P. v. Coates

Filed 5/11/07 P. v. Coates CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Eugene Coates appeals from a judgment convicting him of selling cocaine and sentencing him to three years in prison. He contends the trial court erred in denying his many motions for appointment of a new attorney under People v. Marsden(1970) 2 Cal.3d 118 (Marsden). He also contends the trial court erroneously determined that he was ineligible for probation. We affirm.

Factual and Procedural History

At 9:30 p.m. on August 27, 2005, defendant approached a plainclothes police officer and indicated that he was prepared to sell the officer drugs. The officer asked, Can I get a 20? Defendant asked to see the officers pipe and asked, Are you police? After the officer showed defendant a pipe, defendant handed him a small off-white rock, later determined to be cocaine base. The officer gave defendant a marked $20 bill, departed, and gave the arrest signal to other officers who arrested defendant and recovered the marked bill.

A felony complaint was filed charging defendant with, among other counts, one count of selling and offering to sell cocaine base. (Health & Saf. Code,[1]  11352, subd. (a).) The complaint also alleged that defendant had suffered three prior felony convictions within the meaning of section 11370.2, subdivision (a), and that as a result of these prior convictions defendant was ineligible for probation under section 11370, subdivisions (a) and (c), and Penal Code section 1203.07, subdivision (a)(11). The complaint alleged that defendant was ineligible for probation based on a March 2004 conviction for the crime of sale or transportation of a controlled substance in violation of section 11352(a) of the Health and Safety Code, within the meaning of Health and Safety Code section 11370(a)(c).

At the close of the prosecutions direct examination at the preliminary hearing on October 4, 2005, defendant made his first request for the appointment of new counsel. The court refused his request on the ground that it was untimely. Defendant was held to answer on all charges.

On October 18, defendant was charged by information with a single count of selling cocaine base. The information also included the prior conviction and probation restriction allegations based on defendants three prior convictions.

At defendants arraignment on October 19, he again requested new counsel. Pursuant to Marsden, the court conducted a hearing outside the presence of the prosecutor. Defendant explained, I have a conflict of interest with my appointed attorney . . . . He deprived my constitutional rights to due process. Defendant complained that his attorney, Paul Gasner, was refusing to provide him with a copy of his probation report and the police report. He also stated, [My attorney] told me I should listen to him, and if I dont listen to him, hell turn into a beast. Gasner denied making the last comment and stated that he met with defendant prior to the preliminary hearing. At that time, they had a plan, had a good relationship. That included my telling him that I was going to endeavor to go up the chain of command at the DAs office and try to get him a [drug treatment] program. [] Because he was in Roads to Recovery for the first time, which is his first treatment program. And he is apparently doing well there. And he indicated to me thats what he wanted to do with his life. [] . . . [] [O]n the day of the prelim, I went and spoke to district attorney, Jeff Ross, in the District Attorneys Office, went through the case. And based on his prior state prison commitments for the same type of offense, Mr. Ross wasnt able to give us what he wanted. . . . [] As soon as Mr. Coates heard that what he wanted wasnt going to happen . . . he proceeded to interrupt the preliminary hearing, trying to tell me he didnt want me to be his lawyer mid-hearing, talking to me excessively throughout the hearing. . . . [] I asked him whether we could try to work out the differences between us. And he said that I wasnt to come talk to him, I wasnt to try to approach him or have any further contact with him. [] . . . [] [F]rankly, I think this has less to do with my quality of lawyering and more to do with the fact that he is just unhappy with the offer from the district attorney. . . . But it does appear to a certain extent that the attorney-client relationship has broken down and he wont talk to me any longer. Gasner also said that he would get defendant a complete copy of his case file immediately. The court denied the motion, reassuring defendant that his attorney is a very good, very thorough attorney. The court urged defendant to cooperate with his attorney.

On November 30, defendant wrote to the court requesting another Marsden hearing, stating that Gasner was misleading [him] with false information and that Gasner has a block on his telephone . . . showing that he has no consideration for my legal concerns. In other proceedings on December 2, defendants probation was revoked based on the same drug transaction and a previously imposed four-year sentenced was executed.

On December 9, the present matter was assigned to Judge Charlotte Woolard for a Marsden hearing. At the hearing, defendant stated that his attorney had lied to him at his probation revocation hearing. He asserted that Gasner told him if I plead guilty to my probation that day, it would be four years and that day he took my case. I tried to forgive him for that, and then December 5, 2005, I wrote him a letter but he continued to lie to me like I am stupid. [] Now, yesterday . . . he told me that he tried to get another judge to dismiss my case. I asked why cant he have the judge in Department 22 hear my case. He said that the judge is being a bitch. Defendant also stated that Gasner is a very evil man. He continues to lie to me and lie to me and lie to me. I do not know when he is going to stop. I try to trust this man, but he keeps on lying to me. He keeps trying to trick me to go to jury trial. He is going to railroad me. He already hate me . . . . [H]e has not communicated with me. In response, Gasner explained that before the probation revocation hearing, he negotiated extensively with the prosecutor but was unable to secure a reduction in the charges. He did, however, obtain a commitment from the court, over the district attorneys objection, that if defendant pleaded guilty to the sales count the court would dismiss the probation revocation petition, strike the priors and impose the mitigated three-year term. Defendant rejected the offer, however, and his probation was revoked. Thereafter, Gasner attempted to convince the prosecutor to dismiss the present charges but the prosecutor refused. Gasner also unsuccessfully petitioned the court to dismiss the remaining charges. Gasner explained, I have told [defendant] numerous times that I know he is upset with me because he is upset with the situation, and I have maintained a good relationship with him. I have maintained a relationship where I go to him and we talk about the case in the meantime. [] I dont care that he has Marsdend me so many times . . . and I certainly have never come to him and said . . . I dont want to work because you Marsdend me. . . . I appreciate that he is frustrated, but I continue to come with what I think are the best negotiations in this courthouse. Gasner denied calling the judge a bitch, and indicated that he would have made the motion to dismiss before her and will continue to make the motion before any other judge because he is outraged that the underlying case is still before us when [defendant] has been given four years for a single hand-to-hand rock sale from a known narcotics addict. The court denied the Marsden motion, finding that there has not been a breakdown in the relationship between the attorney and the defendant of such kind that would make it impossible for the attorney to properly represent the defendant. The court explained, The defendant appears to be upset with his current situation, but the situation does not appear to be the fault of Mr. Gasner. From looking at the two of you in court, Mr. Gasner does not appear to harbor any ill will whatsoever towards Mr. Coates. Mr. Gasner is conducting himself in a professional and highly competent manner and supplying and pressing a vigorous defense.

Following this hearing, defendant sent a letter to Judge Mary Weiss, in which he stated that he was in fear for his life because of his attorneys evil intentions. He explained further, I tried to catch your attention for a Marsden hearing but my attorney . . . went behind your back and had my case remove to Dept. 27 when it should have been heard in Dept. 22. I had wanted you to hear my complaint because he stated a dirty remark about your judgment . . . .

On December 12, Judge Charles Haines held a hearing on another Marsden motion. When asked by the court what new had happened since the Marsden hearing three days earlier, defendant acknowledged that his motion involved [b]asically, the same issues. The court denied the motion.

The matter went to trial on December 14. Again, defendant made a Marsden motion. The court asked defendant to explain what new conflict had arisen since the hearing two days before. Defendant stated that his attorney continued misleading him with lies. He said that he going to talk to the district attorney about having my case dismissed because of my probation matter. And I told him he [was] wrong. And he also said that about new police . . . scandal going on, that the police officers testimony will be discredited. But I told him it had nothing to do with my case. I also talking about he give me back to drug treatment program because of my new case. Mr. Gasner explained that he had spoken with the prosecutor and that, as he told defendant, the offer had been reduced from six to five years. Gasner also explained that he told defendant about media coverage of a police video containing inappropriate materials and that in cross-examining any officers currently with the pall of this video over the city . . . that perhaps any attempt to impeach or discredit the officers would . . . be received by a jury more favorably . . . . Later, however, after obtaining additional information from the prosecutor, he told defendant that none of the officers involved in his case was involved with the video. Gasner denied making any promises about drug treatment. The court denied the motion. Thereafter, defendant chose to remain in the holding cell throughout jury selection.

On December 15, after the jury was sworn but prior to opening statements, defendant made another Marsden motion based on the same assertions. Treating the motion as one for a mistrial, the court denied the motion. Defendant refused to participate in the remainder of trial. He did, however, make another Marsden motion as the jury was being instructed. Once again defendant accused Gasner of lying to him and to the court, and stated that he wanted to waive time concerning the continuation of the trial until he could get his statement together for the Marsden hearing. The motion was denied.

The jury found defendant guilty of selling cocaine. Thereafter, defendant admitted the prior conviction and probation restriction allegations based on his March 2004 conviction for sale or transportation of a controlled substance. The remaining prior conviction allegations were dismissed.

At his sentencing hearing on February 17, 2006, defendant made a final Marsden motion. Defendant stated that Gasner continued to block his telephone calls. Defendant also stated that Gasner told him in early February that the court had agreed to send him to a drug treatment program. Gasner explained that his phone accepted calls from county jail but that collect calls were blocked. He has told defendant that if he needs to see him he should write him a note and he would come within 24 hours. Gasner also explained that he visited with defendant to explain the sentencing memorandum he was filing on defendants behalf. According to Gasner, defendant had indicated on numerous occasions that . . . he wishes to have a residential drug treatment program. And he continues to disbelieve that I am pushing for that, despite my reading of the Penal Code which at this point makes me believe that its probably unlawful for this court. This courts hands are tied with respect to giving him probation and the drug treatment program. The court asked Gasner whether he had told defendant that after the last hearing the court asked the prosecutor to discuss with her supervisor whether the district attorney would consider an alternative to state prison. Gasner replied that he had reported that conversation to defendant and also reported that the prosecution had refused to consider any alternatives. The court denied the motion and sentenced defendant to the mitigated term of three years in prison. In the interests of justice, the court stayed imposition of the three-year sentence on the prior conviction enhancement. The court explained that although there were exceptional circumstances that otherwise would have rendered probation appropriate, defendant was statutorily ineligible for probation. Defendant filed a timely notice of appeal.

Discussion

1. Marsden Motions

Defendant contends the court erred in denying his Marsden motions. Marsden motions are subject to the following well-established rules.   When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorneys inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly 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]. [Citations.]  [Citation.] Denials of Marsden motions are reviewed under an abuse of discretion standard. [Citation.] Denial is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would substantially impair the defendants right to assistance of counsel.  (People v. Barnett (1998) 17 Cal.4th 1044, 1085.)

Defendants first Marsden motion was denied at the close of the preliminary hearing on the ground of untimeliness. Defendant contends the court erred in failing to hold a hearing and not allowing him to explain the basis of his claim. We need not resolve the merits of this contention with regard to defendants first motion, because any error was clearly harmless in light of the numerous hearings that were conducted on defendants subsequent motions. (People v. Millwee (1998) 18 Cal.4th 96, 121-122, citing People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 527 [In general, irregularities in pretrial commitment proceedings require reversal on appeal only where the defendant shows he was deprived of a fair trial or otherwise suffered prejudice as a result. [Citation.] Where the case involves an ineffective assistance claim of the sort at issue here, no prejudice typically appears unless counsels pretrial performance resulted in the loss of material evidence and caused tangible harm to the defense at trial].)

At defendants arraignment, the court conducted the first of many comprehensive Marsden hearings. At that time, defendants primary complaints were that Gasner had not given him a copy of his case file and he did not trust the attorney. Gasner confirmed that he would deliver the case file immediately. While based on defendants conduct Gasner observed that to a certain extent. . . the attorney-client relationship has broken down, he confirmed that he was willing and able to continue representing defendant. Gasners limited acknowledgement concerning the state of the attorney-client relationship did not require the court to grant the Marsden motion. (People v. Smith (2003) 30 Cal.4th 581, 605 [trial court did not abuse discretion in denying Marsden motion although defense counsel agreed, based on the defendants statements, that the relationship had broken down].) The decision is vested in the sound discretion of the trial court. Here, the record amply supports the trial courts determination that Gasner was providing competent representation and that any conflict in the attorney-client relationship was of defendants making. A trial court is not required to conclude that an irreconcilable conflict exists if the defendant has not made a sustained good faith effort to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness. (People v. Crandell (1988) 46 Cal.3d 833, 860, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365; People v. Smith (1993) 6 Cal.4th 684, 696 [a defendant may not force the substitution of counsel by his own conduct that manufactures a conflict]; see also People v. Memro (1995) 11 Cal.4th 786, 857 [a lack of rapport or a lack of trust between defendant and counsel does not require that a motion to substitute counsel be granted]; People v. Clark (1992) 3 Cal.4th 41, 100 [ [T]he Sixth Amendment does not guarantee a  meaningful relationship between an accused and his counsel  ].) Contrary to defendants characterization, the record does not demonstrate an obvious history of antagonism, distrust and irreconcilable conflict. The trial court reasonably denied the motion and encouraged defendant to work with his attorney.

As explained above, on December 9, the court held another Marsden hearing during which defendant was given an extended opportunity to explain his dissatisfaction. After discussing the situation with defendant, the judge concluded that there was not an irreconcilable conflict and that defendant was being adequately represented. The courts determination is supported by the record. Although defendant appeared to be somewhat confused by the probation revocation proceedings, his dissatisfaction was clearly a result of frustration with the attorneys inability to negotiate a disposition that defendant considered acceptable. The record reflects that Gasner made repeated attempts to negotiate a probationary sentence with the prosecutor and with the court, and that he continued to work vigorously on defendants behalf. Contrary to defendants assertion, Gasner never acted as defendants adversary. While Gasner labeled defendants comment that he called a judge a bitch a bald-face lie, he did not appear angry with defendant or act in a manner that might compromise his clients interests. To the contrary, Gasner appeared to sympathize with defendants frustration and understood that this whole situation is unbelievably stressful for him. Gasner explained, I dont want to be in a situation clearly where my client just feels so unhappy with the way his cases are resolving that he fixates on it being me. . . . [A]nd I do hear that. And I do appreciate that. I havent brought a motion to withdraw because I think that I am continuing to fight in his best interests. The court did not abuse its discretion in denying the motion on this occasion.

When defendant renewed his motion three days later, he acknowledged that the motion was based on the same circumstances. Accordingly, the trial court did not abuse its discretion in again denying the motion. (People v. Clark, supra, 3 Cal.4th at p. 104 [trial court was not required to afford a Marsden hearing each time defendant made the same accusations]; People v. Vera (2004) 122 Cal.App.4th 970, 980 [a defendant is not entitled to keep repeating and renewing complaints that the court has already heard].) Two days later, when defendant raised arguably new grounds for the motion, the court allowed defendant another opportunity to state his claim fully. After listening to defendants arguments and Gasners explanation, the court again denied the motion. The following day, defendant reasserted his motion based on the same contentions. It appears that defendant was confused and frustrated by the proceedings. He apparently felt that Gasner was lying to him when telling him that he would continue to negotiate with the prosecutor and in strategizing with defendant about potentially favorable facts while nothing was coming of the negotiations and the trial was progressing. While the situation undoubtedly was frustrating to defendant, the record reflects no inadequacy in Gasners representation. The court observed that Gasners behavior has been of the highest caliber professionally. He has gone out of his way to represent your interests. Hes been here talking for you, for example, at all conferences that we had with the district attorney in chambers. The judge also confirmed that he was present when Gasner asked the prosecutor whether any of the officers involved in the compromising video were involved in defendants case and that the prosecutor said no. Nothing in the record suggests that Gasner was giving defendant incorrect information or advice. The court did not abuse its discretion in denying the motion on this occasion.

Defendant made his last Marsden motion prior to sentencing. While defendant was given ample opportunity to explain his reasons for requesting the appointment of a new attorney, he continued to reiterate the same reasons. He believed Gasner continued to give him false information about the likely disposition of his case. Defendant reported that Gasner told him the court had agreed to sentence him to a drug treatment program. Gasner explained that when he reviewed the sentencing memorandum with defendant, he told him that although the court would like to order probation, it was unable to do so without the prosecutors consent. The judge asked, Did you explain to Mr. Coates after we were here the last time, I cant say I ordered, but I asked [the prosecutor] to go talk to . . . her boss to see if they would consider some alternative to state prison? Gasner indicated that he had done so but that the prosecutor had refused to consider an alternative sentence. Whether defendants apparent misunderstanding was real or feigned, it does not demonstrate that the attorney-client relationship had broken down, or that defendants right to counsel was compromised in any respect. The court did not err in denying this additional motion.

Finally, viewing the history of the Marsden motions as a whole, defendant argues that it appears that the court was disinclined to grant each of appellants successive Marsden motions based primarily upon the fact that his prior motions had been denied instead of focusing on the overall significance of appellants history of Marsden motions which was indicative of a long-standing broken down relationship. While the frequency of defendants motions may reflect his level of frustration, they also may, as the trial court suggested, reflect attempts to delay or interrupt the proceedings. (People v. Roldan (2005) 35 Cal.4th 646, 682 [The trial court reasonably deduced from the circumstances, including defendants serial Marsden motions and his considered choice not to speak to counsel, that defendant was merely attempting to inject error and delay into the proceedings].) In all events, the fact that defendant made numerous motions does not establish that any were meritorious.

2. Probation Eligibility

Defendant was convicted of violating section 11352. Under section 11370, subdivision (a), Any person convicted of violating Section . . . 11352 . . . shall not, in any case, be granted probation by the trial court . . . if he or she has been previously convicted of any offense described in subdivision (c). Subdivision (c)(1) includes Any felony offense described in this division involving a controlled substance specified in subdivision (b), (c), (e), or paragraph (1) of subdivision (f) of Section 11054 . . . . The complaint did not specify what type of controlled substance was involved in the March 2004 prior conviction but the sentencing memorandum states that the prior conviction was for the same conduct as that involved in the present case and that defendant is chemically dependent on cocaine base. It thus appears that the March 2004 conviction was for the sale or transportation of cocaine base, which is a controlled substance specified in section 11054, subdivision (f)(1). Therefore, section 11370 barred the court from placing defendant on probation. Moreover, defendant admitted the allegation in the information that the prior conviction rendered him ineligible for probation under section 11370, subdivisions (a) and (c), and he has not offered any argument to the contrary.[2] Hence, the trial court correctly determined that despite what it regarded as exceptional circumstances, it was prohibited by statute from imposing a probationary sentence.

Disposition

The judgment is affirmed.

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Pollak, J.

We concur:

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McGuiness, P. J.

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Parrilli, J.

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

[2] In his opening brief, defendant argued that [t]he court erred in believing that he could not impose probation under Penal Code sections 1203.07 and 1203.073. Although the court apparently misspoke when it stated that it was barred from imposing a probationary sentence under Penal Code section 1203.073, subdivision (b)(7), rather than under section 11370, the court was nonetheless correct that defendant was statutorily ineligible for probation. The fact that Penal Code sections 1203.07, subdivision (a)(11), or 1203.073, subdivision (a), did not necessarily bar probation in this case, does not affect the absolute bar against probation found in section 11370. In his appellate briefs, defendant did not address the effect of section 11370, and he made no reply to the Attorney Generals argument on this issue.