Opinion
H044054
01-25-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT LEON ROGERS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS150264)
Defendant Robert Leon Rogers appeals following his conviction for corporal injury on a spouse, simple assault, felony resisting a peace officer, and misdemeanor battery on a peace officer. He argues that the trial court erred when it denied his Marsden motion to remove his appointed counsel, and when it denied his request to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta).
People v. Marsden (1970) 2 Cal.3d 118.
STATEMENT OF THE CASE
The underlying facts are omitted because they are not relevant to the issues on appeal. --------
On February 18, 2015, defendant was charged with felony corporal injury on a spouse (Pen. Code, § 273.5, subd. (a), count 1), felony assault causing great bodily injury (id., § 245, subd. (a)(4), count 2), felony resisting a peace officer (id., § 69, count 3), and misdemeanor battery on a peace officer (id., § 243, subd. (b), count 4).
On June 20, 2016, the day defendant's jury trial was to begin, defendant requested that his appointed counsel be removed pursuant to Marsden. Following an in camera hearing, the court denied the motion, and defendant subsequently requested to represent himself pursuant to Faretta. The court denied this request as well, and the matter proceeded to trial with defendant's appointed counsel representing him.
On June 24, 2016, the jury found defendant guilty of corporal injury on a spouse, simple assault, felony resisting a peace officer, battery on a peace officer, and the lesser included offense of simple assault. On August 16, 2016, the court suspended imposition of sentence and placed defendant on probation for three years with the condition that he serve 270 days in jail. Defendant filed a timely notice of appeal on October 12, 2016.
DISCUSSION
Marsden Motion
Defendant brought a Marsden motion to replace his appointed counsel on the day his jury trial was to begin. This request immediately followed the trial court's denial of his attorney's motion to continue the trial. Defense counsel requested a continuance of the trial because he wanted to investigate whether defendant's uncle, who had witnessed defendant's arrest would be a favorable witness for defendant regarding the resisting arrest charge.
In moving to continue the trial, defense counsel stated: "[Defendant] had—apparently misremembered by me, had told me about an uncle that he had who was present during the incident with the officer. I would like to have an opportunity to have him interviewed and see what he has to say, and if necessary subpoena him." The court asked counsel about misremembering the information, to which counsel responded: "I believe he provided it to me—I can't tell the Court the date. We had a discussion last year about the case. I don't—my notes don't reflect his name being mentioned. I do recall his name being mentioned last week. I did not know what he had to say. Probably should have requested a continuance last week, but did not, so I'd like more time, your Honor."
The court denied the motion, stating: "All of this should have been done beforehand so I'm going to deny the motion to continue."
Following the denial of the motion to continue, defendant requested that his appointed counsel be removed. The court conducted an in camera Marsden hearing, and told defendant that this was his opportunity to say how his attorney had not adequately represented him. Defendant stated that he had called his attorney 35 times and his attorney never called him back. Later in the hearing, defendant stated that he had called his attorney 24 times.
Defendant said that he had told his attorney about his uncle as a potential witness for trial at their first meeting, and his uncle could testify about defendant's resisting arrest charge. The court questioned defendant at length about his uncle and what he had witnessed. The court stated: "Did this witness—was that witness present during any of the specific alleged occurrences of the crimes with which you're charged?" Defendant responded: "Yes. The resistance of arrest, the way the officer portrayed me in testimony, my testimony, from testimony from my uncle already invalidates big parts of the story." Defendant told the court that while he was being arrested, his uncle was there and was talking to the supervising officer on the scene "about trucks."
Defendant told the court that in addition to his uncle, there was an armored truck driver who also was a potential witness to his assault on his wife, but that he did not know the driver's name or contact information.
In the middle of the hearing, defendant stated: "I do not wish to slight [counsel]. He does a great job. He had a lot to do." With regard to contact with his attorney, defendant stated, "[counsel] also said that afterward he was going to call me this weekend and did not. I did not receive any call, and I never received any call from the Public Defender's office."
When asked to respond to the allegations, defense counsel stated: "All I can say is I'm ready, willing, and able to continue to work with [defendant]. I have nothing to add, your Honor." The court then asked counsel: "What about calling him this weekend? Did you tell him you would call him?" Defense counsel responded: "I said that I would call him and it was—I had family in from the area in the—with me. I did not get a chance to call him this weekend." Defendant then said: "And I'm sorry, it's the sixth time he told me he'd call me and he didn't. Sixth time." The court denied defendant's motion, "because it [is] late on the morning of trial."
Analysis
"The legal principles governing a Marsden motion are well settled." (People v. Lara (2001) 86 Cal.App.4th 139, 150.) When a defendant seeks substitution of appointed counsel pursuant to Marsden, " 'the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief 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 (Taylor).)
"A trial court should grant a defendant's Marsden motion only when the defendant has made 'a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation.' " (People v. Hines (1997) 15 Cal.4th 997, 1025.) "A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense." (People v. Welch (1999) 20 Cal.4th 701, 728.) "Tactical disagreements between the defendant and his attorney do not by themselves constitute an 'irreconcilable conflict.' " (Id. at pp. 728-729.) " 'When a defendant chooses to be represented by professional counsel, that counsel is "captain of the ship" and can make all but a few fundamental decisions for the defendant.' " (Id. at p. 729.)
"We review the denial of a Marsden motion for abuse of discretion." (Taylor, supra, 48 Cal.4th at p. 599.) "Denial is not an abuse of discretion 'unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel.' " (Ibid.)
Here, defendant does not assert that he and his counsel had an irreconcilable conflict. Rather, he argues that his counsel was not providing adequate representation because he failed to communicate with him, and he failed to contact defendant's uncle as a witness for trial. Defendant also argues that untimeliness was not a valid reason for the court to deny his motion and the trial court did not conduct an adequate Marsden hearing.
Adequacy of Marsden Hearing
Defendant argues that his Marsden hearing was inadequate because the court did not question his counsel about the specific allegation that he failed to contact defendant's uncle as a witness. Defendant relies on People v. Groce (1971) 18 Cal.App.3d 292 (Groce) to support this argument.
In Groce, the defendant was convicted of assault with a deadly weapon for stabbing a former girlfriend. On appeal, he argued that the trial erred by failing to "make inquiry as to the adequacy of his representation by the public defender." (Groce, supra, 18 Cal.App.3d at p. 294.) The defendant had complained that his appointed counsel was not representing his best interests because he refused to introduce evidence of a doctor's report that would have shown that the alleged victim had not been stabbed. (Id. at p. 295.)
The Groce court reversed on the ground that the defendant had complained of "specific important instances of alleged inadequacy of his representation, i.e., the existence or nonexistence of stab wounds and other pertinent evidence that could have been established by hospital records," and that the trial court erred by ordering the trial to proceed "without inquiry into counsel's reason for not producing the physician or his hospital records." (Groce, supra, 18 Cal.App.3d at p. 297.)
Defendant argues that Groce imposes a duty of inquiry that the trial court violated in the present case because it did not ask his counsel during the Marsden hearing why he had failed to call defendant's uncle as a potentially favorable witness. While it is true that the court did not inquire about counsel's inaction concerning defendant's uncle during the Marsden hearing itself, it had already questioned counsel extensively on the subject immediately before the Marsden hearing during the motion to continue the trial. This is in contrast to Groce, where the trial court "made absolutely no effort to inquire into defense counsel's alleged inadequacy . . . ." (People v. Barnett (1998) 17 Cal.4th 1044, 1095.) Here, the court's inquiry into defendant's complaints about his counsel was sufficient, and the Marsden hearing was adequate in this case.
Timeliness of the Marsden Motion
The court stated that it was denying defendant's Marsden motion "because it [is] late on the morning of trial." Defendant argues that the court should not have considered the timing of his Marsden motion, because he was requesting that his appointed counsel be replaced for inadequate representation and he was not requesting a continuance of the trial.
Contrary to defendant's argument on appeal, the timing of a Marsden motion is a proper consideration for the trial court. (People v. Smith (2003) 30 Cal.4th 581, 607.) Indeed, " 'It is within the trial court's discretion to deny a motion to substitute made on the eve of trial where substitution would require a continuance.' " (Ibid.)
Moreover, while it is true that defendant did not request a continuance when he was making his Marsden motion, to grant the motion " 'would have required either a significant delay or a mistrial.' " (People v. Smith, supra, 30 Cal.4th at p. 607.) If the court were to have granted the motion and appointed new counsel, surely defendant's new counsel would have sought a continuance to become familiar with the case and to prepare for trial. It is not reasonable to conclude that new counsel appointed on the day a jury trial was to begin would be prepared to immediately select a jury and move forward. The fact that defendant requested that his counsel be replaced on the day his trial was to begin was a proper factor for the court to consider when it denied defendant's motion.
Inadequate Representation
Defendant argues that his counsel's failure to communicate with him resulted in him receiving inadequate representation. Defendant cites the fact that he attempted to contact his counsel numerous times throughout the duration of his case, and his counsel did not return his calls. In addition, he notes that his counsel assured him that he would call the weekend before trial and did not.
Although defendant complains that he did not speak with his counsel by phone, he did have an opportunity to speak with him at many court appearances leading up to the trial date. Defendant's case began in 2015, and he was in court with his counsel at least 12 times between then and his third trial date of June 14, 2016. Defendant's right to assistance of counsel was not substantially impaired by any failure to communicate on defense counsel's part.
In addition to communication, defendant complains that his counsel's failure to call his uncle as a witness at trial resulted in inadequate representation. Defense counsel stated in the motion to continue the trial that he had not contacted defendant's uncle to determine whether he would be a favorable witness. However, the only evidence in the record regarding what defendant's uncle could potentially offer as a witness was defendant's statement at the Marsden hearing that his uncle could testify about: "The resistance of arrest, the way the officer portrayed me in testimony, my testimony, from testimony from my uncle already invalidates big parts of the story." This statement is vague, and it offers little if any support for the contention that his uncle would have been a favorable witness at trial. Defendant offered nothing specific about what his uncle would say, how his uncle's statement would be different from the officer's version of the arrest, or how his uncle would "invalidate big parts of the story." With such minimal information, the court could not conclude that defense counsel provided inadequate representation by failing to call defendant's uncle as a witness.
Defendant did not make " 'a substantial showing that failure to order substitution [would] likely . . . result in constitutionally inadequate representation.' " (People v. Hines, supra, 15 Cal.4th at p. 1025.) As a result, the trial court did not abuse its discretion in denying the Marsden motion.
Defendant's Request to Represent Himself
Defendant requested that he be permitted to represent himself following the court's denial of his Marsden motion to replace his appointed counsel. Defendant completed a written waiver of his right to counsel. After receiving the form, the court asked defendant if he had ever represented himself in a jury trial. Defendant responded that he had represented himself in a prior embezzlement case. The prosecutor interjected that there was no jury trial in the embezzlement case, and that defendant had actually entered a plea in that case. Defendant then said to the court, "I'll represent myself. I don't care. I'm so fed up with this and I'm frustrated, not with you, not with the Court, but just frustrated because we're making deals and going back and forth but you got to know everything first."
Following defendant's comments about his frustration, the court inquired regarding defendant's "yes" response to the question on the Faretta form regarding whether he had been treated for any mental or emotional illnesses. Defendant stated that he had been treated and suffered from posttraumatic stress disorder. The court then asked defendant, "Does that affect your thought process so that you have difficulty tracking things?" Defendant answered, "I think you can tell by how confused I was, yes."
After questioning defendant, the court stated "I'm going to deny your request to represent yourself. I don't believe that you are voluntarily, intelligently, or with full understanding of the dangers and disadvantages of representing yourself." The court later stated, "I'm also denying [the request] because you're making all these things on the morning of the trial. We've got the trial ready to start. This has been pending for a long time."
Analysis
In Faretta, supra, 422 U.S. 806, the United States Supreme Court recognized that "a defendant in a state criminal trial has a constitutional right to proceed without counsel" and "to conduct his [or her] own defense." (Id. at p. 807.) " 'A trial court must grant a defendant's request for self-representation if the defendant knowingly and intelligently makes an unequivocal and timely request after having been apprised of its dangers.' " (People v. Williams (2013) 58 Cal.4th 197, 252.)
Untimely Request
When a defendant's request to represent himself is untimely, as defendant concedes his was here, the court has discretion to grant or deny the request. (People v. Windham (1977) 19 Cal.3d 121, 128.) When exercising its discretion, the trial court must consider "(1) the quality of counsel['s] representation, (2) the defendant['s] prior proclivity to substitute counsel, (3) the reasons for the request, (4) the length and stage of the proceedings, and (5) the disruption or delay which might reasonably be expected to follow the granting of such a motion." (People v. Nicholson (1994) 24 Cal.App.4th 584, 591, citing Windham, supra, at p. 128.)
Consideration of the five Windham factors demonstrates that the court did not abuse its discretion in denying defendant's request. As an initial matter, defendant made only one Marsden motion and one request to represent himself in this case, so there is nothing to show that he had a proclivity to substitute counsel. However, the remaining four factors do not weigh in defendant's favor.
As discussed above in regard to the Marsden motion, defendant's counsel was providing adequate representation in defendant's case. In addition, defendant's reasons for making the request were that he was "fed up" and "frustrated" with his case and the fact that the court was requiring him to proceed with his appointed counsel. Defendant's request to represent himself was in direct reaction to the court's denial of his Marsden motion.
Further, at the point that defendant made his request, his case had been pending for over a year, he had failed to appear in court on three previous occasions, and the trial had been set two times before. The case had been substantially delayed by the time defendant made his Faretta request. Defendant had shown the court throughout the duration of his case that he had a propensity to delay and disrupt the proceedings by his repeated failures to appear.
The facts that defendant was receiving adequate representation, his Faretta request was made out of frustration, his case was at a late stage, and there was a record of defendant's delay tactics support the trial court's denial of defendant's request to represent himself. The trial court did not abuse its discretion in denying defendant's untimely request.
Equivocal Request
A trial court may deny a request for self-representation that is "equivocal, made in passing anger or frustration, or intended to delay or disrupt the proceedings." (People v. Butler (2009) 47 Cal.4th 814, 825.) Moreover, the immediacy of a motion after the trial court denies a Marsden motion is a factor that may be considered in deciding whether a defendant actually wanted to rid himself or herself of appointed counsel, was in favor of self-representation, or was just further expressing dissatisfaction with counsel. (People v. Scott (2001) 91 Cal.App.4th 1197, 1205 (Scott).)
Here, immediately following the court's denial of his Marsden motion, defendant stated that he was "fed up" and "frustrated." The defendant further stated to the court, "[E]ven when I clearly stated to you I did not have the clear representation so you're going to force me to have the poor representation still." Defendant's anger and frustration that he expressed, coupled with the request to represent himself on the heels of the court's denial of his Marsden motion, demonstrate that his request was equivocal.
The circumstances of this case are similar to those in Scott wherein the defendant made a Marsden motion before trial. When the court denied the motion, defendant stated, " 'If that's the case, I hereby move the court to let me go pro se.' " (Scott, supra, 91 Cal.App.4th at p. 1205, fn. 3.) The court asked defendant if he was sure he wished to represent himself, and the defendant said, " 'Yes. I do, judge. I don't want [appointed defense counsel] to represent me.' " (Id. at p. 1205.) The defendant told the court that if it did not appoint him a new attorney, he could represent himself. (Ibid.) On appeal, the court found that the defendant's statements, viewed in context and as a whole, were too equivocal to constitute a firm Faretta request. The court further found that the defendant's request for self-representation was made out of frustration at the denial of the Marsden motion and was not a true, unequivocal request for self-representation. (Ibid.)
Here, as in Scott, defendant requested to represent himself immediately following the trial court's denial of his Marsden motion, and he expressed frustration with the circumstances of his case, including the fact that he was going to have to continue to be represented by his appointed counsel. The timing of defendant's request and his comments demonstrate that frustration with appointed counsel was the catalyst for the motion rather than a thoughtful and reasoned decision to waive his constitutional right to counsel. (See People v. Valdez (2004) 32 Cal.4th 73, 98-99.) The trial court did not abuse its discretion in denying defendant's untimely request to request to represent himself.
DISPOSITION
The judgment is affirmed.
/s/_________
Premo, J.
WE CONCUR: /s/_________
Elia, Acting P.J. /s/_________
Grover, J.