Opinion
F069692
08-14-2017
THE PEOPLE, Plaintiff and Respondent, v. NERSES TASCHYAN, Defendant and Appellant.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F08905779)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge. John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Nerses Taschyan appeals from his conviction on one count of first degree murder (Pen. Code, § 187, subd. (a).) Appellant contends his due process and state constitutional rights were violated when the trial court replaced his counsel before his retrial. For the reasons set forth below, we affirm.
The record reveals several spellings for appellant's surname, including Tashchyan and Taschian. On May 12, 2014, the court made a true name finding, concluding appellant's last name is Taschyan.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of the underlying crime are not heavily disputed and, as the issues in this case are procedural, are generally recounted for context. On or around September 7, 2008, police responded to the home of Albert and Kristina Taschian, where they found Souren Avetisian dead on the floor from gunshot wounds. Albert Taschian is appellant's son and Kristina Taschian is Avetisian's daughter. Avetisian had been babysitting the Taschian's children that evening.
A trail of blood led from the Taschian's home to appellant's home across the street. When contacted, appellant had a wound to his finger and blood splatter on his pants. He ultimately admitted to shooting Avetisian and provided differing reasons why, including being too drunk to recall and because of a struggle over the gun. Appellant also claimed to suffer from mental impairments, including dementia, resulting from a past head injury.
Relevant to the claims before us, Fresno County Public Defender James Lambe represented appellant at his first trial, which resulted in a hung jury on May 24, 2012. In that matter, the jury allegedly came to an 11 to 1 stalemate in favor of a guilty verdict. On August 9, 2012, prior to appellant's scheduled retrial, appellant made a motion to have his counsel replaced. Appellant complained at the time that he wanted an earlier trial date than his counsel was proposing. The court and Lambe identified an earlier date which appellant accepted and the motion was denied. That date was later extended and, on April 22, 2013, appellant again requested a chance to discuss his concerns with counsel. At his hearing, appellant argued Lambe was refusing to introduce certain medical records appellant believed would be helpful to his case. Lambe explained the basis for his decision not to introduce the disputed evidence and the trial court denied appellant's purported motion to relieve counsel.
Yet again, on May 16, 2013, appellant requested to have his counsel replaced. At this hearing, appellant complained about excessive delays in scheduling his trial and the failure to introduce the same medical information identified in the prior hearing. Appellant also complained that his counsel had not planned to call several potential witnesses to testify about appellant's relationship with Avetisian and that he had not received certain case documents. Lambe again explained the reasons for his conduct, before raising another point of contention, noting that appellant refused to accept Lambe's statements that the prior jury voted 11 to 1 for conviction. Appellant apparently believed the jury voted 11 to 1 for an acquittal, but could not explain why. The trial court again denied appellant's request.
On September 23, 2013, after several additional delays relating to trial scheduling and expert issues, the court held another hearing regarding Lambe's representation of appellant. In open court, following confirmation that both sides were ready to proceed to trial, the court asked Lambe if there were "any issues that you want to take up with the court relative to your ability to proceed to trial on behalf of [appellant] at this time?" Lambe responded affirmatively, adding, "There are some Marsden issues as we apprised the court in chambers." (Italics added.) The court then closed the courtroom for further proceedings.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden). --------
In the closed portion of the hearing, the court began by asking Lambe whether there were issues related to competency or trust which could jeopardize appellant's right to effective assistance of counsel. Lambe stated there were and identified recurring issues, such as expert witness testimony, the calling of certain witnesses, and disputes over how the first jury voted, that Lambe stated were still problematic. The trial court then asked appellant whether he wanted a new attorney. Appellant stated, "I want that Mr. Lambe to stay with me" before immediately raising a concern that Lambe had not provided him with certain documents relating to his expert evaluation. The court further questioned appellant as to why he did not relate well to his counsel, to which appellant replied, "Because I don't have the documents, the copies of those documents, that's why I'm getting suspicious." On continued questioning, appellant stated he lacked confidence and trust in Lambe "because he's not giving those to me and this is my right to have those" documents.
The court then asked Lambe if the issues discussed would affect his ability to provide effective assistance of counsel. Lambe expressed concern it would, particularly because appellant "insists on believing that I am lying to him about the direction that the jury was hung in and that he chooses to believe the jury in the first trial was hung 11 to 1 in his favor and, in fact, they were hung 11 to 1 against him. I think that is where I'm at." At this point appellant interjected, stating, "What is the proof? Where is the proof? Let me see the proof. [¶] ... He never showed me the proof that 11 was against me." The court asked Mr. Lambe to further explain the basis of their allegedly broken relationship, to which Lambe replied, "I think it is more a lack of trust than a lack of competency. There are some competency issues, but there seem[s] to be some very significant trust issues."
At the court's request, Lambe provided a brief recitation of his experience. At the conclusion, appellant interjected, "I know that he's a very good defense attorney." The court then clarified appellant's intent, stating "even recognizing that he's a good defense attorney you're telling me that you really don't have trust or confidence in him." Appellant responded, "Yes, because—because he doesn't show me any documentations or any medical documents or evaluation. I'm scared. It's possible that he doesn't even like me or he doesn't love me."
Based on this colloquy, the court stated its "opinion that it appears that there has been a breakdown in the relationship between attorney and client to the extent that it could jeopardize the defendant's right to effective assistance of counsel" based on "an inability to work with the defendant to present a defense." As such, the court relieved the public defender as the attorney of record and stated new counsel would be appointed.
Appellant was subsequently retried with his new counsel and convicted of first degree murder on May 20, 2014. This appeal timely followed.
DISCUSSION
Appellant raises two independent allegations of error, both tied to the trial court's decision to remove Lambe as appellant's attorney. First, appellant claims the trial court violated his due process rights by discussing the bases for removing Lambe outside of appellant's presence. Second, appellant contends the trial court violated his right to counsel under California law when it replaced Lambe. Appellant's Due Process Claim
Relying primarily on People v. Hill (1983) 148 Cal.App.3d 744 (Hill), appellant contends the court violated his due process rights by discussing issues related to his relationship with counsel outside of his presence. We do not agree.
Hill involved a situation where a defendant sought to replace his trial counsel but the trial court responded to his complaints by speaking with counsel about the request through off-the-record communications that excluded the defendant. The court did not disclose counsel's responses on the record, but alluded to them throughout the relevant hearings. (Hill, supra, 148 Cal.App.3d at pp. 753-754.) The reviewing court found such conduct violated the court's duty to base its disposition on the record of the immediate prosecution, resulting in both a silent and incomplete record. (Id. at p. 755.) We do not have the same concerns here.
First, the record does not disclose appellant making a request to replace his counsel in this instance. Thus, the protections alluded to in Hill are not equally applicable. The trial court was under no obligation to provide appellant an opportunity to raise concerns with his counsel in order to vet them in light of appellant's request.
Second, unlike Hill, there is no indication in the record that actual substantive communications between the trial court and counsel occurred regarding this subject. At most, the record demonstrates counsel raised the need to discuss issues relating to the viability of the current attorney-client relationship prior to the actual hearing. Unlike Hill, the court did not vaguely refer to any substantive discussions that occurred off the record, nor did the court proceed as if it was aware of the specific issues before it. In fact, the record belies such discussions occurred as Marsden hearings are taken up without the prosecutor present, yet this issue was raised in chambers with no indication ex parte communications had occurred. Moreover, it appears from the record that counsel had previously informed the court of the need for confidential hearings on appellant's concerns before reaching open court, suggesting such off-the-record conversations are limited to informing the judge of upcoming issues. On such a record, it would be improper for us to assume impropriety. Where an allegation is made that the right to be present has been violated, appellant "has the burden of demonstrating that his absence prejudiced his case or denied him a fair trial." (People v. Bradford (1997) 15 Cal.4th 1229, 1357.)
Finally, the court provided a full on-the-record hearing regarding whether to replace appellant's counsel. " 'Due process guarantees the right to be present at any "stage that is critical to [the] outcome" and where the defendant's "presence would contribute to the fairness of the procedure." ' " (People v. Blacksher (2011) 52 Cal.4th 769, 799.) We have no doubt that a hearing on whether to replace appellant's counsel requires appellant's presence and a fair opportunity to be heard. (See Marsden, supra, 2 Cal.3d at p. 124 ["Thus, a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant's offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney. A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention 'is lacking in all the attributes of a judicial determination.' "].) However, the record shows such a hearing was provided. At that hearing, both appellant and counsel were invited to discuss their continuing problems and whether the attorney-client relationship had become irrevocably broken. Our review of the record confirms this hearing was sufficient to satisfy appellant's due process rights. Appellant's Right to Counsel Claim
Appellant also argues the trial court abused its discretion when it removed Lambe as his appointed attorney. Appellant claims the record is insufficient to support the court's decision. We do not agree.
Standard of Review and Applicable Law
"The California Constitution gives a criminal defendant the right to an attorney who must competently represent the defendant. But, as [the California Supreme Court has] often pointed out, the state Constitution does not give an indigent defendant the right to select a court-appointed attorney." (People v. Jones (2004) 33 Cal.4th 234, 244.) "The removal of an indigent defendant's appointed counsel, which occurred here, poses a greater potential threat to the defendant's constitutional right to counsel than does the refusal to appoint an attorney requested by the defendant, because the removal interferes with an attorney-client relationship that has already been established." (Ibid.) This relationship "involves not just the casual assistance of a member of the bar, but an intimate process of consultation and planning which culminates in a state of trust and confidence between the client and his attorney. This is particularly essential, of course, when the attorney is defending the client's life or liberty." (Smith v. Superior Court (1968) 68 Cal.2d 547, 561.)
"A trial court may remove defense counsel, even over defendant's objections, 'in order to eliminate potential conflicts, ensure adequate representation, or prevent substantial impairment of court proceedings ....' [Citation.] On appeal, the trial court's removal of counsel is reviewed for abuse of discretion. ' "A court abuses its discretion when it acts unreasonably under the circumstances of the particular case." ' [Citation.] 'Inherent in the question whether a trial court may disqualify a criminal defense attorney over the defendant's objection is the conflict between the defendant's preference to be represented by that attorney and the court's interest in "ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." ' " (People v. Richardson (2008) 43 Cal.4th 959, 995-996.)
The Trial Court Did Not Abuse Its Discretion
Contrary to appellant's arguments, the record provides a sufficient basis for the trial court to exercise its discretion to replace Lambe in order to ensure appellant received adequate representation. While it is true that appellant stated his desire to proceed with Lambe, the history and full colloquy between the court, Lambe, and appellant demonstrates a substantial problem with the attorney-client relationship between Lambe and appellant. On at least three prior occasions, appellant raised concerns about Lambe's representation. Although the court discussed appellant's complaints with Lambe in open court, and ultimately found they were not substantial barriers to Lambe's continued representation, the colloquy demonstrates these issues were never resolved. Indeed, the court's questioning demonstrated a broad rift had formed between Lambe and appellant. Appellant's demand for proof regarding the breakdown of the jury's vote in the prior trial, in the face of Lambe's repeated statements concerning the vote tally, supported Lambe's assertion that a breach of trust had arisen in their relationship. Appellant further confirmed a breakdown in the attorney-client relationship and explained the lack of confidence and trust had arisen because appellant had not received certain documents.
Ultimately, however, the court heard a direct concern, raised by Lambe, that the unresolved disputes would affect Lambe's ability to provide effective assistance of counsel. In light of both appellant's and Lambe's statements that a breach of the essential state of trust and confidence required for a proper representation had occurred, the trial court was presented with sufficient evidence to conclude replacing Lambe would be appropriate in this instance. Such a decision is undoubtedly one that must be made sparingly, but in this instance there was sufficient evidence for the trial court to reach its conclusion and, as far as the record reveals, no evidence that appellant would be prejudiced if a competent attorney was selected to replace Lambe. Accordingly, under the circumstances of this case, we conclude the trial court acted reasonably in removing Lambe. There was no abuse of discretion.
DISPOSITION
The judgment is affirmed.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
SMITH, J.