P. v. Williams

Filed 8/14/06 P. v. Williams CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed.

While on probation for a conviction for sale of cocaine base, defendant Robert Williams was charged with pimping (Pen. Code,^[1] § 266h, subd. (a)) and soliciting an act of prostitution (§ 647, subd. (b)). The information also alleged Williams had suffered one Three Strikes law prior conviction (§§ 667, subds. (b)-(i), 1170.12) and one prison prior (§ 667.5, subd. (b)). Following an evidentiary hearing, the court formally revoked Williams's probation. At the sentencing hearing after the revocation, the court denied Williams's motion under People v. Marsden (1970) 2 Cal.3d 118 (Marsden motion) to replace his court-appointed counsel and lifted the stay of execution of his four-year sentence to state prison for his earlier drug conviction.

Williams appeals, contending the court erred by denying his Marsden motion. Williams also contends the court violated his right to due process by revoking his probation and sentencing him to state prison without allowing him to present allegedly exculpatory evidence in the form of a tape recording made by police. We affirm.

FACTUAL BACKGROUND

A. Probation

In 2003 Williams pleaded guilty to the sale of cocaine base (Health & Saf. Code, § 11352, subd. (a)) and admitted a strike prior conviction allegation (§§ 667, subds. (b)-(i), 1170.12). At sentencing the court dismissed the prior strike conviction allegation, sentenced Williams to prison for four years, suspended execution of the sentence, and placed him on probation for five years.

B. Probation Violation

On the evening of July 6, 2005,^[2] Detective Rolito Cunanan of the San Diego Police Department vice unit was working street prostitution detail in the 3800 block of Swift Avenue. Detective Cunanan, who was working undercover, was driving an unmarked car and had an audio recording device to record potential encounters. At approximately 8:45 p.m., Williams approached Detective Cunanan, who was sitting in his unmarked car on University Avenue near a potential prostitute, and asked him what he was looking for. Detective Cunanan told Williams he was looking for a girl to perform an act of fellatio on him.

Williams asked the detective if he liked the girl sitting at the bus stop. Detective Cunanan told Williams he did like the girl and Williams said she was looking for a date. Williams also told Detective Cunanan he had three girls in an alley he could call for him and pointed toward an alley two blocks away. Williams asked the detective if he was going to "hook him up" [with payment] for getting him a girl and Detective Cunanan told Williams that he would. Williams instructed the detective to drive to the alley and park across the street.

Detective Cunanan parked at the designated spot and watched Williams walk to a market across the street, but the detective did not see Williams talk to anyone. Williams met the detective at his car, told him he had a girl for him, and again told him to move to a new location a block away. Detective Cunanan drove to the new meeting place and Williams introduced him to a Black female named Candy. Williams told the detective that Candy was "hot" and that she performed fellatio very well. Candy got into the front passenger seat of Detective Cunanan's car and Williams demanded payment of $20 for his services. After brief negotiations, Detective Cunanan paid $20 to Williams, who then walked away from the car and was arrested. Detective Cunanan's recording device recorded the audio portion of the entire transaction with Williams.

Procedural Background

On July 8, as a result of the new charges, the trial court summarily revoked Williams's probation and set the matter for a revocation hearing. On August 11, during a combined preliminary and probation revocation hearing, Detective Cunanan testified that he had recorded the July 6 transaction with Williams. Based on the officer's testimony, the court formally revoked Williams's probation and set the matter for sentencing. Some time after the revocation hearing, defense counsel obtained a copy of the tape recording of the July 6 transaction, but the copy was inaudible.

At the sentencing hearing on September 16, Williams orally brought a Marsden motion to replace his court-appointed counsel. Williams complained that his appointed counsel failed to file appropriate motions, had not been in contact with him, and failed to obtain an audible copy of the tape recording. Williams claimed the tape recording would show he had no knowledge of, or anything to do with, a sex transaction. Williams admitted, however, that he did not ask his attorney to obtain a copy of the tape recording until August 11, the day he and his attorney learned of its existence.

Defense counsel rebutted the accusations and claimed to have informally attempted to obtain an audible copy of the tape recording by speaking with the prosecutor in person, over the phone or by e-mail on five occasions. Defense counsel asserted he first attempted to obtain the tape recording on August 11, the day he learned of its existence. Counsel also asserted he filed a pretrial motion to compel discovery of the tape recording on September 13, that waiting to file a formal motion to compel discovery was a tactical decision, and that he was moving to suppress the tape recording at trial for the new charges.

The court denied Williams's Marsden motion, finding Williams had received adequate representation. Williams waived his right to counsel and elected to represent himself at sentencing. The court ordered execution of the previously imposed four-year state prison sentence.

Discussion

I. Marsden Motion

Williams first contends the court erred by denying his Marsden motion. We reject this contention.

When a defendant makes a motion to replace his court-appointed counsel, "'"the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance."'" (People v. Roldan (2005) 35 Cal.4th 646, 681 (Roldan).) The trial court should grant relief if the record "'"shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result."' [Citations.]" (Ibid.) Once the defendant has been provided the opportunity to explain the basis of the motion, "substitution is a matter of judicial discretion." (People v. Webster (1991) 54 Cal.3d 411, 435, citing Marsden, supra, 2 Cal.3d at p. 123.) "[A]ppellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would 'substantially impair' the defendant's right to effective assistance of counsel." (Roldan, supra, 35 Cal.4th at p. 681.)

Here, Williams was given the opportunity to explain his reasons for wanting substitution of his appointed counsel. At the in camera hearing, Williams told the court the problem was "ineffective assistance of counsel, your Honor. Counsel . . . has failed to file any pretrial motions, and he is waiting until the last minute to do it. At my prelim[inary hearing] I asked him to challenge the evidence of [the] tape [recording] of [the] alleged conversation [among] me and the detective and the alleged prostitute. I [told] him that there was no conversation [among] us three. All he had to do was to play the tape and it would have exonerated me right there." Williams also told the court his appointed counsel failed to communicate with him, failed to file a motion under section 995 to challenge the sufficiency of the evidentiary showing at the preliminary examination, and failed to file two motions for dismissal.

In response, defense counsel asserted he attempted to obtain the tape recording on August 11, the day he and Williams learned of its existence. Defense counsel asserted that in addition to his first attempt that day, he informally attempted to get an audible copy of the tape recording on four subsequent occasions, and he filed a pretrial motion on September 13 to compel production of the tape. Regarding the pretrial motions, defense counsel asserted that his failure to file a section 995 motion was based on his belief the motion "would have been frivolous." As to the two other motions for dismissal Williams contends should have been filed, defense counsel asserted that it was a tactical decision not to file the motions. Finally, in response to Williams's contention regarding lack of communication, defense counsel highlighted his "numerous phone calls" and personal contacts with Williams or his family.

To the extent Williams's motion related to the probation revocation hearing and sentencing thereon, we conclude the court did not abuse its discretion by denying his motion. Williams's probation had already been revoked when he brought his Marsden motion during the sentencing hearing on September 16. A Marsden motion is based on events occurring in the past, but "is forward-looking in the sense that counsel would be substituted . . . to provide effective assistance in the future." (People v. Smith (1993) 6 Cal.4th 684, 695.) Thus, the court was required to assess whether Williams's appointed counsel would provide him with effective representation at the sentencing proceeding and trial.

The record indicates Williams's appointed counsel was capable of adequately representing him at the sentencing hearing and trial. Counsel attempted to obtain an audible copy of the tape recording as soon as he and Williams learned of its existence. The record shows that counsel, who was adequately preparing for trial on the new charges, made tactical decisions^[3] to refrain from filing certain pretrial motions and communicated with Williams a number of times.^[4] Based on counsel's preparation for trial and diligent efforts to obtain a copy of the tape recording as soon as he learned of its existence, we do not believe counsel would have provided ineffective assistance at the sentencing proceeding.

In sum, the record reflects the court allowed Williams to state the reasons for his motion, and it considered and properly rejected his contentions. We conclude the court did not abuse its discretion by finding Williams failed to demonstrate that failure to replace his court-appointed counsel would substantially impair his right to effective assistance of counsel at sentencing or trial.

II. Due Process

Williams also contends the court violated his right to due process by revoking his probation and sentencing him to state prison without allowing him to present allegedly exculpatory evidence in the form of a tape recording made by police. We reject this contention.

The United States and California Constitutions contain a prohibition against the deprivation of individual liberty without due process of law. (U.S. Const., 5th & 14th Amends; Cal. Const., art. I, § 15.) Though a probationer enjoys only a conditional liberty dependent on his or her observance of certain restrictions, the state and federal high courts have held a deprivation of that conditional liberty requires the probationer be accorded due process in probation revocation proceedings. (See Morrissey v. Brewer (1972) 408 U.S. 471, 482 (Morrissey) [parole revocation]; People v. Vickers (1972) 8 Cal.3d 451, 457-458 (Vickers).)

In Morrissey, supra, 408 U.S. 471, the United States Supreme Court established the minimal due process requirements in parole revocation proceedings. The high court extended those due process requirements to probation revocation proceedings in Gagnon v. Scarpelli (1973) 411 U.S. 778. In Vickers, supra, 8 Cal.3d 451, the California Supreme Court held that the federal due process guarantees established in Morrissey apply to formal state probation revocation proceedings. Due process entitles a probationer facing a formal probation revocation hearing to (1) written notice of the claimed violations of probation; (2) disclosure to the probationer of the evidence against him or her; (3) the opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses, unless the hearing officer specifically finds good cause for not allowing confrontation; (5) a neutral and detached hearing body; and (6) a written statement of the evidence relied on and the reasons for revoking probation. (Gagnon, supra, 411 U.S. at p. 786, citing Morrissey, supra, at p. 489; Vickers, supra, 8 Cal.3d at p. 458.)

Here, Williams was not deprived of his liberty without due process of law. The record indicates the prosecution disclosed the existence of the tape recording and that Williams had an opportunity to present his own witnesses and evidence at the evidentiary hearing, but elected not to do so. Williams also had the opportunity to cross examine the adverse witnesses against him. There is no indication from the record that Williams was procedurally barred from a fair evidentiary hearing.

Further, Williams's assertion that "fundamental fairness required a short continuance so that the truth of [his] position could be established" has no merit because Williams failed to request a continuance. "The trial court was under no obligation to volunteer, sua sponte, that the defense could have an unrequested continuance." (People v. Alcala (1992) 4 Cal.4th 742, 782.) We conclude Williams received a fair evidentiary hearing with attendant due process protections.

Disposition

The judgment is affirmed.

NARES, Acting P. J.

WE CONCUR:

McDONALD, J.

McINTYRE, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] All further dates refer to calendar year 2005.

^[3] "A disagreement concerning [trial] tactics is . . . insufficient to compel the discharge of appointed counsel, unless it signals a complete breakdown in the attorney-client relationship." (People v. Crandell (1988) 46 Cal.3d 833, 859-860, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346.)

^[4] "[T]he number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence." (People v. Silva (1988) 45 Cal.3d 604, 622.)