Right To Counsel
may not manufacture a conflict to force the court to appoint
substitute counsel People_v_Smith
The Marsden Motions
During the March 14, 2011 preliminary hearing, defendant pulled
his shirt over his head and rested his head on his counsel’s table.
When Judge Daigh ordered him to sit up and take the shirt off his
head, defendant refused and demanded a live lineup.
The court called for a recess in order for Deputy Public Defender
Joe Burghardt to speak with his client so that the hearing could
proceed. Once the hearing
resumed, Attorney Burghardt informed the court that defendant wanted a
new attorney or he otherwise would not return to the courtroom.
The court stopped the hearing and asked the deputy district
attorney to leave the courtroom so that it could address the Marsden
The court asked defendant why he wanted a new attorney and
defendant responded that his counsel: did not have a defense prepared;
failed to call witnesses at the hearing; did not request a live lineup;
and had only met with defendant via video.
Attorney Burghardt explained that he rarely presents a defense
or calls witnesses during a preliminary hearing and did not feel a live
lineup was prudent because several witnesses had previously identified
defendant from photographs. The
Marsden motion was denied.
Before jury selection, defendant renewed his Marsden
motion on May 26, 2011, claiming that his lawyer failed to turn over
certain discovery to him
and, refused to file a Pitchess
Defendant also asserted that he and his lawyer’s
“communication skills broke down.”
Attorney Burghardt explained that he thought a Pitchess motion would be frivolous because the arresting officer was
not a witness to the crimes. While
Attorney Burghardt admitted that communication with defendant was
strained, he declared that he was still willing and able to continue
representing defendant. Judge Filer
denied the Marsden motion.
The following day, after jury selection began, defendant made
another Marsden motion.
He complained that his counsel had not told him about two
witnesses his counsel had mentioned during jury selection and reiterated
that he had never received certain discovery.
Attorney Burghardt explained that the two witnesses were police
officers and that he did not intend to call them unless testimony
elicited at trial differed from their written reports.
With respect to defendant’s discovery concern, Attorney
Burghardt explained that he had gone over witness transcripts orally
with defendant and provided him with copies of some of the transcripts,
but he now understood that defendant wanted copies of “all police
reports and everything else.” He
indicated that he was in the process of redacting the remaining
discovery and promised to provide defendant with the redacted files by
the next court date.
The court again denied defendant’s motion, concluding that
communication had not broken down to the point where Attorney Burghardt
could no longer represent defendant.
Defendant stated that he refused to reenter the courtroom while
Attorney Burghardt continued to represent him.
The court encouraged defendant to return but noted that the court
would proceed without defendant in attendance if he refused to come out.
After he refused to return to the courtroom, the court found that
defendant voluntarily waived his right to be present for his trial, but
left open the option for defendant to return if he wished.
At the next court appearance, on May 31, 2011, defendant returned
to the courtroom and made a fourth Marsden
motion. Defendant claimed
that the discovery he received from Attorney Burghardt revealed that a
new victim was going to testify against him regarding the third count,
and that had he known this information, he “probably would have”
accepted the prosecution’s plea offer.
The court nonetheless promised to take defendant’s
“willingness” to accept the plea into consideration for sentencing
purposes. The Marsden motion was denied.
. . . .
The Trial Court’s Denial
of the Marsden Motions Was Not
An Abuse of Discretion
defendants are entitled to competent representation.
(U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People
v. Smith (1993) 6 Cal.4th 684, 690 (Smith).)
Defendants who believe that their Sixth Amendment right to
counsel is being denied because they are receiving inadequate
representation may file a Marsden
motion to correct this deficiency. (Ibid.)
A trial court must permit a defendant a chance to explain his or
her contention of inadequate representation.
v. Taylor (2010) 48 Cal.4th 574, 599.)
is within the trial court’s discretion to determine whether a
defendant may discharge his appointed counsel and substitute another
supra, 2 Cal.3d at p. 123.)
A defendant’s right to counsel does not require the court to
appoint new counsel unless the first attorney is not adequately
representing the accused or the “defendant and counsel have become
embroiled in such an irreconcilable conflict that ineffective
representation is likely to result.”
48 Cal.4th at p. 599.) We
review the trial court’s denial of a Marsden
motion for abuse of discretion.
supra, 48 Cal.4th at p. 599.)
“[T]actical disagreements between a defendant and his attorney
or a defendant’s frustration with counsel are not sufficient cause for
substitution of counsel. [Citations.]”
(People v. Streeter
(2012) 54 Cal.4th 205, 231.) There
is no abuse of discretion for denial of the motion “ ‘unless
the defendant has shown that a failure to replace counsel would
substantially impair the defendant’s right to assistance of
counsel.’ ” (Taylor,
supra, 48 Cal.4th at p. 599.)
conclude that the trial court did not abuse its discretion in denying
the Marsden motions.
As we shall discuss, most of the problems defendant had with his
counsel relate to tactical decisions, which belong to his attorney to
make. The other issues
raised by defendant relate to insufficient communication.
However, the record reflects that Attorney Burghardt adequately
communicated with defendant. We
will now address each specific issue defendant raised in his
his March 14 motion, defendant argued he was receiving ineffective
representation because his counsel did not request a live lineup, did
not have a defense prepared, failed to call witnesses at the preliminary
hearing, and only met defendant via video.
The first three contentions were strategic decisions for Attorney
Burghardt, and not defendant, to make.
As to the fourth contention, defendant has no authority for the
proposition that he could not effectively communicate with his counsel
through video conferencing and, in any event, counsel thereafter met
with defendant in person on numerous occasions.
his May 26 motion, defendant complained that he did not receive certain
discovery and that his counsel did not file a Pitchess motion. Although
the discovery issue was not discussed at this time, it was resolved at
the next hearing. As to the Pitchess motion, Attorney Burghardt explained that a Pitchess
motion would have been frivolous because the police officer in question
was not a witness to the charged offenses; this was not erroneous.
renewed his motion the following day, arguing that he was unprepared for
trial because his counsel did not tell him about two additional
witnesses that his counsel had mentioned during jury selection, and he
again raised the discovery issue. Attorney
Burghardt explained that he did not intend to call those witnesses
unless testimony at trial differed from their reports; the witnesses, in
fact, did not testify. While
he admitted to misunderstanding defendant’s discovery concerns,
Attorney Burghardt promised to provide the discovery by the next court
date, which he did. A misunderstanding
does not equate to ineffective representation, especially when it is
his fourth motion, defendant claimed he became aware of new information
from the discovery, and had he known, he may have accepted the
prosecution’s expired plea offer.
Defendant never explicitly stated that he would have accepted the
offer, but the court nonetheless promised to take defendant’s apparent
willingness to do so into consideration during sentencing.
agree with the trial court’s repeated determinations that ineffective
representation was not likely to result from any difficulty in
communication between defendant and his counsel.
While Attorney Burghardt conceded that communication was
strained, he did not believe that communication had deteriorated to the
point where he could not provide effective representation.
We agree with both judges who concluded that there was no
irreconcilable conflict and no likelihood of ineffective representation.
Much of the breakdown in communication can be attributed to
defendant’s actions, such as interrupting proceedings and refusing to
return to the courtroom unless he received new counsel, but defendant
may not through his own actions manufacture a conflict with his
counsel in an attempt to force the court to appoint substitute counsel.
(See Smith, supra,
6 Cal.4th at p. 697 [declaring that a defendant may not
substitute counsel because of a conflict originating from
defendant’s own conduct].) Based upon Attorney
Burghardt’s representations and the trial court’s own observations
that communication had not broken down to the point where Attorney
Burghardt could not effectively represent defendant, the court did not
abuse its discretion in denying the Marsden
v. Smith - B235091-10/1/12 CA2/3
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