Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD193320 Kerry Wells, Judge.
HUFFMAN, J.
A jury convicted Lawrence Lamont Phillips of two counts of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)); two counts of corporal injury to a cohabitant after a prior conviction for corporal injury (§ 273.5, subds. (a), (e)(1)); one count of false imprisonment (§ 236 & 237, subd. (a)); one count of making a criminal threat (§ 422); and one count of unlawful taking and driving of a vehicle (Veh. Code, § 10851, subd. (a).) The jury also found Phillips inflicted great bodily injury during the commission of the assaults and the corporal injury counts (§ 12022.7, subd. (e)).
All further statutory references are to the Penal Code unless otherwise specified.
In a bifurcated trial the jury found true a prior serious/violent felony prior conviction within the meaning of section 667, subdivisions (b)-(i). Phillips was sentenced to a determinate term of 24 years, four months in prison.
Phillips was also resentenced for a Los Angeles County case for which he had been previously sentenced to prison for seven years. The aggregate sentence imposed is 31 years, four months.
Phillips appeals contending the trial court erred in denying three pretrial motions to relieve and replace appointed counsel. In a related contention, Phillips contends the court also erred in proceeding with the trial in his absence when he refused to attend the trial unless he received new counsel. We will reject each contention and affirm the judgment.
STATEMENT OF FACTS
Phillips does not challenge either the admissibility or the sufficiency of the evidence to support his convictions or the true finding on the prior felony conviction allegation. Accordingly, we will set forth an abbreviated statement of the facts simply to provide context for the discussion that follows.
In 2005 Phillips had a relationship with Amaliya Weisler, the victim in all the counts. By August 2005, their relationship had deteriorated and Weisler wanted Phillips to move out of her apartment. On that occasion Phillips assaulted Weisler, struck her numerous times and choked her into unconsciousness.
Ten days later Phillips again assaulted Weisler and again choked her into unconsciousness. Phillips made Weisler drive him to another location. She was able to escape and contact police.
During trial the prosecution introduced evidence of similar conduct by Phillips involving two different women. The conduct occurred in 2000 and 2003.
DISCUSSION
Phillips brought three different motions before trial asking that his appointed counsel be relieved and new counsel appointed. In each instance the trial court held an in camera hearing in accordance with the requirements of People v. Marsden (1970) 2 Cal.3d 118 (Marsden). In each instance the trial court denied the requests to replace appointed counsel.
Phillips brought an additional Marsden motion after the trial was completed, which motion was granted. Phillips was represented by different counsel at the sentencing and new trial motion hearings. Phillips does not challenge the trial court's decision to grant his fourth Marsden motion.
Phillips contends the trial court erred in denying each of his Marsden motions because he argues that the record establishes there was an irreconcilable breakdown in the attorney-client relationship, which deprived him of effective representation of counsel.
After his third Marsden motion was denied, Phillips refused to leave his jail cell and appear in court for the trial. The court directed defense counsel to meet with Phillips to confirm he declined to attend. Counsel did so and confirmed Phillips would not attend the trial, although he refused to sign a waiver of his right to attend. The trial continued in Phillips's absence. Phillips continued to decline to attend the trial and advised he had decided not to testify. The trial was completed and verdicts returned in his absence.
Phillips contends the trial court improperly concluded his absence was voluntary and that the court denied him his constitutional right to be present and confront the witnesses against him.
We will first address the denial of Phillips's Marsden motions and then deal with the issues regarding the conducting of a trial in his absence. Ultimately we will reject all of his arguments and affirm.
I
DENIAL OF THE MARSDEN MOTIONS
Although a criminal defendant is not entitled to choose the counsel that is appointed to represent the person, a defendant is entitled to have new counsel appointed where the defendant demonstrates that continuing with existing counsel would substantially impair the defendant's right to effective assistance of counsel. (People v. Abilez (2007) 41 Cal.4th 472, 487-488.) When a defendant makes a request for substitute counsel in accordance with what has been referred to as a "Marsden motion" the court should grant the request where the record clearly shows that counsel is either providing inadequate representation or where the defendant and counsel have developed an irreconcilable conflict that will likely result in ineffective representation. (People v. Taylor (2010) 48 Cal.4th 574, 599 (Taylor).)
We review the denial of a Marsden motion under the abuse of discretion standard. We will not find an abuse of discretion unless the record clearly shows that failure to replace defense counsel would substantially impair the right to the assistance of counsel. (Taylor, supra, 48 Cal.4th at p. 599.) In the present case the trial court conducted appropriate in camera hearings on each of the Marsden motions. In each instance the court fully inquired of Phillips and defense counsel about the issues that gave rise to the requests for counsel to be relieved. The trial court found in each instance that defense counsel was providing competent representation and notwithstanding the disagreements between Phillips and his counsel, that his attorney was capable of continuing to provide good quality representation to Phillips. We note parenthetically that Phillips has not claimed that trial counsel provided ineffective assistance. Nor has our examination of the record demonstrated any deficiencies on the part of trial counsel in representing Phillips.
A. The First Marsden Motion
On August 3, 2009, the trial date in this case, Phillips brought a Marsden motion requesting that defense counsel be replaced. During the in camera hearing that followed, Phillips complained that he disagreed with counsel regarding the proposed cross-examination of witnesses the prosecution intended to present regarding Phillips's prior acts of domestic violence. Phillips also complained that counsel had been on vacation for a month, that his investigation had been inadequate, and that counsel had been rude to Phillips's mother over the phone.
Defense counsel explained he had been on vacation for one week, and in a trial practice training course for three weeks. He told the court he had met with Phillips several times before leaving and that counsel's supervisor was available to answer Phillips's questions during counsel's absence. As to the tactical issues, counsel explained he and Phillips disagreed on proposed cross-examination of witnesses, explaining the differences between them. Counsel also advised the court of his investigative efforts, including attempting to locate witnesses identified by Phillips. Counsel advised the court that a number of witnesses simply could not be located and the one he did contact would not be helpful to the defense.
Finally counsel explained his conversation with appellant's mother. He explained that she became verbally abusive during the call, and that he had terminated the conversation. Counsel advised, however, that he had since developed a mutual respect relationship with appellant's mother.
Counsel acknowledged that he and Phillips had a difficult working relationship and that strained relationship would make representing him difficult.
After hearing the comments from both Phillips and defense counsel, the court concluded that the disagreements were over tactical decisions, which should be made by counsel. The court found defense counsel to be experienced and competent and found that counsel was providing Phillips with effective representation. The court denied the motion.
B. The Second Marsden Motion
The next day following the hearing on in limine motions, Phillips made another request to relieve defense counsel. Phillips again complained he and counsel were not getting along. They continued to disagree over trial strategy.
During the in camera discussion, counsel indicated he felt physically threatened by Phillips based upon Phillips's comments. That statement prompted a discussion between the court and Phillips as follows:
"The Court: Well, let me ask you, answer me straight, are you going to -- are you going to act out in court physically? Are you going to attack Mr. Zehawi?
"[Appellant]: I have no plans to act out, or anything. He looked at me like -- when I was talking to him about the shenanigans, he looked at me like, you know, like a look that men give other men, like, you know, maybe he wanted to do something. So I'm, like, 'What?' Like, what -- like he was trying to intimidate me. I'm, like, please, please try to do something.
"The Court: You get this -- a look on your face. You've been kind of doing it with the Court and scoffing at what's being said and things -- there's all sorts of little, you know, subtle ways that people act and behave that can come across as intimidating or as leading up to, you know, an angry outburst. And you do have a way about yourself of doing that sort of thing. [¶] So, I mean, you might as well talk it out right now. And if you're going to assure the Court that those things are just coming across the wrong way and you have no intention and you will not be attacking Mr. Zehawi or anybody else in this courtroom, I'll feel a lot more comfortable if you'll look me in the eye and tell me that
"[Appellant]: That I have no plans to attack
"The Court: Yeah, you're not going to.
"[Appellant]: Like you said, I been -- as you put, I've attacked plenty of people. I've been to trial. I haven't had no attacks on nobody.
"The Court: Okay.
"[Appellant] You know what I mean? Come on, man. Just 'cause this dude is scary over here doesn't have anything to do with me. You know what I mean?
"The Court: So answer my question. Will you not attack anybody in this courtroom while you're in my courtroom?
"[Appellant]: I will not plan to attack anybody. I mean
"The Court" Well, that's an equivocal answer. That sounds like you're saying I'm not going to plan it, but it might happen. I'm just asking for a straight answer from you Mr. Phillips.
"[Appellant]: I have no plans. I mean, all due respect, I can't say the future.
"The Court: You don't have any intent in your mind at this point.
"[Appellant]: No.
"The Court: You recognize there's deputies
"[Appellant]: I've had -- I don't have intent, yeah. I mean, doesn't mean I wouldn't like to. But I don't have any intent.
"The Court: Do you think there's any way that could come out good for you if you attack somebody in this courtroom?
"[Appellant]: That's the only reason I haven't done it.
"The Court: There's no possible good outcome from that, is there? You've got deputies right behind you. It will not be successful, and you'll end up just being prosecuted for something else.
"[Appellant]: Yeah, I mean the deputies -- I been beat up before. That's not -- it's my third strike. I'd be doing life if I broke his jaw, or something.
"The Court: Yeah, as a matter of fact, you would.
"[Appellant]: Yeah. That's why."
Although Phillips was somewhat cagey in his responses to the questions about plans to attack anyone, the court concluded defense counsel could effectively represent Phillips. When asked if he could continue to competently represent Phillips, counsel said "absolutely." The court then denied the Marsden motion.
C. The Third Marsden Motion
Prior to jury selection on August 5, 2009, Phillips advised the court he had another Marsden motion. Phillips told the court that he did not have any new grounds to offer, but that defense counsel felt another motion was necessary. Phillips said that defense counsel had asked him if he could keep his promise not to attack anyone in the courtroom. Phillips said he told counsel that the question made Phillips feel he was under attack himself and that a person could not predict how he would react if he was under an attack.
The comments Phillips made could reasonably be considered threatening to defense counsel. Indeed counsel advised the court he was afraid of Phillips and requested that Phillips be shackled in court.
The court discussed counsel's concerns and inquired whether counsel could represent Phillips if counsel could be made to feel safe in the courtroom. Defense counsel said he could do so, although his principal concern was that he and Phillips were not communicating.
The court concluded Phillips was manipulating the process. Phillips had made intimidating comments and gestures to defense counsel and that it was Phillips who was refusing to effectively communicate.
After a lengthy discussion with Phillips and defense counsel the court concluded adequate security measures could be employed without shackling Phillips and that the dispute continued to be one over tactics. The court noted there had been no complaints from Phillips about communication problems until the date set for trial. The court concluded Phillips was being effectively represented and that the court had observed defense counsel attempting to communicate with Phillips, but that Phillips would not listen because he did not agree with counsel's advice. The court again denied the Marsden motion.
D. Analysis
Applying the appropriate standard of review, we are satisfied the trial court did not abuse its discretion in denying the three Marsden motions. Each request was appropriately considered and the court thoroughly investigated each of the complaints. The court could reasonably conclude that the complaints presented all related to Phillips's disagreement with counsel's advice and his unwillingness to accept advice he did not like. The cagey manner in which Phillips dealt with the concern of the court and counsel that Phillips might physically harm someone at trial, including threats to defense counsel, could lead one to conclude Phillips was making threats in order to manipulate the outcome of the process. Additionally, the trial court could conclude that Phillips continued in his attempts to intimidate defense counsel in order to succeed in his efforts to have counsel relieved with the attendant delay of the trial.
We cannot say the trial court abused its discretion in concluding counsel provided effective assistance to Phillips notwithstanding his client's unwillingness to cooperate. The Marsden motions were correctly denied.
II
PHILLIPS'S REFUSAL TO ATTEND COURT
After the third Marsden motion was denied, the jury selection process was completed. On the next day, August 6, 2009, the bailiff informed the court that Phillips was at the county jail and refused to appear in court. The court requested defense counsel to go to the jail and confirm that Phillips was refusing to attend the trial and to advise Phillips that the trial would proceed in his absence.
When counsel returned to the court, an in camera hearing was held outside the presence of the prosecutor. At that time counsel informed the court that Phillips remained concerned about the denial of his Marsden motions, and particularly about the comments of counsel during the motions to the effect that counsel would have difficulty effectively representing him. Phillips wrote his reasons for refusing to appear in a letter to the court, which counsel gave to the court. Phillips refused to sign a waiver of his appearance because he wanted to be present with a new, effective lawyer and wished to have another Marsden motion.
During the discussions between the court and defense counsel the bailiff returned to the court and advised he had talked again with Phillips, who had advised the bailiff that he would not return to the court unless something changed. The court and defense counsel both concluded that Phillips would only return to the court if another Marsden motion was granted and new counsel provided. The court thereafter made a finding that Phillips was attempting to hold the court hostage until he got his way. Accordingly, the court found that Phillips was voluntarily refusing to appear in court. The trial then proceeded with the trial in his absence.
Phillips does not challenge the court's instructions to the jury regarding his voluntary absence from the trial.
During the noon recess the court directed the bailiff to again contact Phillips to determine if he was willing to appear in court. The bailiff reported that Phillips still declined to appear in court. At the end of the day the court again directed defense counsel to confer with Phillips to see if he would be willing to return to court for the next trial day.
On August 10, 2009, the next court day, counsel advised the court that Phillips continued to refuse to attend and that he did not want to testify. The bailiff confirmed counsel's information.
Finally, when the jury was sent out for deliberation the bailiff said he would leave a note for Phillips that he could return for the verdicts. Ultimately the verdicts were returned in appellant's absence.
Phillips contends the trial court erred in finding that he voluntarily refused to attend the trial. He appears to contend that there was some duty on the part of trial counsel to withhold Phillips's comments from the trial court. The argument continues that if counsel had not disclosed Phillips's statements to the court there would not be enough evidence to support the finding of voluntary absence. We find the argument to be without merit and find the record clearly establishes that Phillips made a voluntary decision to absent himself from the trial.
A defendant in a criminal case has a constitutional right to be present at trial. The right is guaranteed by the confrontation clause of the Sixth Amendment and by the California Constitution. (People v. Guiterrez (2003) 29 Cal.4th 1196, 1202.) When a defendant in a noncapital case is voluntarily absent from trial, where the defendant is aware that the trial will proceed in his or her absence, the court may continue the trial in the defendant's absence. The right to presence and confrontation does not permit a defendant to frustrate the court's ability to complete a trial by the deliberate refusal to participate. (Id. at pp. 1205-1206.)
We deal first with the generalized claim that counsel did something wrong in presenting his client's comments to the court. This issue was not raised at trial, nor is there anything in the record to indicate that Phillips's comments were intended to be privileged. Phillips wrote out his views for delivery to the court. He repeatedly told the bailiff that he refused to attend, and it is plainly apparent that Phillips wanted the court to know his views. It is obvious from this record that Phillips was seeking to force the court to grant his request for new counsel, hence his refusal to attend without new and "effective" counsel. Simply put, there is no basis in this record for the claim of some vague ethics violation by counsel.
Having rejected the contention that the court should not have heard what Phillips said to counsel, we are left with a record that supports only one conclusion. Phillips consciously chose to absent himself from the trial until the trial court acceded to his demands for an unwarranted change in defense counsel. Phillips made his views clear to the bailiff, to the court in writing, and to defense counsel for the purpose of communicating his views to the court. The court had two choices: it could replace defense counsel, declare a mistrial and continue the trial, or proceed in the defendant's absence. The court correctly chose to accept Phillips's refusal to attend and proceed with the trial. Even after the voluntary refusal to attend the trial, the court continued to inquire of Phillips if he wished to change his mind. Phillips stubbornly stayed with his demands that the court grant his motion to replace counsel or Phillips would not attend. He made his choice and must therefore accept the consequences.
We find the trial court properly proceeded through the trial in the absence of the defendant.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J.NARES, J.