Opinion
F049521
5-4-2007
THE PEOPLE, Plaintiff and Respondent, v. EDUARDO RUIZ CORTEZ, Defendant and Appellant.
Grace Lidia Suarez, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Virna L. DePaul, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
INTRODUCTION
Appellant Eduardo Ruiz Cortez contends the trial court erred when it failed to inform him of his right to discharge his retained counsel and therefore reversal of his conviction is automatic. We will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Cortez was charged with sale of a controlled substance, resisting a peace officer, and being under the influence of a controlled substance.
On August 18, 2005, Cortez appeared in court with attorney William Fearnside. Cortez asked for permission to speak to the judge, which was granted. Cortez told the judge, "my lawyer, I mean, hes not doing nothing for me." The trial court responded, "there is only a certain amount that he can do."
A discussion regarding a plea agreement ensued. The trial court noted that because of Cortezs priors, he was facing a sentence of 25 years to life if convicted of sale of a controlled substance, a felony. The trial court told Cortez that he could enter a plea and receive an indicated sentence of five years. The trial court then told Cortez to talk to his attorney about the plea offer. Cortez responded, "I dont have an attorney." The trial court responded that Fearnside was his attorney and Cortez replied, "He dont want to represent me." Fearnside and the trial court both indicated to Cortez that Fearnside was representing him.
The trial court told Cortez to talk to his attorney and then return to court with a decision, to which Cortez responded, "Okay, sir." The trial court specifically asked Fearnside to review with Cortez the plea form that Cortez previously had initialed and signed. When they returned to court, Fearnside indicated that they had reviewed the plea form and Cortez did not want to plead guilty because he wanted to enter a rehabilitation program. The trial court informed Cortez that he was not eligible for a program, but Cortez still declined to take the indicated sentence.
When Cortez returned to court on August 22, 2005, the trial court asked Cortez if he had had sufficient time to talk with his attorney regarding a plea. Cortez responded, "Yes, sir." Fearnside agreed that he had had a sufficient amount of time to discuss a plea agreement with Cortez. The trial court asked Cortez if he had any questions for Fearnside or the court and Cortez indicated he did not.
The trial court then proceeded to accept Cortezs plea to resisting a peace officer and being under the influence of a controlled substance. He also admitted prior convictions. Cortez declined, again, to plead to sale of a controlled substance in exchange for an indicated term of five years. The trial court emphasized, again, that Cortez was facing a sentence of 25 years to life if convicted, unless the prior convictions were stricken.
Trial by jury commenced on August 22, 2005, on the sale of a controlled substance count. The jury found Cortez guilty of a lesser offense, possession of a controlled substance.
At sentencing, the trial court dismissed one of the prior serious felony convictions. The trial court denied probation and imposed a term of nine years in prison on the possession of a controlled substance conviction. On the two offenses to which Cortez pled, he was given credit for time served.
DISCUSSION
Cortez contends that the trial court erred prejudicially in failing to inform him that he had a right to discharge his retained counsel. Cortez maintains that his comments at the August 18, 2005, trial confirmation indicated dissatisfaction with counsel and should have prompted the trial court to inform him of his right to discharge counsel and retain substitute counsel. Cortezs contention lacks merit for several reasons.
A defendant may discharge retained counsel, with or without cause. (People v. Ortiz (1990) 51 Cal.3d 975, 983.) It is apparent from the record that Cortez was fully aware of his ability to discharge counsel and obtain substitute counsel. Before the April 18, 2005, trial confirmation, Cortez had discharged his prior attorney and substituted in Fearnside as his attorney. In order to effect this change, Cortez signed a substitution of attorney form, which was filed with the trial court. There is no basis upon which to assume that Cortez thereafter was under the impression that he could not discharge counsel and obtain yet another attorney.
Additionally, nothing in the record indicates that Cortezs comments were, or should have been, interpreted as a request to discharge Fearnside and obtain substitute counsel. Cortez never stated that he wanted new counsel. Although a defendant is not required to make a formal motion, a defendant must give a clear indication of a desire to discharge counsel and substitute new counsel. (People v. Lara (2001) 86 Cal.App.4th 139, 150.)
Cortezs comments on April 18, 2005, do indicate that he was unhappy with the proposed plea bargain and indicated sentence, apparently because he felt he should be in a rehabilitation program instead of being subject to a term of imprisonment. The trial court clearly told Cortez that he was ineligible for a rehabilitation program and strongly urged him to speak with his counsel regarding the offer. After speaking with his attorney, Fearnside, on April 18, Cortez declined the offer. When Cortez returned to court on April 22, Cortez again declined the offer, after assuring the trial court that he had been provided sufficient time and opportunity to discuss the matter with his attorney and that he had no questions of counsel or the trial court.
The indicated sentence in the rejected plea agreement was five years. Cortez was sentenced to a term of nine years in prison. It is true that "judgments may be made that in the light of later events seem improvident." (People v. Hunt (1985) 174 Cal.App.3d 95, 103.) In our view, Cortezs current contention is the result of an improvident decision to reject the offer and his desire to undo the result of that improvident decision, specifically, the nine-year sentence imposed for the offense of possession of a controlled substance instead of the five-year indicated sentence.
Furthermore, even if we view Cortezs comments of April 18, 2005, as a clear indication that he wanted substitute counsel, the trial court properly could have denied such a request. The trial court retains discretion to deny a request to discharge retained counsel where the request is untimely and would disrupt the orderly progress of the case. (People v. Lara, supra, 86 Cal.App.4th at p. 155.) Cortez made his comments on April 18 at the trial confirmation hearing; trial was set to commence April 22. Had Cortez substituted new counsel into the case a mere four days before jury trial was due to commence, it would have necessitated a delay in the trial. Furthermore, because Cortez has never articulated, either in the trial court or this appeal, any specifics regarding his purported dissatisfaction with counsel, we are left with the impression that his true motivation was either to delay the trial or undo the results of his improvident decision to reject the plea offer.
DISPOSITION
The judgment is affirmed. --------------- Notes: Before Wiseman, Acting P.J., Cornell, J. and Dawson, J.