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People v. Killebrew

California Court of Appeals, First District, Third Division
Jun 25, 2024
No. A168291 (Cal. Ct. App. Jun. 25, 2024)

Opinion

A168291

06-25-2024

THE PEOPLE, Plaintiff and Respondent, v. ELIJAH ISAIAH EUGENE KILLEBREW, Defendant and Appellant.


NOT TO BE PUBLISHED

Humboldt County Super. Ct. No. CR2103051

TUCHER, P.J.

Defendant Elijah Isaiah Eugene Killebrew appeals a judgment entered upon his plea of guilty to rape, sodomy, and robbery. He contends that the trial court abused its discretion in not allowing him to substitute counsel or to withdraw his guilty plea and that his counsel provided ineffective assistance by failing to file a sentencing brief outlining mitigating factors. We agree that the trial court should have allowed defendant to substitute retained counsel for his appointed counsel, and we accordingly reverse.

FACTUAL AND PROCEDURAL BACKGROUND

The Charges and Plea

Defendant was charged with forcible rape (Pen. Code, § 261, subd. (a)(2); count 1); forcible oral copulation (§ 287, subd. (c)(2)(A); count 2); forcible sodomy (§ 286, subd. (c)(2)(A); count 3); and first degree residential robbery (§ 211; count 4). The information included allegations of aggravating circumstances as to the sex crimes (§ 667.61, subd. (b)), and personal use of a firearm (§ 12022.53, subd. (b)). An additional firearm allegation was later added. (§ 12022.5, subd. (a).)

All statutory references are to the Penal Code.

Pursuant to a negotiated disposition, defendant pled guilty on January 10, 2023 to counts 1, 3, and 4, and admitted the section 12022.5 firearm allegation, with an agreed-upon sentence of 25 years.

February 24, 2023 Hearing

The sentencing hearing was scheduled for February 24, 2023. The victim was present in court. Defendant's appointed counsel, Andrea Sullivan, told the court that defendant was in the process of hiring a different attorney to represent him in seeking to withdraw his plea. The trial court raised a question for the attorneys' consideration about how the 25-year sentence would be calculated, then continued the matter to March 29.

March 29, 2023 Hearing

At the March 29, 2023 hearing, defendant was represented by appointed counsel Sullivan, and his proposed new retained counsel, Mario Tafur, was also present. Tafur told the court that defendant had retained his law firm and that he would be requesting a continuance for purposes of filing a motion to withdraw the plea, if the substitution was approved. Sullivan asked the trial court to relieve her on the spot and allow defendant to have counsel of his choosing. She informed the court of her understanding that one of the bases for the withdrawal of plea motion was going to be the discovery of new evidence and said that, because she expected new counsel to be substituted in, she had not prepared to handle the sentencing that day.

The district attorney objected to Tafur's firm being substituted in on the ground that existing counsel was already familiar with the case, and expressed concern about scheduling delays that would inconvenience the victim or conflict with counsel's own unavailability beginning in June. She also handed the court case authority on the sentencing issue it had previously identified.

The trial court indicated it needed time to review the district attorney's authority and consider the appropriate sentence further, and on its own motion continued the case. But the court indicated it did not intend the continuance to be a long one and asked Tafur how much time he would need. Tafur said he had intended to ask for a date in late May but could be ready by May 16. Earlier might not be possible because preparing the motion would require his office to "speak to the various witnesses that we're aware of" regarding "comments by the alleged victim that this did not occur in the way that it was originally alleged," specifically, that someone else committed the crimes the victim had attributed to defendant. The court declined to appoint Tafur's office on the spot, continued the matter only to April 28, and told Tafur, "If your office still wishes to substitute in, they'll need to be prepared to go to sentencing in 30 days. I will hear any motion that is filed by that time." But the court then clarified that it meant any motion must be filed sufficiently in advance of the hearing date, which it recollected as 15 days beforehand, and advised Tafur, "One of the things you're [going to] have to represent to me is that you're [going to] be able to be prepared to go to sentencing [in] the time that I provided. If you're unable to do that, then I would suggest that you don't come in."

April 28, 2023 Hearing

At the April 28, 2023 hearing, Stacey Madsen, an attorney with Tafur's firm, sought to appear on behalf of defendant. She said it was her understanding her colleague had filed a motion, and the court replied, "I don't have any filings, and I have not relieved Ms. Sullivan." Sullivan, who was present, confirmed that she had signed a substitution of attorney and that she had not expected to be handling the matter. After consulting with the clerk, the court reiterated that there were no motions in the court's file.

Madsen explained that the prosecutor had received a copy of the motion to withdraw the plea and that she had been told the motion was filed. The prosecutor confirmed she had received a copy of the motion, and informed the court she had already prepared a written response and was prepared to proceed on the motion, as well as on the sentencing. After checking with her office, Madsen learned that her office had tried to file the motion to withdraw the plea but it had been rejected, perhaps because she was not yet counsel of record or because the motion was untimely and had not been filed with an order shortening time.

Madsen was not prepared to go forward with sentencing instead of a hearing on the motion her office had attempted to file, and Sullivan told the court she had been operating under the assumption she no longer represented defendant. The trial court concluded it could not sentence defendant immediately because Sullivan was not prepared for the hearing. And it refused to allow substitution of counsel on the ground that doing so "would further derail the sentencing, just as it did today."

Sullivan stated she did not intend to move to withdraw the plea because she was aware of no evidence that she did not have at the time of the plea. She indicated that instead she would prepare a statement in mitigation and proceed to sentencing at the next court date. The sentencing hearing was rescheduled to May 22.

May 22, 2023 Hearing

A notice of substitution of attorney was filed on Friday, May 19, 2023, signed by Sullivan, Madsen, and defendant.

The sentencing hearing took place on Monday, May 22, 2023. The court noted that Sullivan was still counsel of record. Defendant indicated he had signed a "substitution of plea form" with his retained attorney, and the court said, "I don't have a substitution of attorney, Mr. Killebrew, nor am I likely to allow substitution. We've been waiting three months to go to sentencing in this matter. [¶] . . . That attorney who you last tried was not ready to go forward on April 28th forcing us to continue. I'm not granting any further continuances."

The trial court sentenced defendant to 25 years in prison, as contemplated by the plea agreement.

A minute order of May 22 states that on that date, the clerk filed a motion to withdraw the guilty plea in error. The motion was ordered stricken.

DISCUSSION

I. Denial of Substitution of Attorney

Defendant contends the trial court deprived him of the Sixth Amendment right to counsel of his choosing.

" 'The right to retained counsel of choice is-subject to certain limitations-guaranteed under the Sixth Amendment to the federal Constitution. [Citations.] In California, this right "reflects not only a defendant's choice of a particular attorney, but also his decision to discharge an attorney whom he hired but no longer wishes to retain." '" (People v. O'Malley (2016) 62 Cal.4th 944, 1004.) Erroneous deprivation of the right to counsel of choice requires reversal. (People v. Frias (2024) 98 Cal.App.5th 999, 1014 (Frias).)

The cases distinguish the standards applicable to requests to discharge retained counsel from the" 'more stringent requirements for discharging appointed counsel set forth in People v. Marsden (1970) 2 Cal.3d 118 and its progeny,'" which require a showing of inadequate representation or an irreconcilable conflict. (People v. Lopez (2018) 22 Cal.App.5th 40, 46-47 (Lopez).) Here, although defendant's original counsel was appointed, defendant sought to substitute retained counsel, so we apply the standards for substituting retained counsel.

This right, however, is not absolute. The trial court has discretion to deny a motion to substitute attorneys"' "if it is not timely, i.e., if it will result in 'disruption of the orderly processes of justice.'" '" (People v. Maciel (2013) 57 Cal.4th 482, 512 [no abuse of discretion where case pending two years, trial imminent], quoting People v. Verdugo (2010) 50 Cal.4th 263, 311 [no abuse of discretion where substitution would involve significant delays and there was risk of witnesses' memories fading].)

We review the trial court's denial of a request to discharge counsel for abuse of discretion. (Lopez, supra, 22 Cal.App.5th at p. 47.) This discretion must be exercised reasonably:" 'a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.'" (People v. Ortiz (1990) 51 Cal.3d 975, 984.)

Defendant contends the trial court abused its discretion: according to defendant, the trial court gave no reason to deny substitution of counsel except that it had not seen the paperwork. That mischaracterizes the record. The court's comments make clear it was concerned not simply about "paperwork" but about retained counsel's ability to be prepared for a motion hearing and sentencing on April 28 and then, on April 28, by counsel's failure to have accomplished the substitution and brought the motion to withdraw the plea in a timely manner, as well as counsel's lack of preparation to proceed with sentencing in the event the motion to withdraw was unsuccessful.

Nevertheless, in evaluating defendant's contention, we bear in mind not only defendant's right to retained counsel of choice-subject to the limitations we have discussed-but also the rule that a "the decision to seek withdrawal of a plea of guilty, just as the decision to enter such plea, [is] one which the defendant is entitled to make." (People v. Brown (1986) 179 Cal.App.3d 207, 215.) It is true that counsel need not bring such a motion where, in counsel's opinion, it is frivolous or would compromise ethical standards. (Ibid.; see People v. Makabali (1993) 14 Cal.App.4th 847, 851.) But, although it appears defendant's appointed counsel saw no valid grounds for such a motion, defendant had sought and retained counsel willing to move to withdraw the plea on his behalf, and retained counsel sought to develop evidence that they thought would implicate a third party and perhaps exonerate defendant.

In the circumstances of this case, we think the trial court abused its discretion in not allowing defendant to substitute his counsel at either the March 29 or April 28 hearing. At the March 29 hearing, Tafur was ready and willing to substitute in and to request a reasonable continuance to allow his office to prepare a motion to withdraw the plea. Although the court for its own reasons intended to continue the sentencing hearing, it declined to allow counsel to substitute in on the spot, and for no apparent reason scheduled the next hearing in a manner that barely allowed new counsel time to get their motion on file. We recognize the importance of promptly resolving criminal cases but do not see the need to deprive a man facing a 25-year prison sentence of an extra week or two to allow new counsel to file a motion of this import.

Then, at the April 28 hearing attorneys on both sides were prepared to go forward on the motion to withdraw the plea, and although Madsen was not prepared to forego the motion and proceed directly to sentencing, she represented that Tafur had been reviewing the sentencing issues. It is true that neither the substitution form nor the motion to withdraw the plea had yet been filed, apparently as the result of retained counsel's errors. It is also true that the trial court had warned Tafur that if his firm substituted in they must be prepared for sentencing by the April 28 hearing. But when that hearing arrived, it was clear that sentencing could not take place that day in any case, because Sullivan did not realize she was still representing defendant and she was not prepared for sentencing. By that time, Sullivan had signed the substitution form, Madsen had prepared the motion to withdraw the plea, and the prosecutor had prepared an opposition.

The trial court was understandably frustrated with retained counsel's failure to file the necessary documents in a timely manner. But given the documents she had prepared, although not yet succeeded in filing, and in light of the fact that sentencing had to be delayed in any case, there is no basis to conclude that allowing substitution of counsel to represent defendant, not only at sentencing but in seeking to withdraw his plea, would have caused additional delay. (See Frias, supra, 98 Cal.App.5th at p. 1014 [abuse of discretion to deny substitution where there was no showing it would cause further delay].) And it appears that defendant had been earnestly seeking to move to withdraw his plea, an endeavor in which appointed counsel was unwilling or unable to assist him. In the circumstances, we must conclude the trial court abused its discretion in denying for the second time leave to substitute retained counsel of defendant's choice.

The matter must be remanded with directions for the trial court to allow the substitution of counsel, including an opportunity for substituted counsel to file a motion to withdraw the plea. In light of this conclusion, we need not consider defendant's remaining contentions.

DISPOSITION

The judgment is reversed. The matter is remanded for further proceedings consistent with the views expressed in this opinion.

WE CONCUR: FUJISAKI, J., RODRIGUEZ, J.


Summaries of

People v. Killebrew

California Court of Appeals, First District, Third Division
Jun 25, 2024
No. A168291 (Cal. Ct. App. Jun. 25, 2024)
Case details for

People v. Killebrew

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ELIJAH ISAIAH EUGENE KILLEBREW…

Court:California Court of Appeals, First District, Third Division

Date published: Jun 25, 2024

Citations

No. A168291 (Cal. Ct. App. Jun. 25, 2024)