P. v. Robinson

Filed 7/18/06 P. v. Robinson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Randall Patrick Robinson appeals his conviction, by jury, of sale of vicodin and fentanyl (Health & Saf. Code, § 11352, subd. (a))[1], sale of marijuana (§ 11360, subd. (a)), possession of marijuana for sale (§ 11360, subd. (a)), and maintaining a place for purposes of selling controlled substances. (§ 11366.) The trial court suspended imposition of sentence and granted three years formal probation on the condition, among others, that appellant serve one year in county jail. Appellant contends the trial court erred when it refused to allow him to discharge his retained counsel without first retaining new counsel. We affirm.

Facts

A police informant made a controlled buy of vicodin and fentanyl from appellant at appellant's residence. The next day, the informant made another controlled buy of marijuana from appellant. When police searched the residence two weeks later, pursuant to a warrant, they found a scale, packaging materials, "pay-owe" sheets, many additional empty prescription bottles and marijuana. At trial, appellant denied selling drugs to the informant. He testified that the "pay-owe" sheets were records from a home-based business he operated with his wife. The vicodin and fentanyl were prescribed for him because he suffers from a chronic condition known as reflex sympathetic dystrophy syndrome which causes him to experience intractable pain.

Appellant's Request To Relieve Retained Trial Counsel

The controlled buys occurred in January 2003. The felony complaint was filed against appellant in July 2003. His trial commenced on March 1, 2005.

On November 17, 2004, appellant's retained counsel, Mr. Quinn, notified the trial court: "At this time I'm going to declare a conflict. Mr. Robinson feels that he'd be better off with a different attorney, and I tend to agree with him." Counsel requested a two week continuance, to permit appellant to retain new trial counsel. Noting that the case was 17 months old, the trial court granted a continuance to November 29. It declined to relieve Mr. Quinn, but agreed to do so if appellant appeared with new counsel at the next court date. "Otherwise, I'm . . . not going to relieve Mr. Quinn. He's going to be your trial counsel." Appellant was unable to retain new counsel before November 29, because of the Thanksgiving holiday. The trial court continued the matter for another week.

Mr. Quinn appeared as appellant's trial counsel at the next hearing. January 31 was selected as the trial date. It trailed to February 28 with Mr. Quinn appearing for the appellant at three brief hearings. On February 28, appellant again asked to relieve Mr. Quinn and retain new counsel. The trial court conducted a hearing outside the prosecutor's presence and denied the request. Appellant's trial commenced the next morning, March 1. He appeared in court that morning with new counsel, Mr. Rogers. The trial court permitted Mr. Rogers to substitute for Mr. Quinn. No continuance was offered or requested. Mr. Rogers represented appellant throughout the trial. Appellant was represented by appointed counsel at sentencing.

Discussion

Appellant contends the trial court erred at the November 17 hearing when it failed to inquire into the nature of the conflict of interest declared by retained defense counsel and when it required appellant to retain new counsel before discharging Mr. Quinn. There was no error.

As our Supreme Court explained in People v. Ortiz (1990) 51 Cal.3d 975, 983, "The right of a nonindigent criminal defendant to discharge his retained attorney, with or without cause, has long been recognized in this state . . . ." A nonindigent defendant may discharge retained counsel without first demonstrating that his or her current counsel is providing inadequate representation or that counsel has an irreconcilable conflict. (Id. at p. 984.) However, the trial court may deny a motion to discharge retained counsel if it determines, in its discretion, that "discharge will result in 'significant prejudice' to the defendant [citation] or if it is not timely, i.e., if it will result in 'disruption of the orderly processes of justice [citations]." (Id. at p. 983; see also People v. Lara (2001) 86 Cal.App.4th 139, 152-153.) Error that deprives a defendant of the right to retained counsel of choice mandates automatic reversal. (People v. Ortiz, supra, 51 Cal.3d at p. 988.)

No error occurred here because the trial court did not deny appellant the right to be represented by counsel of his choice. When counsel declared a conflict at the November 17 hearing, the case had been pending for 17 months and the trial date had been continued several times. The trial court advised appellant to retain new counsel within 12 days or proceed to trial with his counsel, Mr. Quinn. At the next court date, 12 days later, the trial court continued the matter for an additional 10 days to give appellant more time to retain new counsel. When he appeared with new retained counsel on the day set for his trial to begin, the court permitted the substitution.

The trial court is not required to permit a substitution of retained counsel when doing so would result in a " 'disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.' [Citations.] The right to such counsel 'must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case.' " (People v. Courts (1985) 37 Cal.3d 784, 790, quoting People v. Crovedi (1966) 65 Cal.2d 199, 280, People v. Byoune (1966) 65 Cal.2d 342, 346.)

The recent decision in People v. Hernandez (2006) 139 Cal.App.4th 101, is not to the contrary. There, the trial court, relying on People v. Marsden (1970) 2 Cal.3d 118, refused to allow a defendant to discharge his retained counsel and accept representation by appointed counsel. The Court of Appeal reversed, holding that the Marsden standard does not apply to a non-indigent defendant's decision to discharge retained counsel. It noted, however, that the request appeared to be untimely and could properly have been denied on that basis.

The same is true here. Appellant first indicated his desire to retain new counsel after the matter had been pending for 17 months and the trial date had been continued four times. The trial court instructed appellant to retain new counsel promptly or proceed to trial with his current counsel. This compromise was not an abuse of discretion, given the age of the case and the number of times the trial date had been continued.

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, Acting P.J.

We concur:

COFFEE, J.

PERREN, J.

Tari L. Cody, Judge

Superior Court County of Ventura

______________________________

Esther R. Sorkin, 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, Lance E. Winters, Supervising Deputy Attorney General, Richard T. Breen, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Health and Safety Code unless otherwise stated.