Opinion
A129260
12-27-2011
THE PEOPLE, Plaintiff and Respondent, v. EDWARD JOSEPH KING, III 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Napa County Super. Ct. No. CR143629 & CR137019)
I. INTRODUCTION
Edward King (King) was charged in two separate informations with multiple crimes relating to his operation of an art gallery in Napa. In case number 137019, King was charged with 13 counts of grand theft of personal property. (Pen. Code, § 487, subd. (a)). In case number 143629, King was charged with 40 counts of grand theft of personal property (Pen. Code, § 487, subd. (a)), four counts of felony fraud or intent to defeat tax liability (Rev. & Tax Code, § 7153.5), three counts of misdemeanor failure to file a tax return (Rev. & Tax Code, § 6452, subd. (c)) and one count of selling without a permit. (Rev. & Tax Code, § 6071.)
Pursuant to a negotiated agreement, King pleaded no contest to 12 counts of grand theft in case number 137019 and four counts of felony fraud or intent to defeat tax liability in case number 143629 and was sentenced to a five-year prison term. King obtained certificates of probable cause in both cases and filed this timely appeal. He contends the judgment must be reversed because the trial court erroneously denied defense counsel's motion to withdraw from this case and King's motion to discharge his retained counsel. King also contends that the trial court abused its discretion by denying him probation. We reject these claims of error and affirm the judgment.
II. STATEMENT OF FACTS
A. Background—Case Number 137091
Prior to October 2006, King owned Generations Fine Art Gallery in Yountville. Between September and December 2006, three artists who were affiliated with the gallery made reports to the Napa County Sheriff's office that King had failed to pay them for art work that he sold or failed to return consigned art work to them. King was arrested in December 2006, but a complaint was not filed against him at that time.
By August 2007, several additional artists had reported that King had either failed to pay them for paintings he sold or to return paintings he did not sell. In addition, patrons of Generations Gallery reported that they had purchased artwork from King which had never been delivered to them. In September 2007, a complaint was filed against King charging him with 13 counts of grand theft of personal property. By that time, King had moved to Texas with his wife, who was terminally ill.
When King made his first appearance in this case, the defense requested that he be released without bail, arguing that he was just an art dealer and that the charged offenses were not violent and only involved property. The court denied the request to waive bail and noted, among other things, that the charged offenses were committed while King was on probation for two misdemeanor offenses, one of which was a failure to appear. Bail was set at $25,000. On October 23, 2007, King was released on bail with no restrictions placed on his travel.
In December 2007, an information was filed charging King with 13 counts of felony grand theft of personal property. King entered a plea of not guilty to all charges and remained at liberty on bail. B. Background—Case Number 143629
On December 4, 2008, a complaint was filed charging King with 40 counts of felony grand theft of personal property, four counts of felony fraud or intent to defeat tax, three misdemeanor counts of failure to file a return, and one misdemeanor count of selling without a permit. King was released on his own recognizance and granted permission to travel back and forth to Texas. The 48 charges against King were incorporated into an information that was filed April 28, 2009.
In July 2009, case number 137019 and 143629 were consolidated for purposes of trial and both cases were assigned to the Honorable Stephen T. Kroyer for all purposes. C. The Plea Agreements
On January 25, 2010, the parties executed plea agreements in both cases. Pursuant to those agreements, King pleaded no contest to 12 counts of grand theft and four counts of felony fraud or intent to defeat tax liability in exchange for the following promises: "All remaining counts dropped—5 year state prison cap in [both cases]. Restitution is established at $500,000.00. Sentencing to occur 120 days from time of plea. If restitution paid on or before time of sentencing, [defendant] will receive no state prison. [Defendant] given credit for all time served."
In a January 25, 2010, minute order, the court found that King's "plea was freely and voluntarily entered; there was a factual basis for said plea; and that the defendant made an intelligent waiver of his/her trial rights." The court ordered that King was to remain at liberty on bail and, at the defendant's request, continued the matter for sentencing on June 1, 2010. In the meantime, King was ordered to make and keep an appointment with the probation department.
At the June 1, 2010, hearing, King could not be sentenced because he had failed to appear for his appointment with probation. King advised the court that another appointment had been scheduled for later that day. The court ordered that King be remanded into custody without bail. D. The Probation Report
The probation report contains the following summary of the facts that gave rise the two cases against King:
"In CR137019, the defendant was the owner of several art galleries for many years. Numerous artists provided the defendant with artwork which he was to sell and pay the artist for their work. He also received payments for paintings to be made and never supplied the purchaser with the prepaid artwork. The defendant failed to notify the artists when he closed his business down. In addition, he made promises to some artists to make monthly payments until the balance was paid. He failed to honor those promises. This criminal behavior took place between 2002 and 2006. There are twelve victims in this matter and the defendant owes over $150,000.00 to the victims.
"In CR143629, the defendant failed to pay taxes to the State of California. He failed to remit sales tax due on his retail sales from his art galleries during the period of 2001 to 2006. The defendant collected sales tax from his customers during this period and failed to remit it to the State Board of Equalization." The Board of Equalization reported that King owed unpaid taxes, penalties and costs totaling $347,746.00.
The probation report summarized statements King made during an interview on June 17, 2010. According to the probation officer King stated that he started having problems with his art business when his wife was diagnosed with cancer and that when he asked his employees to run the business during his wife's illness, it "fell apart." King said he took full responsibility for his actions but also said things would have been different if he had not been on Paxil or depressed. King maintained that "I made a mistake. I want to pay. I'm not a criminal. This was all during the time my wife suffered from cancer."
King told the probation officer that he did not have the money to pay restitution, mentioning that he had to pay his lawyer and that traveling back and forth from Texas had been expensive. He had hoped his family was going to help with restitution but that plan fell through. According to the report, King also said that he did not know what he was doing when he made the plea agreement because he was "coming off Paxil" and also stated that he was "disappointed" with his attorney. However, King also stated that he wanted to make restitution and had come up with a new plan. King reported that he could pay $10,000 and then make monthly payments of $1,000 with the hope that the amount of those payments could increase in time.
The probation officer provided the following additional information regarding King's efforts to make restitution: "[T]he defendant was given an opportunity to pay restitution to the victims in each matter before the Court. His sentencing hearing was extended for a period of four months for him to pay restitution. During that time, he failed to meet with the undersigned officer for the pre-sentence interview and failed to make any payments toward restitution. He now is asking the Court to give him another opportunity to pay restitution by making a $10,000.00 payment now and then a $1,000.00 payment each month. Of concern is the fact the defendant should have attempted to make these payments prior to his sentencing date. He has not followed through on his previous agreement and there is little reason to believe he will follow through on this current plan. It should be noted, the defendant informed the undersigned officer that, prior to his incarceration and while he still remained in Texas, he had been 'redoing' his yard that included landscaping and cement work. This is a costly task, one of which could have been postponed so the money could be used toward victim restitution." E. Motion to Withdraw
On June 23, 2010, King's defense counsel, Matthew Bishop, filed motions to continue the June 30, 2010, sentencing hearing and to withdraw as counsel. Both motions were supported by a declaration of counsel which set forth the following information:
"2. On or about June 18, 2010, I received a correspondence from the Defendant, which discloses certain facts which require me to withdraw from further representation of the Defendant. [¶] 3. Upon receiving said correspondence, I diligently performed research on the issues raised by said correspondence and determined that I must withdraw as the attorney of record for Mr. King. [¶] 4. On the afternoon of June 22, 2010, I spoke with the Defendant, Mr. King, via telephone and discussed the conflict which had arisen. I offered Mr. King the opportunity to voluntarily agree to let me withdraw from this matter, however, Mr. King refused. [¶] 5. Given the fact that sentencing is currently scheduled for June 30, 2010, I have no choice but to advance the instant request on less than the required (10) day notice." F. Sentencing Hearing
The sentencing hearing commenced on June 30, 2010. Bishop advised the court that "there is a serious issue that has arisen which would preclude my continued representation to Mr. King." Bishop explained that the attorney-client privilege prevented him from discussing the matter in open court but opined that he could disclose the "general nature" of the conflict to the court at an in camera proceeding. Although the prosecutor did not object to an in camera hearing, he did oppose the defense motions because there were no grounds to support them and he noted that victims were present and the prosecution was ready to proceed to sentencing.
1. In Camera Hearing
At the in camera hearing, Bishop made the following statement to the court:
". . . Your Honor, I received a written correspondence from Mr. King prior to filing my motion to withdraw. The correspondence from Mr. King I will just indicate to the court that the relevant parts that I believe I can disclose is that Mr. King was opining that I should not have allowed him to enter into this plea agreement. That he was under the influence of Paxil. That he did not understand what he was doing. And that I had essentially allowed him to enter a plea to which he had no recollection, recall, or ability to comprehend at the time he did it. And the particular phrase was, quote, I should have known better, close quote.
"In the report, the probation report that Your Honor has, Mr. King has disclosed that his attorney was, quote, disappointing, close quote. I believe this is an issue that may arise, your Honor. Further I believe that I would be and could be a percipient witness to this issue. I believe that I have an opinion which I don't want to delve into as to whether or not there was a knowing, intelligent, and voluntary waiver of the rights. That Mr. King was advised of those. And those are all issues that I am a percipient witness to. . . .
"Given that fact I am in the unenviable position of having an irremediable breakdown between the attorney client relationship, and has put me in an ethical quandary at this point to go forward. And I think that can only be resolved by new counsel being appointed or hired by Mr. King to address those issues. Essentially what has arisen under the rules of professional conduct now is a direct conflict of interest.
"And, your Honor, my research, and I did not cite it in my brief, in everything I read tells me to be very careful what I disclose especially in a public filing. And I have not had this issue present to me before, but given the—given those issues I am confident that I have no other choice but to withdraw. I would indicate that there is a further complication. When I spoke with Mr. King telephonically about this issue and instructions that he gave me pursuant to that issue which would lead me to commit a fraud on a court or tribunal. And I would not delve any further other than there is a, I believe it's 4-101 or that section, 5-101, which would preclude me then to even further [sic] from this my representation of Mr. King would be completely in direct conflict and contravention of the rules of professional ethics."
The trial court asked Bishop if he could supply relevant legal authority but Bishop declined to do so. Bishop advised the court that he first learned of his conflict on June 18, when he received a letter from King, that he had given the prosecutor a "heads up" that the motion was coming and that he had discussed the matter with King. Bishop stated that he had known King for many years and had told him that he was not making a "choice" to withdraw; rather Bishop felt he had an ethical obligation to do so. He also advised King that, depending on the court's rulings and King's financial situation, the court might appoint counsel or King might have to find a new attorney to represent him.
The court invited King to comment after advising him that he did not have to say anything. King made the following statement:
"Um, I would have to say that when I called [Bishop] and spoke to him briefly on the phone I was absolutely shocked. Honestly I was completely shocked because the tenor of the letter and my purpose of writing the letter was not to cause a situation like this. I really never expected something like this. I can say that it puts me into a delicate situation thinking that I've got an attorney representing me that doesn't want to be representing me. Because I still feel there are issues at large on this case. And I'm very concerned about being defended honestly at this moment as I have been for awhile.
"But, you know, [Bishop has] been a really good attorney for me for many, many years. He's helped me, you know, through many steps of this thing. It's just, you know, I have a family to take care of. You know, I read the parole report or probation report, whatever it's called, thank you, and it didn't represent my conversation with the probation officer. And, you know, because I'm a hundred percent remorseful about this. The whole reason why I've offered a restitution program that would work at $25,000 a year is because I am remorseful about the situation that I caused, you know, during my wife's cancer and so forth. And I feel that the best thing for the victims is for me to be able to do the restitution program. I have a job."
At that point, the court asked King to focus on the issue whether Bishop should continue to represent him and the following exchange occurred:
"DEFENDANT KING: Right, okay. Sorry. [¶] The point that I was getting to, your Honor, is that I need somebody on my side that will do the very, very best to help us come to a good conclusion.
"THE COURT: Based on what I heard so far you want Mr. Bishop to continue to be your lawyer and don't quite understand why he doesn't want to be. Is that right?
"DEFENDANT KING: With—with exception. And adding to that is that because of the fact that he doesn't want to be my lawyer I'm absolutely concerned about him continuing on.
"THE COURT: Well, I don't blame you for that feeling. However there are lots of lawyer client relationships where the lawyer thinks a lot of things privately. May even share those misgivings with his client. And yet the gloves come off and he goes to battle for the client, or she goes to battle for the client.
"DEFENDANT KING: Right.
"THE COURT: Willingly because that's a lawyer's job. A lawyer does battle for his or he client regardless of the lawyer's personal feelings about his or her client, or the worth of the case, or the merits of the case, or that sort of thing. That's a criminal defense lawyer's job as long as they do it, you know, ethically."
King then told the court that the "differences" that he had with Bishop did not arise because he had done anything immoral or illegal, but pertained instead to the fact that he did not feel they had been prepared to go to trial and that he did not understand "what our defense point was." The judge stated that he recalled there had been extensive discussions about this case when King entered his plea and that "I remember taking your plea very carefully and very slowly." The court recalled that King appeared to be "with it and competent and organized and focused then as you are now." The court told King that it understood that he may have wanted to resolve the case differently, to have gone down a different road, but the parties elected to compromise and that "in some respects worked in your favor, in some respects worked against you." The judge then stated that "I didn't get any feeling from you at all that day that there was anything wrong other than the usual dread at facing a plea bargain like this that anybody in your position would feel." King then made the following statement:
". . . I also have spoken to another attorney who has been deeply involved in this case over the years before, and is that who you could appoint, Lou Biggio, who is on the rotation for the appellant in here. [¶] But in regards to had I not been in shock at the time and not really functioning on that day I would—I certainly would have asked for different terms than I had asked for in view of the financial side of it." The court reiterated that the plea had been a compromise and that King was not in the "driver's seat" that day, to which King responded "Absolutely, I know."
The court inquired whether King was still taking Paxil. King responded that he was not, but noted that the medication had previously had some side effects "in terms of making me dull." The court responded that it had not noticed any side effects when the plea was taken or at any other time and told King "You seem like a very sharp person to me." King said he was much sharper now then he had been two years and six months earlier.
The court inquired whether King had made any effort to hire a new lawyer. King started to tell the court that Bishop had given him some advice about this but was interrupted and reminded of his attorney-client privilege and that he had no obligation to say anything generally or in response to the specific question whether he had made an effort to hire a new lawyer. King then gave the following response:
"Yes, your Honor. Not hire because you know as [Bishop] knows all the money that I have accumulated is for my restitution that I set aside. And I know that being assigned or appointed a public defender, and my request, you know, based on what I hear is the People versus Harris, you know, Lou Biggio has worked with this case and has personal knowledge of it."
The court then inquired whether King had "come close" to accumulating the $500,000 that people "hoped" he would have at the time of sentencing. King responded that he only had $10,000, $7,000 of which he had accumulated by working the past four months and the balance of which had been given to him by his daughter. King said that his "offer" was to pay an additional $25,000 a year on a month to month basis. King claimed he did not have any assets, but he did have a job that he could start "as soon as I get out of here."
The court then announced that its intention "[a]s things stand right now" was to deny Bishop's request to withdraw as King's counsel, explaining that the defense had not established a legal basis for the request. Bishop stated that he felt he could not represent King because King had essentially accused him of ineffective assistance of counsel by allowing him to enter the plea while under the influence of Paxil. The court disagreed with Bishop's assessment of the situation. Therefore, the court stated: "I'm not going to grant your motion to withdraw. I think he's entitled to your services today which is the day set for sentencing."
After denying the motion, the court took a recess so everyone could regroup. After defense counsel exited the court room, the following exchange occurred:
"DEFENDANT KING: Your Honor
"THE COURT: I can't talk to you now. Your lawyer is gone. The prosecutor is not here. It's unethical for me to talk to you right now.
"DEFENDANT KING: Sorry. I wasn't done from earlier."
2. Denial of Probation
At the resumed sentencing hearing, after the court heard statements from two of King's victims and a representative of the California Board of Equalization, the prosecutor requested that the court deny King probation and impose a five-year prison term, the maximum allowed under the terms of the plea agreements.
The prosecutor argued, among other things, that the case had been continued several times to give King the opportunity to make good on his promises to pay restitution but that he had not made any good faith effort to fulfill those promises. The prosecutor opined that King had "continued to scam more artists as he worked his way through all this money." The People's objective had been to get money back for the victims but "not one penny has been paid back to anybody since the plea was entered or this case was investigated." Meanwhile, the prosecutor argued, King continued on with his life; he remarried and was working on a landscaping project that was probably very expensive.
Bishop argued that King was a good candidate for probation, that he had not acted with criminal intent, but rather was a bad businessman who was clinically depressed and completely preoccupied by his wife's illness. King himself then testified that he was remorseful and wanted to take responsibility for his conduct. He also testified that he was presently employed, and that he could pay $10,000 for restitution that day and $2,000 a month thereafter if he was granted probation. Bishop then renewed his request for probation, emphasizing that if King was out of jail and working, his victims would receive "some money" back.
Preliminarily, the court commented that this case was not only very sad, but very, very old. It expressed sympathy for the many victims and, by way of explanation, noted that the district attorney's office "was just hoping against all odds that the defendant would come up with at least $500,000 in restitution that was owing and, of course, that didn't happen so here we are." The court then reviewed the terms of the plea agreements and acknowledged that the maximum punishment it could impose was a five-year prison term and that it could also grant probation even though the restitution had not been paid. With this background, the court announced the following decision:
"I will not grant probation. He will go to prison. It will be for five years and that's all there is to it. It's a very straightforward and easy decision that presents itself to me today. The defendant has said repeatedly throughout the life of this case that he is a man of means who can come up with the money as soon as we can agree on a figure. And that figure was agreed upon long, long ago. And now we're looking at a single check for $10,000 which has never been delivered to anybody. The fact that he hasn't paid one dime in restitution in all this time when he obviously was able to do that if he chose to says a lot about his promise to make restitution in the future. It's probably not going to happen, although I hope it does. And so that shows an attitude that does not bode well of succeeding on probation."
The court then listed several additional reasons for its sentencing decision including that the offenses were committed while King was on probation, so there was no reason to believe probation would work in the future; King violated a position of trust with multiple people multiple times; he displayed a high degree of callousness toward his victims and caused them serious mental and financial harm; this was a very "aggravated" case of grand theft; and King "was obviously an active participant in making the choices he made, spending the money he spent, the way he spent it rather than fulfilling his obligations to the people before the court right now."
III. DISCUSSION
A. Motion to Withdraw
King contends the trial court committed reversible error by denying Bishop's motion to withdraw as defense counsel on the ground of a conflict of interest.
"Under the state and federal Constitutions, a criminal defendant has the right to the effective assistance of counsel, which includes the right to representation that is free from conflicts of interest. [Citation.] Conflicts of interest arise in ' "all situations in which an attorney's loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests." ' [Citations.]" (People v. Horton (1995) 11 Cal.4th 1068, 1106; see also People v. Doolin (2009) 45 Cal.4th 390, 417.) "When the trial court knows, or reasonably should know, of the possibility of a conflict of interest on the part of defense counsel, it is required to make inquiry into the matter." (People v. Bonin (1989) 47 Cal.3d 808, 836.)
"The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court. [Citation.] Where issues of confidentiality prevent 'counsel from further disclosure and the court [accepts] the good faith of counsel's representations, the court should find the conflict sufficiently established and permit withdrawal.' [Citations.]" (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133 (Manfredi).) However, the trial court is not required to "accept a sweeping claim of conflict and 'rubber stamp' counsel's request to withdraw." (Aceves v. Superior Court (1996) 51 Cal.App.4th 584, 592 (Aceves).) "The trial court still has a duty to explore the conflict, and counsel has a corresponding duty to respond, and to describe the general nature, as fully as possible but within the confines of privilege." (Manfredi, supra, 66 Cal.App.4th at p. 1134.)
Applying these rules, we find that the trial court did not abuse its discretion by denying Bishop's motion to withdraw. Bishop made a "sweeping claim" of a conflict of interest which the trial court was not required to simply rubber stamp. (Aceves, supra, 51 Cal.App.4th at p. 592; Manfredi, supra, 66 Cal.App.4th at pp. 1133-1134.) The court pressed counsel for both a factual explanation and legal authority but Bishop declined to supply either. After the court denied the motion to withdraw, Bishop stated that he could not continue to represent King because King accused him of ineffective assistance of counsel by allowing King to enter a plea while under the influence of Paxil. But by that point in the hearing, the court had heard enough information to support its finding that there was insufficient evidence of an actual conflict of interest which would have required Bishop to withdraw from the case.
First, King told the court that Bishop had done a good job for him and that he was shocked when Bishop said he intended to withdraw from the case. Indeed, King stated that his only concern about having Bishop continue as his counsel was that he thought that Bishop did not want to represent him. However, Bishop himself dispelled that fear by stating that he did not want to withdraw but only felt that he had no choice.
Second, King told the court that Bishop had misunderstood comments that King had made and that the disagreements between them had been limited to trial tactics. Of course, those disagreements were no longer relevant after King himself made the decision to enter a plea.
Third, King did not express a desire to withdraw his plea or reveal any circumstance that would have supported a motion to withdraw that plea. In this regard, we note that King did not tell the court that he was taking Paxil when he entered his plea. Rather, when the court questioned King about Paxil, King stated that he no longer took the medication but that the side effects had made him feel "dull" and that he felt he was much "sharper" that day then he had been two and a half years earlier.
Under these circumstances, the trial court did not abuse its discretion by concluding that there was no actual conflict of interest between King and Bishop at the time of the sentencing hearing. Indeed, on this record, the trial court could well have concluded that the motion to withdraw was part of a defense strategy to exploit a potential conflict in order to secure yet another continuance.
On appeal, King contends that Bishop disclosed at least three actual conflicts during the in camera hearing: (1) Bishop could potentially be a witness if the voluntariness of King's plea was challenged; (2) King gave Bishop instructions which were indicative of an intent to defraud the court; and (3) King accused Bishop of ineffective assistance of counsel.
However, as our analysis above illustrates, these three allegedly distinct conflicts all pertain to only one issue, a possible disagreement between King and his lawyer about whether to file a motion to withdraw King's plea. Bishop's vague remarks suggested that King may have been urging him to file such a motion, notwithstanding Bishop's advice that there was no basis for it. But the record does not compel the conclusion that this disagreement resulted in an actual conflict of interest.
In essence, Bishop disclosed to the court that he had concerns that a conflict could arise in the future if King either attempted to withdraw his plea, or accused Bishop of a ineffective assistance of counsel. The court did not ignore those concerns, but instead conducted a hearing at which King elected to speak but did not express any desire to withdraw his plea or any dissatisfaction with Bishop. Under those circumstances, the trial court did not abuse its discretion by denying Bishop's motion to withdraw from the case. B. Motion to Discharge Retained Counsel
King separately contends that the trial court violated his constitutional right to counsel by denying his own motion to discharge Bishop.
"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.' [Citations.] The right to discharge a retained attorney is, however, not absolute. [Citation.] The trial court has discretion to 'deny such a motion if discharge will result in "significant prejudice" to the defendant [citation], or if it is not timely, i.e., if it will result in "disruption of the orderly processes of justice" [citations].' [Citations.]" (People v. Verdugo (2010) 50 Cal.4th 263, 310-311 (Verdugo); see also People v. Ortiz (1990) 51 Cal.3d 975, 983.)
In the present case, King did not make a motion to discharge Bishop. Indeed, Bishop's motion to withdraw from the case was supported by a sworn declaration that King refused to discharge him. Ignoring these facts, King contends that his comments to the court during the in camera hearing must be construed as a motion to discharge Bishop. We disagree.
At the in camera hearing, Bishop told the court that he had advised King that, if he was permitted to withdraw, King would have to hire a new lawyer or that, depending on his financial situation, the court might appoint an attorney to represent him. Later in the hearing the court asked King whether he had attempted to hire a new lawyer. King said he had not and then suggested that, because he was putting his money aside for restitution, the court could appoint Lou Biggio, who was familiar with this case. King advised the court that Biggio was the defense attorney "on rotation" for the public defender's office on that particular day.
The appellate record does not disclose how King knew that fact. Nor do we find any evidence that King was entitled to appointed counsel at the time of sentencing. The appellate record does contain evidence that Biggio shared office space with Bishop, that he assisted Bishop with King's cases and that he specially appeared for King at more than one hearing in this case.
We are not persuaded by King's efforts to construe his remarks about Biggio as a motion to discharge Bishop. When read in context, King's request to have Biggio appointed was obviously contingent on circumstances that never materialized, i.e., Bishop's withdrawal from the case, a continuance of sentencing, and a showing that King was entitled to appointed counsel. King did not give the court any reason to construe his comments as a motion to discharge his retained counsel. Rather, as noted above, King expressly refused to discharge Bishop before the sentencing hearing and then told the court that Bishop had done a good job representing him for many years.
Nor will we strain to construe King's expressed dissatisfaction with his plea agreement as a request to fire Bishop. Unquestionably, King viewed the in-camera hearing as an opportunity to attempt to renegotiate the restitution term of the plea agreement without having to forfeit the beneficial aspects of that plea. However, we reiterate that King clearly did not attempt to withdraw his plea. Indeed, there was good reason for him not to pursue that path in light of the magnitude of the charges against him and the fact that the plea agreement capped his potential prison sentence at five years. Furthermore, although King claimed he would not have agreed to the restitution term if he had it do over, he did not ever tell the court that Bishop had failed to effectively represent him in the past.
King argues that People v. Eastman (2007) 146 Cal.App.4th 688 (Eastman) supports his contention that his comments at the sentencing hearing constituted a motion to discharge his attorney. We strongly disagree. In Eastman, defense counsel appeared at the sentencing hearing and notified the court that the defendant wanted to withdraw his plea but that he was unwilling to make the motion. The sentencing court then permitted defendant to offer a letter in which he complained that defense counsel had conspired with the prosecutor, that defense counsel had failed to represent him and that he had been denied a defense. On appeal, the Eastman court found that the lower court committed reversible error by failing to inquire into the defendant's claim of ineffective assistance and to make a record of that inquiry as required by People v. Marsden (1970) 2 Cal.3d 118. (Eastman, supra, 146 Cal.App.4th at pp. 696-697.)
In the present case, King refused to discharge Bishop prior to the sentencing hearing and he did not thereafter articulate any concrete dissatisfaction with Bishop, either in writing or otherwise. Furthermore, neither Bishop nor King ever advised the court that King wanted to file a motion to withdraw his plea. Finally, in contrast to Eastman, the trial court in this case did conduct an inquiry and gave King every opportunity to state his grievances against Bishop. Although King elected to speak, he did not expressly or implicitly move to discharge his attorney.
Even if we could be persuaded to find that King did make a request to discharge Bishop, that request would have been untimely. As noted above, the court has discretion to deny a motion to discharge retained counsel if it will result in " ' "disruption of the orderly processes of justice" [citations].' [Citation.]" (Verdugo, supra, 50 Cal.4th at p. 311.)
Here, as the trial court explained at the sentencing hearing, the cases against King had been pending for several years and his multiple victims were entitled to closure. The sentencing hearing had already been continued more than once due to King's unilateral actions (e.g., claiming he needed more time to make restitution and failing to keep his appointment with probation). Furthermore, the court was presented with ample evidence that King had made repeated promises to make restitution solely for purposes of delay and that he had never made any good faith effort to keep those promises. Finally, King did not make any effort to replace Bishop and, as late as one week before the sentencing hearing, King refused to permit Bishop to withdraw from the case.
Therefore, if we could be persuaded to find that King actually made a motion to discharge Bishop at the same hearing where he admitted that Bishop had done an excellent job representing him, we would also readily conclude that the court acted within its discretion by denying the untimely motion and preventing any further " ' "disruption of the orderly processes of justice" [citations].' " (Verdugo, supra, 50 Cal.4th at p. 311.) C. Probation
King's final contention is that the trial court abused its discretion by denying him probation solely because he failed to pay restitution to his victims, when there was no evidence that he had the ability to pay more than the $10,000 that he offered to pay at the sentencing hearing.
The record simply does not support the factual premise of this claim of error, i.e., that the trial court denied probation solely because King did not have the money to pay restitution. The court listed numerous reasons for its decision to deny probation, including King's prior poor performance on probation, King's violation of trust relationships, the callousness of King's behavior and the fact that he was an active participant in a criminal enterprise.
Because King fails to face the facts that supported the court's sentencing decision, the authority he cites is irrelevant. For example, he mistakenly relies on cases in which indigent defendants were incarcerated solely because of their non-willful inability to pay a fine or restitution. (See, e.g., Bearden v. Georgia (1983) 461 U.S. 660, 667-668.) In the present case there is no evidence that King was indigent or that he was incarcerated solely because he could not pay restitution, but there is evidence that King intentionally led the prosecutor and court to believe that he had the ability to pay $500,000 restitution. King also relies on Charles S. v. Superior Court (1982) 32 Cal.3d 741, 751, where the court held that "a minor cannot be denied probation under [Welfare and Institutions Code] section 654 solely because of his inability to pay restitution to his victim." King is not a minor, he was not sentenced under section 654, and he was not denied probation solely because of his inability to pay restitution.
IV. DISPOSITION
The judgment is affirmed.
Haerle, J.
We concur:
Kline, P.J.
Richman, J.