Opinion
C079220
01-27-2017
THE PEOPLE, Plaintiff and Respondent, v. IAN AUBREY WOLFE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F07779)
A jury found defendant Ian Aubrey Wolfe guilty of felony evading a police officer, resisting a police officer, possession of methamphetamine, and possession of drug paraphernalia. The trial court found three prior prison term enhancements true. Sentenced to an aggregate term of six years, defendant appeals. He contends the trial court failed to make an adequate inquiry under Marsden regarding his complaint his defense counsel had not adequately communicated with him about his case. We affirm.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
BACKGROUND
The facts underlying defendant's offenses are irrelevant to the resolution of this appeal and, accordingly, we do not recite them here.
On November 3, 2014, during prior proceedings against defendant, the appointed public defender filed a successful motion to dismiss the charges based upon Penal Code section 995. The case was refiled, resulting in these proceedings. The complaint before us charged defendant with felony evading a police officer in violation of Vehicle Code section 2800.2, subdivision (a), resisting a police officer in violation of Penal Code section 148, subdivision (a)(1), possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a), and possession of drug paraphernalia in violation of Health and Safety Code former section 11364.1. It also alleged defendant previously served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
Defendant was arraigned on November 19, 2014, and the trial court reappointed counsel. The preliminary hearing took place on December 4, 2014, and defendant was held to answer. On December 26, 2014, defense counsel filed a motion to dismiss the information or, alternatively, to reduce the evading a police officer count to a misdemeanor. On January 16, 2015, defendant filed a Marsden motion and a Faretta motion (in the event his Marsden motion was denied). The trial court heard and denied the motion to dismiss or reduce felony charge to a misdemeanor. The trial court then closed the courtroom to hold the Marsden hearing.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
At the Marsden hearing, defendant complained he had not seen any discovery or the charging document. Counsel said defendant, in fact, already received those materials. Defendant next complained his attorney failed to communicate with him, in that he did not confer with defendant about preparation of his defense and the only time defendant saw him was at the preliminary hearing. He explained his theory of falsified police reports and corruption to the court and claimed his attorney was not investigating or pursuing this theory. Finally, he alleged his attorney was overburdened, unprepared for the preliminary hearing, and did not make unspecified motions.
Defense counsel responded to the trial court's inquiry, explaining the facts and law did not support filing a motion for discovery of police report falsehoods (Pitchess motion) or a suppression motion. Counsel assured the trial court there was nothing about his relationship with defendant which would prevent effective representation at jury trial. Counsel offered to go through everything he had done, but the trial court viewed it as unnecessary.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
The trial court concluded defense counsel was handling defendant's case effectively and denied defendant's Marsden motion. Following the denial of his Marsden motion, defendant waived his right to counsel and elected to represent himself. Trial was set for January 28, 2015, but commenced February 2, 2015, after which defendant was convicted as charged.
DISCUSSION
Defendant contends the trial court's inquiry regarding counsel's "duty of communication" with defendant was inadequate and he showed defense counsel had, in fact, insufficiently communicated with him such that his motion should have been granted. We disagree.
Marsden established the right of a criminal defendant to make a motion to discharge court-appointed counsel and substitute new counsel. (Marsden, supra, 2 Cal.3d at pp. 123-124.) Under Marsden, a defendant who makes such a motion must be allowed to state the specific reasons for his dissatisfaction with counsel. (Ibid.) The defendant is entitled to substitute counsel only if the record clearly shows defense counsel was not providing adequate representation or defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v. Crandell (1988) 46 Cal.3d 833, 854, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365.)
We review a court's denial of a Marsden motion for abuse of discretion. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) When reviewing whether the trial court abused its discretion, we consider whether it made an adequate inquiry into the defendant's complaints. (People v. Mungia (2008) 44 Cal.4th 1101, 1127-1128.)
We conclude the trial court made an adequate inquiry into defendant's complaints. As mentioned, "a criminal defendant who seeks to substitute counsel must be allowed to state the specific reasons for his [or her] dissatisfaction with counsel." (People v. Clemons (2008) 160 Cal.App.4th 1243, 1250.) Defendant was provided that opportunity here—he was permitted to state his grievances, at length. Whether it is necessary for a trial court actively to question the defendant's attorney depends on the nature of the grievances related by a defendant and the information available to the court. (People v. Hill (1983) 148 Cal.App.3d 744, 753; People v. Penrod (1980) 112 Cal.App.3d 738, 746-747.) Here, while the trial court did not ask defense counsel during the Marsden hearing to specifically address defendant's complaints concerning his limited personal contact with counsel, the trial court had sufficient information to rule on the motion.
First, although defendant claimed he saw his attorney only once, at the preliminary hearing, counsel had already informed the court he "went to R triple C [Rio Cosumnes Correction Center, where defendant was being housed] and provided him with every document that he specifically had requested up until that point, including letters that he wrote to me. I photocopied those letters for him, stamped them as received, and brought them to him." Defense counsel also represented defendant in connection with the motion to dismiss the previous case, which counsel explained was (other than the complaint case number) identical to the instant case—with the same police reports, investigation, and other discovery. Thus, counsel clearly worked with defendant on more than one case containing the same subject matter, and spent far more time communicating with his client than that one meeting at the preliminary hearing suggested by defendant.
Second, counsel informed the trial court that, in contrast to any implication made by defendant at the Marsden hearing that defendant had provided him with evidence discoverable by the prosecution, he had not been provided any such evidence and that he believed defendant was referring to case law and motions defendant had provided to counsel. Counsel also said he discussed the possibility of filing a Pitchess motion with defendant, but concluded it was not appropriate. It was clear from these statements by counsel, as well as counsel's statement he provided defendant with documents specifically requested by defendant, counsel was in contact with defendant—even if that contact was not always in person. Thus, the trial court's disinclination to question counsel about his communications with defendant did not constitute a failure to make an adequate inquiry into defendant's complaint.
Defendant responded he was referring to transcripts (possibly from the preliminary hearing in the previously filed case) regarding the police reports.
Defendant also appears to contend the trial court abused its discretion by not granting the motion because he established his attorney did not maintain adequate communication with him. As set forth above, defendant made no such showing. The trial court was entitled to conclude trial counsel was in sufficient contact, in person or otherwise.
Moreover, " 'the number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence.' " (People v. Cole (2004) 33 Cal.4th 1158, 1192, quoting People v. Silva (1988) 45 Cal.3d 604, 622; see also People v. Williamson (1985) 172 Cal.App.3d 737, 745-746 [failure to visit defendant in jail does not mean there is inadequate contact].) The pertinent question is not the numerical frequency of the visits or communication between counsel and defendant, but rather whether trial counsel is diligently preparing for trial. (See People v. Avalos (1984) 37 Cal.3d 216, 231 [inquiry under Marsden fulfilled where court was aware of grounds of the defendant's motion that counsel had not been communicating but was satisfied counsel was adequately prepared].)
Here, trial counsel had the benefit of a previous preliminary hearing transcript on a nearly identical complaint, which he had successfully moved to dismiss only months earlier. He extensively cross-examined the witnesses at the preliminary hearing and, following the presentation of evidence, argued against the holding order. He investigated the possibility of filing a Pitchess motion and a motion to suppress evidence, and filed a new motion to dismiss the information (or reduce the felony to a misdemeanor), which included a comprehensive statement of facts that evinced a thorough understanding of the case. There was no basis to conclude counsel was not adequately prepared. Moreover, it is reasonable to assume counsel would have expended even more energy on defendant's case had he remained appointed through trial. Thus, there was no showing defense counsel was not providing adequate representation.
Counsel requested a continuance of the trial date for a week, not because he was unprepared to proceed, but because he was already in trial on another matter. --------
In sum, the trial court made an adequate inquiry. There was no abuse of discretion in denying defendant's Marsden motion.
DISPOSITION
The judgment is affirmed.
NICHOLSON, Acting P. J. We concur: DUARTE, J. RENNER, J.