P. v. Sharkey
Filed 8/12/13 P. v. Sharkey CA1/5
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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 FIVE
THE PEOPLE,
Plaintiff and
Respondent,
v.
ANDREW BRIAN SHARKEY,
Defendant and Appellant.
A134972
(
Super.
Andrew
Brian Sharkey (appellant) appeals from a final judgment of conviction following
a no contest plea. Appellant contends
that (1) the trial court erred in denying his request for substitute
appointed counsel, and (2) he was denied assistance of counsel when he
personally filed and argued a motion to
withdraw his no contest plea because his attorney declined to file it on
his behalf. We reject appellant’s
contentions and affirm.
BACKGROUND
Appellant
was charged with murder with the use of a
deadly weapon (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1)), and
with the special circumstance that the murder was committed during a
residential burglary (id.,
§ 190.2, subd. (a)(17)). He was
also charged with elder abuse causing death (id., § 368, subds. (b)(1) & (3)), first degree burglary (
procurement of another to commit perjury (id.,
§§ 127, 664).
Appellant
was initially represented by the public defender’s office. For reasons not apparent from the record, the
public defender’s office was relieved early in the proceedings and Attorney
Geoffrey Dunham was appointed. Dunham
contracted with Attorney Bruce Enos to assist him in representing appellant.
On
June 1, 2011, at appellant’s
request, a hearing pursuant to People v.
Marsden (1970) 2 Cal.3d 118 (Marsden)
was held regarding appellant’s request to replace his trial counsel. Appellant contended, and court records
confirmed, that Enos had previously prosecuted a Solano
County drug court case against
appellant. The drug court case had taken
place approximately 10 years earlier and Enos did not recall the
proceeding. The trial court found that a
“legal conflict†existed and granted appellant’s Marsden motion as to Enos.
Appellant did not object at that time to his continued representation by
Dunham. Subsequently, Dunham retained
Attorney Erik Bruce to assist him in representing appellant.
On
November 10, 2011, appellant pled no contest to all counts except for the
special circumstance allegation that the murder took place during the
commission of a burglary. As part of the
plea agreement, the People agreed to
dismiss that allegation.
In
January 2012, appellant, acting personally rather than through counsel,
submitted a handwritten motion to withdraw his no contest plea. His motion set forth multiple grounds
relating to the effectiveness of his counsel.
At the same time, appellant submitted a letter to the trial court asking
for another Marsden hearing, claiming
that his attorneys had been ineffective throughout the
his innocence.
On
February 8, 2012, the trial court held a Marsden
hearing outside the presence of the prosecutor.
The trial court allowed appellant to speak at length about the reasons
for his dissatisfaction with both Dunham and Bruce, some of which involved
conduct in connection with appellant’s no contest plea. The trial court also asked Dunham and Bruce
to respond to each of appellant’s allegations.
At the conclusion of the Marsden
hearing, the trial court denied appellant’s request for new counsel, finding
neither “any deficiency in [counsel’s] representation†nor “any irreconcilable
conflict in the relationship [between appellant and counsel].â€
The
trial court then proceeded to hear, in open court, appellant’s motion to
withdraw his no contest plea. At the
outset, Bruce informed the trial court, “This is not my motion. This is not a motion that I suggested
[appellant] file. And this is not a
motion upon which I consent to its filing, if I have any standing to give such
consent. . . . I believe
that [appellant] needs to proceed in pro per on this motion.†Bruce offered to advise appellant as he
proceeded on his motion. The trial court
noted “the awkwardness of the situation†and queried whether appellant “would
be entitled to file such a motion.†It
further stated, “[i]t’s not my intent to allow [appellant’s attorneys] to
withdraw, and [appellant] has not requested that he represent himself.†Appellant then asked whether he should
“request a Faretta motionâ€
to represent himself. The trial court
responded, “Well, I don’t give legal advice.
That’s something you can discuss with your attorney. And a decision you can arrive at on your
own. I’m not going to prevent you from
addressing the court this morning, . . . but that type of request is
between you and your attorney. And it’s
up to you to make that type of decision.â€
Appellant
proceeded to personally argue his motion to withdraw the plea. At the conclusion of the hearing the trial
court denied the motion, finding that there had been no “deficiency of counsel
in representation†and that appellant “knowingly, voluntarily and intelligently
entered his respective pleas and admission.â€
Appellant
obtained a certificate of probable cause.
This appeal followed.
DISCUSSION
I. The
Marsden Motion
A.
Standard of Review
“ ‘A
trial court should grant a defendant’s Marsden
motion only when the defendant has made “a substantial showing that failure to
order substitution is likely to result in constitutionally inadequate
representation.†’ [Citation.] [¶] ‘We review the denial of a
discretion.’ [Citation.] ‘Denial is not an abuse of discretion “unless
the defendant has shown that a failure to replace counsel would substantially
impair the defendant’s right to assistance of counsel.†’ [Citation.]â€
(People v. Streeter (2012) 54
Cal.4th 205, 230.)
B.
Enos’s Conflict
Appellant
first contends that the trial court’s denial of his Marsden motion was an abuse of discretion because Enos’s conflict
should have been imputed to Dunham and Bruce.
As
an initial matter, the People claim that appellant failed to raise this ground
below. However, during the second
feel that the -- being in partnership in the office Dunham and Mr. Enos, with
Mr. Enos’s relief of counsel, I believe the office would have -- should have
been held in default also, and that a new counsel should have been offered. And that Mr. Dunham should have been
dismissed at the time. Therefore, with
the office in default, Mr. Bruce wouldn’t have been brought in under Mr.
Dunham, to assist in the case . . . .†This is sufficient to preserve the issue for
appeal, particularly for a defendant acting on his own behalf in a
However,
appellant’s claim lacks merit as there is no basis to impute any conflict with
Enos to Dunham or Bruce. The cases cited
by appellant all involve conflicts claimed by a prior client due to the concern that confidential information
obtained during the course of the prior representation could be used adversely
to that client. As the Supreme Court
explained in one of the cases cited by appellant: “Where an attorney
successively represents clients with adverse interests, and where the subjects
of the two representations are substantially related, the need to protect the
first client’s confidential information requires that the attorney be
disqualified from the second representation.
[Citation.]†(
SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1146.) Such conflicts may be imputed to other
members of the attorney’s firm because attorneys in the same firm
“presumptively share access to privileged and confidential matters.†(Id.
at p. 1153.)
Here,
however, appellant was the current
client, rendering the above cases inapplicable.
The potential for a conflict with a criminal defendant due to successive
representations arises if the attorney’s duties to a former client impair the
attorney’s ability to effectively represent the defendant. For example, if the prior client is a witness
for the prosecution in the defendant’s case, a conflict may arise if counsel’s
ability to effectively cross-examine the witness will be impaired by the
inability “to use against [the] former client any confidential information
acquired during that attorney-client relationship. [Citations.]â€
(People v. Cox (2003) 30
Cal.4th 916, 949, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.) Even if there were the possibility of that
type of conflict here, appellant has cited no cases imputing such a conflict to
an associated defense attorney who had no attorney-client relationship with the
prior client.
Moreover,
appellant does not claim that Enos obtained any confidential information during
his prosecution of appellant that he could have conveyed to Dunham or
Bruce. To the contrary, appellant’s only
specific concern with Enos’s prosecution was that appellant was “uncomfortable
being represented by a former [district attorney] from the prosecution.†The substitution of Bruce for Enos entirely
addressed his concern.
Accordingly,
the trial court did not err in denying appellant’s Marsden motion due to Enos’s conflict.
C.
Ineffective Assistance of Counsel
Appellant
next contends the trial court erred in denying his Marsden motion in light of his motion
to withdraw his plea. He argues a
conflict of interest existed because his motion to withdraw his plea claimed he
received ineffective assistance of counsel, thereby placing his counsel in “an
untenable position†with respect to that motion.
The
Supreme Court has recognized that, “when a defendant claims after trial or
guilty plea that defense counsel was ineffective, and seeks substitute counsel
to pursue the claim, the original attorney is placed in an awkward
position. . . . The
potential for conflict is obvious.†(
694 (Smith).) But the existence of a potential conflict is not a sufficient basis for a
v. Sanchez (2011) 53 Cal.4th 80, 89 (Sanchez).) In Smith,
the Supreme Court affirmed the trial court’s denial of a Marsden motion even though the defendant was moving to withdraw his
plea on the ground that his counsel was ineffective. (Smith,
supra, 6 Cal.4th at pp. 696-697.)
Here,
as in Smith, the trial court “fully
allowed [appellant] to state his complaints, then carefully inquired into
them. Defense counsel responded point by
point.†(Smith, supra, 6 Cal.4th
at p. 696.) Appellant and his counsel disagreed on the facts underlying
many of his allegations, but “the court was ‘entitled to accept counsel’s
explanation.’ [Citation.]†(Ibid.) The trial court’s conclusion that there was
no irreconcilable conflict was not an abuse of discretion.
D.
Defense Counsel’s Refusal to File
a Motion to Withdraw Appellant’s Plea
Finally,
appellant argues he should have been granted substitute counsel because his
trial counsel refused to file or argue a motion to withdraw his no contest plea
and he was entitled to have counsel represent him on that motion.
As
an initial matter, the People argue appellant failed to include this claim as
an express ground for his Marsden
motion. But, given the motion to
withdraw his no contest plea was handwritten and submitted directly by
appellant, it was plain appellant’s trial counsel was not assisting him with
the motion. Moreover, the only remaining
proceedings for which appellant was seeking substitute counsel were the motion
to withdraw the plea and sentencing.
Such circumstances provided a sufficiently clear indication appellant
wanted a substitute attorney to pursue the motion to withdraw his plea. (Sanchez,
supra, 53 Cal.4th at p. 90.)
In
any event, we reject appellant’s contention on the merits. “A criminal accused has only two
constitutional rights with respect to his legal representation, and they are
mutually exclusive. He may choose to be represented
by professional counsel, or he may knowingly and intelligently elect to assume
his own representation.
[Citation.]†(
1142, 1162.) “When the accused exercises
his constitutional right to representation by professional counsel, it is
counsel, not [the] defendant, who is in charge of the case. By choosing professional representation, the
accused surrenders all but a handful of ‘fundamental’
personal rights to counsel’s complete
control of defense strategies and tactics.
[Citations.]†(
A
defendant does have the right to decide whether to pursue a meritorious motion
to withdraw a plea. For example, in
183, 188-189, disapproved of on another ground in People v. Johnson (2009) 47 Cal.4th 668, 681-683, the court found
that the defendant had received ineffective assistance of counsel when his
attorney represented that the defendant had meritorious grounds for a motion to
withdraw his guilty plea but refused to file such a motion because going to
trial would greatly increase the defendant’s penalty exposure.
However,
a defendant may not demand that his attorney file a meritless motion to withdraw his plea. (Smith,
substitute counsel is appointed after a defendant has entered into a plea
agreement, “[s]ubstitute counsel could then investigate a possible motion to
withdraw the plea . . . based upon alleged ineffective assistance of
counsel. Whether, after such
appointment, any particular motion should actually be made will, of course, be
determined by the new attorney.â€]; People
v. Brown (2009) 175 Cal.App.4th 1469, 1472 [“Although criminal defendants
are entitled to competent representation in the presentation of a motion to
withdraw a plea, appointed counsel may properly decline to bring a meritless
motion.â€]; People v. Makabali (1993)
14 Cal.App.4th 847, 851-853 [conflict counsel appointed to investigate possible
ineffective assistance claim in connection with no contest plea was not
required to file frivolous motion].)
Appellant’s
reliance on People v. Brown (1986)
179 Cal.App.3d 207, is misplaced.
Appellant makes much of the court’s statement that: “We view the
decision to seek withdrawal of a plea of guilty, just as the decision to enter
such plea, as one which the defendant is entitled to make. [Citations.]
The defendant’s attorney may, and when appropriate, should advise
against the decision, but the defendant should have the final word on whether
to seek withdrawal.†(
counsel is not “compelled to make a motion which, in counsel’s good faith
opinion, is frivolous or when to do so would compromise accepted ethical standards,â€
a “state of affairs†that was not before the Brown court. (
During
the Marsden hearing, the trial court
heard in great detail appellant’s arguments that his trial counsel had been
ineffective with respect to his plea agreement. At the conclusion of that hearing, the trial
court rejected appellant’s allegations that his counsel was ineffective with
respect to his no contest plea, finding that there had been no “deficiency in
[counsel’s] representation whatsoever.â€
Each basis argued by appellant in his motion to withdraw had been raised
as a basis for his Marsden motion,
considered by the court, and found insufficient. In effect, the trial court determined during
the Marsden hearing that the motion
to withdraw the plea was meritless, and therefore that appellant’s counsel had
properly refused to file it. We find no
error in this determination, and affirm the denial of appellant’s
II. Appellant’s
Motion to Withdraw His No Contest Plea
Finally,
appellant argues he was denied the right to counsel, due process, and a fair
trial because he filed and argued the motion
to withdraw his no contest plea without the assistance of counsel. Appellant claims that he should have either
been granted substitute counsel or the trial court should have conducted a
represent himself.
We
have already determined that the trial court properly concluded that appellant
was not entitled to substitute counsel or to compel his counsel to file a
meritless motion to withdraw his no contest plea. Further, appellant never requested
self-representation, and, so, the trial court was not required to conduct a
v. Stanley (2006) 39 Cal.4th 913, 932 [Faretta
inquiry triggered when trial court is “ ‘confronted with a request’ for
self-representationâ€].) The error, if
any, made by the trial court was in permitting appellant to pursue his
frivolous motion despite counsel’s refusal to file or argue it. (See In
re Barnett (2003) 31 Cal.4th 466 [refusing to consider represented
defendant’s pro se submissions that fell within the scope of counsel’s
representation].) Providing appellant
with an opportunity to which he was not legally entitled was entirely harmless.
DISPOSITION
The
judgment is affirmed.
SIMONS,
J.
We concur.
JONES, P.J.
BRUINIERS, J.
v. California (1975) 422 U.S. 806 (Faretta).
proposition that the denial of the right to counsel requires reversal are not
applicable, as appellant was not denied the right to counsel.
