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Marsden Motion-Defendant may not manufacture a conflict to force the court to appoint substitute counsel People_v_Smith

 3.       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 motion.

              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[5] and, refused to file a Pitchess motion.[6]  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[7] 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.[8]  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.[9]  The court nonetheless promised to take defendant’s “willingness” to accept the plea into consideration for sentencing purposes.  The Marsden motion was denied.  

.   .   .  .

DISCUSSION

            1.         The Trial Court’s Denial of the Marsden Motions Was Not
                        An Abuse of Discretion

 

Criminal 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.  (People v. Taylor (2010) 48 Cal.4th 574, 599.)

It is within the trial court’s discretion to determine whether a defendant may discharge his appointed counsel and substitute another attorney.  (Marsden, 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.”  (Taylor, supra, 48 Cal.4th at p. 599.)  We review the trial court’s denial of a Marsden motion for abuse of discretion.  (Taylor, 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.)

We 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 Marsden motions.

In 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.

In 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.

Defendant 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 corrected quickly.

In 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.

We 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 motions.  
People v. Smith - B235091-10/1/12 CA2/3

 

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