Opinion
E032562. E033975.
10-2-2003
THE PEOPLE, Plaintiff and Respondent, v. EDWARD CHARLES SAMUEL et al., Defendant and Appellant. In re EDWARD CHARLES SAMUEL on Habeas Corpus.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant Edward Charles Samuel. Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant Calvin Eugene Burdine. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Anthony Da Silva and Erika Hiramatsu, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Calvin Eugene Burdine and Edward Charles Samuel of second degree robbery. (Pen. Code, § 211.) In bifurcated proceedings, Samuel admitted suffering a prior conviction for which he served a prison sentence. (Pen. Code, § 667.5, subd. (b).) Burdine was sentenced to prison for five years and Samuel for six years.
Burdine appealed and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and requesting this court to undertake a review of the entire record.
We offered Burdine an opportunity to file a personal supplemental brief, which he has not done.
Samuel appeals and petitions for a writ of habeas corpus contending that the trial court erred in conducting the hearing on and denying his Marsden motion and that his trial attorney was incompetent. We consolidated the two for purposes of determining whether an order to show cause should issue. We reject his contentions and affirm, while denying his petition.
People v. Marsden (1970) 2 Cal.3d 118.
FACTS
Burdine, Samuel and two others robbed the victim, as the latter walked along E Street in San Bernardino on March 21, 2001. The evidence against both defendants was quite strong. Burdine did not testify or present any evidence; Samuel presented an alibi defense and claimed he had never before met Burdine.
Samuels Appeal and Petition for Writ of Habeas Corpus
At a continued sentencing hearing, trial counsel for Samuel informed the court that someone at the previous hearing had handed him a motion for a new trial. The notice contained a declaration signed by Burdine, which is largely unintelligible but in which he asserts that he had told both a police officer and his trial attorney that Samuel had nothing to do with the crime, but his attorney advised him that testifying to this would incriminate him. Counsel for Samuel said he looked at the motion and feared if he submitted it, he would commit an ethical breach. Therefore, he obtained a continuance and consulted with peers and people at the state bar. He concluded that the ethical problem he first anticipated in submitting it did not exist because he had not initiated the contact with Burdine. However, he had concluded that if he filed the motion, he would be violating his ethical duty to not bring frivolous motions or motions which were not in Samuels best interests. He added that if the motion went forward, he would be called as a witness adverse to Samuel. He said he had told Samuel that he believed their best course of action was to go ahead with sentencing and file an appeal, but Samuels other options were to request a Marsden hearing if Samuel felt there was a conflict of interest or to file a Faretta motion and represent himself. Samuel said he wanted to file a Marsden motion.
In a declaration attached to the petition for writ of habeas corpus, Samuels sister states that she is the person who handed Samuels trial counsel the motion.
In his petition, Samuel admits he authored it.
His signature had been notarized.
In the declaration, Burdine asserted that he overheard Samuels trial attorney bet with Samuel that Burdine would not testify at trial, implicating himself and exonerating Samuel. We assume that it was this aspect of the motion that caused counsel for Samuel to fear that he would be called as a witness adverse to Samuel. Counsel explained during the hearing on the Marsden motion that he had offered the bet in jest because Samuel was unnecessarily confident and ultimately incorrect in his assumption that Burdine would take the stand at trial, implicate himself, and exonerate Samuel. Contrary to Samuels assertion, we do not view this as creating a conflict of interest between Samuel and his trial attorney.
Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562].
At the hearing on the motion, Samuel said his attorney did not file the new trial motion or attempt to sever his trial from Burdines, had not asked him how he wanted the case handled, and did not appear to be serious about it. Samuels attorney responded that he and his investigators had spoken to Samuel on several occasions and he felt he had spent adequate time with Samuel. The trial court concluded that there was no Marsden issue.
Samuel also said he had asked his trial attorney if the latter could subpoena Burdine during trial or "do anything to help [Samuel] in any kind of way?" The trial court pointed out that Samuels trial attorney could not. Although Samuel here attempts to make much of the fact that his trial attorney could have subpoenaed Burdine outside the presence of the jury, at which time Burdine could have (and probably would have according to Samuel) "taken the Fifth." He asserts that then he could have testified to statements Burdine made to him and others implicating Burdine and exonerating him, because they were declarations against Burdines penal interest. Setting aside the devastatingly prejudicial impact of such testimony in this joint trial of Samueland Burdine, only those portions of Burdines statements to Samuel or anyone else specifically disserving to Burdine would have been admissible as declarations against Burdines penal interest. That would not include Burdines assertion that Samuel was not there or that Burdine did not know Samuel. (Evid. Code, § 1230.)
Samuel then announced that he wanted to represent himself. However, after filling out the Faretta waiver form, he told his attorney, who, in turn, informed the trial court, that he had changed his mind. Samuel confirmed this.
In his appeal and petition for writ of habeas corpus, Samuel asserts that the trial court failed to conduct an adequate hearing on his Marsden motion by not inquiring into the possibility of a conflict of interest between him and his attorney. He also contends that the trial court erroneously denied his motion. We disagree on both points. Samuel never described a conflict of interest between his attorney and himself. He said that his attorney had not consulted him about how he wanted his case handled and had not filed the new trial motion or attempted to sever his case from Burdines. To the extent Samuel was suggesting that his attorney had not spent adequate time talking to him about the case, his attorney responded in contradiction, apparently to the satisfaction of the trial court. To the extent he was suggesting that his attorney failed to conduct his case the way Samuel wanted it done, his point had no merit, as he was not entitled to control the case as long as he was represented by counsel. (People v. Michaels (2002) 28 Cal.4th 486, 523; People v. Scott (1997) 15 Cal.4th 1188, 1207; In re Horton (1991) 54 Cal.3d 82, 95.)
Samuel cites cases which he asserts hold that counsels ability to control the case does not extend to instances where a defendant expresses a desire to present a defense and there exists credible evidence to support that defense. However, Samuels defense of noninvolvement was presented to the jury, by the testimony of his alibi witnesses and by his own claim on the stand that he was not involved in the crime and did not even know Burdine. Samuel presumes much by asserting that Burdines declaration constituted credible evidence to further support this defense. Even if it did, counsels failure to bring the new trial motion did not result in Samuels defense not being presented to the jury. It was.
The fact that Samuel told the trial court, during the hearing on the Marsden motion, "[Y]ou are telling me its a conflict of interest," as a reason for his attorneys refusal to file the new trial motion did not make it so. Neither Samuels trial counsel nor the trial court told Samuel there was a conflict of interest.
Moreover, the denial of a Marsden motion is not an abuse of discretion unless the defendant can show that the failure to replace his attorney substantially impaired his right to the assistance of counsel. (People v. Webster (1991) 54 Cal.3d 411, 435.) Samuel cannot do this because he cannot show that a new attorney would have filed the new trial motion or that, if one did, it would have been successful. (See discussion, infra.)
Samuel also asserts that his trial counsel was incompetent for failing to file the motion for a new trial. He can prevail only if there is a reasonable probability that the motion would have been successful. (See Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674].) There was no such probability. The by then convicted Burdine had nothing to lose by attempting to exonerate Samuel. We doubt that the trial court would have been able to ignore this. That the motion was doomed to fail is even more assured by Samuels concession that Burdine would probably, at the hearing on the motion, continue to refuse to testify for Samuel, forcing the declaration to be the only admissible "new evidence" of Samuels innocence.
To the extent that Samuel asserts that the new trial motion was based on incompetency of counsel because his attorney did not call Burdine as a witness at trial, rather than newly discovered evidence, it also lacked merit. The record and governing law make clear that counsel for Samuel could not have forced Burdine to testify before the jury. Burdines declaration exonerating Samuel did not exist during trial, so it could not have been introduced instead of Burdines testimony.
We note that in his declaration attached to the petition for writ of habeas corpus, trial counsel for Samuel states that Burdine would still refuse to testify at the hearing on the motion for a new trial, just as his attorney advised counsel he would at trial.
In his reply brief, Samuel changes his argument by asserting that Burdines unavailability (due to his invocation of his Fifth Amendment rights) at the hearing would mean that Samuel could then testify that Burdine told him that Burdine and his cousin and friends committed the robbery. Even if Samuel so testified, we doubt the persuasive impact on the trial court of this obviously self-serving statement.
Although Samuel points out that the new trial motion stated that it was being brought on the ground of incompetency of trial counsel, the motion itself stated no such ground. The closest it came to alleging that Samuels trial attorney was incompetent was Burdines declaration that the former failed to "assist . . . or inform the court" that he had overheard Burdine tell his attorney that Samuel was not involved in the crime and that he wanted to testify. This did not constitute incompetency of Samuels trial counsel, however.
Just as an aside, although Samuel repeatedly claims in his briefs that Burdines declaration contains newly discovered evidence justifying the granting of a new trial, the declaration states that Burdine told the police at the time of his arrest that Samuel was not involved in the crime. According to the declaration, both Samuel and his trial attorney were aware of this during trial. Therefore, the fact that Samuel was not involved was not newly discovered evidence.
Samuels declaration, also attached to his petition for writ of habeas corpus, confirms this, as do the assertions in his opening brief. We are thus puzzled by the assertion in Samuels petition for writ of habeas corpus that Burdine "appeared to be a willing witness."
Burdines Wende Appeal
We have now concluded our independent review of the record and find no arguable issues.
DISPOSITION
The judgments are affirmed.
We concur: McKINSTER, J. and RICHLI, J.