Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. VA094418 William J. Birney, Judge.
John D. O’Loughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Defendant and appellant Baldemar Garcia Sanchez appeals from his conviction by a jury of felony evading a police officer. He contends (1) he was denied due process as a result of the denial of his motion to replace his public defender with a privately retained attorney; and (2) he received ineffective assistance of counsel. We affirm.
Defendant was charged by information with felony evading (Veh. Code, § 2800.2, subd. (a)); enhancements were alleged for prior convictions (Pen. Code, §§ 667 subds. (b)-(i), 667.5, 1170.12, subds. (a)-(d)); and for committing the offense while released on bail or recognizance in case No. VA091324 (Pen. Code, § 12022.1). He was sentenced to 11 years 4 months in prison.
FACTS
Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence established that prior to March 16, 2006, defendant had been released on bail in case No. VA091324, in which he was charged with drug possession. When he did not appear in court that day, a bench warrant was issued.
At about 7:45 p.m. on March 17, 2006, an officer in a marked police car noticed a white 1993 Honda Accord -- its only occupant a male driver -- fail to stop at a stop sign on a residential street. The Honda did not pull over when the officer activated his overhead lights or when he activated his siren. During the ensuing 15-minute pursuit, the Honda’s speed varied between 50 and 70 miles per hour along residential streets and it failed to stop at several stop signs and a red light. The pursuit continued onto the 5 Freeway where the Honda avoided the “bumper to bumper” traffic by driving on the shoulder at speeds in excess of 90 miles per hour. At the intersection of the 5 and 605 Freeways, the Honda collided with another vehicle before transferring to the southbound 605 Freeway. The pursuing officer lost sight of the Honda when it exited the freeway. But by then, the pursuit had been joined by other patrol cars and a helicopter, and a few minutes later the pursuing officer was directed by radio to a nearby address. At that location, the officer saw the Honda parked in a driveway and defendant, who had the same physical characteristics as the male driver, being detained by detectives. After being advised of his Miranda rights, defendant declined to answer any questions but spontaneously exclaimed: “I fucked up.” One of the detectives testified that, when he arrested defendant, defendant said: “What was I thinking. I fucked up.”
Miranda v. Arizona (1966) 384 U.S. 436.
PROCEDURAL BACKGROUND
A. Case No. VA091324
On February 8, 2006, defendant was represented by Deputy Alternate Public Defender A. Michael Manuel when he appeared before Commissioner Michael Schuur for trial on day zero of 10 in case No. VA091324 (the drug case); Commissioner Schuur granted defendant’s request for a continuance to March 8, 2006, so that Manuel could contact exculpatory witnesses, the names and phone numbers of whom defendant was going to provide.
On March 8, 2006, Commissioner Schuur trailed the matter to March 16 as day 8 of 10, but denied defendant’s request for another continuance to retain private counsel stating: “I’m not stopping him from hiring a lawyer, but I’m sure not going to continue this case. If he wants to hire a lawyer, of course, I’d give him a continuance.”
When defendant did not appear on March 16, 2006, Commissioner Schuur issued a bench warrant.
Following his arrest for evading an officer in the present case (case No. VA094418), defendant was represented by Manuel when he again appeared before Commissioner Schuur in the drug case on March 22, 2006, at which time a pretrial conference date of April 26 and a trial date of May 18, 2006, were set in that case. Defendant’s previously expressed desire to hire private counsel was not mentioned and there was no indication that defendant had made any progress toward hiring a private attorney.
B. Case No. VA094418
On April 3, 2006, defendant was represented by Deputy Public Defender Donald Prigo at his preliminary hearing on the evading an officer charges (the present case). At his subsequent arraignment before the Honorable Peter Espinoza, the public defender declared a conflict, and Alternate Public Defender Yvette Verastegui was appointed. She informed the court that Manuel was already representing defendant in the drug case and would be representing him in all future proceedings in both cases; she asked that the two cases go together. Judge Espinoza set the present case for pretrial conference on April 26 (the same date set for pretrial in the drug case) and trial on June 13, 2006. There was no mention of defendant’s desire to obtain a private attorney, much less any indication of the status of defendant’s efforts to do so.
On April 26, 2006, the present case came on before Commissioner Schuur for a pretrial conference; defendant remained in lockup but was represented by Manuel. After observing that defendant had two open cases set for two different trial dates, Commissioner Schuur ordered the present case to remain set for trial on June 13, 2006 and the drug case to be trailed to May 18, 2006, as day 57 of 60. Once again, there was no mention of defendant’s desire to hire private counsel in either case, and no indication that he had done so.
When the two cases came before the Honorable Robert J. Higa on May 18, 2006, defendant was present and was represented by Manuel. The prosecutor asked that the drug case be trailed to June 13, 2006, the date set for trial in the present case. Defense counsel agreed to the continuance, which required a time waiver, stating: “Mr. Sanchez has also informed me that he’s trying to hire a private attorney, so he agrees to waive time.”
C. Defendant Requests “A Change of Attorney”
On June 13, 2006, the two cases came on for trial before Judge Espinoza, who had presided over the preliminary hearing in the present case. In proceedings held outside the presence of the prosecutor, defendant stated: “I would like to request that I have a change of attorney.” Defendant responded affirmatively when Judge Espinoza asked: “I’m not clear what you’re asking me to do. Are you asking me to relieve the public defender’s office and bring some other lawyer in?”
Treating defendant’s request as a Marsden motion, Judge Espinoza asked: “What has he been doing or not doing that you want him to do?” Defendant explained: “Mr. Manuel shows lack of interest in my case. My last court date . . . he left me in the back, I understood that we were going to pick a jury and start trial. [¶] He told my wife that I was going to get a private attorney. He told my wife that I -- he told -- he told her that I said it, and he told me that she said it, to call her. But I had no way of contacting her until I got to county jail. [¶] The district attorney spoke up at the time. They had no problem wa[i]ving time because the officer wouldn’t be here for two-and-a-half weeks. [¶] I felt that I was lied to by Mr. Manuel for the postponement of the People -- the district attorney’s office.” Manuel responded: “And concerning the private attorney, since I was appointed to this case on 2-6 [February 6], Mr. Sanchez has asked me, and implored me to ask the court, to continue the cases for the purpose of securing private attorneys. [¶] Whether I told him or the court that he was going to get a private attorney on the 18th of May, I’m not sure. And that’s where it stands.” The supplemental reporter’s transcript establishes that Manuel did, in fact, tell Judge Higa on May 18, 2006, that defendant was trying to hire private counsel.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Defendant appears to have conflated the events of April 26, when he remained in lockup during the proceedings in this case, and May 18, when he agreed to waive time in the drug case since he was trying to hire a private attorney.
Defendant complained about additional aspects of Manuel’s representation, which we discuss later in this opinion.
Denying defendant’s request for a change of attorneys, Judge Espinoza stated: “The Marsden motion to relieve the public defender’s office is denied.”
D. Trial and Sentencing
Following a jury trial that commenced three days later, defendant was convicted of felony evading in the present case. After pleading guilty in the drug case, defendant admitted the out-on-bail enhancement, one Three Strikes prior, and four section 667.5 priors alleged in the present case.
At defendant’s sentencing hearing, defendant’s father urged leniency. He told the court that defendant had been troubled since childhood and suffered from drug addiction; he said that information had been given to the public defender to use for a diminished capacity defense but no such defense was ever presented and the family did not “have the money to get him attorneys to get him counseling.” In response to the trial court’s assurance that defendant had been well represented by the public defender, the father stated: “We had another attorney, and the commissioner would not allow us to use him. He went in to see the commissioner to replace this man, and we were not allowed to have his own private attorney.”
E. The Appeal
After appointed appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, 442, defendant filed his own brief in which he argued that he received ineffective assistance of counsel and was denied due process as a result of the denial of his motion to replace his public defender with a privately retained attorney and for a continuance to allow newly retained counsel to prepare for trial.
In his brief, defendant states that he told Commissioner Schuur that he did not want Manuel to represent him and that “[t]he private attorney I hired to represent me, (Michael Balmer), showed up in court to inform the court that he would be taking over as my attorney of record and commissioner denied it . . . .” Defendant explained: “An extension was required so that Mr. Balmer, a private attorney that I hired would have time to fully acquaint himself with my case.” This appears to be a reference to the March 8, 2006, proceedings in the drug case. But at that time, Commissioner Schuur was not told that defendant had hired an attorney, only that he needed a continuance to do so. Moreover, the reporter’s transcript of May 18, 2006, reflects that on that date defendant was still “trying to hire a private attorney.” This belies the assertion that defendant had hired Mr. Balmer in March, or that at any time he ever actually hired a private attorney.
We directed appellate counsel and the attorney general to file supplemental briefs addressing: (1) Whether appellant’s motion to replace appointed counsel with retained counsel was governed by the standards articulated in Marsden or in People v. Ortiz (1990) 51 Cal.3d 975 (Ortiz); (2) Whether the trial court erred in denying his motion under either standard; and (3) Whether defendant received ineffective assistance of counsel as a result of trial counsel’s failure to bring sooner to the trial court’s attention appellant’s desire to retain appointed counsel.
After reviewing the supplemental briefs filed by the parties, we conclude that defendant did not receive ineffective assistance of counsel and that the trial court properly applied the Marsden standard to defendant’s request to change attorneys.
DISCUSSION
A. Defendant Did Not Receive Ineffective Assistance of Counsel
We begin with the third issue the parties were asked to brief: “Whether appellant received ineffective assistance of counsel as a result of appointed counsel’s failure to bring sooner to the trial court’s attention appellant’s desire to retain counsel when, the record reflects, appointed counsel was aware of appellant’s desire for several months.” The reason we asked for briefing on this issue was that, insofar as the record on appeal then showed, the first time the subject of defendant’s desire to retain counsel was brought to the attention of the trial court was on June 13, 2006; at the time, Manuel stated that he had been aware of defendant’s desire to retain private counsel for several months, but could not recall whether he had brought it to the trial court’s attention earlier.
Now that the record on appeal has been augmented with the reporter’s transcript of the proceedings in the drug case, it is apparent that Manuel brought defendant’s desire to retain private counsel to the court’s attention in a timely manner. He did so first at the continued trial date on March 8, 2006, when he requested that Commissioner Schuur grant a further continuance to allow defendant to retain private counsel in the drug case. He did so a second time on May 18, 2006, when, appearing on defendant’s behalf in both cases, he told Judge Higa that defendant would agree to waive time in the drug case because he was trying to hire a private attorney.
Because Manuel brought defendant’s desire to retain private counsel to the trial court’s attention in a timely manner, and there was no showing that defendant ever actually hired a private attorney, Manuel was not ineffective.
B. Defendant’s June 13, 2006 Request to Change Attorneys Was Governed By Marsden
We also asked the parties to brief whether defendant’s “motion to replace appointed counsel with retained counsel” was governed by Marsden [replacing appointed counsel with appointed counsel] or Ortiz, supra,51 Cal.3d 975 [nonindigent criminal defendant’s request to discharge retained counsel and replace with retained or appointed counsel].
Not surprisingly, in his supplemental brief, appellate counsel argues that defendant’s request to “change attorneys” should have been treated as a request for a continuance to retain private counsel and not as a Marsden motion. The People counter that the trial court properly applied the Marsden standard because “[defendant’s] request, while imprecise, implies that he was asking the trial court . . . to substitute appointed counsel.”
The distinction is important because of the different legal standards for substituting appointed counsel and retained counsel. (People v. Lara (2001) 86 Cal.App.4th 139, 150-152 (Lara).) A nonindigent criminal defendant has the due process right to appear and defend with counsel of his own choice and need not satisfy the requirements of Marsden to retain different counsel. (Lara,at pp. 152, 153; see Ortiz, supra,51 Cal.3d at p. 988.) This right “ ‘can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.’ ” (People v. Courts (1985) 37 Cal.3d 784, 790; Ortiz, at p. 982; Lara, at p. 153.) Reversal is automatic when a nonindigent defendant has been deprived of this right. (Ortiz, at p. 988; Lara, at p. 155.) Not so under Marsden which requires a showing that either counsel is providing inadequate representation or an irreconcilable conflict exists such that ineffective representation is likely to result. (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.)
Implicit in our phrasing of the issue to be briefed was our belief that on June 13, 2006, defendant was a nonindigent defendant seeking to replace appointed counsel with a privately retained attorney and not another appointed counsel. But that belief was based on the appellate record as it then stood. At the time, we inferred from defendant’s affirmative response to Judge Espinoza inquiry: “Are you asking me to relieve the public defender’s office and bring some other lawyer in?” (italics added) coupled with Manuel’s statement that since February defendant had “implored me to ask the court, to continue the cases for the purpose of securing private attorneys,” that defendant was seeking to replace his appointment counsel with private counsel, not another appointed attorney.
Now, based on review of the augmented appellate record, including the reporter’s transcript of the proceedings in the drug case, we conclude that defendant was not seeking to replace Manuel with retained counsel, but was asking the court to appoint new counsel. Our conclusion is based on the fact that the augmented record demonstrates that for several months defendant had been trying without success to obtain private counsel. Nothing in the record indicates that he had been successful – or even had any prospect of success – by the time of the proceedings on June 13, 2006. Inasmuch as Manuel brought defendant’s desire to obtain private counsel to the attention of the trial court in March and again in May, the only reasonable inference is that Manuel treated defendant’s June 13 request to “have a change of attorney” as a Marsden motion because he knew that is what defendant intended, given defendant’s heretofore inability to hire a private attorney. This conclusion is fortified by defendant’s explanation to the court that his appointed counsel showed “a lack of interest in the case;” appointed counsel allegedly lied to defendant; and his apparent satisfaction with prior appointed counsel, Mr. Suzukawa of the public defender’s office, before that office declared a conflict. Based on the totality of the record, it appears to us as it appeared to Judge Espinoza that defendant who had been represented by two previous appointed counsel was expressing the existence of a conflict and requesting a third appointed attorney.
We thus cannot say the trial court erred in treating defendant’s request as a Marsden motion. This brings us to the final issue we asked the parties to brief, whether, under Marsden, denial of defendant’s motion to appoint new counsel was an abuse of discretion.
C. Denial of Defendant’s Marsden Motion Was Not an Abuse of Discretion
Under Marsden, to compel substitution of appointed counsel, an indigent defendant must demonstrate either (1) that his appointed counsel is providing inadequate representation or (2) that he is embroiled in an irreconcilable conflict with his appointed counsel. (Lara, supra, 86 Cal.App.4th at p. 150.) “A criminal defendant is entitled to raise his or her dissatisfaction with counsel at any point in the trial when it becomes clear that the defendant’s right to effective legal representation has been compromised by a deteriorating attorney-client relationship.” (People v. Roldan (2005) 35 Cal.4th 646, 681; but see Lara, at p. 151 [trial courts retain discretion to deny a Marsden motion as untimely].) Whether to grant substitution of appointed counsel is within the discretion of the trial court and we will not find an abuse of that discretion absent a finding that the failure to appoint replacement counsel “substantially impair[ed]” the defendant’s right to effective assistance of counsel. (Roldan,at p. 681.)
Here, defendant failed to demonstrate either that (1) Manuel was providing inadequate representation or (2) defendant was embroiled in an irreconcilable conflict with Manuel. (Lara, supra, 86 Cal.App.4th at p. 150.) As we have already discussed, Manuel timely brought defendant’s desire to retain private counsel to the attention of the trial court; accordingly, he cannot be found ineffective on this grounds. At the Marsden hearing,defendant complained about three additional aspects of Manuel’s representation: (1) Manuel allowed the drug case to be continued because a prosecution witness was unavailable; (2) Manuel had not ordered defendant’s psychiatric files; and (3) Manuel had not contacted exculpatory witnesses in the drug case.
Regarding the waiver of time, Manuel responded that on May 18, 2006, the district attorney was not ready in the drug case and defense counsel agreed to put that case over to the date the present case was set for trial. We note that the augmented record also reveals that the continuance benefited defendant, who expressly agreed to waive time in his effort to hire a private attorney. Regarding the psychiatric files, Manuel explained that defendant’s psychiatric records were not relevant to any proposed defense, but had been sought in connection with prior counsel’s unsuccessful effort to persuade the district attorney to offer defendant a plea bargain involving admission to a program rather than incarceration. Regarding potential witnesses in the drug case, Manuel explained that defendant had not provided Manuel with identifying information for these witnesses. Defendant countered that he gave the name of one of the witnesses to his former public defender and suggested that Manuel “ask him.” There is no suggestion about likely testimony from these witnesses.
None of defendant’s complaints showed that Manuel was providing inadequate representation or that defendant was embroiled in an irreconcilable conflict with Manuel. (Lara, supra, 86 Cal.App.4th at p. 150.) Accordingly, the trial court did not abuse its discretion in denying defendant’s request to substitute attorneys.
We note that the Mardsen motion was heard in part on conduct not in the present case but on the drug case (e.g., continuance, failure to call witnesses). We assume, but do not decide that events occurring in a related concurrent case involving the same defendant and the same appointed counsel can provide a factual basis for a Mardsen motion.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J., FLIER, J.