P. v. Malin

Filed 8/13/07 P. v. Malin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge.

Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Curtis Lee Malin contends his Sixth Amendment right to counsel was abridged when the trial court refused to allow him to discharge retained counsel. We agree and will reverse the conviction.

FACTUAL AND PROCEDURAL SUMMARY

Malin was charged with first degree murder with special circumstances, robbery, and vehicle theft. At the initial court appearances, Malin was represented by a public defender. Thereafter, Malin retained attorney David Eugene Roberts, who substituted into the case on August 5, 2005.

The People called their first witness in the jury trial on October 25, 2005. On October 27, after the People rested their case, the prosecutor overheard Roberts and Malin arguing loudly. The prosecutor brought the dispute to the attention of the trial court, reporting that he had heard Roberts tell Malin to shut up and heard Malin tell Roberts that he did not want counsel to call his mother, Ruby Pence, as a defense witness. The trial court stated it was reluctant to become involved in attorney-client matters, but held a side bar conference. At the conclusion of the side bar, Malin was told his mother would be testifying.

Pence was called to testify. On cross-examination, the trial court stopped the questioning and asked Pence if she had consulted an attorney regarding her Fifth Amendment right against self-incrimination. The trial court then excused the jury for the day and summoned an attorney to talk with Pence.

After consulting with Pence, the attorney informed the trial court that Pence was invoking her Fifth Amendment right. The prosecutor moved to have Pences testimony stricken. Roberts apologized to the trial court, stating Pence had told him she did not want to testify, but he told Pence she had to testify.

Proceedings reconvened on November 1, 2005, at which time the trial court noted on the record that Roberts wanted to withdraw as counsel of record. The trial court ordered Roberts to stay inside the building and granted a 15-minute recess for Roberts and the prosecutor to research the issue. When court reconvened, Roberts refused to enter the courtroom. Another recess was taken.

When court again reconvened, Roberts still refused to enter the courtroom. The trial court then convened court in the hallway, where Roberts was located. The trial court ordered Roberts to enter the courtroom; Roberts refused. When the trial court threatened to cite Roberts for contempt for refusing to comply and enter the courtroom, Roberts responded, Make your order. Roberts eventually entered the courtroom.

The trial court excused the jury for the day. Roberts told the trial court that he had no more interest in representing Malin and that he would not be doing one more thing on this case. Roberts went on to state, [I]t really grieves me to have to do this, but I cant reconcile my -- the work Ive done and where I am with this idiot that sits to my right, and I have no more interest in representing him. Before allowing Roberts to continue, the trial court closed the proceedings to all except Malin and Roberts. The reporters transcript refers to this session as a Marsden^[1]hearing.

During what was referred to as a Marsden hearing, Roberts told the trial court that he had two dislocated vertebrae in his neck and that he was in intense pain. Roberts told the trial court he could not live with the pain when I have an idiot sitting here next to me whos telling me what I am supposed to do. Roberts went on to state, I cant deal with [Malin]. I cant represent him. I cant talk to him. More so, I dont want to listen to him.

When Roberts continued to rant and to refer to Malin as a jerk, the trial court stopped Roberts and asked him to refrain from calling Malin derogatory names. Roberts stated, Hes trying to tell me how I should run this case, and Im not having any part of that. The trial court elicited from Roberts that there was a disagreement between Malin and counsel regarding trial tactics and whether Malin should testify.

Roberts again stated that he was not doing one more thing on this case. Roberts repeated that he was not doing one more thing on the case and then stated, [Y]ou can put me in jail. I mean, thats not something new. Eventually, Roberts told the trial court he had nothing further to say.

When the trial court asked to hear from Malin, he responded, Yeah, if you dont mind. I can probably make it a whole lot easier, if it would be easier if I would just fire my attorney. The trial court stated that it was too late to get a different attorney. Malin responded, I dont need Mr. Roberts assistance no longer. To this remark, the trial court replied, [H]e who represents himself has a fool for a client. The trial court refused a request from Roberts to withdraw.

The closed proceeding concluded and court resumed. The trial court told the prosecutor that Roberts would continue to represent Malin. Roberts apologized to the trial court, but stated he would not apologize to Malin because he (Roberts) cant be that mature. Roberts then announced that he would not be calling any witnesses for the defense.

The trial court then addressed Malin, stating that the court had found no reason to permit Roberts to withdraw. Malin indicated he did not want to represent himself but stated, Im not a lawyer or nothing, but I can get another attorney right quick. The trial court did not reply to this statement.

When court reconvened on November 2, 2005, Roberts again was going to call Pence to testify. After the prosecution stated that Pence was subject to criminal charges for being an accessory after the fact, and possibly subject to a perjury charge and to embezzlement charges on allegations that she embezzled money to pay for Malins defense, the trial court urged Pence to discuss her testimony with an attorney. While Pence and her attorney conferred outside the courtroom, Malin stated, Your honor, Id like to exercise my right and fire my attorney. Ill represent myself if thats all right. The trial court immediately held a closed session to address Malins request.

The trial court told Malin that it was very disinclined to allow you to represent yourself. The trial court also stated that Roberts was a very experienced attorney and obviously prepared on the case. Roberts commented, If Id known this was going to be his position, I think I probably would have entered an insanity defense.

Malin noted that he really did not want to represent himself, but that he really wanted to get another lawyer, even though the trial court had told him it was too late. The trial court clarified that Malin wanted another attorney because he and Roberts did not agree on tactics. The trial court stated that given the totality of the circumstances, there was not sufficient reason to relieve Roberts as counsel for the defense.

Malin indicated that if it was too late to get another lawyer, he did not want to represent himself, but that he had concerns regarding Robertss representation from the start of trial. Malin mentioned that there was information available that should have been used to call into question the testimony of prosecution witnesses â€‘‑ for example, criminal records, substance abuse, and commitments to mental institutions. Malin also noted that police had shot and killed a guy that looked like me. This was not brought out in testimony. Malin indicated that this was serious stuff and he needed it brought out in testimony. The trial court interrupted and indicated that this type of information was something that could be brought out if Malin testified.

Malin continued with the comment, I know its probably not possible or nothing like that to get a whole new trial, you know, start fresh. I know thats probably not possible, you know, but Id really like one if there was any possible way to get that, but I know, you know, you probably cant. The trial court acknowledged that this was a situation of retained counsel and not appointed counsel, but that Malin had never met that burden that is on [him] to establish a claim of ineffectiveness. The reporters transcript then notes that the Marsden proceeding was concluded.

When proceedings resumed in open court, the trial court was informed that Pence declined to testify. The trial court struck all of Pences testimony because the prosecution had been unable to complete its cross-examination. The trial court then asked Roberts, [D]o you choose to put on any evidence? Roberts responded, No. The trial court announced that this completed the evidentiary portion of the case and proceeded to instruct the jury.

The jury returned its verdict on November 4, 2005. On December 1, 2005, the trial court granted Malins motion to terminate Robertss representation. Thereafter, counsel was appointed for Malin.

On May 26, 2006, a motion for new trial was filed alleging that Malin had received ineffective assistance of counsel. The motion was denied. Malin was sentenced on June 12, 2006.

DISCUSSION

Malin contends he was denied his Sixth Amendment right to counsel when the trial court refused to permit him to discharge his retained attorney. Malin asserts the trial court erroneously applied a Marsden standard to determine whether counsel could be discharged. He is correct.

I. Appointed Versus Retained Counsel

A criminal defendant is entitled to assistance of counsel at all stages of the proceeding. (U.S. Const., 6th Amend.; Cal. Const., art. I,  15.) The trial court is under an absolute duty to appoint counsel to represent an indigent defendant. (Gideon v. Wainwright (1963) 372 U.S. 335, 344-345.) Under certain circumstances, indigent defendants may be entitled to an order substituting appointed counsel. (People v. Berryman (1993) 6 Cal.4th 1048, 1070.) The indigent defendant must demonstrate either that counsel is providing ineffective assistance or that there is an irreconcilable conflict with counsel. (People v. Marsden, supra, 2 Cal.3d at pp. 124-125.) When an indigent defendant requests substitution of appointed counsel, Marsden demands that a hearing be held to determine if circumstances warrant substitution. (Marsden, supra, 2 Cal.3d 118.)

The right to substitute appointed counsel is not absolute and is a matter of judicial discretion, unless there is a sufficient showing that the defendants Sixth Amendment right to the assistance of counsel would be substantially impaired if the request were denied.(People v. Hart (1999) 20 Cal.4th 546, 603.) A defendant who brings a Marsden motion must show good cause for replacing appointed counsel. (People v. Ortiz (1990) 51 Cal.3d 975, 980.)

A criminal defendant also has the due process right to appear and defend with retained counsel of his or her choice. (People v. Leonard (2000) 78 Cal.App.4th 776, 784.) In contrast to situations involving appointed counsel, a defendant may discharge retained counsel, with or without cause. (People v. Ortiz, supra, 51 Cal.3d at p. 983.) A defendant seeking to discharge retained counsel need not satisfy Marsden requirements. (Ortiz, supra, 51 Cal.3d 975.)

The right to discharge retained counsel, however, is not absolute, and a trial court may exercise its discretion to deny such a request if the defendant is unjustifiably dilatory or arbitrarily seeks to substitute counsel at the time of trial. (People v. Blake (1980) 105 Cal.App.3d 619, 623-624.) The trial court is obligated to exercise this discretion reasonably: a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. [Citation.] (People v. Ortiz, supra, 51 Cal.3d at p. 984.) A trial court faced with a request to discharge retained counsel must balance the defendants interest in new counsel against the disruption, if any, flowing from the substitution. [Citations.] (People v. Lara (2001) 86 Cal.App.4th 139, 153.)

With these standards in mind, we turn to Malins contentions on appeal.

II. Incorrect Reliance on Marsden

Although the trial court was aware that Roberts was retained counsel, that court incorrectly applied a Marsden standard in ruling on Malins request to discharge Roberts and obtain new counsel. The trial court twice conducted a Marsden hearing to assess Malins request to discharge Roberts. When ruling on Malins request, the trial court acknowledged that Roberts was retained counsel and not appointed counsel, but then went on to state that Malin had never met the burden that was on him to establish a claim of ineffectiveness.

Contrary to the trial courts statement, the burden was never on Malin to establish that Roberts was ineffective or that there was an irreconcilable conflict in order to discharge Roberts. (People v. Lara, supra, 86 Cal.App.4th at p. 155.) Clearly, the trial court was aware that Roberts was retained counsel, but applied an incorrect standard in assessing Malins complaints against Roberts.

Roberts could not have been under the belief that Marsden applied to Malins request to discharge him, yet he failed to bring this to the trial courts attention. Roberts was the attorney whom the defendant sought to discharge in People v. Lara, supra, 86 Cal.App.4th 139, which we decided in January 2001, well before Malins trial, and held that Marsden was inapplicable. We do not, however, apply any invited error doctrine under these circumstances. (Lara, at pp. 164-165.)

The trial courts improper reliance on Marsden does not by itself mandate reversal. (People v. Lara, supra, 86 Cal.App.4th at p. 155.) The trial court was required to assess whether denying the request to discharge retained counsel would (1) significantly prejudice Malin, for example, by requiring him to proceed without adequate representation, or (2) result in a disruption of the orderly processes of justice unreasonable under the circumstances. (Ibid.) If these factors were not implicated in Malins request to discharge Roberts, the denial of his request to discharge retained counsel requires reversal of his convictions. (People v. Ortiz, supra, 51 Cal.3d at p. 988; Lara, at p. 155.)

III. Reversible Error

The People note that Malin asked to discharge his retained counsel on the sixth day of trial, after the prosecution had rested its case-in-chief. The People do not claim that Malins request was dilatory or brought in bad faith. The People, however, do contend that Malins request to discharge his retained counsel, Roberts, properly was denied because granting the motion would have disrupted the trial and thereby the orderly process of justice. This, however, is not the standard by which Malins request should have been evaluated. The standard is whether the disruption would have been unreasonable under the circumstances, or whether Malin would have been prejudiced by denying the request. (People v. Lara, supra, 86 Cal.App.4th at p. 155.)

Roberts called his client names, such as idiot and rock head; repeatedly refused to enter the courtroom and resume the trial, prompting the trial court to convene in the hallway; notified the trial court that he could not deal with Malin and did not want to listen to Malin; and repeatedly stated that he was refusing to do anything more on the case. These statements amount to more than a disagreement over trial tactics. They indicate a complete breakdown in the attorney-client relationship and a refusal of the attorney to provide an effective defense.

In addition to these comments by retained counsel, Malin pointed out to the trial court that information he had provided Roberts to assist in cross-examining and impeaching prosecution witnesses was not utilized or investigated. That information included criminal records and mental health commitments of prosecution witnesses and the incident where police killed a man that matched Malins physical description. The trial court inappropriately responded to this litany of complaints against retained counsel by stating that Malin could take the stand and testify to these matters, a response that ignored both the hearsay rule and Malins Fifth Amendment rights.

Further, Roberts followed through and did not present any defense on Malins behalf. The only witness he attempted to have testify was Pence, who the prosecution stated was possibly subject to charges as an accessory, for perjury, and for embezzlement. When Pence exercised her Fifth Amendment right not to testify, Roberts declined to present any evidence whatsoever on Malins behalf.

Problems between Malin and Roberts were first brought to the trial courts attention by the prosecutor, who heard them arguing loudly. Problems continued throughout the trial.

When Malin made known his request to discharge retained counsel, and Roberts made known his intent to withdraw and do no further work on the case, the prosecutor was asked to comment. He did not argue that the request should be denied as untimely.

Granted, Malins request to discharge his counsel came at the conclusion of presentation of the prosecutions case. The trial court did indicate that Malins request to discharge Roberts was untimely, not because Malin should have made the request earlier in the process, but because of the disruption to the process. The trial court, however, does not appear to have completed the second part of the analysis and determined whether the disruption was reasonable under the circumstances, instead applying Marsden factors.

Under the circumstances, the timing of Malins request was reasonable. It was only at this point that Malin could have understood that Roberts was not going to present any evidence to impeach the prosecution witnesses. It was at this point that Roberts began calling him names, asked to withdraw from the case, refused to enter the courtroom, and announced that he was not going to do anything further to defend Malin from the charges. When presented with these facts and circumstances, Malins request appears reasonable and not calculated merely to delay the proceedings. It also appears that denying the request required Malin to proceed without adequate representation. (People v. Ortiz, supra, 51 Cal.3d at p. 982; People v. Lara, supra, 86 Cal.App.4th at p. 155.)

After the jury reached its verdict, Malin again asked to be allowed to fire Roberts. Malin noted that Roberts had failed to impeach prosecution witnesses, called his client names, and attempted to quit and do no further work on Malins behalf in the middle of trial. This time the trial court granted the request, indicating that given the nature of the allegations made by Malin, there appeared to be a conflict between them.

IV. Conclusion

In Lara, the defendant hired Roberts to represent him. The trial was delayed for approximately one and one-half years. On the day trial was due to commence, the defendant sought to discharge Roberts and obtain new counsel. The trial court applied Marsden factors to the request and denied the motion. We reversed, holding that Marsden was inapplicable to situations involving retained counsel and that failure to apply the correct factors to the request was reversible error. (People v. Lara, supra, 86 Cal.App.4th at pp. 144, 166.)

Where fundamental rights are affected by the exercise of discretion by a trial court, only where the trial court is under no misconception as to the legal basis for its action can such discretion truly be exercised. (In re Carmaleta B. (1978) 21 Cal.3d 482, 496; People v. Lara, supra, 86 Cal.App.4th at p. 165.)

The trial court here applied a Marsden standard to Malins request when it was obligated to rely on different factors in exercising its discretion as to Malins loss of confidence in Roberts. (People v. Lara, supra, 86 Cal.App.4th at p. 166.) Given the trial courts application of an incorrect standard, we cannot say the trial court properly exercised its discretion in denying Malins request to discharge retained counsel. Malins conviction, therefore, must be reversed. (Ibid.)

DISPOSITION

The judgment is reversed.

_____________________

CORNELL, J.

WE CONCUR:

_____________________

HARRIS, Acting P.J.

_____________________

HILL, J.

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^[1]People v. Marsden (1970) 2 Cal.3d 118.