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In re R. M.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Apr 19, 2018
D072295 (Cal. Ct. App. Apr. 19, 2018)

Opinion

D072295

04-19-2018

In re R. M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. R. M., Defendant and Appellant.

Jane L. Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J239723) APPEAL from a judgment of the Superior Court of San Diego County, Aaron Katz and Robert J. Trentacosta, Judges. Affirmed. Jane L. Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.

The juvenile court found true the allegation that 15-year-old R. M. (RM) engaged in misdemeanor disorderly conduct when he hid in the bushes outside a woman's home with his pants down. (Pen. Code, § 647, subd. (i).) The court placed RM with his mother under supervised probation. RM contends the court erred in failing to conduct a Marsden hearing after his stepfather requested a continuance to seek to replace appointed defense counsel. (See People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) We find no prejudicial error and affirm.

FACTUAL BACKGROUND

A woman (C) called the police after she noticed a person (later identified as RM) in the bushes outside the window of her condominium unit. About 10 minutes later, two police officers arrived at the scene. They saw RM crouched down near a large bush next to the residence. His pants were "down around his ankles." When the officers asked him to stand, he complied and pulled up his pants as he was doing so.

RM lives in the same condominium complex as C. In response to the officers' questions as to what he was doing, RM said "he likes to spy" and look into the neighbors' windows when he finishes his homework. After the officers read RM his Miranda rights, RM again told the officers that he likes to spy and to look into windows.

C told the officers she had seen RM while she was walking her dog a few hours earlier, and he had made her feel uncomfortable. She also recalled RM "hanging out" around her condominium unit several months earlier.

The People charged RM with misdemeanor disorderly conduct. (Pen. Code, § 647, subd. (i).) At trial, C and the responding officers testified to the facts summarized above. RM did not testify. His defense was that the prosecution had not satisfied its burden to prove the charged Penal Code section 647 offense because this offense requires loitering/prowling to occur on the "property of another" and the place where he was crouched with his pants down was in the condominium association's common area, and therefore not the "property of another." (Pen. Code, § 647, subd. (i).) The court rejected this defense, and found the prosecution proved each element of the offense.

DISCUSSION

RM contends the court erred in failing to conduct a Marsden hearing on the morning of the adjudication hearing. We find no prejudicial error.

A. Relevant Factual Background

At the outset of the adjudication hearing, deputy public defender Nicole Ing said she was prepared to go to trial, but the "parents are seeking a continuance because they would like to retain counsel" and "they would like to be heard." The court replied, "Sure." RM's stepfather (Stepfather) then stated:

"Just for the record we were just contacted last night by [deputy public defender Ing] . . . about our situation. We h[ad] no [previous] communication with [Ing] whatsoever. We don't . . . even know what's going on.

"We were speaking with [a different deputy public defender] Lynn Thomas, and Lynn Thomas had told us—you know, what she was explaining to us, and it's contradicting everything that [public defender Ing] . . . explained to us last night.
"So we think there's just a big break in communication, and we would like to request a new counsel, if it's all right with the court."
The court responded that trial was scheduled to begin that day, and it is "not uncommon . . . , given the busy schedules of deputy public defenders, that an attorney may step in. In this particular case[,] Ms. Ing has indicated she's prepared for trial. [¶] This is a misdemeanor case. It's one count. It's not a complicated case."

The record shows Stepfather was RM's mother's boyfriend rather than her husband, but the family referred to him as "stepdad" or "step-father." For purposes of this appeal, we shall do the same. --------

The court asked the prosecutor for her position on the parents' request. The prosecutor said: "The People are opposed to a continuance. We are ready to go today. We have flown in a witness [C] from Colorado for trial today, and she has a flight out this evening. We also have a subpoenaed officer who is here to testify."

The court then denied the parents' motion, explaining: "[T]he People have subpoenaed witnesses [and] they're prepared to go forward. [¶] . . . It's [a] fairly straightforward [case]—Ms. Ing is prepared. She's an excellent lawyer, and I have every confidence that she'll handle the case appropriately and make whatever arguments are necessary to present the case on behalf of the minor. I just don't see any basis to continue it."

Ing then said she wanted "to clarify my understanding of the miscommunication" between herself and RM's family: "Last night [the prosecutor] and I had a discussion about a potential [Welfare and Institutions Code section 654] offer [of informal supervision in lieu of a juvenile petition seeking a true finding], and so I relayed that offer, basically to see if [RM] would be willing to take it, because I do have an ethical obligation to relay offers. [¶] And I think the family interpreted that as me trying to settle the case when I was simply relaying the offer."

The court then spoke to RM and his parents:

"Okay. Let me clarify that. And I think that's important. [¶] Because certainly this is very, very important to all of you, and I completely understand that. Ms. Ing has an obligation to communicate any offers to resolve the case. . . . It would be malpractice for her to fail to do that. [¶] It would be a violation of her ethics, so she has an obligation to communicate to all of you—especially her client—and that of course is RM—let him know what the offer is and what the implications of that offer are.

"In the case of [a Welfare and Institutions Code section 654 offer], [t]hat's basically handling this case informally. There's no expression of guilt or innocence. [¶] . . . Typically it is a six-month period where RM would be required to complete some community service and do some additional programming just to ensure [RM's rehabilitation]. . . . [¶] . . . [A]fter six months, if RM completed various tasks, then the case would be dismissed, his record would be sealed, and there would be no impact on him whatsoever.

"[T]he alternative . . . is always that he has an absolute constitutional right to proceed to trial. And it would be my determination whether or not the People have proven [the] case beyond a reasonable doubt . . . ."

The court asked whether the Welfare and Institutions Code section 654 offer was still available, and both counsel said no because the offer was made when the district attorney could cancel C's flight, but C had already flown into San Diego and was at the courthouse. The court then proceeded to conduct the trial.

B. Applicable Legal Principles

Under Marsden, a criminal defendant is entitled to have appointed counsel relieved and substitute counsel appointed " 'if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.' " (People v. Taylor (2010) 48 Cal.4th 574, 599; accord People v. Clark (2011) 52 Cal.4th 856, 912.) On appeal, we review a trial court's denial of a motion to relieve appointed counsel "under the deferential abuse of discretion standard." (People v. Lara (2001) 86 Cal.App.4th 139, 151-152.) The court does not abuse its discretion unless the defendant has shown a failure to replace counsel would "substantially impair[]" the defendant's right to assistance of counsel. (People v. Loya (2016) 1 Cal.App.5th 932, 944.)

Generally, when a defendant requests substitute appointed counsel because of claimed problems with the representation, the court should hold a hearing to permit the defendant to explain the reasons for the request. (People v. Sanchez (2011) 53 Cal.4th 80, 90.) " '[A] proper and formal' Marsden motion is not required—the defendant need only clearly indicate to the trial court 'in some manner' that he or she is requesting the discharge and replacement of the appointed counsel." (People v. Armijo (2017) 10 Cal.App.5th 1171, 1178.) When a defendant clearly makes this request, the trial court must permit the defendant to explain the reasons for his dissatisfaction with his current counsel. (Sanchez, at pp. 87, 90.) If the trial court fails to conduct an adequate inquiry into the reasons for the substitution request, the case should be remanded for a reopened Marsden hearing unless the record shows the error was harmless beyond a reasonable doubt. (See People v. Chavez (1980) 26 Cal.3d 334, 348-349; People v. Knight (2015) 239 Cal.App.4th 1, 9.)

C. Analysis

RM contends the court erred by not conducting a Marsden hearing. However, RM never stated or suggested he wanted to substitute his attorney; instead it was his parents who raised the issue. Generally, a third party does not have the authority to require the trial court to conduct a Marsden inquiry. (People v. Martinez (2009) 47 Cal.4th 399, 418-420.) RM, who was 16 years old at the time of trial, had the ability to raise the issue with the court if he was concerned with the representation. Absent a request by RM, the court had no duty to conduct a Marsden hearing. (Martinez, at pp. 418-420.)

RM urges this court to recognize an exception to this standing requirement for parents of minors in delinquency proceedings. We need not reach this issue because even if RM's parents had standing to assert RM's Marsden right, there was no error.

First, the record is not clear the parents were seeking to substitute the appointed counsel with another appointed counsel. Instead, RM's counsel said "the parents are seeking a continuance because they would like to retain counsel." (Italics added.) The standards for evaluating a request for retained counsel can be "quite different" from considering a request for a new appointed counsel. (People v. Courts (1985) 37 Cal.3d 784, 795, fn. 9; see People v. Molina (1977) 74 Cal.App.3d 544, 548-549.) However, we need not delve into this issue because RM does not contend the court erred in denying a continuance to allow his parents to retain private counsel, and we are satisfied any such contention would be without merit given the substantial prejudice to the witnesses and the prosecution if trial was postponed on the morning of the scheduled trial date. (See People v. Blake (1980) 105 Cal.App.3d 619, 623-624.)

Second, if the parents adequately communicated a request for substitute appointed counsel, the court complied with its Marsden obligations by providing the parents with the opportunity to explain their dissatisfaction with deputy public defender Ing. Stepfather said he was concerned with the adequacy of the representation because the family had not spoken with Ing until the day before the hearing, and Ing's information was different from the information provided by the prior assigned deputy public defender. Stepfather characterized these facts as constituting a "big break in communication" and said this was the reason the family was seeking substitute counsel. Ing elaborated on Stepfather's explanation. Ing said that when she spoke with the family, the family expressed concerns that she had relayed the prosecutor's offer of an informal resolution of the case under Welfare and Institutions Code section 654. According to Ing, the family believed Ing was improperly attempting to compel RM to settle the case rather than to go to trial.

The court responded to these comments by noting that deputy public defenders routinely transfer into a case shortly before trial; Ing is an excellent attorney who had assured the court she was prepared for trial; the case involved a single charge; the factual and legal issues were relatively straightforward; and offers to informally resolve a delinquency charge can be an appropriate method for settling a juvenile delinquency matter. With respect to the continuance request, the court was aware the victim (who now lived out of state) had already traveled to San Diego for the trial, and the responding officers had been subpoenaed and were prepared to testify that day.

On this record, the court made a sufficient inquiry into the reasons for the request to substitute counsel. Marsden hearings are informal proceedings that focus on whether the stated grievances have "sufficient substance." (People v. Hines (1997) 15 Cal.4th 997, 1025.) Marsden requires only that a trial court listen to the "reasons for requesting a change of attorneys." (Marsden, supra, 2 Cal.3d at p. 123.) " '[A] Marsden hearing is not a full-blown adversarial proceeding, but an informal hearing in which the court ascertains the nature of the defendant's allegations regarding the defects in counsel's representation and decides whether the allegations have sufficient substance to warrant counsel's replacement.' " (People v. Alfaro (2007) 41 Cal.4th 1277, 1320.)

The trial court did just that. It permitted Stepfather to identify the grounds upon which the family believed trial counsel should be replaced. The fact that the court asked Stepfather to explain his concerns in the presence of the prosecutor does not show the inquiry was insufficient. "[N]o single, inflexible procedure exists for conducting a Marsden inquiry." (People v. Madrid (1985) 168 Cal.App.3d 14, 18.) Thus, a prosecutor's presence at the Marsden inquiry does not necessarily show error. (See Madrid, at pp. 18-19; see People v. Lopez (2008) 168 Cal.App.4th 801, 814-815.) Although an in camera hearing is "the better practice," a hearing in open court is sufficient if neither the defendant nor defense counsel asks for an in camera hearing and the attorney-related complaints would not trigger the disclosure of information that is confidential or "could conceivably lighten the prosecutor's burden of proving its case." (Madrid, at p. 19.) That was the situation here.

In his appellate briefs, RM does not directly argue Stepfather proffered sufficient reasons to require an attorney substitution. We agree with this implied concession. There was nothing in Stepfather's explanation showing counsel could not provide adequate representation or that there was an irreconcilable conflict between RM and Ing. A defendant's "vague, unsubstantiated allegation[] that he and his [counsel] had trouble communicating" do not suffice to show an irreconcilable conflict. (Hines, supra, 15 Cal.4th at p. 1026; see also People v. Freeman (1994) 8 Cal.4th 450, 481 [defendant's distrust of counsel who suggested he plead guilty insufficient basis for substitution].) A trial court is entitled to find a defendant's complaint unfounded if it credits counsel's explanation, and a reviewing court must defer to the court's credibility findings. (See People v. Taylor, supra, 48 Cal.4th at p. 600.)

RM's main appellate challenge instead is that the court did not specifically ask him whether there were any grounds to require a substitution. However, because RM was not the person seeking a substitution, the court had no duty to make a direct inquiry. RM's Marsden error claim is founded on his assertion that his parents were the appropriate parties to represent his interests regarding problems with his counsel and to articulate those concerns for the court. He says his parents had the right to speak on this issue "on behalf of their minor child." If these assertions are valid and RM's parents had standing to represent their son, then the court had a reasonable basis to conclude there was no need to additionally question the minor. Because there is no information in the record that RM had any concerns about his attorney, the court had no duty to sua sponte ask RM any questions about the representation. (See People v. Martinez, supra, 47 Cal.4th at pp. 421-422.)

DISPOSITION

Judgment affirmed.

HALLER, J. WE CONCUR: McCONNELL, P. J. IRION, J.


Summaries of

In re R. M.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Apr 19, 2018
D072295 (Cal. Ct. App. Apr. 19, 2018)
Case details for

In re R. M.

Case Details

Full title:In re R. M., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Apr 19, 2018

Citations

D072295 (Cal. Ct. App. Apr. 19, 2018)