Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. 26-35749
Marchiano, P.J.
Defendant Michael Scott Posey was convicted of the first degree murder of his estranged wife, Elizabeth. Her sons from a prior marriage, plaintiffs Michael and Cody Johnson, sued defendant for wrongful death and obtained a $2.7 million judgment. Defendant contends that as an incarcerated defendant in a civil action he was denied access to the courts. We disagree because the record demonstrates that defendant never claimed he was indigent and never requested counsel. He held himself out as his own attorney. As such, there was no infringement on an inmate’s constitutional right of court access. Accordingly, we affirm.
I. FACTS
Defendant shot and killed Elizabeth on April 19, 1996, while the couple were involved in divorce proceedings. He was not charged with the murder until May 2005. A jury rejected his defense that the shooting was an accident, and convicted him of first degree murder. The trial court sentenced him to 29 years to life. On January 22, 2009, Division Four of this District affirmed defendant’s murder conviction. (People v. Posey (Jan. 22, 2009, A118361) [nonpub. opn.].)
The Division Four opinion and the opening brief in the present matter indicate that defendant was a dentist who had a practice for at least seven years. The opinion shows that Elizabeth claimed the right to property of defendant’s worth between $220,000 and $400,000, and that defendant was hiding assets from the divorce court.
It is undisputed that defendant was represented by retained counsel at his murder trial. Defendant was represented on his criminal appeal by retained counsel, Dennis Riordan, who also represents defendant in the present, civil appeal. Mr. Riordan represented defendant briefly in the civil proceedings below.
Defendant’s claim of denial of access to the courts requires us to set forth a procedural chronology:
November 20, 2006. Plaintiffs file their complaint for wrongful death (apparently after the murder conviction). Plaintiffs are represented by J. Anthony Abbott, who also represents them on the present appeal.
April 2, 2007. Defendant files a general denial in answer to the complaint. Attorney Riordan, who at this point represents defendant in the wrongful death action, filed the answer on defendant’s behalf.
April 12, 2007. Plaintiffs, through attorney Abbott, serve: (1) Judicial Council Form interrogatories; (2) a request for admissions; and (3) a request for production of documents. Plaintiffs serve the discovery requests on attorney Riordan.
May 17, 2007. Abbott confirms, by letter to Riordan, that defendant has until July 27, 2007, to respond to the discovery requests.
July 6, 2007. Defendant, through Riordan, serves a Case Management Statement (CMS) regarding the Case Management Conference (CMC) set for July 11, 2007. Riordan completes only the first item of the Judicial Council CMS form, checking box 1(a) stating that the CMS was being submitted by defendant. Riordan typed next to the checked box: “The remainder of this statement is not being completed by undersigned counsel because he anticipates by July 11, 2007 defendant... will substitute in as counsel in propria persona.” Riordan dated and signed the CMS form.
July 11, 2007. The trial court’s minute order of the CMC shows that Riordan appeared for defendant via court call. The court notes that “per Defendant’s CMC Statement, Michael Posey will substitute in as counsel in pro per.” The court continues the matter to July 25, 2007 for further CMC.
July 24, 2007. A Substitution of Counsel is served on plaintiffs’ attorney Abbott. The substitution was signed by defendant on July 19 and Riordan on July 24. The substitution lists defendant as counsel, with defendant’s inmate number and the address “San Quentin State Prison, San Quentin, CA 94964.” The proof of service by mail shows that the Substitution of Counsel was served by an employee of Riordan’s office.
July 25, 2007. The trial court’s minute order of the CMC shows that Riordan appeared for defendant via court call. The minute order states, “The Court is apprised of the status of the case. Mr. Riordan indicates that... he will be substituting out of this case and the Defendant will be retaining another attorney for this matter.” (Italics added.)
The court continues the matter to September 19, 2007 for further CMC.
July 30, 2007. Abbott sends a letter to defendant at San Quentin State Prison, using his correct inmate number, informing defendant that the time to respond to the discovery requests has expired and any objections thereto have been waived. Abbott requests that defendant provide “complete responses on or before August 10, 2007.”
August 23, 2007. Abbott serves on defendant, at San Quentin State Prison, a Notice of Motion and Motion to Compel Responses to Form Interrogatories and Request for Production of Documents, and for Order that Matters in Request for Admissions be Deemed Admitted. The motion is accompanied by a declaration in which Abbott states that he had received no response to the discovery requests or to his letter of July 30. The motion sets a hearing date of September 24.
August 30, 2007. Abbott serves a CMS on defendant.
September 17, 2007. Abbott receives a telephone call from Riordan, who tells him that defendant wants to appear at the September 19 CMC by phone. Abbott offers to try to set up a conference call. There is no followup.
September 19, 2007. The trial court’s minute order of the CMC shows that Donald Horgan, Riordan’s partner, appears via court call as an “Interested Party.” The court continues the matter to December 6, 2007 for further CMC. Abbott serves notice of the December 6 CMC on defendant at San Quentin. There is no contact between Abbott and Riordan after this point.
September 24, 2007. The trial court grants the motion to compel, which is unopposed. There are no appearances.
October 4, 2007. The court enters an order granting the motion to compel. The court deems admitted that defendant both intentionally and negligently caused Elizabeth’s death.
October 8, 2007. Abbott serves Notice of Entry of the October 4 order, by mail, on defendant at San Quentin.
That same day defendant writes a letter to Abbott, which draws Abbott’s attention to defendant’s new address—apparently the Deuel Vocational Institute (DVI) in Tracy. Defendant states he is “moved about twice each month” (it is not clear whether this is within the prison or from prison to prison) and that mail is “random.” He states his wife’s death was an accident and he is anxious to prove his innocence. He claims he is having difficulty getting access to a law library and computer facilities, and that he needs access to the 15,000 pages of his “full case” to answer discovery. He makes no claim of indigence. Nor does he state that he desires the appointment of counsel.
October 22, 2007. Abbott serves defendant with an amended Notice of Entry of the order granting the motion to compel, by mail at his address at San Quentin and his new address at DVI.
October 25, 2007. Defendant writes a letter to Judge Guadagni, who had presided over the September 19 CMC and heard the motion to compel. Defendant says his mail is “bouncing” from San Quentin. He speaks of his difficulty obtaining access to a law library, telephone, and computer facilities, and his need to review his 15,000-page case file. He again expresses his desire to prove his innocence. He tells the court he will write again when he has computer access, and was anxious to cooperate with Abbott. Again, he makes no claim of indigence. He does not request the appointment of counsel. A copy of his letter is forwarded to Abbott.
November 15, 2007. Abbott serves plaintiffs’ CMS on defendant, apparently for a December 6 CMC.
December 6, 2007. The trial court apparently holds the CMC. Defendant does not appear.
February 7, 2008. Abbott serves plaintiffs’ CMS on defendant, apparently for a February 27 CMC.
February 20, 2008. Defendant writes another letter to Judge Guadagni, saying that he had received the notice for the February 27 CMC. He states he has been moved again (apparently to Susanville). He states he has trouble getting to the telephone to appear for court conferences. He states, “I am anxious to move this along” and asks the court, “What other options are available?” Again, he makes no claim of indigence and does not request the appointment of counsel.
February 27, 2008. The court holds a CMC. Abbott appears and requests a jury trial for plaintiffs. The court continues the matter to August 1 for settlement conference, August 29 for trial management conference, and September 2 for jury trial. The court orders Abbott to “give notice of all future dates.”
April 9, 2008. Abbott serves notice of the three future dates, including the September 2 trial date, on defendant at San Quentin, DVI, and Susanville.
July 14, 2008. Abbott serves plaintiffs’ settlement conference statement on defendant.
During this time, Abbott serves documents on defendant at each new address as Abbott learns of it. The motion to compel, notice of entry of order granting the motion to compel, notices of the various CMC’s, and the notice of the three future conference and trial dates are never returned as undeliverable.
August 1, 2008. Judge Fretz holds the settlement conference. Plaintiffs appear; defendant does not. The trial court confirmed the matter for trial.
August 15, 2008. Abbott serves a trial brief and declaration detailing his service of various documents on defendant—much of which is described above—at the three prisons for which Abbott had defendant’s address. Abbott serves courtesy copies of the brief and declaration on Riordan.
August 29, 2008. The matter comes on for trial management conference before Judge Tisher. Plaintiffs appear through Abbott. Defendant does not appear. The trial court notes that defendant was representing himself, and had in fact held himself out as his own attorney since execution of the Substitution of Counsel in July. The court expressed “concern” that defendant had not been served with an acknowledgement of service, the presence of which would make the court “feel much more comfortable going forward.”
But the court went on to conclude that it appeared that defendant had “properly been given notice.” The court stated: “My only concern is that since [defendant] did respond to everything else and... the two letters to Judge Guadagni appear to indicate that he would have been here, if he had. [¶] Well, anyway, it appears that he would have been here. So I’m surprised to see that there’s nothing in the file from him indicating I’m requesting to have court call or some sort of document saying he would like to be present.” (Italics added.)
September 2, 2008. Matter comes on for trial before Judge Tisher. Defendant does not appear. Abbott requests that the allegation of the complaint that defendant intentionally caused Elizabeth’s death be dismissed, because that was deemed admitted.
September 3, 2008. Jury returns verdict against defendant for negligently causing Elizabeth’s death. The jury awards damages of $2,727,921.
II. DISCUSSION
Defendant contends that the trial court denied him his right to access to the courts by “effectively excluding him from the civil proceedings.” Defendant appears to argue that the trial court had a duty to inquire into whether he was indigent and whether he was able to effectively represent himself while incarcerated. In the absence of any claim of indigence from defendant, or a request for appointment of counsel, the trial court had no such duty.
Defendant relies on a line of cases involving an indigent inmate’s right to access to the civil courts. The gist of these cases, which we need not discuss in detail, is that an indigent inmate—typically as a civil defendant, but also as a plaintiff—has a right to a meaningful opportunity to be heard. This right may, but does not have to, result in the appointment of counsel in the civil proceeding, or may involve other access measures short of appointment of counsel in the trial court’s discretion. (Payne v. Superior Court (1976) 17 Cal.3d 908, 926-927 (Payne); Yarbrough v. Superior Court (1985) 39 Cal.3d 197, 203-207 (Yarbrough); Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792-794 (Wantuch); Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 641-642 (Hoversten); Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1482-1484 (Apollo).)
The rule of these cases applies only to indigent defendants. (Payne, supra, 17 Cal.3d at pp. 911, 913-919, 923-924; Yarbrough, supra, 39 Cal.3d at pp. 203-205; Wantuch, supra, 32 Cal.App.4th at pp. 792-793; Hoversten, supra, 74 Cal.App.4th at pp. 641-642; Apollo, supra, 167 Cal.App.4th at pp. 1482-1484.) “A prisoner may not be deprived, by his or her inmate status, of meaningful access to the civil courts if the prisoner is both indigent and a party to a bona fide civil action threatening his or her personal or property interests. (Italics added.)” (Wantuch, supra, at p. 792.)
The record before us does not show that defendant ever claimed he was indigent. Moreover, defendant never requested the appointment of counsel. In all but one of the cases cited above, the defendant both claimed indigence and asked for the services of counsel. (Yarbrough, supra, 39 Cal.3d at p. 201; Wantuch, supra, 32 Cal.App.4th at p. 791; Hoversten, supra, 74 Cal.App.4th at pp. 639, 642; Apollo, supra, 167 Cal.App.4th at pp. 1475-1476, 1485 [statement that he had “dire need” for counsel].)
In Payne the defendant went to a civil trial while incarcerated, never moved for the appointment of counsel and never indicated he was representing himself. The defendant moved for relief from a default judgment, claiming he was denied the right to counsel. The court concluded the assertion of counsel deprivation, under the circumstances therein, should have triggered an inquiry into indigence. (Payne, supra, 17 Cal.3d at pp. 911-912, 926, fn 8.)
Defendant seems to argue that the trial court had an affirmative sua sponte duty to inquire into whether he was indigent, and thus could not afford his own lawyer, because of the mere fact that he was an incarcerated prisoner representing himself. We know of no such duty. Defendant never claimed to be indigent. He never asked for the appointment of counsel. He held himself out as his own attorney. As the above cases indicate, it is the claim of indigence, or a request for appointment of counsel, that triggers a judicial duty of inquiry. As one case put it: “Once the court was aware of Hoversten’s claim that he was an indigent prisoner, it became incumbent upon it to take measures to assure he had some kind of access.” (Hoversten, supra, 74 Cal.App.4th at p. 642.) Incarceration per se does not impose a duty on a trial court to inquire into the need for appointed counsel when a defendant does not say (1) that as an indigent he qualifies for an appointed attorney and (2) in fact wants one.
Defendant quotes a passage from Payne, with the apparent intent to suggest a duty to inquire into indigence solely because of inmate status: “The access right... comes into existence only when a prisoner is confronted with a bona fide legal action threatening his interests. If a prisoner is merely a nominal defendant with nothing of consequence at stake, no need emerges for an appointed attorney. Thus, before appointing counsel for a defendant prisoner in a civil suit the trial court should determine first whether the prisoner is indigent. If he is indigent and the court decides that a continuance is not feasible, it should then ascertain whether the prisoner’s interests are actually at stake in the suit and whether an attorney would be helpful to him under the circumstances of the case.” (Payne, supra, 17 Cal.3d at p. 924, italics added.)
Defendant also argues that the court had a duty to inquire into the potential obstacles incarceration might have posed to the quality of defendant’s self-representation. Again, we know of no such duty. In the absence of a claim of indigence, an incarcerated defendant would be regarded as capable of retaining counsel. If he chooses not to, he is left to his own efforts. We do not see why a trial court should be required to inquire into the difficulties of a defendant who voluntarily chooses self-representation when there is no indication he cannot afford his own attorney.
The factual question of whether defendant is actually indigent is not directly before us. But it is a matter of court record that defendant was a dentist with an established practice of some years; had an interest in marital property worth hundreds of thousands of dollars; had retained counsel at his murder trial; and had retained counsel on his criminal appeal—counsel who, between September 11, 2007 and February 13, 2008, represented defendant and prepared and filed a thorough appellant’s opening brief over 150 pages long. We also note that when defendant first indicated Mr. Riordan would no longer represent him below in the present civil case, he informed the court he would retain another attorney.
Moreover, it appears that Abbott properly served defendant with all pertinent documents. Even if defendant had some problems with obtaining computer and law library access, in the absence of a claim of indigence and a request for counsel, we simply do not see what the trial court was obligated to do. We note that defendant never even requested that he be allowed to appear in person or telephonically for trial.
We conclude the trial court did not deny defendant his right to access to the courts. Absent any claim of indigence, there was no duty on the part of the court to inquire into the need for appointed counsel or the possible burdens of an incarcerated prisoner’s self-representation.
III. DISPOSITION
The judgment is affirmed.
We concur: Margulies, J., Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
The context of this passage makes it clear it applies only to indigent prisoners (Payne, supra, 17 Cal.3d at pp. 919, 923-924). It does not impose a duty of inquiry based solely on the fact of incarceration.