P. v. Bahr

Filed 10/18/06 P. v. Bahr CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Thomas Patrick Bahr pleaded guilty in March 2001 to one count of stalking in violation of Penal Code section 646.9, subdivision (a).[1] The trial court suspended imposition of sentence and granted appellant 36 months' probation. He appeals from the August 2005 order finding him in violation of his probation, revoking probation and sentencing him to a two-year term in state prison with custody and good time credit for 501 days. Appellant contends the trial court erred when it denied his motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) for substitution of appointed counsel, when it failed to read a letter he submitted or to rule on the motion for reconsideration that was included in the letter, when it considered hearsay testimony from his probation officer, and when it revoked his probation for failure to pay fines without making a finding concerning his ability to pay. We affirm.

Facts

Appellant pleaded guilty in March 2001 to one count of stalking. The trial court suspended imposition of sentence and granted 36 months' probation. He moved to Florida with the permission of his Ventura County probation officer. In October 2003, appellant was arrested in Washington D.C. The charges were later dismissed. Appellant did not receive permission from his Florida probation officer to travel to Washington D.C. He did not report in Florida after September 2003.

In December 2003, the Florida probation officer informed the Ventura County Probation Agency of appellant's Washington D.C. arrest and failure to report. The Ventura County Probation Agency filed a noticed of charged probation violations, alleging the violations reported by Florida and that appellant had not paid restitution and other fines assessed against him.

Appellant did not appear at the first scheduled probation hearing in January 2004. His probation was revoked and a bench warrant issued for his arrest. He was arrested in New York City on June 20, 2005. The public defender was appointed to represent him.

Appellant moved for substitution of appointed counsel pursuant to Marsden. He claimed that counsel had not returned numerous telephone calls, provided the probation department with his compliance history, tried to correct errors in the probation report, or obtained a tape recording made by a private investigator concerning his arrest in Washington D.C. Appellant also complained that counsel was biased against him and had inappropriately recommended that he accept a two-year prison term. The trial court denied the motion, concluding appellant made no showing he was unable to get a fair hearing with his current counsel.

Appellant sent a letter to the trial court restating his complaints about his attorney and requesting reconsideration of his Marsden motion. The trial court took no immediate action. Two days later, appellant signed a waiver of attorney, the public defender was relieved as his counsel and he proceeded in pro per.

The probation violation hearing was held about two weeks later. Appellant's Ventura County probation officer was the only witness for the prosecution. Appellant testified in his own behalf. The trial court found appellant to be in violation of the terms of his probation and sentenced him to the middle term of two years in prison.

Discussion

Marsden Motion

Appellant contends the trial court erred when it denied his Marsden motion for substitution of appointed counsel. We review the trial court's ruling for abuse of discretion and will not reverse it "unless the failure to remove appointed counsel and appoint replacement counsel would 'substantially impair' the defendant's right to effective assistance of counsel." (People v. Roldan (2005) 35 Cal.4th 646, 681, quoting People v. Smith (2003) 30 Cal.4th 581, 604; People v. Welch (1999) 20 Cal.4th 701, 728.) There was no abuse here.

A defendant is entitled to substitution of appointed counsel "upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citations.]" (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.) The defendant has a right to an adequate and competent defense against the charged probation violations; he did not have the right to a defense of his own choosing. (People v. Welch (1999) 20 Cal.4th 701, 728.) Disagreements about tactical matters, such as which defense to present or which evidence to offer, do not generally constitute an irreconcilable conflict between attorney and client, nor do they amount to inadequate representation. (People v. Dickey (2005) 35 Cal.4th 884, 922; People v. Welch, supra, 20 Cal.4th at pp. 728-729.)

Here, the disagreements appellant had with his appointed counsel were over tactical matters, such as whether to use the tape recording. Counsel's judgment and advice on these issues was, as the trial court noted, more than competent. Under these circumstances, the trial court properly denied the Marsden motion.

Appellant's Letter to the Trial Court

On August 8, 2005, five days after his Marsden motion was denied and two days before he discharged his appointed counsel in favor of self representation, appellant sent a letter to the trial court in which he renewed his Marsden motion. The letter cites the same complaints he raised in the Marsden hearing. It also describes an emotional outburst by his attorney in which she told him that she did not care about his concerns and thought that he should go to prison because he had problems with women and was "most likely a jerk." The letter was not filed until August 16, 2005 and the trial court did not read it until late August, after appellant had discharged his appointed counsel. After reading the letter, the trial court took no action on it. Appellant contends the trial court's failure to read the letter or take action on his motion for reconsideration violated his right to counsel and his right to due process. We are not persuaded.

For the most part, the letter restated appellant's earlier complaints about his appointed counsel. The trial court heard those complaints and denied the motion only days before appellant sent his letter. It was not required to hold a second hearing on complaints that were fully described in writing and that had already been the subject of a hearing. (People v. Horton (1995) 11 Cal.4th 1068, 1103.) The only new material in the letter was appellant's claim about counsel's outburst. But appellant is not entitled to substitute counsel solely because he does not like his appointed attorney, nor she him. The letter did not describe inadequate representation or an irreconcilable conflict. (People v. Memro (1995) 11 Cal.4th 786, 857.) The trial court correctly declined to appoint substitute counsel. As a result, any error in its failure expressly to rule on the issues raised in appellant's letter was harmless beyond a reasonable doubt. (Marsden, supra, 2 Cal.3d at p. 126.)

Waiver of Right to Counsel

Appellant contends he did not effectively waive his right to counsel because he had no choice but to represent himself after the trial court denied his Marsden motions. We are not persuaded. Appellant received written advisements of his rights and executed a written waiver of the right to counsel. The trial court confirmed that appellant read, signed and understood the form. It also admonished him that he was foolish to represent himself. This record demonstrates that appellant was made aware of the disadvantages of self-representation and nevertheless made a voluntary and knowing waiver of the right to be represented by counsel. (People v. Blair (2005) 36 Cal.4th 686, 708.)

People v. Cruz (1978) 83 Cal.App.3d 308, and People v. Hill (1983) 148 Cal.App.3d 744, on which appellant relies, are not to the contrary. In each of those cases, the defendant's decision to represent himself was found to be involuntary because it was motivated by the trial court's error in refusing to hear a Marsden motion. That, of course, was not the case here. Appellant received an adequate hearing on his Marsden motion and the motion was properly denied.

Confrontation Clause

The prosecution's sole witness at the probation violation hearing was Monica Rodrigues, appellant's Ventura County probation officer. During her testimony, she relied, without objection, on reports and other documents contained in appellant's probation case file. Appellant contends her testimony was inadmissible hearsay that violated his Sixth Amendment right to confront adverse witnesses. We disagree. First, appellant waived this contention by failing to object in the trial court. (People v. Alvarez (1996) 14 Cal.4th 155, 186; People v. Garceau (1993) 6 Cal.4th 140, 179, overruled on other grounds Woodford v. Garceau (2003) 538 U.S. 202, 210.) Second, the trial court could properly have relied on the probation officer's reports. The reports are prepared by the probation officers in the furtherance of their official duties and as such bear the indicia of reliability required to permit their use at a probation revocation hearing. (People v. Maki (1985) 39 Cal.3d 707, 714-715; People v. Cain (2000) 82 Cal.App.4th 81, 87-88.)

Failure to Pay Fines

Section 1203.2 permits the trial court to revoke probation when it has reason to believe that the probationer "has violated any of the conditions of his or her probation . . . . However, probation shall not be revoked for failure of a person to make restitution . . . unless the court determines that the defendant has willfully failed to pay and has the ability to pay." (§ 1203.2, subd. (a).) Appellant contends the trial court violated section 1203.2 and the Fourteenth Amendment by revoking his probation for failure to pay restitution and other fines without first finding that he had the ability to pay the restitution and fines. There was no violation. Although the trial court found that appellant failed to pay all outstanding restitution and fines, it did not rely on that finding as a basis for its order. Rather, it revoked appellant's probation because appellant moved from Florida to Washington D.C. without the permission of his probation officer and because he failed to report to his probation officer from September 2003 until his arrest in June 2005. These findings are supported by a preponderance of the evidence. (Jones v. Superior Court (2004) 115 Cal.App.4th 48, 60.) There was no error.

Cumulative Error

Appellant contends the cumulative effect of these errors was so prejudicial as to require reversal. The contention fails because "[t]here was no significant error to accumulate." (People v. Chatman (2006) 38 Cal.4th 344, 410.)

The judgment (order revoking probation) is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

Kevin McGee, Judge

Superior Court County of Ventura

______________________________

Barbara A. Landan, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan, Dawn S. Mortazavi, Deputy Attorneys General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless otherwise stated.