Filed 10/17/17 P. v. White CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant pleaded guilty to driving under the influence of alcohol and admitted three prior convictions within 10 years along with a prior strike allegation. After denying defendant’s post-plea Marsden[1] motion, the trial court sentenced him to an aggregate term of two years eight months in prison.

Defendant now contends (1) the trial court abused its discretion in denying his post-plea Marsden motion because he and his defense counsel were embroiled in an irreconcilable conflict and counsel was not providing effective assistance; and (2) the erroneous denial of his Marsden motion resulted in a denial of his right to counsel.

We will affirm the judgment.

BACKGROUND

In August 2013, defendant was driving with a blood-alcohol content of 0.16. He had previously been convicted of driving under the influence in 2005, 2007, and 2009. He also had a prior strike conviction for a robbery committed in 1991. An information charged him with, among other things, driving under the influence of alcohol (Veh. Code, § 23152, subd. (a) - count 1), and further alleged that he had three prior convictions for driving under the influence within 10 years along with a prior strike conviction.

At arraignment, the trial court appointed Deputy Public Defender Robert Woodard to represent defendant. About one month later, defendant asked to represent himself. After giving defendant Faretta[2] warnings, the trial court granted defendant’s request to represent himself. Defendant filed numerous motions, including motions to obtain evidence of alleged inappropriate behavior by Woodard during a visit at the jail when he still represented defendant. Defendant alleged that during a September visit with defendant, Woodard threw paperwork at him and cussed him out, refused to file a writ on defendant’s behalf, and advised defendant he had to go pro per to get the writ filed.

At a November 2013 hearing on defendant’s motions, defendant indicated he was going to retain counsel. Based on this representation, the trial court continued the matter. At the continued hearing the trial court noted defendant had made a number of comments suggesting that he might want to be represented by an attorney again. Defendant had also filed a pleading asking for counsel to be reappointed. But when a supervising deputy public defender spoke with defendant, defendant refused to accept new counsel. The trial court denied defendant’s motions.

Defendant filed additional motions for discriminatory prosecution, discovery, and dismissal. The trial court denied those motions. In January 2014, defendant requested that counsel be appointed. The trial court reappointed counsel. Deputy Public Defenders Lancaster and McElheney appeared with defendant at the next hearing, at which time defendant said he did not want a deputy public defender. In February 2014, defendant asked to proceed in pro per and was again given his Faretta warnings.

Defendant filed a number of additional motions. The preliminary hearing was held in March 2014 and defendant was held to answer. At that time defendant indicated he would like to have an attorney appointed. Defendant stated he had never wanted to go pro per but he had a conflict with Woodard because Woodard threw paperwork and cussed at defendant, and he also had a conflict with McElheney. The trial court again appointed a deputy public defender for defendant.

The next day defendant asked to represent himself. The trial court granted that request and gave defendant his Faretta warnings. Defendant filed a discovery motion claiming he had filed a complaint with the California State Bar Association against Woodard, McElheney and the Sacramento Public Defender’s Office and therefore they could not represent him because they had a conflict.

In May 2014 defendant agreed to accept a plea. He said he wanted to represent himself through the plea but he would need an attorney if the matter went to trial. Defendant pleaded no contest to driving under the influence of alcohol and admitted three prior convictions within 10 years along with a prior strike allegation.

At the next hearing defendant requested counsel be appointed for a motion to withdraw his plea. The trial court granted defendant’s request for appointment of counsel and the matter was continued. At a subsequent hearing in June 2014, defendant requested another continuance and indicated he wanted to make a Marsden motion. The matter was continued to July 2014. Woodard appeared representing defendant. Defendant renewed his request to make a Marsden motion.

During the Marsden hearing, defendant complained Woodard had not visited him when he was first arrested, had not corrected misstatements made about him at the bail hearing, would not help him file a petition for writ of habeas corpus, and threw defendant’s paperwork at him and cussed him out during a visit. The trial court noted defendant had subsequently elected to represent himself and pleaded no contest. Defendant claimed that since that time, Woodard had not visited him often enough, had not discussed anything that had happened in the case, including newly discovered evidence that there had been evidence tampering, and had not filed a motion to continue.

In response, Woodard described his experience as a public defender since 2007. He noted defendant tended to “overtalk” him and then would be “done” with the conversation. During one particular conversation regarding defendant’s prior DUI convictions, defendant argued with Woodard about the truth of the convictions. Woodard denied throwing paperwork at defendant but acknowledged he delivered it “in a quick manner” through the sliding slot in the window. Woodard understood he was appointed to determine if there were valid grounds to withdraw the plea. When Woodard went to visit defendant to discuss the matter, defendant advised Woodard he would no longer be defendant’s attorney. The discussion between them got heated. Woodard said that despite their difficulties in communicating he could maintain a professional working relationship with defendant.

The trial court explained to defendant that the only reason Woodard was appointed was to review whether there were any grounds to withdraw the plea and such an appointment would not ordinarily include issues involving alleged evidence tampering. The trial court also explained that Woodard could not file frivolous motions. Defendant reiterated his objection to Woodard’s representation and asserted there was a conflict due to defendant’s federal lawsuit. The trial court said it understood defendant did not like Woodard or the public defender’s office, but it did not see a breakdown in the relationship such that Woodard could not competently and adequately represent defendant. The trial court denied defendant’s Marsden motion. Defendant asked again to represent himself and after providing Faretta warnings, the trial court granted the request.

Defendant filed a motion to withdraw his plea, alleging the prosecutor had tampered with evidence. The trial court denied the motion, finding there was no evidence the prosecution had suppressed or tampered with evidence. The trial court sentenced defendant to a term of 16 months, doubled pursuant to the strike.

DISCUSSION

I

Defendant contends the trial court abused its discretion in denying his post-plea Marsden motion because he and his defense counsel were embroiled in an irreconcilable conflict and counsel was not providing effective assistance.

We review a trial court’s denial of a Marsden motion for abuse of discretion. (People v. Streeter (2012) 54 Cal.4th 205, 230.) “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.’ ” (People v. Taylor (2010) 48 Cal.4th 574, 599.) A defendant is entitled to substitute his appointed counsel “ ‘if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.’ ” (Ibid.) An attorney’s representation is deficient when it falls below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 688 [80 L.Ed.2d 674, 693-694].)

“[T]actical disagreements between a defendant and his attorney or a defendant’s frustration with counsel are not sufficient cause for substitution of counsel.” (People v. Streeter, supra, 54 Cal.4th at p. 231.) A lack of trust in appointed counsel, the failure to get along with counsel, or the fact that there are heated exchanges between client and attorney does not require a substitution of counsel. (People v. Jones (2003) 29 Cal.4th 1229, 1246; People v. Smith (1993) 6 Cal.4th 684, 696-697; People v. Bills (1995) 38 Cal.App.4th 953, 961.) Courts have also expressed concern about the possibility that a defendant could manufacture a conflict of interest by initiating a lawsuit against defense counsel. (See People v. Hardy (1992) 2 Cal.4th 86, 138.) The allegation that counsel rarely visited defendant also does not justify substitution of counsel. (People v. Myles (2012) 53 Cal.4th 1181, 1208.) “[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.) The trial court is in the best position to resolve credibility questions between defendant and defense counsel and the trial court is entitled to accept counsel’s explanation. (Smith, supra, 6 Cal.4th at p. 696.)

Here, the trial court did not abuse its discretion in denying defendant’s Marsden motion. The final appointment of Woodard occurred after defendant, representing himself, entered his plea. The record indicates Woodard evaluated, among other things, whether there were valid grounds to file a motion to withdraw the plea. Defendant’s complaints regarding Woodard’s representation both before and after the plea related to the number of visits, tactical decisions, heated exchanges, and the claimed conflict of interest from defendant’s filing of a State Bar complaint and a lawsuit. None of those circumstances are necessarily a basis for substituting counsel and the trial court found there was no breakdown in the relationship such that Woodard could not competently and adequately represent defendant. The trial court did not abuse its discretion.

II

Defendant further claims the erroneous denial of his Marsden motion resulted in a denial of his right to counsel. As we have explained, however, the trial court did not abuse its discretion in denying defendant’s Marsden motion. On this record defendant was not denied counsel.

DISPOSITION

The judgment is affirmed.

/S/

MAURO, J.

We concur:

/S/

BLEASE, Acting P. J.

/S/

DUARTE, J.