Opinion
C081590
07-18-2018
THE PEOPLE, Plaintiff and Respondent, v. MARCO BARRERA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F03413)
Defendant Marco Barrera appeals a judgment entered after a jury found him guilty of attempted murder (count one), corporal injury on a spouse (count two), assault with a deadly weapon (count three), and carjacking (count four). The jury found true the enhancements that defendant inflicted great bodily injury under circumstances involving domestic violence (counts one through three) and that he had personally used a deadly weapon (counts one & two). Defendant argues the trial court prejudicially erred in denying (1) his motion for a continuance to obtain private counsel and (2) his subsequent Marsden motion to replace his appointed attorney.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our discussion to the matters relevant on appeal. Defendant was arraigned on June 10, 2015, and had his preliminary hearing over two months later on August 25, 2015. Defendant's first trial readiness conference was set for October 8, 2015, with trial to proceed on October 14, 2015. These dates were moved to November 12, and November 19, 2015, so that defendant could obtain private counsel, as negotiated by his public defender. There was at least one more postponement, and defendant's trial started on November 30, 2015, over six weeks after the original scheduled date.
On November 30, 2015, defendant's public defender made an oral motion in an unrecorded chambers conference to continue defendant's trial date, the substance of which was put on the record by his public defender after the court made a record of its previous determination that in limine motions and instructions would be handled that day, followed by selection of the jury the next day, and opening statements the day after that. The public defender explained defendant wanted a continuance, the People had been advised of defendant's intent to hire private counsel the week before, and defendant had been in contact with private counsel, but that no one had been retained. Defendant requested additional time to continue his efforts to obtain private counsel.
In response, the court made the following ruling: "[T]hat is what I will treat as a motion for a continuance. The problem with that and why I'm going to deny it is the time for a motion for a continuance to select new counsel on the day of the trial is simply too late. Counsel are prepared, and witnesses are subpoenaed, and court time has been allocated and so on, and I'm going to have to deny your motion for a continuance." Review of the discussion regarding preliminary matters reveals the presence of witnesses in the courthouse for trial, at least one of which required translation services.
On December 1, 2015, defendant complained that his regularly prescribed medication made him drowsy and his shirt did not completely cover his arm tattoos. The court determined defendant was alert and the tattoo exposure did not prejudice him. The court also noted defendant's desire to "bring a private lawyer in today and [that he] wanted to get a continuance on this case. . . . But I'm not going to continue the case because we're starting and we're going. As I told you yesterday, it was too late to change lawyers."
Defendant then complained that he did not "feel [his public defender was] doing a good job" and that "[h]e hasn't visited me once." The court stopped proceedings and held a Marsden hearing to consider defendant's criticism of his public defender. Defendant stated his public defender had never visited him, had not checked in on him, or told him what was going on.
The public defender then explained he had discussed defendant's case with him before the preliminary hearing. He also met with defendant before the trial readiness conference, wherein defendant explained his desire to obtain private counsel, and the public defender negotiated a continuance for that purpose. The public defender also met with defendant at the next trial readiness conference and discussed his options.
Defendant clarified that the public defender said he would be seeing him, but defendant only saw him when he was going to court, and those visits occurred in the "tank," so defendant could not "talk to him personally." The public defender explained both their visits occurred in a private room in the tanks on court days for approximately 15 minutes each visit, that the public defender had never received a request from defendant to meet privately, and that it was his practice not to otherwise visit his clients unless they had a reason and asked for such visits. He discussed everything defendant brought up at those visits with him. The public defender prepared himself for trial and was "very prepared and . . . willing to represent [defendant] and go forward."
The trial court denied the Marsden motion, finding the public defender "is more than meeting the constitutional adequacy requirement in order to represent you." However, in response to defendant's concern regarding visits, the trial court ordered the public defender to meet privately with defendant later that day. In response, defendant stated, "That would be what I want for me and him to talk privately and tell him about and what I know of the case. That's all I want . . . ." The public defender did meet privately with defendant as ordered.
Also on December 1, and after the jury had been sworn and excused for the day, there was a brief off the record discussion followed by the following exchange:
"[THE PEOPLE]: I just wanted to make it clear for the record that there was an issue with Mr. Miller potentially being retained as counsel. He indicated to your Honor and myself that he would not be ready to proceed with the trial today and would not be ready for quite some time; until January. [¶] And I just wanted to make clear that the People are ready to proceed today. [The public defender] indicated he's ready to proceed, and the Court had indicated that we were proceeding with trial.
"THE COURT: Right. Just as the Court indicated yesterday, when there was a request by the defendant . . . to continue the matter, I explained that—or to have time to bring in counsel, I explained that it was simply too late, on the day of trial; that at an earlier time, we could accommodate that, but not when we have the courtroom, the witnesses lined up, the jury panel ordered and ready to start. So I denied the motion for a continuance for an opportunity to retain private counsel.
"And then today, in fact, Mr. Miller, who was a fine lawyer, well known to the Court, came in to further explore whether there might be a possibility to continue the matter so that he could substitute in, and I gave him the same answer that I gave here, which is that it's just not timely. [¶] And I would, of course, permit him to substitute in if he was able to prepare—pick up the reins from [the public defender] immediately, but he indicated, as [the People] mentioned, and as anybody would appreciate, that it would take a period of weeks before he'd be ready."
DISCUSSION
1.0 Denial of Defendant's Request for a Continuance
Defendant argues "the trial court abused its discretion and violated [defendant's] state and federal constitutional rights to due process and the effective assistance of counsel when it denied him the opportunity to retain private counsel."
The constitutional rights of due process and of effective assistance of counsel encompass a right to defend with privately retained counsel of one's own choice. (People v. Courts (1985) 37 Cal.3d 784, 789; People v. Crovedi (1966) 65 Cal.2d 199, 206.) Given this weighty constitutional backdrop, "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.' " (Courts, supra, at p. 790, quoting Crovedi, supra, at p. 207.) Nevertheless, this right of retained counsel is not absolute. For example, a defendant may not demand a continuance to exercise this right if he has been " 'unjustifiably dilatory' in obtaining counsel, or 'if he arbitrarily chooses to substitute counsel at the time of trial.' [Citation.]" (Courts, supra, at pp. 790-791.) The decision to grant or deny a continuance in this context is within the trial court's sound discretion. (Id. at p. 790; Crovedi, supra, at pp. 206-207.)
We find no abuse of discretion. Here, the trial court denied defendant's request for a continuance to retain private counsel made orally the first day of his trial and after defendant had already had over six weeks from his first request to retain private counsel. There is nothing in the record explaining defendant's failure to timely retain private counsel during his previous continuances or suggesting that defendant's retention of private counsel was imminent. The People and the public defender were ready to proceed, witnesses (at least one of which required translation services) had been subpoenaed, the courtroom was reserved, and the jury panel was ordered.
Nor do we believe the trial court abused its discretion in refusing to continue the trial when defendant tentatively retained private counsel after the jury was sworn, but before opening statements and where retained counsel needed at least a month to prepare for a trial that was already underway. It is well settled that a trial court does not abuse its discretion in refusing to grant an additional continuance requested at or after the commencement of trial by a defendant who "has been provided a reasonable opportunity to obtain counsel of his own choice." (People v. Blake (1980) 105 Cal.App.3d 619, 624.) 2.0 Denial of the Marsden Motion
Defendant argues the trial court erred in denying his Marsden motion because his relationship with the public defender "was so irrevocably impaired that ineffective representation was likely to result."
The United States Constitution recognizes criminal defendants are entitled to court-appointed counsel "if they are unable to employ private counsel." (People v. Williams (1970) 2 Cal.3d 894, 904.) However, this right is not unfettered. The trial court retains discretion over any requests to substitute appointed counsel, which need only be granted if " ' "the record clearly shows that the first appointed counsel is not adequately representing the accused. . . ." ' " (Ibid.) Such denials will only be overturned on appeal if the defendant shows the trial court abused its discretion because the " ' "failure to replace counsel would substantially impair the defendant's right to assistance of counsel." ' " (People v. Streeter (2012) 54 Cal.4th 205, 230 (Streeter).) "Substantial impairment of the right to counsel can occur when the appointed counsel is providing inadequate representation or when 'the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation].' [Citations.]" (People v. Clark (2011) 52 Cal.4th 856, 912.)
Notably, dissatisfaction arising from the number of defense counsel's visits does not require substitution. (Streeter, supra, 54 Cal.4th at p. 230.) Nor is substitution required because of conflict arising from defendant's own behavior or unfounded beliefs regarding counsel's competency. (People v. Clark, supra, 52 Cal.4th at p. 918 [defendant cannot refuse to cooperate with otherwise competent counsel and demand substitution]; People v. Smith (1993) 6 Cal.4th 684, 688-689, 696-697 [lack of confidence in counsel and not relating to counsel did not warrant substitution].) To the extent there is a credibility determination between defendant's complaints and counsel's statements or explanations at a Marsden hearing, the court is entitled to accept defense counsel's explanation. (People v. Webster (1991) 54 Cal.3d 411, 436.)
Defendant does not challenge the adequacy of representation, arguing only that an irreconcilable conflict with his public defender necessitated substitution of appointed counsel. Not only is dissatisfaction arising from the number of visits with counsel inadequate to establish irreconcilable conflict (Streeter, supra, 54 Cal.4th at p. 230; People v. Silva (1988) 45 Cal.3d 604, 622 [defendant did not relate well to attorney who had only visited him once]), here, the record reflects defendant's conflict with his attorney was affirmatively remedied by the trial court. Defendant distrusted his public defender because he did not visit him privately in jail; however, defendant had not previously requested such visits. The trial court affirmatively addressed defendant's complaint, ordering the public defender to meet privately with defendant that day, which defendant agreed was what he wanted, and that meeting took place. Thereafter, the record is devoid of any indication that the alleged irreconcilable conflict with the public defender continued. Therefore, the trial court did not abuse its discretion in denying the Marsden motion.
DISPOSITION
The judgment is affirmed.
BUTZ, J. We concur: RAYE, P. J. ROBIE, J.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).