 51 Cal.3d at pp. 983-984.)
Therefore, the standard of review depends upon whether the defendant has appointed or retained counsel. The trial court’s denial of a Marsden motion is reviewed under the deferential abuse of discretion standard. (People v. Berryman (1999) 6 Cal.4th 1048, 1070.) By contrast, reversal is automatic when the court improperly denies a defendant’s right to discharge retained counsel. (People v. Lara, supra, 86 Cal.App.4th at p. 154.) Nonetheless, “Ortiz held the defendant’s right to discharge his retained counsel was not absolute, and the trial court retained discretion to deny such a motion if the discharge (1) would cause ‘“significant prejudice”’ to the defendant, e.g., by forcing him to trial without adequate representation, or (2) was untimely and would result in a ‘“disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.”’ [Citation.]” (Id. at p. 153.)
Reush understandably prefers her case be decided under the more stringent retained counsel standard, but at the time she moved to replace her attorney, Reush was represented by appointed counsel. She articulated no more than a desire to discharge appointed counsel and perhaps then attempt to retain an attorney. This is hardly a proper motion to discharge counsel. Although Reush had been represented by retained counsel from arraignment through the preliminary hearing, the court appointed counsel after the information was filed, approximately five months before the trial date. By September 11, appointed counsel had prepared her case and announced ready for trial. Nothing Reush mentioned during the Marsden hearing established inadequate representation by appointed counsel, nor did she demonstrate they were embroiled in an irreconcilable conflict. In short, it appears Reush sought to delay the proceedings by moving to substitute counsel, not because she actually desired to retain an attorney. At the least, she failed to take the most preliminary steps necessary to retain an attorney.
A criminal defendant’s statutory and constitutional right to counsel of her own choosing cannot disrupt and delay court proceedings without a showing of due diligence and adequate preparation. Reush failed to show either of these things. To the contrary, she waited until the day of trial to alert the court to her unhappiness with appointed counsel. As for retained counsel, Reush simply referred to an attorney by name, but she had not met this attorney, did not know if that attorney was available and could timely prepare for trial, and she had not secured the necessary financial means to employ this attorney even assuming he was available. She represented only that her sister “was” at one time willing to loan her some money, and she had made an appointment with private counsel for that afternoon. In short, Reush was not diligent in her efforts to retain counsel, had not shown a specific conflict with her current appointed counsel, nor established that her current attorney had provided inadequate representation. The trial court was under no constitutional or statutory duty to accede to such a demand and correctly denied Reush’s motion to discharge appointed counsel. (See People v. Turner (1992)7 Cal.App.4th 913, 919.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, J. FYBEL, J.