Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA096784, Arthur M. Lew, Judge.
David M. Thompson, 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, Zee Rodriguez and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
Marshall Swafford appeals from the judgment entered upon his convictions by jury of possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a), count 1), possession of a firearm by a felon with priors (Pen. Code, § 12021, subd. (a)(1), count 2), carrying a loaded firearm (Pen. Code, § 12031, subd. (a)(1), count 3), possession for sale of cocaine base (§ 11351.5, count 4), possession of marijuana for sale (§ 11359, count 5) and possession of a firearm with the identification numbers altered (Pen. Code, § 12094, subd. (a), count 6). In connection with counts 3 and 4, the jury found to be true the allegation pursuant to section 11370.2, subdivision (a), that appellant had suffered a prior conviction for violating section 11351. The trial court sentenced appellant to state prison for nine years four months. Appellant contends that (1) the trial court erred in refusing to allow him to discharge his retained counsel, and (2) he suffered ineffective assistance of counsel if the request to discharge private counsel was untimely.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
We provide a truncated factual statement, as the issues presented on appeal are not dependent on the facts.
The charged incident
On April 15, 2008, at approximately 10:00 p.m., appellant was detained by police in a high narcotics and gang activity area for what they believed was his involvement in a drug transaction. Before being detained, he dropped a rectangular bag, later determined to contain 61 pieces of individually wrapped rock cocaine, with a total weight of 11.64 grams. A search of his person and car uncovered a large Ziploc bag containing two baggies of marijuana with 28 individually wrapped baggies, with a total weight of 85.6 grams, 59 individually wrapped rocks of cocaine weighing 13.25 grams and $1,555 in mostly smaller denominations of $20 or less. Inside the glove compartment, officers found a loaded handgun, with a partially scratched-off serial number.
Request by retained counsel to be relieved due to conflict
On June 5, 2009, before Presiding Judge John Cheroske for trial assignment, Gary Casselman (Casselman), appellant’s privately retained attorney, stated that he could not proceed because he believed that he had a conflict of interest. Because an affidavit under Code of Civil Procedure section 170.6 had been filed against Judge Cheroske, he was unable to hear any contested issue and transferred the matter to Judge Arthur Lew to hear the conflict motion.
Before Judge Lew, Casselman reiterated his belief that he had a conflict of interest but said that he could not divulge it because of the attorney-client privilege. He indicated, however, that it was a conflict about the direction the case should go. Judge Lew stated that if it was related to the direction of the case, the court would have to determine if “it’s a true conflict, it’s in the nature of a Marsden motion.” When the prosecutor pointed out that Casselman was retained counsel “so it’s not a Marsden, ” Judge Lew stated, “Yeah, I guess if that was the case, I guess he could just discharge you, since you’re privately retained.” The prosecutor said that she believed Casselman wanted to be relieved from trial because his retainer had been exhausted. She said that if she was correct, she objected because Casselman was “supposed to represent his client.”
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Judge Lew then conducted an ex parte hearing with Casselman and the court reporter. Casselman explained that appellant wanted to go to trial, but Casselman did not believe that there were any issues to be tried as a result of the denial of appellant’s suppression motion. Casselman had told appellant this and that appellant could “get hurt worse” by going to trial. Casselman described the conflict as his being asked to do something that, “[He] d[id]n’t believe is in [his] client’s best interest.” Appellant wanted to go to trial against his advice.
After acknowledging that there was a disagreement between the way Casselman and appellant saw things, the trial court stated: “But at this point I don’t believe it’s a conflict for which I could allow you to conflict out of the case.” Judge Lew refused to allow counsel to withdraw and returned the matter to Judge Cheroske.
Again before Judge Cheroske, Casselman stated that he was not ready for trial and that appellant intended to go to the public defender for further counsel. Judge Cheroske noted that that was the same motion counsel had just made before Judge Lew and said that appellant “doesn’t get the choice of deciding he wants the public defender. He chose you. He paid you. You’re his lawyer. You tried to get off. It’s been denied. We’re going to trial. We’re going to do it now. There is no 1050 filed, no reason for any of this.” The case was sent back to Judge Lew for trial.
Motion to discharge retained counsel
Again before Judge Lew, Casselman informed the court that appellant did not want Casselman to represent him further and that he believed appellant would qualify for the public defender. Casselman said that he had spoken with Deputy Public Defender Weil about the case, and Weil was “familiar with it” and apparently willing to try it. Casselman also requested a continuance of at least a week because of other matters he had scheduled and said he could not announce ready because he was unprepared under the circumstances. The prosecutor opposed the request for a continuance, as the case was already over a year old, the request to substitute the public defender for Casselman had already been heard before Judge Cheroske, who had denied it, and a section 1050 motion had not been filed by counsel. Casselman pointed out that Judge Cheroske’s comments regarding new counsel were made after a Code of Civil Procedure section 170.6 motion to disqualify him had been filed. Judge Lew noted that the matter was set for trial that day and denied the motion to be “relieve[d]” as counsel, because “it’s not timely.”
Casselman informed Judge Lew that appellant wished to address the court. Judge Lew first swore the jury panel that had just arrived and then excused the prosecutor and conducted what he said was a Marsden hearing. Appellant said that he was originally offered a six-month sentence, which Casselman told him not to accept because, if he did, he could not obtain a civil judgment in the action Casselman had filed on his behalf because appellant had been beaten by police during his arrest. Now, Casselman was advising him to accept a six-year offer just so he could appeal. Casselman responded that he could not competently and adequately represent appellant at that time, as he had not received the transcripts of the Penal Code section 1538.5 hearing so as to impeach the deputies who testified, he disagreed with appellant on how to proceed and was prejudiced because appellant could not comply with their fee agreement. Casselman said that appellant believed Casselman should have acted earlier in the week, and “Mr. Swafford understandably and regrettably is not happy with the representation I’ve provided him. And it appears that I haven’t provided him with competent representation this last week.”
When appellant began asking Judge Lew about his financial arrangements with Casselman, the judge said that “right now I want to-this is a Marsden motion.” When appellant asked what that was, Judge Lew answered, “A Marsden motion is where you’re asking for a new attorney for some reason. And you got to give me the reasons, and I decide whether the reasons are legally sufficient for you to get a new lawyer.” After further discussion, Judge Lew observed, “This isn’t the first time counsel and parties have disagreed on how to proceed on a case. And the fact that there is a disagreement on how to proceed with the case, that’s not necessarily grounds for a Marsden Motion.... I don’t really think that there is justification for a Marsden motion at this point. So I’m going to deny it.” The matter was sent back to Judge Cheroske for reassignment.
Convictions
The matter was reassigned to Judge Lew for trial, and, on June 8, 2009, appellant was found guilty of possession of a controlled substance with a firearm, possession of a firearm by a felon with priors, carrying a loaded firearm, possession for sale of cocaine base, possession of marijuana for sale and possession of a firearm with the identification numbers altered.
DISCUSSION
I. Denial of motion to discharge retained counsel
Appellant contends that the trial court erred in treating his request to discharge retained counsel as a Marsden motion and denying it, thereby depriving him of his due process right to be represented by counsel of his choice. This contention has merit.
“The right of a criminal defendant to counsel and to present a defense are among the most sacred and sensitive of our constitutional rights.” (People v. Ortiz (1990) 51 Cal.3d 975, 982 (Ortiz).) Consequently, the state should “keep to a ‘necessary minimum its interference with the individual’s desire to defend himself in whatever manner he deems best, using any legitimate means within his resources.’” (Ibid.) “A criminal defendant’s right to decide how to defend himself should be respected unless it will result in ‘significant prejudice’ to the defendant or in a ‘disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.’” (Ibid.)
An indigent defendant may nonetheless discharge appointed counsel and obtain new appointed counsel only if his counsel is rendering inadequate representation or there exists an irreconcilable conflict between counsel and his client. (See Marsden, supra, 2 Cal.3d at pp. 123–125.) But a non-indigent criminal defendant has a due process and Sixth Amendment right to appear and defend with retained counsel of his or her choice (People v. Lara (2001) 86 Cal.App.4th 139, 152 (Lara); People v. Verdugo (2010) 50 Cal.4th 263, 310 (Verdugo)) and can therefore discharge retained counsel at any time with or without cause (Lara, supra, at p. 152; see also Ortiz, supra, 51 Cal.3d at p. 983). “[T]he right to counsel of choice reflects not only a defendant’s choice of a particular attorney, but also his decision to discharge an attorney whom he hired but no longer wishes to retain.” (Ortiz, supra, at p. 983; Verdugo, supra, at p. 311.)
“The right to discharge retained counsel is not, however, absolute. The trial court may deny a request to discharge retained counsel ‘if discharge will result in “significant prejudice” to the defendant [citation], or if it is not timely, i.e., if it will result in “disruption of the orderly processes of justice” [citations].’ [Citations.] ‘[T]he “fair opportunity” to secure counsel of choice provided by the Sixth Amendment “is necessarily [limited by] the countervailing state interest against which the sixth amendment right provides explicit protection: the interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of ‘assembling the witnesses, lawyers, and jurors at the same place at the same time.’”’ [Citations.]” (People v. Keshishian (2008) 162 Cal.App.4th 425, 428; see also Ortiz, supra, 51 Cal.3d at pp. 982–983.) “[T]he court may exercise discretion to ensure orderly and expeditious judicial administration if the defendant is ‘unjustifiably dilatory or... arbitrarily desires to substitute counsel at the time of trial.’” (Lara, supra, 86 Cal.App.4th at p. 153; see Verdugo, supra, 50 Cal.4th at p. 311; United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 151; People v. Blake (1980) 105 Cal.App.3d 619, 624.)
Because the right to discharge retained counsel is broader than the right to discharge appointed counsel, a Marsden type hearing is not an appropriate vehicle in which to consider the defendant’s complaints against his or her retained counsel. (People v. Keshishian, supra, 162 Cal.App.4th at p. 429; Ortiz, supra, 51 Cal.3d at p. 984; see also Lara, supra, 86 Cal.App.4th at p. 144 [“We will find the trial court improperly treated appellant’s request to discharge his privately retained counsel as a Marsden motion and will reverse appellant’s conviction”]; People v. Munoz (2006) 138 Cal.App.4th 860, 866–867 (Munoz) [trial court erred in addressing the defendant’s request to relieve his retained attorney utilizing Marsden standard rather than Ortiz standard]; People v. Hernandez (2006) 139 Cal.App.4th 101, 107–108 (Hernandez) [trial court erred in denying motion to discharge retained counsel because it found the difference in trial tactics insufficient to warrant discharge].) The defendant need not meet the more stringent Marsden test of demonstrating incompetence of counsel or irreconcilable conflict of interests. (See Ortiz, supra, at p. 984.) Instead, under the applicable test for retained counsel, the court should balance the defendant’s interest in new counsel against the disruption caused by the substitution. (Id. at pp. 979–982.)
We agree with appellant that the trial court here inappropriately conducted a Marsden hearing, requiring appellant to demonstrate that his attorney was providing inadequate representation or that he and his attorney were embroiled in an irreconcilable conflict before allowing discharge of retained counsel. At the in camera proceeding outside of the presence of the prosecutor, appellant claimed that he disagreed with his attorney’s suggestion that he would do better to accept a plea bargain than go to trial, and Casselman stated that he could not competently represent appellant and admitted that he had not provided competent representation “last week.”
At the conflict hearing earlier that day before Judge Lew, the judge had to be reminded by the prosecutor that a Marsden-like hearing was inappropriate because Casselman was retained counsel.
The record clearly demonstrates that Judge Lew applied the incorrect Marsden standard in deciding whether or not to allow appellant to discharge Casselman. He called the in camera hearing a Marsden hearing and denied appellant’s request to discharge Casselman, stating that tactical decisions are handled by the attorney and are insufficient grounds to remove counsel. When asked by appellant what the judge meant by referring to the hearing as a Marsden hearing, Judge Lew said: “A Marsden motion is where you’re asking for a new attorney for some reason. And you got to give me the reasons, and I decide whether the reasons are legally sufficient for you to get a new lawyer.” After further discussion, Judge Lew observed, “This isn’t the first time counsel and parties have disagreed on how to proceed on a case. And the fact that there is disagreement on how to proceed with the case, that’s not necessarily grounds for a Marsden Motion.... I don’t really think that there is justification for a Marsden motion at this point. So I’m going to deny it.” The judge’s emphasis on “reasons” to discharge counsel, rather than utilizing the Ortiz standard of determining whether the motion was timely, or would result in significant prejudice to the defendant or disruption of the orderly processes of justice, is a further indication that he employed the wrong standard.
By utilizing an incorrect standard for discharging retained counsel, the trial court abused its discretion. “[A]n abuse of discretion arises if the trial court based its decision on impermissible factors.” (People v. Knoller (2007) 41 Cal.4th 139, 156; see also Conservatorship of Becerra (2009) 175 Cal.App.4th 1474, 1482 [abuse of discretion if exercise wrong legal standard]; Brooklyn Navy Yard Cogeneration Partners v. Superior Court (1997) 60 Cal.App.4th 248, 259 [“While the disqualification of counsel for a conflict of interest is a matter of trial court discretion, the exercise of that discretion cannot be measured where the court applied the wrong legal standard”].)
The Attorney General, relying substantially on People v. Lau (1986) 177 Cal.App.3d 473 (Lau), argues that the trial court’s denial of appellant’s motion to discharge his attorney was based upon it being untimely. We disagree because (1) there is no indication that Judge Lew based his denial of appellant’s request to discharge counsel on its untimeliness, (2) it failed to consider all of the information germane to analyzing whether the motion was timely or not, and (3) Lau is distinguishable.
First, when denying appellant’s request to discharge Casselman, Judge Lew said nothing about it being untimely. Rather, he said that tactical decisions are handled by the attorney and a disagreement regarding them is not a basis for discharge. Although he said that Casselman’s request to be relieved as counsel was untimely, the criteria for relieving counsel on the day of trial from his or her professional duty to represent a client is decidedly different from the criteria for deciding whether to grant a defendant’s request to discharge counsel at that time. The latter decision requires balancing the impact of a late request on the orderly process of justice against the extent of the infringement on the defendant’s constitutional right to counsel. “‘[A] court faced with a request to substitute retained counsel must balance the defendant’s interest in new counsel against the disruption, if any, flowing from the substitution.’ [Citation.]” (Munoz, supra, 138 Cal.App.4th at p. 870.)
Second, even though timeliness is a proper consideration in deciding whether to allow discharge of counsel, it is only one consideration. “Blanket generalizations about possible delay will not suffice. ‘To exercise the power of judicial discretion [in ruling on motion to relieve retained counsel], all material facts and evidence must be both known and considered, together with legal principles essential to an informed, intelligent and just decision.’ [Citation.]” (Munoz, supra, 138 Cal.App.4th at p. 870.) Timeliness and its “‘“disruption of the orderly processes of justice” [citations]’” (People v. Keshishian, supra, 162 Cal.App.4th at p. 428) is not “‘a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.’” (Ortiz, supra, 51 Cal.3d at p. 984.)
When denying the request to discharge counsel, Judge Lew failed to inquire into the anticipated length of the trial, the number of witnesses, the possible length of any delay and other factors germane to an assessment of whether the disruption of the orderly processes of justice outweighed appellant’s right to the counsel of his choice. In the hearing earlier that day before Judge Lew, he was informed that Deputy Public Defender Weil was familiar with the case and willing to try it. Moreover, the judge failed to consider that it did not appear that the motion was made for purposes of unjustifiable delay, as appellant had asked Casselman for his files days earlier. Casselman stated that he was not prepared to try this case.
Third, Lau is distinguishable from our case. There, the Court of Appeal affirmed the trial court’s denial of the defendant’s request to discharge his retained attorney just before jury selection. However, it noted that the trial court “did not rely solely on the untimeliness of Lau’s request when it denied Lau’s request.” (Lau, supra, 177 Cal.App.3d at p. 479.) It considered, among other factors, that the retained counsel assured the trial court that he would defend Lau to the best of his ability. The trial court responded, “‘I know you will. It is with that knowledge and belief on my part that I deny the motion.’” (Ibid.) In the case before us, Casselman said that he could not adequately represent appellant given the conflict, counsel’s other scheduled matters and his inability to obtain the transcript of the suppression hearing, which he said he needed to impeach the police officers. Further, in Lau there was a second defendant being tried with Lau whose counsel had answered ready for trial. Hence, any delay would adversely affect the interests of codefendant. Only appellant was being tried here.
Two appellate decisions are particularly instructive. In the opinion of our colleagues in Division Four of this District in Hernandez, the request to discharge retained counsel in that case, as here, was made almost immediately before jury selection. Retained defense counsel advised the trial court that the defendant wanted to reappoint the public defender (appellant had initially been represented by the public defender) or a “conflict attorney.” The trial court conducted a Marsden-type hearing and denied the motion because the difference in trial tactics between the defendant and his counsel was not a sufficient reason to discharge counsel. The Court of Appeal, following Ortiz, concluded that, “Since [the defendant’s] counsel was not appointed counsel but rather retained counsel, this Marsden hearing was ‘the inappropriate vehicle in which to consider [the defendant’s] complaints against his retained counsel.’” (Hernandez, supra, 139 Cal.App.4th at p. 108.)
The Attorney General in Hernandez, as he does here, called upon the Court of Appeal to determine if the motion was timely, having been made just before jury selection. The Attorney General argued “that although the trial court did not expressly make findings upon which to deny [the defendant’s] request to discharge retained counsel, the record demonstrates the trial court ‘believed that the motion was untimely and would result in “‘“disruption of the orderly processes of justice unreasonable under the circumstance of the particular case”’ and that was the basis for the denial of the motion.” (Hernandez, supra, 139 Cal.App.4th at pp. 108–109.) The Court of Appeal responded to this argument, stating: “In this case, there appears to have been an adequate basis to deny [the defendant’s] late request for appointed counsel. As we have seen, the request was made almost immediately before jury selection was to begin in a two-defendant case. It is almost inconceivable that the public defender (or alternate counsel) would be able and willing to defend the case without a material postponement of the trial date, a circumstance that may have justified denial of the request. But... the trial court made no inquiry on the point and did not refer to it in its decision to deny [the defendant’s] request. Instead, its decision appears to have been based entirely on application of a Marsden analysis. As we also have discussed, that does not suffice in a case such as this, when the defendant is represented by retained counsel and is or may be eligible to have appointed counsel. [¶] Because the trial court utilized the wrong standard, it did not adequately address the issue of delay. Reversal is automatic where, as here, a defendant has been deprived of his right to defend with counsel of his choice.” (Hernandez, supra, 139 Cal.App.4th at p. 109, italics added.)
A similar conclusion was reached in Lara. In that case, on the day set for trial, which had been delayed for more than a year and one-half, the defendant sought to discharge his retained counsel. The trial court conducted a closed hearing, during which the defendant discussed his complaints, including his attorney’s failure to communicate with him and disagreements over trial tactics. The trial court denied the request, stating that the asserted conflicts do not “‘rise to the level in the type of breakdown in the attorney/client relationship that Marsden is looking at.’” (Lara, supra, 86 Cal.App.4th at pp. 146–148.) The Court of Appeal agreed with the defendant that conducting his request to discharge retained counsel as a Marsden motion was improper and required reversal. It also found defendant’s request, though made on the day of trial, timely. The proceedings had been going on for over a year and one-half, numerous continuances had been granted. The Court of Appeal noted that the trial court did not deny “the supposed Marsden motion as untimely or make any findings as to timeliness.” (Lara, supra, at p. 162.)
We conclude that the trial court abused its discretion by using the improper standard in assessing whether to allow discharge of appellant’s counsel. As such, automatic reversal is required. (Ortiz, supra, 51 Cal.3d at p. 988.)
II. Ineffective assistance of counsel
Appellant contends that if we conclude that his request to discharge his retained attorney, Casselman, was untimely, then Casselman provided ineffective assistance of counsel in not bringing appellant’s request to the attention of the trial court at the earliest possible opportunity. Because we have concluded in the previous part that appellant was deprived of his constitutional right to counsel, we need not reach this issue.
DISPOSITION
The judgment is reversed.
We concur: BOREN, P. J., ASHMANN-GERST, J.