Opinion
D057699 Super. Ct. No. SCD223385
08-11-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL WAYNE BRIDGEMAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Kerry Wells, Judge. Affirmed.
A jury convicted Michael Wayne Bridgeman of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); undesignated statutory references will be to this code) and dissuading a witness by force or threat (§ 136.1, subd. (c)). The court sentenced Bridgeman to 11 years in state prison.
Bridgeman timely appeals and contends that the court abused its discretion in denying his three Marsden motions, which violated his Sixth Amendment right to counsel, thereby necessitating reversal of his convictions. We affirm.
People v. Marsden (1970) 2 Cal.3d 118.
FACTS
On October 11, 2009, multiple witnesses saw Bridgeman punch Robert Taylor numerous times in the head and then stomp on his head as he lay unconscious on the ground. When Taylor's girlfriend attempted to call the police, Bridgeman chased after her and threatened to kill her. Witnesses then observed Bridgeman drag Taylor, who was still unconscious, onto a sleeping bag in an attempted coverup.
DISCUSSION
I. DENIAL OF MARSDEN MOTIONS
A. Applicable Legal Principles
A Marsden motion permits a defendant to change counsel where " ' "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."'" (People v. Memro (1995) 11 Cal.4th 786, 857.) The trial court may therefore allow the defendant to substitute counsel if the defendant demonstrates that "his [or her] Sixth Amendment right to the assistance of counsel would be denied or substantially impaired." (People v. Berryman (1993) 6 Cal.4th 1048, 1070 (Berryman).)
B. Standard of Review
A Marsden motion denial is reviewed for an abuse of discretion. (Berryman, supra, 6 Cal.4th at p. 1070.) Because "there is no absolute right to substitute counsel" (People v. Gutierrez (2009) 45 Cal.4th 789, 803), a denial "is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would 'substantially impair' the defendant's right to assistance of counsel." (People v. Webster (1991) 54 Cal.3d 411, 435.)
C. Analysis
1. The first Marsden motion
a. Background
On March 23, 2010, the court conducted a hearing on Bridgeman's first Marsden motion. During the hearing, Bridgeman contended his attorney, Bruce Kotler, failed to adequately represent him in a number of ways. First, he stated Kotler showed up late to a preliminary hearing and when Bridgeman began talking to him he said: "Please be quiet. I need to hear what's going on." He stated that Kotler was generally unavailable and did not visit him while in custody to discuss his case with him. He expressed dissatisfaction with the plea bargain Kotler had obtained and requested Kotler further investigate by taking photographs of the scene of the crime and procuring witnesses to testify to his good character. In summary, Bridgeman contended that Kotler did not devote enough time to his case to effectively represent him.
Kotler responded by pointing out that he had discussed Bridgeman's case with him at "various court hearings" and had visited him in jail for "a couple of hours" the week prior. Kotler further stated that he had only recently learned of Bridgeman's request for Kotler to seek character witnesses and was willing to do so. He indicated that he had cross-examined the prosecution's four witnesses and negotiated a plea bargain of five years, when Bridgeman faced up to 20, which Bridgeman rejected.
b. Ruling
The court denied Bridgeman's Marsden motion and rejected his argument that Kotler had ineffectively represented him. The court found that Kotler had "adequately represented" him.
c. Analysis
As the court expressly found, Bridgeman failed to meet the requisite burden of proof in his March 23 Marsden motion. Kotler had met with Bridgeman at various court hearings and discussed his case with him for at least a few hours in total and offered to conduct the investigation Bridgeman desired. Kotler also obtained a plea bargain sentence significantly lighter than the one Bridgeman otherwise faced.
The foregoing record does not show that Bridgeman's constitutional right to effective assistance of counsel was substantially impaired by the court's denial of his first Marsden motion. We thus conclude the court did not abuse its discretion in denying that motion.
2. The second Marsden motion
a. Background
On May 17, 2010, the court conducted a second Marsden hearing. During the hearing, Bridgeman stated that he believed Kotler had not "given [him] the best of his (Kotler's) ability" in that he had not followed up with potential witnesses, he had failed to obtain court records that Bridgeman requested, and he was not optimistic about Bridgeman's case. Bridgeman concluded he felt like he and Kotler did not see eye-to-eye on his case.
b. Ruling
The court denied Bridgeman's second Marsden motion, finding it without merit. Accordingly, the court found Kotler had provided constitutionally adequate representation.
c. Analysis
The court properly denied Bridgeman's second Marsden motion. The record adequately demonstrates that Kotler had simply given Bridgeman his honest professional assessment with which Bridgeman disagreed. At the time of the hearing, Kotler had interviewed the witnesses Bridgeman indicated he believed would have helped his case, but Kotler did not find their testimony helpful. Similarly, Kotler found the court records Bridgeman requested unnecessary and unhelpful to his case. The court therefore was well within its discretion in concluding that the situation did not involve ineffective assistance of counsel, but rather "a defendant who thinks that there should be a different outcome than the one that is likely to occur."
3. The third Marsden motion
At Bridgeman's third and final Marsden hearing, the court explicitly asked him what new grounds for the motion, if any, he had that he had not brought up at his previous motion hearings. Bridgeman admitted he had none. The court then denied his motion.
The court properly denied Bridgeman's third Marsden motion because the court did not abuse its discretion in denying his first two and his third was baseless. We thus conclude Bridgeman fails to prove the court's denial of his three Marsden motions substantially impaired his constitutional right to effective assistance of counsel.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J. WE CONCUR:
McINTYRE, J.
IRION, J.