Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 071332-1
Marchiano, P.J.
A jury convicted defendant Michael Shea of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a)). At trial, the defense advanced the theory that the burglary was committed by the crew of a Delancey Street moving truck that was parked near the victims’ house on the day of the crime. On appeal, defendant contends that: (1) his trial counsel provided inadequate representation because she was suspended from the practice of law, for reasons unrelated to defendant’s case, during a portion of the period when defendant’s case was pending in the trial court; and (2) the trial court prejudicially erred by admitting a taped telephone conversation in which defendant stated that he had interviewed for the Delancey Street program. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence Presented at Trial
On April 3, 2007, Paul and Erin Beers returned from work to find that their home in Orinda had been burglarized. The front door of the house was wide open, a window had been broken, the master bedroom had been “ransacked,” and a number of items had been taken from the house, including a television, jewelry, and a duty firearm belonging to Paul, who was then a Drug Enforcement Administration agent. Before leaving for work that morning, both Paul and Erin had noticed a Delancey Street moving truck parked on their street.
Contra Costa County Sheriff’s Deputies investigated the crime scene, including the broken window. The window frame and screen were lying on the ground outside the window, right below the windowsill. Deputy Melissa Wilhelm found a fingerprint on a piece of glass that was still attached to the window frame; she lifted the print using black fingerprinting powder.
Grace Christiansen, a fingerprint examiner at the Contra Costa County Sheriff’s forensic laboratory, analyzed the fingerprint. It was very clear and of “superior quality,” sufficient for a computer search using an automated search system. The system returned a list of nine possible candidates for the fingerprint, including defendant. Christiansen compared the prints and determined that the print on the Beers’s window matched defendant’s right index finger; a coworker verified the identification.
The firearm taken from the Beers’s home was later recovered in an unrelated police raid on a house in Richmond.
B. The Verdict and Sentencing
On February 20, 2008, the jury convicted defendant of first degree residential burglary, the sole charge in the information. The trial court struck an out-of-state prior “strike” conviction alleged in the information, and found true allegations as to three prior California convictions. On April 23, 2008, the court heard and denied defendant’s Marsden motion for substitution of counsel. On May 30, 2008, the court sentenced defendant to an aggregate prison term of seven years. Defendant appealed.
People v. Marsden (1970) 2 Cal.3d 118.
II. DISCUSSION
A. Representation Issues
1. Background
We granted defendant’s request for judicial notice of documents relating to trial counsel’s suspension, including a stipulation and order filed in the State Bar Court and a record of trial counsel’s State Bar membership taken from the Bar’s Web site. The factual background we discuss in the text is taken from the stipulated facts in the stipulation and order filed in the State Bar Court.
The suspension of defendant’s trial counsel arose out of contentious divorce proceedings involving trial counsel and her then-husband, which began in 2001. Trial counsel and her husband had joint bank accounts that held funds relating to a jointly owned rental property. The court in the dissolution matter ordered the parties to use the accounts solely for the benefit of the rental property. In December 2001, trial counsel wrote checks and made withdrawals out of the accounts for purposes other than for the benefit of the rental property. In May 2003, the court in the dissolution proceeding held trial counsel in contempt for violation of the court’s order. Trial counsel later returned the funds.
In the stipulation and order filed in the State Bar Court in 2007, that court concluded that: (1) by violating the dissolution court’s order, trial counsel “failed to maintain the respect due to the courts of justice”; and (2) by withdrawing the funds, counsel “committed acts of moral turpitude.” In mitigation, the stipulation noted that trial counsel had no prior record of discipline, the present misconduct was not deemed serious, and at the time of the misconduct, trial counsel suffered “extreme difficulties” in her personal life. Counsel also had exhibited remorse, returned the funds, and voluntarily stipulated to the imposition of discipline.
The stipulated discipline included a two-year suspension from the practice of law, which was stayed, and two years of probation; one condition of probation was an actual suspension of 30 days. Trial counsel was ordered to pay costs of the proceedings, and the stipulation provided that the actual suspension would continue until the costs were paid. Trial counsel’s probation was to begin on the effective date of the Supreme Court order in the matter. The Supreme Court order approving the recommended discipline was issued on February 21, 2008, and counsel’s suspension began on March 22, 2008. (See Cal. Rules of Court, rule 9.18(a).)
All further rule references are to the California Rules of Court.
The record on the State Bar’s Web site states that, on March 22, 2008, trial counsel was not eligible to practice law. The next entry states that, on May 9, 2008, trial counsel was an “[a]ctive” member of the Bar.
As noted above, trial counsel was suspended for 30 days. A 30-day suspension beginning on March 22, 2008, would have ended on April 21, 2008. The significance of the May 9, 2008 entry on the State Bar’s Web site is not clear—the Web site does not state that counsel’s 30-day suspension was extended or give any reason for such an extension.
b. The Marsden Hearing
After his February 20, 2008, conviction, defendant sent the trial court a letter requesting a Marsden hearing, and completed a form motion for substitution of counsel. The court held a Marsden hearing on April 23, 2008. At the hearing, defendant’s trial counsel stated that she was “appearing on behalf of” defendant. Defendant stated that trial counsel failed to confer with defendant about his defense, did not visit defendant, failed to subpoena certain witnesses defendant wished to call, and questioned one defense witness in a manner that undercut defendant’s alibi defense. Defendant also stated that trial counsel had failed to provide him with copies of police reports and other materials, and had told defendant she did not believe he was ready for a drug treatment program. Defendant acknowledged, however, that trial counsel worked hard, tried to help him, and succeeded in persuading the court to strike his out-of-state prior conviction.
Defendant’s trial counsel responded to defendant’s arguments. Counsel explained that, when she inherited the case from the public defender after the preliminary hearing, her first concern was the out-of-state prior strike, and she focused on that. Counsel consulted with several fingerprinting experts before retaining the one who testified for defendant at trial. Counsel and her investigator conducted extensive investigation of the crime scene and defendant’s background. Counsel explained her decisions as to which witnesses to call at trial. Finally, counsel stated that she had not provided defendant with copies of police reports (because they would have required extensive redaction and defendant had told her to focus instead on preparing the case), but that she believed she had provided him with copies of all motions.
The court denied the Marsden motion. The court found that, although counsel may not have met with defendant as much as he would have liked before trial, counsel was well-prepared for trial and did consult with defendant frequently during trial. As to counsel’s decisions about calling witnesses, the court noted that “[d]isagreement over trial strategy is not a basis for a Marsden Motion.” The court also found that, despite not receiving police reports, defendant understood the basis of the case against him, as evidenced by the arguments he made in his Marsden motion. The court found that counsel was trying to assist defendant in getting into a drug rehabilitation program. The court stated that the fact defendant disagreed with some of counsel’s advice did not establish that counsel was ineffective or that there was an irreconcilable conflict between defendant and counsel. Finally, the court stated that counsel had done a “great job” in eliminating defendant’s out-of-state prior.
2. Analysis
a. The Marsden Ruling
Under Marsden, a trial court should appoint substitute counsel “whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” (People v. Smith (1993) 6 Cal.4th 684, 696 (Smith).) This standard applies regardless of whether the Marsden motion is made before or after trial. (Ibid.) We review the trial court’s denial of the Marsden motion for abuse of discretion. (Smith, supra, 6 Cal.4th at p. 696; Marsden, supra, 2 Cal.3d at p. 123.)
Defendant does not contend that, based on the record at the Marsden hearing, the court abused its discretion in denying the Marsden motion. Defendant asserts, however, that counsel should have disclosed her suspension to defendant and the court, and that, if she had done so, the court would have found an irreconcilable conflict and granted the motion. We disagree.
First, we note that counsel’s suspension order did not obligate counsel to disclose the suspension to defendant. Rule 9.20(a) provides that the Supreme Court “may” include in a suspension order a direction that the suspended attorney notify clients in pending matters of the suspension. (Rule 9.20(a).) Here, the State Bar Court, in its order recommending trial counsel’s suspension, did not include a condition requiring trial counsel to provide notice under rule 9.20(a), and the Supreme Court’s order imposing the suspension does not include such a requirement.
Because the Supreme Court did not order disclosure under rule 9.20, we reject defendant’s claim that counsel had a disclosure obligation under more general statutes and rules. (See Bus. & Prof. Code, § 6068, subd. (m) [duty to keep clients “reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services”]; Rules Prof. Conduct, rule 3-500 [duty to “keep a client reasonably informed about significant developments relating to the employment or representation”].)
Defendant contends, however, that, according to the State Bar’s Web site, counsel’s suspension continued until May 9, so counsel was still actually suspended when she appeared at the Marsden hearing on April 23. Defendant claims that counsel should have disclosed her suspension at that time. However, as noted above, the significance of the entry on the Web site stating that counsel was on “[a]ctive” status as of May 9 is not clear. The Web site does not explain whether the 30-day suspension ordered by the Supreme Court was extended or the reason for any such extension. Moreover, even assuming defendant is correct that the May 9 entry means trial counsel’s suspension had not yet ended on April 23, it is not clear from the record that trial counsel was aware of this fact on April 23. Trial counsel’s participation in the April 23 hearing (as well as her participation in an April 25 hearing and her filing of pleadings on defendant’s behalf on April 23 and May 7) suggest that counsel may have believed her suspension had ended on April 21 (30 days after it began on March 22). If counsel believed her suspension had ended, she did not intentionally mislead defendant or the court by participating in the Marsden hearing. (See Bus. & Prof. Code, § 6068, subd. (d) [counsel may not “seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law”].)
In any event, even if defendant and the trial court had learned of counsel’s suspension, it would not have provided a basis for granting the Marsden motion. As discussed further in the next section, counsel’s suspension for conduct unrelated to defendant’s case did not establish an irreconcilable conflict that would impair the effective assistance of counsel.
b. The Constitutional Right to Counsel
Defendant contends that counsel’s suspension deprived defendant of his constitutional right to counsel. We disagree.
First, we note that trial counsel was not suspended during the most critical stages of the proceedings—trial (which ended on February 20, 2008) and sentencing (on May 30, 2008). Second, even when an attorney purports to represent a defendant during the period when counsel is suspended, the fact of the suspension generally does not establish a denial of the right to counsel. Instead, “[w]hether representation by a suspended attorney constitutes a denial of the right to counsel depends on the character of the suspension, i.e., whether it necessarily establishes professional incompetence or constitutionally deficient performance in representation.” (5 Witkin and Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 207, p. 322, citing People v. Ngo (1996) 14 Cal.4th 30, 37 (Ngo).) Courts have found that many suspensions, including suspensions based on acts of moral turpitude, do not establish a denial of the right to counsel. (See Ngo, supra, 14 Cal.4th at pp. 32, 36-37 [placement on inactive status for failure to comply with MCLE requirements]; In re Johnson (1992) 1 Cal.4th 689, 696-702 [counsel’s suspension after conviction of crime of moral turpitude did not establish ineffective assistance; however, counsel’s resignation from State Bar with disciplinary proceedings pending did establish denial of defendant’s right to counsel]; People v. Barillas (1996) 45 Cal.App.4th 1233, 1235-1236, 1239-1240, review dism. as improvidently granted and opn. ordered pub. Oct. 24, 1996 [suspension for commingling client funds with own money in unrelated case]; People v. Medler (1986) 177 Cal.App.3d 927, 930-931 [suspension for nonpayment of dues].)
Here, trial counsel’s suspension was for conduct unrelated to her representation of defendant, i.e., her misuse of joint funds during her divorce proceedings several years earlier. Moreover, defendant makes no claim that counsel’s performance in his case was deficient. The suspension does not establish a denial of defendant’s right to counsel.
People v. Hinkley (1987) 193 Cal.App.3d 383 (Hinkley), cited by defendant, is distinguishable. In Hinkley, the defendant’s attorney’s practice was taken over by a superior court on the basis of findings by the State Bar Court that the attorney had become incapable of providing quality representation. (Id. at pp. 385-386.) Under those circumstances, the Court of Appeal held that it was not necessary to inquire into whether the attorney provided competent representation to defendant, because the State Bar Court’s findings established as a matter of law that defendant was denied the assistance of competent counsel. (Id. at pp. 387-388.) Here, in contrast, the State Bar Court made no findings that trial counsel lacks competence or is unable to provide quality representation.
B. The Tape-Recorded Telephone Call
1. Background
As noted above, one defense theory was that the crew of the Delancey Street truck parked on the victims’ street had committed the burglary. At trial, the prosecutor sought to introduce a tape-recorded telephone conversation defendant had with his mother on October 24, 2007, while he was in jail awaiting trial. In that conversation, defendant stated that he had interviewed with Delancey Street and thought the interview had gone well. Defense counsel objected to admission of the tape and the transcript of the call under Evidence Code section 352. The prosecutor argued that defendant’s interest in being admitted to the Delancey Street program showed that defendant knew Delancey Street was not responsible for the burglary, and thus was admissible to rebut defendant’s theory that Delancey Street workers had committed the crime. Defense counsel argued the evidence was not relevant because, when defendant spoke to his mother on October 24, 2007, he was not yet aware that a Delancey Street truck had been seen near the victims’ home. Defense counsel also contended the evidence would be prejudicial because it would inform the jurors that defendant had a drug problem and might lead them to conclude defendant would steal to support his drug habit. The prosecutor stated that, if defendant wished to assert that he had no knowledge of the Delancey Street truck, then he could “certainly take the stand and make that claim.”
All statutory references are to the Evidence Code unless otherwise specified.
The trial court admitted the evidence. The court concluded defendant had had “significant contact” with his then-attorney by the time of the October 2007 call, which occurred several months after the offense and two months after the preliminary hearing; the court found this provided “adequate foundation to assume the defendant knew that Delancey Street was either at the bottom of the hill or that it didn’t matter that Delancey Street was at the bottom of the hill or not that morning[.]” The court also noted that the defense had introduced the Delancey Street issue, and that defendant’s interest in going to Delancey Street “suggests that he doesn’t think Delancey Street did it.” The court found the evidence was not unduly prejudicial.
2. Analysis
a. Section 352 and Due Process
Defendant contends admission of the tape-recorded conversation was erroneous under section 352 and violated due process. We disagree.
“ ‘[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the relative probativeness and prejudice of the evidence in question [citations]. Evidence is substantially more prejudicial than probative (see Evid. Code, § 352) if, broadly stated, it poses an intolerable “risk to the fairness of the proceedings or the reliability of the outcome” [citation].’ [Citation.] ‘The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair.’ ” (People v. Jablonski (2006) 37 Cal.4th 774, 805 (Jablonski).)
Here, the evidence had some relevance to the issues presented at trial. Defendant advanced the theory that Delancey Street workers were responsible for the burglary. Evidence that defendant believed Delancey Street was a worthy organization and wished to join its program was relevant to rebut this theory, because it suggested he did not believe Delancey Street committed the crime.
Defendant argues that his interest in joining Delancey Street in October 2007 was not relevant because there is no record evidence establishing that he knew at that time that a Delancey Street truck was parked on the victims’ street on the day of the burglary. However, the trial court reasonably concluded that, in the months between his arrest and the October 2007 telephone call, defendant had likely had significant contacts with his then-attorney, during which they had discussed the facts of the case. Moreover, even if defendant still did not know, in October 2007, that a Delancey Street truck had been parked on the victims’ street on the day of the burglary, his interest in joining Delancey Street still would have some marginal relevance, as it would tend to contradict defendant’s suggestion that he believed Delancey Street was a questionable organization and was responsible for the burglary.
Defendant is correct that the evidence of his interest in joining Delancey Street presented some risk of prejudice, because jurors might have inferred that defendant had a drug problem. However, the trial court did not abuse its discretion under section 352, because any risk of prejudice did not “substantially outweigh[]” the probative value of the evidence. (See § 352.) Moreover, admission of the evidence (even if we assume it was erroneous under section 352) did not violate due process, because the evidence was not “ ‘so prejudicial as to render the defendant’s trial fundamentally unfair.’ ” (See Jablonski, supra, 37 Cal.4th at p. 805.)
b. Harmless Error
As noted above, the court’s ruling under section 352, even if erroneous, did not rise to the level of a constitutional violation; accordingly, the appropriate standard of harmless error review is the state law standard in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) (error harmless if it is not reasonably probable verdict was affected).
Any error here was harmless. Defendant’s fingerprint was found on the broken window at the victims’ house. The Supreme Court has recognized that fingerprint evidence “ ‘ “is the strongest evidence of identity, and is ordinarily sufficient alone to identify the defendant.” ’ [Citation.]” (People v. Andrews (1989) 49 Cal.3d 200, 211; accord, People v. Figueroa (1992) 2 Cal.App.4th 1584, 1588; People v. Reza (1984) 152 Cal.App.3d 647, 654 [fingerprint evidence “is considered so reliable and persuasive [citation], there is virtually no possibility [the defendant] would have obtained a more favorable result in absence of the error”].)
Defendant notes that his counsel forcefully attacked the quality of the fingerprint investigation in this case. However, the jury evidently credited the testimony establishing the fingerprint belonged to defendant. It is not reasonably probable that exclusion of the brief tape-recorded conversation about Delancey Street would have affected the verdict.
III. DISPOSITION
The judgment is affirmed.
We concur: Margulies, J., Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.