Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 05-6138 & 07-7016
BLEASE, Acting P. J.
In case number 07-7016, a jury convicted defendant Ricardo Raul Villa of possession of a firearm by a person convicted of a serious felony, a felony (Pen. Code, § 12021.1, subd. (a)), and making a false representation of identity to a peace officer, a misdemeanor (Pen. Code, § 148.9, subd. (a)). The court found true a count charging felony failure to appear (Pen. Code, § 1320.5), and allegations defendant committed a crime while on bail, had a prior strike, and had served a prior prison term (Pen. Code, §§ 12022.1, subd. (b), 667, subds. (b)-(i), 667.5, subd. (b)). In case number 05-6138, defendant pled no contest to active gang participation (Pen. Code, § 186.22, subd. (a)), and admitted a strike prior in exchange for the dismissal of other charges and a 16-month sentence, consecutive to the other case. The trial court sentenced defendant to 13 years and 8 months in prison. Defendant timely appealed.
On appeal, defendant contends trial counsel was incompetent in failing to file a suppression motion, and the trial court erroneously construed his motion to relieve retained counsel as a Marsden motion to relieve appointed counsel. (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) We agree with the latter claim and reverse the convictions in case number 07-7016. Because of our conclusion, we need not address defendant’s claim that trial counsel was incompetent in not filing a suppression motion in that case, because defendant is free to file such a motion on remand. We conclude the conviction and strike admission in case number 05-6138 must be affirmed, because defendant was represented by new counsel and the plea bargain was not affected by the trial court’s earlier error.
Accordingly, we reverse the judgment in case number 07-7016, affirm the judgment in case number 05-6138, vacate the sentence and remand for further proceedings.
BACKGROUND
On June 28, 2006, defendant waived his right to a preliminary hearing in case number 05-6138.
On March 23, 2007, counsel Ava Landers appeared for defendant, and explained he had not been in contact with her. The trial court forfeited bail, issued a bench warrant and, at counsel’s request, relieved counsel.
Defendant was apparently arrested the following week, and on April 30, 2007, Lawrence Cobb made a special appearance with defendant, and bail was reinstated.
On September 7, 2007, Cobb appeared on behalf of defendant, but sought leave to withdraw, in part because he had lost contact with defendant. The court again forfeited bail and issued a warrant.
On December 27, 2007, complaint number 07-7016 was filed. Defendant was in custody, and Cobb continued to make appearances for him.
On May 22, 2008, Cobb represented defendant at the preliminary hearing in the new case.
On June 5, 2008, after defendant was held to answer, Cobb appeared with him at the arraignment on the information. The court set both cases for trial on the same day, with the understanding that the newer case would likely be tried first. The trial readiness conference was set for August 15, 2008, and the trial was set for September 2, 2008.
Cobb filed pretrial motions, but did not file a suppression motion. At the trial readiness conference on August 15, 2008, the parties confirmed the newer case would be tried first. Defendant did not raise any issues regarding Cobb. Trial in the newer case (no. 07-7016) was confirmed for September 2, 2008.
On September 2, 2008, before in limine motions were heard or prospective jurors had been summoned, defendant made what was construed as a Marsden motion. Cobb stated “he’d like to discharge me and have a new lawyer.”
Judge Warriner then conducted an in camera hearing that began as follows:
“THE COURT: Okay. Mr. Villa, please.
“THE DEFENDANT: Yes, sir. Yeah, that’s correct. I’d like to seek to relieve Mr. Cobb, either substitute Counsel.
“Do you want the basis for it or
“THE COURT: Oh, yes. Today is the jury trial.”
Defendant explained why he was dissatisfied with Cobb, and Cobb responded to the complaints. Judge Warriner denied the motion without stating reasons. The parties then stipulated defendant was a convicted felon, and defendant waived a jury trial on the enhancements and on a failure to appear charge.
The next day, September 3, 2008, defendant filed a written motion that he had mentioned at the in camera hearing, captioned as a Marsden motion.
The jury heard uncontradicted evidence that on September 23, 2007, peace officers contacted defendant in a motel parking lot and found that he was in possession of a loaded handgun, and that defendant gave a peace officer a false name. After deliberating for 10 minutes, the jury convicted defendant of unlawful possession of a firearm and making a false representation to a peace officer. (Pen. Code, §§ 148.9, subd. (a), 12021.1, subd. (a).)
The next day, September 4, 2008, the trial court convicted defendant of failure to appear, found he committed crimes while released on bail, and found true allegations that defendant had a strike and had served a prison term. (Pen. Code, §§ 1320.5, 12022.1, subd. (b), 667, subds. (b)-(i), 667.5, subd. (b)). Sentencing was set for October 24, 2008.
Sentencing was continued, and on October 30, 2008, Cobb moved to be relieved as counsel.
On November 7, 2008, the trial court granted the motion and appointed conflict counsel to represent defendant at sentencing in case number 07-7016, and for a trial setting conference in the trailing case, case number 05-6138.
On February 24, 2009, before Judge Fall, defendant’s new counsel, Rodney Beede, set forth the terms of a negotiated plea bargain. Defendant would admit a strike and active gang participation, and receive 16 months in prison consecutive to the time he would receive on case number 07-7016. In exchange, other charges were conditionally dismissed.
Judge Fall explained the bargain in part as follows:
“What happens then is that the sentence in this case will end up being one-third the middle term, normally 8 months, but because of the prior strike... it gets doubled to 16 months, and it happens that you’re going to have it doubled to 16 months because it will be part of the sentencing that will end up going forward on the case you went to trial on, 07-7016.
“Now, if for some reason something happened to the convictions in that case you went to trial on, then what happens on the one you’re pleading to today is that there is a possible six-year exposure if the other case were to go away.
“Do you understand the plea agreement, sir?
“THE DEFENDANT: Yes, sir.”
Defendant agreed to a combined sentencing hearing in both cases before Judge Warriner.
On March 20, 2009, defendant moved for a new trial, in part alleging Cobb’s incompetence. Part of the background for this motion was the fact that peace officers had testified at both the preliminary hearing and trial that they had not blocked defendant’s car with their patrol cars before speaking to him in a motel parking lot, but described what appeared to be a consensual encounter with defendant, leading to a pat search and the discovery of a firearm in his possession. The theory of the motion, in part, was that Cobb should have introduced evidence that the officers had boxed defendant’s car in with their cars, thereby detaining him without cause.
On March 23, 2009, defendant testified at the hearing on his motion for a new trial, generally to the effect that Cobb did not have productive meetings with him, and when the trial date was set, Cobb demanded an additional $3,000 “or I had to retain another counsel.” Regarding the motion to relieve counsel, defendant testified he showed Cobb his written motion a week before the trial date, and “I asked him to relieve himself. I wasn’t that knowledgeable so I had to because he wouldn’t relieve himself. He said... he would not file [a] motion to relieve himself. He told me it was likely not to happen.” Defendant did not know that he could file such a motion himself, so he raised the issue on the day of trial. He testified that he had been telling Cobb for “at least a month and a half” about his wishes, but had not said anything at the trial readiness conference because “to be honest I didn’t think I could speak up in court. He was always telling me not to speak out.” When he showed Cobb the motion captioned as a Marsden motion, Cobb told him it was only for appointed counsel, “So from there I was kind of at a loss.” The day after defendant made his oral motion, he filed the written Marsden motion he had shown Cobb. Defendant also testified there was evidence that could support a suppression motion, specifically, that the peace officers parked their cars so as to box in defendant’s car.
At the hearing, defense counsel pointed out that because Cobb had been retained, defendant had not needed a Marsden motion in order to change counsel, at which point Judge Warriner said: “On the day of trial?” After further colloquy, the new trial motion was denied, and Judge Warriner sentenced defendant to prison for 13 years and 8 months. Defendant timely appealed.
DISCUSSION
Defendant contends the trial court improperly denied his motion to discharge retained counsel. The Attorney General implicitly concedes the trial court mistakenly treated defendant’s motion as a Marsden motion, but argues that because the trial court could have found the motion to relieve retained counsel was untimely, we should affirm.
We cannot substitute what the court might have done for what the court did do. The fact defendant’s request to relieve retained counsel was made on the day of trial does not show that it was untimely as a matter of law. Because the trial court did not apply the correct standards for determining whether defendant’s request was untimely, we cannot infer the trial court necessarily would have found it to be untimely, therefore the denial of defendant’s motion, based on the mistaken application of Marsden standards, was error. As we shall explain, the error is not subject to harmless error analysis.
As described in a later case, in Marsden, supra, 2 Cal.3d 118, the California Supreme Court held “that a defendant is deprived of his constitutional right to the effective assistance of counsel when a trial court denies his motion to substitute one appointed counsel for another without giving him an opportunity to state the reasons for his request. A defendant must make a sufficient showing that denial of substitution would substantially impair his constitutional right to the assistance of counsel [citation], whether because of his attorney’s incompetence or lack of diligence [citations], or because of an irreconcilable conflict [citations].” (People v. Ortiz (1990) 51 Cal.3d 975, 980, fn. 1 (Ortiz).)
In Ortiz, supra, 51 Cal.3d 975, the California Supreme Court held that “when a criminal defendant makes a timely motion to discharge his retained attorney he should not be required to demonstrate the latter's incompetence, as long as the discharge will not result in prejudice to the defendant or in an unreasonable disruption of the orderly processes of justice.” (Id. at p. 979.)
“The trial court, in its discretion, may deny such a motion 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]. As the court stated in Sampley v. Attorney General of North Carolina (4th Cir. 1986) 786 F.2d 610, 613, the ‘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.”’ The trial court, however, must exercise its discretion reasonably: ‘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.’ [Citation.]” (Ortiz, supra, 51 Cal.3d at pp. 983-984.)
The California Supreme Court also rejected a remedy the Attorney General proposed, a remand for the trial court to reconsider and exercise its discretion based on the correct standards, holding that “Reversal is automatic... when a defendant has been deprived of his right to defend with counsel of his choice.” (Ortiz, supra, 51 Cal.3d at pp. 987-988.)
As indicated, the California Supreme Court held a trial court could deny a motion to relieve retained counsel if the motion was “not timely, i.e., if it will result in ‘disruption of the orderly processes of justice[.]’” (Ortiz, supra, 51 Cal.3d at p. 983.) Whether such a motion is untimely does not hinge on some fixed stage of the proceedings, but instead requires the trial court to exercise its discretion to balance a number of factors, and “‘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.’” (Id at p. 984.)
The Attorney General contends that because defendant’s motion was made on the day of trial-albeit before jury selection or any other motions were heard-the motion was necessarily untimely. We disagree.
Had the trial court applied the correct standards, it would have considered factors such as any prior delays caused by defendant, the reason defendant had not presented his motion sooner, any difficulties with rescheduling witnesses, the condition of the court’s own docket, and other relevant factors. (See People v. Munoz (2006) 138 Cal.App.4th 860, 870 [“Blanket generalizations about possible delay will not suffice”]; People v. Lara (2001) 86 Cal.App.4th 139, 153 [court must balance defendant’s interest in new counsel against the disruption “if any” that would be caused] (Lara).)
For this reason, other cases have held on similar procedural facts that the error in conducting a Marsden motion cannot be deemed harmless because the trial court might have found the motion untimely, had it understood the scope of its discretion and weighed the appropriate factors.
For example, in Lara, supra, 86 Cal.App.4th 139, Lara asked to discharge retained counsel on the day of trial and the trial court mistakenly conducted a Marsden hearing. (Id. at p. 144.) The Attorney General contended Lara’s request was untimely: “Respondent acknowledges the court never addressed the Ortiz factors, but contends that appellant’s request occurred on the scheduled first day of trial, and the court would not have abused its discretion if it had denied an Ortiz motion as untimely.” (Id. at pp. 158-159.) Lara rejected this approach, because the issue of timeliness had not been considered by the trial court, and therefore the record did not show whether or not granting Lara’s request would have caused any significant disruption. (Id. at pp. 162-164.) “[T]here is no way to determine whether allowing appellant to discharge his retained counsel and granting a continuance would have been prejudicial to the prosecution and disrupted the orderly process of justice. It can certainly be speculated that it would have been disruptive to cancel the travel plans for Mr. T. and his family and reschedule their trip, but it is equally possible that such a cancellation could have been accomplished with a minimum of disruption since these witnesses had not yet been made available to the defense. We are thus left with an incomplete record upon which to conclude that such a motion was necessarily untimely.” (Id. at pp. 163-164.)
Similarly, in People v. Hernandez (2006) 139 Cal.App.4th 101 (Hernandez), the court held: “In this case, there appears to have been an adequate basis to deny appellant’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 appellant’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.)
In contrast, in another case where a defendant sought to discharge retained counsel on the trial date, the trial court weighed the correct factors, including the length of time the case had been pending following many defense-requested continuances, the uncertain length of a needed continuance, and the inconvenience to witnesses, and the denial of the motion based on untimeliness was upheld. (People v. Keshishian (2008) 162 Cal.App.4th 425, 428-249.) That is the analysis the trial court should have used in this case.
We are aware that at the outset of the hearing, Judge Warriner told defendant that it was the day of trial, and in denying the new trial motion Judge Warriner obliquely suggested the motion to discharge Cobb might have been untimely. But, as in Lara and Hernandez, because the trial court did not apply the correct factors, the record does not show that defendant’s motion was untimely, that is, that granting it would “result in ‘disruption of the orderly processes of justice[.]’” (Ortiz, supra, 51 Cal.3d at p. 983.) The error is reversible per se. (Id. at p. 988.)
We must consider the scope of this conclusion on the case.
Defendant’s contention that Cobb was incompetent because he did not move to suppress evidence is mooted by our reversal of the convictions that occurred under Cobb’s watch. On remand, new counsel would be free to file a suppression motion.
Further, appellate counsel concedes that “important issues germane to suppression of evidence were not litigated, and they would have to be litigated, in order for a valid decision on the suppression issue to be made.” We see no point in addressing the suppression issue based on the existing, concededly incomplete, record.
But, contrary to a passing contention by defendant, we conclude that reversal of the convictions in case number 07-7016 does not undermine the plea bargain in case number 05-6138. Defendant states the plea bargain “was expressly contingent on the survival” of the convictions following the jury trial. This is not accurate. As stated above, the plea bargain contained a provision addressing what would happen “if for some reason something happened to the convictions in that case you went to trial on,” specifically, that defendant faced a six-year exposure. The fact that “something happened” to the convictions in case number 07-7016 - namely, we have reversed them - was a circumstance contemplated by the bargain and is not a basis to vacate that bargain, brokered by new counsel.
If defendant is reconvicted in case number 07-7016, the sentence in case number 05-6138 would again be 16 months, consecutive to the sentence in case number 07-7016. If, and only if, defendant is not reconvicted in case number 07-7016, defendant would face a six-year exposure in case number 05-6138.
DISPOSITION
The judgment in case number 07-7016 is reversed but the judgment in case number 05-6138 is affirmed. The sentence is vacated, and the cause is remanded for further proceedings consistent with this opinion.
We concur: SIMS, J. HULL, J.
The recent amendments to Penal Code section 4019 do not operate to modify defendant’s entitlement to credit, because he stands convicted of a serious felony in this case. (Pen. Code, § 4019, subds. (b) & (c); Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.) The plea bargain that we uphold included defendant’s no contest plea to active gang participation, a “serious” felony. (Pen. Code, §§ 186.22, subd. (a), 1192.7, subd. (c)(28).)