Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. MJ19146 Robin Kesler, Temporary Judge.
James M. Crawford, by appointment of the Court of Appeal, for Minor and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, P. J.
The juvenile court sustained a petition filed pursuant to Welfare and Institutions Code section 602, and found minor T.F. committed the crime of possessing a weapon on school grounds in violation of Penal Code section 626.10, subdivision (a). On appeal, T.F. contends the trial court erred in failing to conduct a Marsden hearing after his mother indicated displeasure with his appointed counsel. We affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2010, the People filed a Welfare and Institutions Code section 602 petition alleging T.F. had committed two crimes: being a disruptive presence at a school, in violation of Penal Code section 626.8, subdivision (a), a misdemeanor, and possessing a weapon on school grounds in violation of Penal Code section 626.10, subdivision (a), a felony. The petition alleged T.F. possessed a knife while on school grounds. T.F. was represented by appointed counsel. In June 2010, the court heard, and denied, T.F.’s pretrial motion to suppress evidence. Following the court’s ruling on the motion, the following colloquy ensued:
“[Court]: Having ruled on the motion I also understand there was a request made by the family. Mr. Buddle [T.F.’s counsel], did you want to make a record?
[Mr. Buddle]: Yes. [T.F.’s] mother would like to hire a private attorney. I believe she would like to continue the matter to a later date so that the private counsel can be well-informed with respect to all issues.
[Court]: All right, mom. I understand with regards to parenting that I always give my parents an opportunity to be as much of an influence with regards to your children’s life as possible. It’s however not your case, it’s his case, and he really gets to make the decisions, but I’m not necessarily at this point in time as it’s almost an 11-month-old case, I have already had this set for trial wise to then continue it to allow you to hire a private attorney at this late date.
[Mother]: Can I speak?
[Court]: Excuse me?
[Mother]: Can I speak?
[Court]: No. I’ll hear from [T.F.]
[Mr. Buddle]: Okay.
[Court]: Go ahead [T.F.] What do you want to tell us [T.F.]?
[Minor]: I would like to fight this court case when since I know I’m right, since I know
[Mr. Buddle]: Let me talk. I spoke with both him and his mother and he’s on board with respect to what I informed the court about I believe he wants –I believe he wants his own separate private attorney. Is that a fair statement?
[Minor]: Yeah.”
The court indicated it was not inclined to grant a continuance because the case was already set for trial. After T.F.’s mother interrupted, the court allowed her to speak. Mother then stated:
“Yes Buddle, we have had – the D.A. has not handled this case properly since January. It is not our fault that it’s been continued so many times. We were ready to go back in March when we were not informed with our first attorney Ms. Mahoney was, I think, and we had a Hispanic man who never introduced himself to me. I never heard his name. We should have had this case dismissed because the report was not right. We were notified that the state wasn’t ready with their witnesses, this case which should have been ended, then I would have hired a private attorney then.”
The court engaged mother in a discussion regarding the reasons why the case had been delayed, which included a previous public defender’s illness. The court also told mother she could have hired a private attorney when the case was first filed. The court indicated mother had not explained why she was asking for a private attorney. Mother responded that she never got to speak to the first public defender, and described a problem with a court-appointed psychiatrist who never appeared for an appointment. She continued:
“So I’m not getting good—I’m not getting a good defense here. Ms. Mahoney took his place. I still never been able to talk to my attorney, Mr. Buddle, because last time we were here Ms. Mahoney had to take over because he was at trial. I have not got—Mr. Buddle is not prepared. Mr. Buddle is not giving us a advantage this court [sic]. That officer is lying.”
The court explained it had not allowed T.F.’s counsel to put on a defense since it had only heard a pretrial motion. The court further stated that defense counsel had provided “an excellent defense so far, ” explaining that counsel had filed a motion and talked with witnesses, and there was “nothing at this point in time the fact that he hasn’t met with you doesn’t indicate he’s not prepared.” The court told mother there was no requirement that defense counsel meet with her, only that he meet with T.F. Attorney Buddle explained that he had spoken with mother and T.F.
At this point in the discussion, the court again explained its ruling on the suppression motion. T.F. asked about the consequences of going to trial and losing. The court and the prosecutor responded. The court then returned to the issue of the request for a continuance:
“[Court]: You have had another almost a little more than 30 days in which to hire a private attorney if you wanted to. So I’m inclined to move forward. I don’t know that I have the complete breakdown with regards to this at this point in time. I’m not going to proceed any farther with regards to that, nor am I going to declare this a Marsden motion. I didn’t hear that. I hear that they just wanted to hire a private attorney. [¶] All right. Anything else? The motion to continue for trial would be denied.
[Mr. Buddle]: Then we’ll like to proceed to trial either Tuesday or Friday.
[Mother]: So I can’t hire my own attorney then?
[Court]: You can.
[Mother]: Okay. We can?
[Court]: I tell you what. We can order [a juvenile witness] back for Friday and you can have a new attorney ready to go to trial on Friday.
[Mother]: Okay. All right. He’ll be ready. He’s retained.”
At trial, Attorney Buddle represented T.F. At the conclusion of the trial, the People dismissed count 1 (disruptive presence at a school; Pen. Code, § 626.8, subd. (a)). The court declared count 2 a misdemeanor (possession of a weapon on school grounds; Pen. Code, § 626.10, subd. (a)), and found the count’s allegations true. The court declared appellant a ward of the court and placed him home on probation, with various conditions, for six months. T.F. timely appealed.
DISCUSSION
The Juvenile Court Did Not Err in Not Holding a Marsden Hearing
T.F.’s sole contention on appeal is that the court should have held a Marsden hearing following his request for a continuance to bring in retained counsel, and his mother’s comments expressing dissatisfaction with Attorney Buddle. The People argue the court was not required to hold a Marsden hearing because T.F. never expressed dissatisfaction with his appointed counsel. Further, the People argue mother was a third party and could not assert T.F.’s right to a Marsden hearing on his behalf. We need not resolve this later issue because even if mother could make a valid Marsden motion on T.F.’s behalf, we conclude mother did not do so in this case.
“ ‘The law governing a Marsden motion “is well-settled. ‘When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].’ [Citations.]” [Citation.]’ [Citations.]” (People v. Jackson (2009) 45 Cal.4th 662, 682.)
However, a Marsden motion is only necessary when the defendant wants to discharge his appointed counsel and have the court appoint new counsel. (People v. Courts (1985) 37 Cal.3d 784, 795, fn. 9 (Courts) [Marsden involves “the substitution of appointed counsel for another appointed counsel.... The standards for evaluating such requests are quite different than those used in the retained counsel context.”].) “[I]t is ordinarily appropriate to require the defendant who is seeking to substitute one appointed counsel for another to show cause, because he is requesting duplicative representation and repetitive investigation at taxpayer expense.” (People v. Ortiz (1990) 51 Cal.3d 975, 986 (Ortiz).) Such concerns are not present when a defendant wishes to replace appointed counsel with a retained attorney.
When a defendant wants to hire private counsel, “trial courts are required to ‘make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his own choosing can be represented by that attorney.’ [Citation.]” (Courts, supra, 37 Cal.3d at p. 790 .) If a defendant wants to substitute retained counsel, the court’s concerns are potential prejudice to the defendant by not allowing counsel of defendant’s choosing and whether the timing of the request would affect the orderly administration of justice. (Ibid.; see also Ortiz, supra, 51 Cal.3d at p. 983.) But no Marsden findings of inadequate representation or irreconcilable conflict are required.
Here, the only request that mother and T.F. made, through Attorney Buddle, was for a continuance so that T.F. could bring in retained private counsel. When the court indicated it was not inclined to continue the trial, mother began explaining her complaints about Buddle. But mother’s statements were intended to convince the court to allow her to bring in retained counsel to represent T.F., not to have another counsel appointed. Several times during the discussion with the court, mother mentioned private counsel. For example, mother said that under different circumstances she would have hired a private attorney earlier. And, at the end of the discussion of the matter, mother again asked if she could hire her own attorney. The court said she was free to do so.
Thus, although mother expressed general dissatisfaction with Buddle and wanted to discharge him in favor of retained counsel, at no time did she request new appointed counsel for T.F., nor did T.F. Instead, mother wanted to substitute private counsel. This was not a Marsden issue. Moreover, the court told mother T.F. could substitute in retained counsel. The court denied only the accompanying request for a continuance, a ruling T.F. does not challenge on appeal. We therefore conclude the trial court did not err in not holding a Marsden hearing, regardless of whether the issue could properly be raised by mother instead of by T.F.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, J., FLIER, J.