Opinion
No. 61449-5-I.
April 6, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-09443-8, Michael Heavey, J., entered March 7, 2008.
Affirmed by unpublished opinion per Schindler, C.J., concurred in by Agid and Becker, JJ.
Adrian N. Alatorre appeals his conviction for one count of unlawful possession of a firearm in the first degree. Alatorre argues the trial court violated his constitutional rights by denying his motion to substitute counsel and failing to adequately inquire about his assertion of an irreconcilable conflict with his attorney. Because the record does not support Alatorre's argument, we conclude that the court did not abuse its discretion in denying Alatorre's motion. We also conclude that the issues Alatorre raises in the statement of additional grounds are without merit, and affirm.
FACTS
On May 27, 2007, the residents at an apartment building in Auburn reported hearing gunshots. Witnesses reported that two males fired a rifle about a dozen times. The police located the rifle behind a fence where the witnesses said the males had left it. Two of the witnesses later identified Adrian N. Alatorre as one of the males who was carrying the rifle. The State charged Alatorre with one count of unlawful possession of a firearm in the first degree.
The State charged Alatorre with first degree possession based on his previous conviction for a serious offense. RCW 9.41.010(12); RCW 9.41.040(1).
Alatorre's trial was scheduled to begin on December 17. On the first day of trial, Alatorre's attorney made two motions on Alatorre's behalf.
Alatorre wanted to continue the trial in order to review the DNA test results that the State had recently produced. Alatorre also wanted the court to appoint a new attorney because of "a failure of communication."
Alatorre's attorney told the court that he did not believe there was a breakdown in communication and that he was prepared to proceed with the trial:
[I]t's incumbent upon me to represent to the court that [Alatorre] would like to continue this matter. . . . I feel like I'm communicating with Mr. Alatorre fine, and have otherwise been having a decent relationship with him. He may not like my assessment of the case or of my strategy, I'm willing to listen to him.
The trial judge transferred Alatorre's motion to continue and to appoint new counsel to the criminal presiding judge. Alatorre's attorney informed the presiding judge that the recently produced DNA evidence had "extremely limited" value and reiterated that he was ready to proceed with trial but his client wanted more time. As to Alatorre's motion to substitute counsel, the attorney told the court:
Mr. Alatorre and I have reached, perhaps, an impasse in our communications. Mr. Alatorre is not comfortable having me as his attorney anymore and would like to relieve me as his counsel of record. I personally have enjoyed my communications with Mr. Alatorre throughout the course of representing him, and feel like I have accurately been able to communicate with him. That said, I believe he would like to have certain differences, and potential theories and witnesses testify that I don't necessarily think are appropriate.
The court denied Alatorre's motion for a continuance and his motion to substitute counsel. As the court was explaining its ruling on the motion for a continuance, Alatorre interrupted,
[Alatorre]: I need a new attorney.
The Court: You are not going to have a new attorney.
[Alatorre]: Well this attorney right here says I am guilty — he thinks I'm guilty. He told me that he thinks I'm guilty, so how am I supposed to go into trial with someone who thinks I'm guilty?
The Court: Mr. Alatorre, your attorney's responsibility is to give you his best judgment. You may not like it, and unless it can be resolved, he will do a job, a good job for you at trial in defending your interests. The fact that you may not agree with his assessment of the case is not a basis for me to give you a new attorney, so you are sent back [to the trial judge].
Alatorre later renewed his motion to substitute counsel with the trial judge:
[Alatorre]: [M]y attorney here thinks I'm guilty. He has told me to my face he thinks I'm guilty, so I don't understand how I can go to trial with someone that thinks I'm guilty, that is supposed to defend me. You Honor, he has made racial slurs to me. He has told me things. He doesn't work for me, Your Honor.
The Court: Well, I've looked at his trial brief and he appears to be quite prepared. Just because he gives you his honest assessment of your case doesn't mean he's not prepared . . . any attorney looking at your case may think you're guilty . . . but that doesn't mean you are going to be found guilty by twelve people over there. What he thinks does not come before the jury.
[Alatorre]: I understand, Your Honor, but I would rather pay for an attorney that will fight for me fully, Your Honor. That's all I want, Your Honor. And I want more time on this case. . . .
The Court: [The presiding judge] has ruled on your motion for continuance. I'm not going to revisit that issue.
[Alatorre]: So what am I supposed to do?
The Court: We're going to trial.
[Alatorre]: I'm supposed to go to trial with somebody that just I don't want to go with?
The Court: That is correct. You have the right to an attorney; you don't have the right to an attorney of your choice.
[Alatorre]: What if I want to pay for one? The Court: You should have done that by now. . . .
[Alatorre]: He has made racial slurs against me. The Court: Mr. Alatorre, I don't really believe that.
[Alatorre]: It's the truth, Your Honor.
In response to Alatorre's allegation of racial slurs, Alatorre's attorney told the court that he had discussed the risk of jury prejudice with Alatorre, but "[i]n no way, shape or form have I indicated any sort of racial derogatory opinions made by myself."
At trial, Alatorre denied possessing the rifle. Over the course of the three-day trial, a number of witnesses testified, including police officers and experts on DNA.
The jury convicted Alatorre as charged. The court imposed a standard range sentence of 54 months.
ANALYSIS
Alatorre contends the court violated his right to counsel under the Sixth Amendment to the United States Constitution and Article I, § 22 of the Washington Constitution by denying his motion to appoint a different attorney to represent him. Alatorre asserts that he had a substantial and irreconcilable conflict with his attorney and his motion was timely because the trial had not yet begun. Alatorre also contends the court's inquiry was inadequate because the court did not question Alatorre and his attorney privately or in depth, did not allow Alatorre to adequately address his allegations of racial bias, and improperly focused on his attorney's competence.
We review a trial court's decision to deny a motion to substitute counsel for abuse of discretion. State v. Varga, 151 Wn.2d 179, 200, 86 P.3d 139 (2004). The court abuses its discretion if its decision is manifestly unreasonable or based on untenable reasons or grounds. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997) (Stenson I).
"A defendant does not have an absolute, Sixth Amendment right to choose any particular advocate." Stenson I, 132 Wn.2d at 733. The essential aim of the Sixth Amendment is "to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988). A defendant seeking to substitute counsel "must show good cause . . . such as a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication." In re Personal Restraint of Stenson, 142 Wn.2d 710, 723, 16 P.3d 1 (2001) ( Stenson II). A defendant's loss of confidence or trust in a court-appointed attorney is not a sufficient reason to substitute counsel. Varga, 151 Wn.2d at 200. We consider three factors in reviewing a trial court's decision to deny a motion to substitute counsel based on an irreconcilable conflict: (1) the extent of the conflict, (2) the adequacy of the court's inquiry, and (3) the timeliness of the motion. Stenson II, 142 Wn.2d at 723-24.
The record shows the conflict between Alatorre and his attorney was not irreconcilable. The record establishes that even though there were differences about trial strategy, the attorney was able to communicate with Alatorre and effectively represent him at trial. The record also shows that Alatorre's allegations that his attorney used racial slurs apparently originated from the concerns that Alatorre's attorney expressed to him about potential jury bias. And as the Washington Supreme Court has noted, distrust of his attorney is not a sufficient basis to substitute counsel. Varga, 151 Wn.2d at 200.
Alatorre's reliance on United States v. Moore, 159 F.3d 1154, 1159-60 (9th Cir. 1998), is misplaced. Unlike here, the defense attorney in Moore testified that he felt physically threatened by his client, and the attorney told the court that he and his client did not "have any communication at all." Moore, 159 F.3d at 1159.
We also conclude that the court's inquiries about the alleged conflict were adequate. Upon questioning by the criminal presiding judge, Alatorre's attorney explained that the only conflict with his client related to trial strategy. And in that hearing, Alatorre's only expressed concern was that he believed his attorney thought he was guilty. The court then appropriately addressed Alatorre's concern by explaining that his attorney's assessment of the case was not a basis to substitute counsel. And the trial court only rejected Alatorre's claim of bias after considering the attorney's explanation concerning Alatorre's allegations of racial slurs.
Alatorre cites United States v. Nguyen, 262 F.3d 998, 1004-05 (9th Cir. 2002) to argue that an adequate inquiry into a defendant's conflict with his attorney requires the court to interview the attorney and the defendant privately. But the facts in Nguyen are substantially different. In Nguyen, a non-English speaking defendant moved to substitute counsel because the defendant had stopped communicating with his appointed attorney. 262 F.3d at 999-1001. The defendant wanted to call witnesses and asked the court to schedule a hearing. Without the defendant present, the trial court denied the motion and refused to schedule a hearing. On appeal, the Ninth Circuit concluded the trial court abused its discretion and reversed. Nguyen, 262 F.3d at 1004. Here, unlike in Nguyen, there was no breakdown in communication and Alatorre had the opportunity to fully address his concerns in court.
Alatorre also argues that the trial court improperly focused on the attorney's competence by stating that his attorney was well prepared. But the court's comment was in response to Alatorre's expressed concern about the quality of the representation. Moreover, determining "the breakdown's effect on the representation the client actually receives" is part of the inquiry the court should make. Stenson II, 142 Wn.2d at 724.
In addition, Alatorre's motion to substitute counsel was not timely. Alatorre made his motion to substitute counsel on the first day of the trial. Alatorre cites Nguyen to argue the motion was timely. But in Nguyen, the judge "improperly emphasized his own schedule at the expense of Nguyen's Sixth Amendment rights." 262 F.3d at 1003. Here, unlike in Nguyen, the criminal presiding judge heard and considered Alatorre's motion to substitute counsel on the merits.
In sum, because the court did not abuse its discretion in denying Alatorre's motion to substitute counsel, Alatorre fails to establish that his constitutional right to counsel was violated.
Alatorre raises several other issues in his statement of additional grounds for review. First, Alatorre argues that because a juror was related to the prosecutor, the juror was biased. After jury selection, a juror told the court that he works with the prosecutor's uncle's wife. Alatorre moved for a mistrial. The court denied the motion, finding there was no misconduct or apparent bias. The record supports the trial court's determination. State v. Earl, 142 Wn. App. 768, 774, 177 P.3d 132, rev. denied, 164 Wn.2d 1027 (2008).
Alatorre also contends that his sentence is invalid because the court improperly calculated his offender score. Alatorre claims that a law passed by the legislature before his sentencing on March 7, 2008 prevented the court from including one point for committing the current offense while under community placement. But there was no such change in the law. See RCW 9.94 A.525.
Because Alatorre fails to sufficiently identify the nature of the remaining alleged errors, we are unable to address them. RAP 10.10(c).
We affirm.