Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Kern County Super. Ct. No. BF112797A. Lee P. Felice and Richard P. Oberholzer, Judges.
Judge Felice presided over the July 31, 2006 Marsden hearing; Judge Oberholzer presided over appellant’s trial, sentencing hearing, and posttrial Marsden motion.
Law Office of William H. Slocumb and William H. Slocumb 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 Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HARRIS, Acting P.J.
INTRODUCTION
Appellant Bruce Jay Gould was arrested as part of an undercover operation when he was found in joint possession of over 200 grams of methamphetamine in his truck. A search warrant was subsequently issued for a residence he shared with his girlfriend, which revealed additional quantities of methamphetamine and marijuana, packaging materials, substantial amounts of cash, and several firearms. He was convicted of transportation, possession of methamphetamine and marijuana for sale, and being an ex-felon in possession of a firearm, with enhancements for prior strike and narcotics convictions, and sentenced to 16 years four months.
On appeal, appellant asserts the trial court improperly denied his pre- and posttrial motions to discharge his appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), because counsel was prejudicially ineffective in failing to raise Fourth Amendment challenges to his arrest and the search warrant. Appellant also contends the court improperly denied his posttrial motion to substitute his newly retained counsel in place of appointed defense counsel and for a continuance, in order for his retained counsel to file a motion for new trial based on appointed counsel’s alleged ineffectiveness. In the alternative, appellant argues appointed counsel was prejudicially ineffective for failing to challenge the validity of his arrest and certain aspects of the search.
We will find the court abused its discretion when it denied appellant’s posttrial motion for a continuance, and that it should have allowed his newly retained attorney to assume representation of him to prepare and file posttrial motions.
STATEMENT OF THE CASE
On March 8, 2006, an information was filed in the Superior Court of Kern County charging appellant and codefendant David Montecino with count I, transportation of methamphetamine (Health & Saf. Code, § 11379) and count II, possession of methamphetamine for sale (§ 11378). Appellant was separately charged with count III, possession of marijuana for sale (§ 11359) and count IV, ex-felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)). As to counts I and II, it was alleged appellant suffered five prior narcotics offenses (§ 11370.2, subd. (c)). As to counts II and III, it was alleged appellant was armed with a firearm (Pen. Code, § 12022, subds. (a) & (c)). As to all counts, it was alleged appellant served two prior prison terms (Pen. Code, § 667.5, subd. (b)). Appellant and Montecino pleaded not guilty and denied the special allegations.
All further statutory citations are to the Health and Safety Code unless otherwise indicated.
On July 31, 2006, the court heard and denied appellant’s motion to discharge appointed counsel pursuant to Marsden, and the joint jury trial began for appellant and Montecino. On August 2, 2006, appellant was convicted of all counts, and the jury found the arming allegations true, except for the allegation attached to count III. Montecino was also convicted of all charged offenses. On August 3, 2006, the court found appellant’s prior conviction allegations were true.
On August 29, 2006, the court heard and denied appellant’s second Marsden motion.
On September 12, 2006, the court denied appellant’s motion to substitute retained counsel and for a continuance to file a new trial motion. Thereafter, the court sentenced appellant to an aggregate term of 16 years four months: count I, the upper term of four years, plus six years for the prior narcotics convictions and two years for the prior prison term enhancements; count II, a consecutive term of eight months (one-third the midterm) plus three years for the arming enhancement; count III, a consecutive term of eight months (one-third the midterm), and count IV, the upper term of three years, stayed pursuant to Penal Code section 654.
On the same day, appellant filed his timely notice of appeal. Codefendant Montecino is not a party to this appeal.
FACTS
Kern County Sheriff’s Detective Robert Stevenson was assigned to the CALMNET team, a multi-jurisdictional drug task force. As part of his assignment, he assumed false identities and contacted individuals to arrange drugs purchases.
In the course of his work, Stevenson received information that Arvel Nye was involved in methamphetamine sales. Stevenson placed three telephone calls to Nye to arrange a methamphetamine transaction. The first call occurred on the evening of November 30, 2005, when Stevenson called Nye’s residence in Kern County. Stevenson identified himself as “ Jimmy,” and said he wanted to purchase $5,000 of methamphetamine. Nye thought “ Jimmy” was a truck driver, and agreed to set up the deal. Nye told “ Jimmy” that he was located too far out of town and asked him to drive closer to make the deal.
At trial, Nye testified that codefendant David “ Tokyo” Montecino had been his friend for many years and often visited at his house. Nye testified that after he spoke with “ Jimmy,” he spoke to Montecino about arranging a sale for $5,000 of methamphetamine. Stevenson again called Nye on the morning of December 1, 2005, again identified himself as “ Jimmy,” and said he was going to meet him at a truck stop. Nye testified that Montecino was at his house when “ Jimmy” called, and Montecino told Nye to have “ Jimmy” meet them at a motel in town. A mutual friend was also at the house, and told Nye and Montecino not to do anything, but Montecino said he would take care of it. Montecino told Nye that “ [h]is friend” would bring the methamphetamine to the motel, and he would be driving a pickup truck.
Stevenson’s third phone call occurred later in the morning of December 1, 2005, when he advised Nye that he was in town. Nye directed Stevenson to meet him at the Vagabond Inn on Olive Drive in Bakersfield.
Nye arrived at the Vagabond Inn sometime between 2:30 p.m. and 3:30 p.m. and approached a red big rig, with the belief that “ Jimmy” was waiting for him inside the truck. Nye was immediately detained by officers, and he realized “ Jimmy” was a police officer. Nye offered to give Deputy Stevenson information about the imminent drug deal. Nye was released and not charged in this case.
Deputy Stevenson testified that Nye said “ Bruce,” a white male, was going to pick up “ Tokyo” at a liquor store located at Lincoln and Oildale Drive, “ Tokyo” was a Mexican male with a long ponytail and shades, “ Bruce” was driving a work truck because he was in construction, “ Bruce” was bringing the methamphetamine, “ Tokyo” would direct “ Bruce” to the motel, and they would be at the motel in 20 minutes.
In the meantime, Nye’s residence was being watched by officers in an unmarked car, and they observed a Hispanic male with a ponytail walk out of the house. The man was subsequently identified as Montecino. The officers followed Montecino as he walked from Nye’s house to a liquor store on Oildale Drive. Montecino went inside the store and emerged with a dark plastic bag which seemed to contain a small object, about 12 inches high and the size of a small soft drink bottle. Montecino waited outside the liquor store and held the dark bag, which contained the small object. Montecino was eventually picked up by a while male who was driving a “ beat-up looking” maroon pickup truck.
The surveillance officers followed the maroon pickup truck as it headed for the Vagabond Inn. When the truck arrived in the motel’s parking lot, the officers immediately approached the vehicle, ordered the occupants to step out of the truck, and placed them in handcuffs.
Appellant Bruce Gould was the driver, and codefendant Montecino was sitting in the front passenger seat. Appellant was found in possession of a cell phone, $188, and about 1.3 grams of marijuana, which was the equivalent of one or two cigarettes. A large plastic McDonald’s drinking cup was in the cup holder of the truck’s center console, located directly between the driver and passenger seats. A black plastic bag was stuffed into the cup, such that the majority of the bag was above the lip of the cup. Both the large cup and the black plastic bag were clearly visible through the vehicle’s windows. The officers opened the plastic bag, and discovered that it contained a large quantity of methamphetamine, later determined to weigh 218 grams. There was another black plastic bag on the passenger-side floorboard, apparently wrapped around some type of bottle; the top of the bottle was visible above the plastic bag.
The Search Warrant
When appellant and Montecino were arrested, Deputy Stevenson determined the maroon truck was registered to appellant at an address on Curtis Street. On the same day, Stevenson went to that residence and determined appellant’s brother lived there. Appellant’s brother was very cooperative, and said that appellant was staying at a house on East Belle. He did not know the address but described the location, and said that appellant drove a green Kia.
Stevenson went to that house, located at 105 East Belle, and observed a green Kia parked on the street in front of the house. Stevenson knocked on the front door and contacted Mikeal Mathis. Mathis advised Stevenson that he lived in the house, but appellant and his girlfriend lived in the residence located behind his house.
At trial, Stevenson described the rear residence as 105½ East Belle, although he was not sure if it was actually known by that street number. Stevenson had the key chain which was removed from the maroon truck’s ignition. He tried the other keys on the chain, and determined they unlocked the deadbolts to the girlfriend’s rooms and the garage on East Belle.
105½ East Belle is described as “ 105.5” East Belle in the search warrant.
Later on December 1, 2005, Deputy Stevenson compiled an affidavit for a search warrant of the premises at “ 105.5” East Belle in Bakersfield. In the affidavit, Deputy Stevenson stated appellant was arrested while in possession of approximately one-half pound of suspected methamphetamine. Appellant was asked where he lived, and he replied that he was homeless. The affidavit described Stevenson’s investigation using the maroon truck’s registration, which led to appellant’s brother, who said appellant “ lived behind a Chevron Oil Lube business off of North Chester Avenue in Bakersfield California, in a white house,” and that he drove a green Kia.
The factual circumstances of the search warrant affidavit were contained in appellant’s pretrial suppression motion, which included the affidavit and warrant as exhibits.
Stevenson declared the officers located the Chevron oil lube business at the corner of North Chester and East Belle Avenue, and observed a green Kia parked in front of 105 East Belle. Mathis answered the door and said that appellant “ lived in the back portion of the residence with a female named Evette and showed officers the front door of 105.5 East Bell[e] Avenue.” Mathis also said the other cars parked near the residence belonged to appellant, and Stevenson determined a truck at the house was registered to appellant at his brother’s address. The affidavit described the key chain seized from the maroon truck, and that the keys unlocked the residence and the garage. Stevenson further declared the officers “ made entry” to the rooms “ to prevent any destruction of evidence by subjects that might be inside the residence,” they “ secured the interior of the residence and found no one was home,” and they “ exited the residence ... but maintained control of it pending the issuance of this search warrant.”
Stevenson declared that based on his training and experience, subjects involved in the sales of illegal drugs often will not use their actual residence, listed on their vehicle registration, to prevent law enforcement from uncovering their illegal activities, and will use different vehicles to stash and deliver drugs.
Stevenson’s affidavit sought a search warrant as follows:
“ The premises described at 105.5 E. Bell[e] Avenue Bakersfield ..., further described as a single story residence, white with wood siding, white trim and a grey composition roof. The numbers 105 are in black number affixed to the front of the residence next to the front door. To enter the residence a[t] 105.5 you must walk south in the west alley and enter a chain link fence, then a white lattice gate and the front door faces east ....”
The affidavit requested a warrant for the premises, the garage, all outbuildings, and the surrounding grounds, along with four specific vehicles, including the green Kia, for methamphetamine, associated paraphernalia, currency, and other indicia of sales activities. A judge issued and signed the warrant at 4:50 p.m. that same day, December 1, 2005.
Search of the House
Still later on December 1, 2005, the officers executed the search warrant on the rooms which Mathis said were used by appellant and his girlfriend, and were unlocked with the keys on the chain removed from appellant’s maroon truck. The officers recovered the following amounts of methamphetamine, in separate packages: 0.15 grams, 13.9 grams, 0.54 grams, 1.91 grams, 0.19 grams. 0.80 grams, and 52 grams. The officers also found a large digital pound electronic scale, two smaller pocket-size digital gram scales, $3,000, $700, and packaging materials. All the scales were operational. There was mail addressed to appellant found in the same area as the drugs, but the mail was not directed to the East Belle address. The residence also contained a gun cabinet with two .12 gauge Remington shotguns, another shotgun, and ammunition.
The officers also used the keys on the chain to unlock the garage, which contained a washer and dryer, and found a plastic container in the rafters which contained packaging materials and over 300 grams of marijuana. There was also a bank statement in appellant’s name in the garage; the statement was not directed to the East Belle address. The area next to the garage contained a lot of junk covered with tarp. A narcotics dog alerted to a barrel, which contained eight baggies of marijuana and weighed 3,606 grams. A Smith & Wesson .38-caliber six-shot revolver and ammunition were found near the barrel.
Additional Trial Evidence
Appellant and Montecino were tried together for various narcotics and weapons offenses. At trial, Nye described himself as the “ number one man” who set up the methamphetamine deal. Nye testified that “ Tokyo” Montecino had been his friend a long time, and Nye told “ Jimmy” that Tokyo was a Mexican with long hair. However, Nye testified he never met appellant and did not know anything about him before Nye appeared at the preliminary hearing in this case. Nye testified he told Stevenson that Montecino was going to the liquor store to wait for a friend, and Montecino never mentioned appellant’s name when they were arranging the transaction. Nye testified he never told Stevenson that “ Bruce” was bringing the drugs, he only described the other person as Tokyo’s friend, and he did not know appellant or his name until he testified in this case.
At trial, Nye testified as a prosecution witness, and the jury was informed that he testified under a grant of immunity from the district attorney’s office.
Nye testified he suffered from paranoid schizophrenia, and suffered migraines and panic attacks. He did not suffer from delusions. Nye testified the schizophrenia made him “ crazy.”
“ Q. Do you hear voices or anything like that?
“ A. Not really.
“ Q. So what is the—
“ A. But everybody hears voices. All you’ve got to do is think and you hear voices. You don’t actually hear them.”
Nye testified he had taken several prescribed psychiatric medications for over 10 years. Nye was taking these medications at the time of the drug deal, but did not take the medications on the day of his testimony because he did not want to pass out. Nye testified he did not use illegal narcotics. Nye admitted he suffered a misdemeanor conviction for receiving stolen property 25 years ago.
Nye was upset because he was forced to testify in this case when the court granted him immunity, he had trouble remembering things, and he wanted to be right because of “ the guys that are in trouble.” “ You know, I’ve giving it my best shot.”
Also at trial, Officer Christina Abshire testified about her surveillance of Montecino as he walked from Nye’s house to the liquor store, and emerged from the liquor store with a small object inside a black plastic bag. Officer Abshire examined photographs of the interior of appellant’s truck and the plastic cup in the center console which contained the methamphetamine, and testified the cup with the narcotics did not appear to be the same object as the one Montecino held at the liquor store. Abshire also examined the photograph of the black plastic bag on the passenger-side floorboard, which apparently contained some type of bottle. Abshire testified she could not determine if it was the same size as the bag which Montecino held outside the liquor store.
Mikeal Mathis lived at the house on 105 East Belle in Oildale. He testified that he allowed Evette to live in the separate residence located behind his house, and she did not pay any rent. Appellant was Evette’s boyfriend. Mathis knew appellant for several years, he frequently saw appellant at Evette’s residence, but appellant “ wasn’t there all the time.” Mathis testified he did not use drugs, and he had never seen appellant or Evette in possession of any drugs. Mathis had been arrested for trespassing 15 years ago.
The prosecution introduced photographs of Mathis’s house, which depicted a single front entrance on the street with the number “ 105.” The house is located on a corner, and the garage is located on the side street and immediately adjacent to the house. A photograph of the rear of the house showed there were two separate back doors into the same structure. The first back door led into Mathis’s living area. The second backdoor, located to the side of the first one, led into the area described as Evette’s living area. Evette’s living area was thus attached to Mathis’s house and was not a separate outbuilding.
Mathis testified he did not share any common areas of the residence with Evette. Evette kept her doors locked, but she could enter Mathis’s house if she wanted to because his side was not locked. Mathis did not have access to Evette’s area unless he “ felt like picking a lock.”
“ Q. Now, in terms of that layout of your house, where Evette was living in your house, and where you live in the house, it’s one building. Is that correct?
“ A. Yeah. Yeah.”
Mathis testified Evette also kept a deadbolt on the garage door, and he did not have the key. Mathis testified appellant and Evette drove a green Kia, a Mercedes, and a champagne-colored pickup truck, and they parked the vehicles in front of the East Belle house.
Defense Evidence
Neither appellant nor Montecino testified. It was stipulated as to count IV, ex-felon in possession of a firearm, that appellant previously suffered a felony conviction in December 2005.
Appellant called one defense witness— David Evers, an attorney who had represented appellant for over 16 years, and who initially represented appellant in this case. Evers appeared for appellant at the pre-preliminary hearing and subsequently withdrew because of a conflict. Evers testified that prior to that hearing, he was sitting outside the courtroom with appellant, and Montecino approached and wanted to talk to him. Evers advised Montecino that he should talk to his own attorney. Evers testified Montecino was frustrated because his own attorney was not there yet and he had not been able to speak with him. Evers testified that Montecino said “ he had brought the drugs that was found in the cup inside of the truck into the truck.” Evers testified appellant did not show any reaction to Montecino’s statement.
On appeal, appellant contends the court should have granted his Marsden motions because appointed counsel failed to challenge the validity of the detention of his truck at the motel, the officers illegally entered the living area prior to obtaining the search warrant, the warrant contained an invalid address for the area that was searched, and the warrant was based on tainted evidence. In the alternative, appellant argues appointed counsel was prejudicially ineffective for failing to raise these issues. Appellant also argues the court should have granted his posttrial motion to continue the sentencing hearing so that his newly-retained attorney could file a motion for new trial based on the same ineffective assistance issues.
DISCUSSION
I.
DENIAL OF PRETRIAL MARSDEN MOTION
Appellant raises a series of issues based upon the court’s denial of pre- and posttrial Marsden motions. Appellant asserts the court should have granted his Marsden motions because his appointed counsel, Brian McNamara, failed to raise certain issues when he filed a pretrial suppression motion. We will review the procedural history of the suppression and Marsden motions.
A. The Pretrial Suppression Motion
When appellant appeared for arraignment, he requested appointment of counsel and the court appointed Roger Lampkin. Appellant was released on bail, and remained out of custody during the pendency of trial. At the pre-preliminary hearing, the court appointed Dave Evers of the Indigent Defense Program to represent appellant. Evers represented appellant at the preliminary hearing.
On April 28, 2006, appellant appeared with Evers for a readiness hearing. Evers advised the court there was a conflict and he needed to be relieved as counsel. The court granted the motion and appointed Brian McNamara of the Indigent Defense Program to represent appellant, and McNamara represented appellant for the rest of the trial. Appellant rejected a plea bargain offer and wanted to go to trial. Shortly after his appointment, the court granted Mr. McNamara’s motion for a continuance so he could prepare and file a motion to quash and traverse the search warrant.
On July 5, 2006, appellant filed a motion to suppress the evidence seized from the East Belle Street residence (Pen. Code, § 1538.5) and, in the alternative, to quash or traverse the search warrant. The motion, prepared by Mr. McNamara, asserted the officers arrested appellant “ in possession of approximately one half pound of suspected methamphetamine” in the truck. As a result, the officers followed up the investigation and “ sought a search warrant for [appellant’s] alleged residence.” The motion argued the affidavit failed to state that the second suspect— Montecino— was in the truck when the drugs were found, and the affidavit infers the drugs were on appellant’s person. The defense had just obtained discovery that Nye, the informant used in this case, did not know appellant but had known Montecino for many years.
“ … In short, the probable cause to issue the warrant is that one half pound of suspected methamphetamine was found in the possession of [appellant]. Firstly this statement is factually incorrect. The magistrate was given a false statement on which to base their issuance of the search warrant. Moreover, the magistrate was not given the whole story on which to make an evaluation. Secondly, everything else which followed this incorrect statement is a conclusion based on no facts.”
Appellant argued the affidavit lacked sufficient probable cause to support the issuance of the warrant for the East Belle residence.
On July 17, 2006, the prosecution filed opposition and argued the affidavit established probable cause that appellant lived at “ 105.5” East Belle, including his possession of a key which opened the premises. The prosecution further argued any omissions in the affidavit did not affect the probable cause analysis and were not material because two or more persons may share possession of large amounts of narcotics possessed for sale, and the additional information cited by appellant would only support issuance of a search warrant for Montecino’s residence rather than negate probable cause for the warrant that was issued. The prosecution also noted the officers relied upon the issuance of the warrant in good faith.
On July 20, 2006, Judge Lewis conducted a hearing on appellant’s suppression motion. Appellant was represented by McNamara, who called Deputy Stevenson to testify, and asked him if his affidavit contained any omissions. Stevenson testified the statements in the affidavit were true and accurate. McNamara asked if anyone else was in the truck when appellant was arrested. Stevenson testified David “ Tokyo” Montecino was the passenger. McNamara asked where the methamphetamine was found, and Stevenson testified it was “ sitting in the center console of the truck.” Stevenson conceded neither appellant nor Montecino possessed any methamphetamine on their persons.
McNamara argued Stevenson’s affidavit strongly inferred that appellant possessed the large amount of methamphetamine on his person, and completely failed to state that Montecino was present or that the drugs were found between them. The affidavit was too conclusionary and failed to develop the factual background for why the presence of the drugs between the two parties meant that appellant’s residence should be searched. The prosecutor argued the location of the drugs between appellant and Montecino meant that they jointly possessed the methamphetamine, and the omission was not material.
The court found the issuing magistrate had probable cause based upon the facts contained in the affidavit, and denied the motion to quash the warrant. As for the motion to traverse, the court found that the magistrate would have been interested to know another person was in the truck and the drugs were found between them. The court found Stevenson’s failure to mention these facts constituted an omission of relevant material, but did not find it was a false statement with a reckless disregard for the truth. The court also found that even if the affidavit contained false statements, and the entirety of the situation was considered, “ it certainly would not affect the court’s determination that the search warrant contains sufficient ... material to support a finding of probable cause by the magistrate that issued the search warrant. [¶ ] So in short, even if the inaccuracies were corrected, it would not affect the court’s examination of the determination that there was sufficient probable cause.”
B. The Pretrial Marsden Motion
On July 31, 2006, the parties appeared before Judge Felice for the case to be assigned to trial. Appellant appeared with McNamara and requested a Marsden hearing. The court cleared the room and conducted the Marsden hearing.
Appellant informed the court that McNamara did not believe in his innocence, he rejected all of appellant’s suggestions about motions and trial tactics, he never explained why he rejected those suggestions, and appellant never got his opinions through. Appellant said he wanted to file a suppression motion because “ the wrong address is on the search warrant,” and there were witnesses who said the officers searched the house before they obtained the warrant. Appellant complained McNamara did not think such people were sufficient witnesses to prove anything.
The court asked McNamara about the suppression motion. McNamara explained he filed a motion to suppress and traverse the warrant and the court conducted an evidentiary hearing. McNamara explained they did not know the informant’s identity at that time, but argued the warrant lacked probable cause. The court asked whether the warrant contained the wrong address, and McNamara replied “ [i]t’s the address in the front and the back,” and suggested appellant explain the residence. Appellant said there was only one house, and the post office had never delivered any mail to 105½ East Belle. McNamara added there was a front and back part to the house, the defense interviewed the owner, and the owner said appellant lived in the separate place.
McNamara also explained he had a private investigator on the case from the beginning of his assignment, the investigator interviewed every witness suggested by appellant, “ and what they tell [appellant] is not what they’ re telling my investigator.” The investigator advised McNamara not to call the witnesses because “ bottom line, to tell the truth, you do not want to hear what they want to say.” McNamara stated he filed a motion to quash and traverse the warrant, but it was not based on appellant’s opinions or beliefs as to what witnesses would say.
Appellant said he had talked to other attorneys, including Michael Dellostritto, about how the case should be handled. The court asked whether the conversation was in the context of trying to hire Dellostritto, and appellant said yes. The court replied that “ sometimes lawyers say many things when they’ re in the process of convincing someone to pay them thousands of dollars to represent them.”
McNamara further explained appellant’s first attorney, David Evers, failed to challenge the search because he believed the problems with the warrant fell within the good faith exception and “ the actual description of the house is the exact.” McNamara said he had talked with appellant many times. The court asked whether the rear residence was searched. Appellant said “ [i]t’s all one house, it isn’t divided. You stand in the hallway and there’s a bedroom to the right, bedroom to the left, and a bathroom.” The court replied that was even worse.
Appellant also complained that McNamara found an attorney for the informant, Nye, and that attorney convinced Nye not to testify at the suppression motion. McNamara replied Nye was never charged in the case, but McNamara tried to call Nye as a witness at the suppression hearing. In the interests of judicial economy, however McNamara “ called IDP and said it may be under judicial economy to have an attorney present to talk to him prior to going to testimony. That’s all I said. At that point when an attorney did talk to him, he did invoke his rights.”
The court denied the Marsden motion and assigned the matter for trial. Appellant complained that he should have another choice. The court explained the Marsden motion was denied and he was going to trial with McNamara, and assigned the matter to Judge Oberholzer’s courtroom. Thereafter, McNamara represented appellant at trial and appellant did not object to his representation during the trial.
C. Marsden
“ A defendant ‘ may be entitled to an order substituting appointed counsel if he shows that, in its absence, his Sixth Amendment right to the assistance of counsel would be denied or substantially impaired.’ [Citations.] The law governing a Marsden motion ‘ is well settled. “ 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 attorney’s 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.]” (People v. Memro (1995) 11 Cal.4th 786, 857; People v. Valdez (2004) 32 Cal.4th 73, 95 (Valdez).) “ ‘ [S]ubstitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would ‘ substantially impair’ the defendant’s right to assistance of counsel.’ [Citations.]” (People v. Hart (1999) 20 Cal.4th 546, 603 (Hart); Valdez, supra, 32 Cal.4th at p. 95.)
A defendant’s right to appointed counsel does not include the right to demand appointment of more than one counsel. (People v. Ortiz (1990) 51 Cal.3d 975, 980, fn. 1 (Ortiz).) A defendant cannot substitute counsel as a matter of right because to permit unlimited substitutions of counsel would delay trials and prohibit effective prosecution of a case. (People v. Williams (1970) 2 Cal.3d 894, 906.) A defendant may not force the substitution of counsel by his own conduct that manufactures a conflict. (People v. Smith (1993) 6 Cal.4th 684, 696.) “ [T]he number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence” for purposes of Marsden. (People v. Silva (1988) 45 Cal.3d 604, 622; Hart, supra, 20 Cal.4th at p. 604.)
“ A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. [Citation.] Tactical disagreements between the defendant and his attorney do not by themselves constitute an ‘ irreconcilable conflict.’ ” (People v. Welch (1999) 20 Cal.4th 701, 728-729 (Welch); Valdez, supra, 32 Cal.4th at p. 95.) The defendant is not entitled to claim that an irreconcilable conflict has arisen merely because of a disagreement with counsel over reasonable tactical decisions. (People v. Memro, supra, 11 Cal.4th at p. 858.)
“ There is no constitutional right to an attorney who would conduct the defense of the case in accord with the whims of an indigent defendant. [Citations.] Nor does a disagreement between defendant and appointed counsel concerning trial tactics necessarily compel the appointment of another attorney. [Citations.]” (People v. Lucky (1988) 45 Cal.3d 259, 281-282.)
“ [A] ‘ conflict’ regarding tactical matters neither justifies substitution of counsel nor signals a fundamental breakdown in the attorney-client relationship. [Citations.]” (People v. Nakahara (2003) 30 Cal.4th 705, 719.) “ ‘ When a defendant chooses to be represented by professional counsel, that counsel is “ captain of the ship” and can make all but a few fundamental decisions for the defendant.’ [Citation.]” (Welch, supra, 20 Cal.4th at p. 729.) Such a disagreement is insufficient to compel discharge of appointed counsel unless it signals a complete breakdown in the attorney-client relationship. (Hart, supra, 20 Cal.4th at p. 604.)
Although a defendant has the right to have a viable defense presented, and defense counsel cannot override a defendant’s position, there is no right to present a nonviable defense. (People v. Carter (2005) 36 Cal.4th 1114, 1197.) Indeed, attorneys are not expected to pursue futile or meritless motions or objections. (People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Prieto (2003) 30 Cal.4th 226, 261; People v. Constancio (1974) 42 Cal.App.3d 533, 546 [“ It is not incumbent upon trial counsel to advance meritless arguments or to undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel” ].)
On appeal, we review a trial court’s decision denying a Marsden motion to relieve appointed counsel under the deferential abuse of discretion standard. (People v. Earp (1999) 20 Cal.4th 826, 876.) “ To the extent there was a credibility question between defendant and counsel at the hearing, the court was ‘ entitled to accept counsel’s explanation.’ [Citation].” (People v. Smith, supra, 6 Cal.4th at p. 696.) “ [T]he inquiry is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future. But the decision must always be based on what has happened in the past. The further one is in the process, the more counsel has done in the past that can be challenged, but that is a difference of degree, not kind.” (Id. at p. 695.)
D. Analysis
Appellant contends the court improperly denied his pretrial Marsden motion and failed to consider appellant’s complaints that McNamara should have raised other Fourth Amendment issues in the suppression motion. Appellant raised several specific issues at the Marsden hearing and, based on our review of these issues, the court properly denied appellant’s pretrial Marsden motion.
First, appellant complained at the pretrial Marsden hearing that McNamara’s suppression motion should have challenged the accuracy of the address on the affidavit and search warrant, the warrant was issued for “ 105.5” East Belle, no such address existed, and the court should have discharged McNamara because he was ineffective for failing to raise this issue. McNamara explained he thought such an issue was not meritorious.
McNamara’s apparent tactical decision not to challenge the correctness of the address on the warrant was most likely based on People v. Amador (2000) 24 Cal.4th 387 (Amador). In Amador, an officer prepared an affidavit to request a warrant for the defendant’s house in the course of a narcotics investigation. The affidavit described the residence as follows:
“ ‘ 10817 Leland, Santa Fe Springs, County of Los Angeles, State of California, further described as a brown stucco, two story single family residence with a two car, attached garage. It is brown with beige trim. The house is located on the west side of the street, south of Sundance.’ ” (Amador, supra, 24 Cal.4th at p. 391.)
The search revealed narcotics and blank credit cards. The defendant filed a suppression motion and introduced evidence that the actual residence searched was a one story, single family residence, located at 10811 Leland. (Amador, supra, 24 Cal.4th at p. 391.) The officer who prepared the affidavit and conducted the search testified that he did not realize it was a single-story residence until he was inside, and relied on another detective’s notes for that particular fact. The officer testified that an informant showed him the house, and he located the house based on his “ ‘ personal knowledge of that house being identified by the informant, and then that information used as a basis for [the] search warrant.’ ” (Ibid.) The trial court denied the suppression motion, but the appellate court held the motion should have been granted because the errors “ ‘ betray a sloppiness that goes beyond mere drafting errors .... You can’ t have good faith when you are so careless that you get just about everything wrong.’ ” (Id. at p. 392.)
Amador held the trial court properly denied the suppression motion. In doing so, the California Supreme Court explained that “ [a] search warrant must ‘ particularly describ[e] the place to be searched” but “ [c]omplete precision in describing the place to be searched is not required. ‘ It is enough if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.’ [Citation.]” (Amador, supra, 24 Cal.4th at p. 392.) “ ‘ The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.’ [Citation.] This purpose— to limit the search authorization to things and areas for which probable cause exists and avoid exploratory searches— must be kept in mind in determining the validity of a warrant containing an inaccurate description of the place to be searched. ‘ [T]he purpose of the exclusionary rule is “ ... to deter illegal police conduct, not deficient police draftsmanship ....” ’ [Citation.]” (Id. at p. 392.)
“ … Many cases have upheld warrant searches despite errors in the description of the place to be searched. (E.g., People v. Superior Court (Fish), supra, 101 Cal.App.3d 218 [wrong lot number, wrong roof color]; United States v. Turner (9th Cir. 1985) 770 F.2d 1508 [wrong street address]; United States v. Gitcho (8th Cir. 1979) 601 F.2d 369 [wrong address].) ‘ Where one part of the description of the premises to be searched is inaccurate, but the description has other parts which identify the place to be searched with particularity, searches pursuant to such warrants have been routinely upheld.’ (United States v. Gitcho, supra, 601 F.2d at p. 371.) When the warrant contains an inaccurate description, ‘ [t]he test for determining the sufficiency of the description of the place to be searched is whether the place to be searched is described with sufficient particularity as to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.’ (Ibid.) ‘ In applying this test, we are mindful of the general rule that affidavits for search warrants must be tested and interpreted in a common sense and realistic, rather than a hypertechnical, manner.’ (United States v. Turner, supra, 770 F.2d at p. 1510.)” (Amador, supra, 24 Cal.4th at pp. 392-393.)
Amador held that, aside from the errors about the street number and house being a single story, the warrant correctly described the house in several other particulars. (Amador, supra, 24 Cal.4th at pp. 394-395.) Moreover, the officer who sought the warrant and provided the description also executed the warrant, and personally observed the house which was the subject of the warrant. Amador held an executing officer’s personal knowledge “ may not cure all deficiencies or completely substitute for a description in the warrant,” but it is a factor to consider. (Id. at p. 395) “ Here, the warrant’s description was sufficient even if partially erroneous. The court may rely on the officer’s knowledge for assurance that the errors could not have caused a search of the wrong premises. The warrant and the officer’s knowledge together leave no doubt that the magistrate found probable cause to search one particular house to the exclusion of all others, i.e., the house actually searched.” (Ibid.)
As in Amador, the alleged mistaken address contained in Deputy Stevenson’s affidavit and the search warrant would not have required suppression of the evidence seized from East Belle. The affidavit described the premises to be searched with great particularity. Appellant’s brother said he “ lived behind a Chevron Oil Lube business off of North Chester Avenue in Bakersfield California, in a white house,” and that he drove a green Kia; the officers located the Chevon oil lube business at the corner of North Chester and East Belle Avenue, and a green Kia was parked in front of 105 East Belle; Mathis answered the door at 105 East Belle; Mathis said appellant “ lived in the back portion of the residence with a female named Evette and showed officers the front door of 105.5 East Bell[e] Avenue” ; Mathis said the other cars belonged to appellant; and Stevenson determined a truck parked at the house was registered to appellant. The affidavit sought a warrant for:
“ The premises described at 105.5 E. Bell[e] Avenue Bakersfield ..., further described as a single story residence, white with wood siding, white trim and a grey composition roof. The numbers 105 are in black number affixed to the front of the residence next to the front door. To enter the residence a[t] 105.5 you must walk south in the west alley and enter a chain link fence, then a white lattice gate and the front door faces east ....”
McNamara’s explanation for not challenging the accuracy of the address represented a valid tactical decision based on existing case law and the specificity in the affidavit and warrant. As explained ante, an attorney is not expected to engage in tactics or file motions which are futile or frivolous. (People v. Anderson, supra, 25 Cal.4th at p. 587; People v. Prieto, supra, 30 Cal.4th at p. 261.)
Appellant’s next complaint was that McNamara failed to call certain witnesses who would testify the premises at East Belle were searched before the warrant was issued. McNamara explained he had a private investigator on the case from the beginning of his assignment, the investigator interviewed every witness suggested by appellant, “ and what they tell [appellant] is not what they’ re telling my investigator.” The investigator advised McNamara not to call the witnesses because “ bottom line, to tell the truth, you do not want to hear what they want to say.” Such a disagreement did not support granting a Marsden motion, and instead represented McNamara’s tactical decision that appellant’s proposed witnesses would not help his defense, based upon the investigator’s interviews and evaluations of the witnesses’ expected testimony.
Appellant also complained McNamara found an attorney for Nye, the informant, such that Nye refused to testify at the suppression hearing. While Nye was not charged in this case, he potentially faced criminal culpability for his participation as the self-described “ number one man” who arranged a major narcotics deal, and was apprehended as he tried to meet “ Jimmy” in the motel’s parking lot. As an officer of the court, McNamara simply advised the court and parties about Nye’s status and that it would be expeditious to have conflict counsel available. (See, e.g., Holloway v. Arkansas (1978) 435 U.S. 475, 486; People v. Mroczko (1983) 35 Cal.3d 86, 112; People v. Guzman (1988) 45 Cal.3d 915, 945-946, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Such conduct did not undermine his representation of appellant or require the granting of the Marsden motion.
Appellant also complained that other attorneys told him the case should be handled differently, and McNamara refused to meet with him and discuss the case. McNamara refuted appellant’s complaints and said they met and talked about the case. Again, these complaints addressed tactical disagreements, there was no evidence of an irrevocable breakdown in relations, and did not support granting appellant’s Marsden motion.
We thus conclude the court provided appellant with the appropriate opportunity to voice his concerns, considered the specific issues he raised, and properly found the concerns insufficient to warrant relieving appointed counsel. The court did not abuse its discretion in denying appellant’s pretrial Marsden motion. (See, e.g., Hart, supra, 20 Cal.4th at p. 604.)
II.
DENIAL OF POSTTRIAL MARSDEN MOTION
Appellant next contends the court should have granted his posttrial Marsden motion, again based on McNamara’s alleged ineffectiveness for failing to challenge various aspects of the searches in this case. We begin with the procedural background to the second Marsden motion.
A. Background
As set forth ante, on July 31, 2006, Judge Felice denied appellant’s first Marsden motion and assigned the matter to Judge Oberholzer for trial. On August 2, 2006, appellant was convicted of all counts and he was remanded into custody. On August 3, 2006, Judge Oberholzer found the prior conviction allegations were true, and set the sentencing hearing for August 22, 2006. The sentencing hearing was subsequently continued to August 29, 2006.
On August 25, 2006, appellant filed a motion for bail pending appeal. The motion, filed by McNamara, asserted appellant had a valid issue on appeal based on the validity of the search warrant because “ [i]nformation became available during trial which contested the validity of the search of [appellant’s] residence,” this information needed to be fully investigated, and possibly would support a habeas writ.
On August 29, 2006, Judge Oberholzer convened the sentencing hearing. McNamara requested to continue the sentencing hearing. The court asked appellant if he agreed to the continuance, and appellant said yes. The court continued the sentencing hearing to September 12, 2006.
Appellant interrupted and said McNamara had denied his right to a fair trial. McNamara advised the court that appellant wanted to make a Marsden motion and request appointment of another attorney. Appellant informed the court he had a list of 30 valid reasons for the court to look into the case.
Appellant stated McNamara refused to file a suppression motion on various reasons he suggested: that the warrant stated the wrong address; multiple people, including Mathis and Evette, had access to the area that was searched; appellant was not present when the areas were searched; other people were present but were not arrested; his brother never said he lived at that residence; and there were witnesses who said the officers searched the areas before they obtained the search warrant. Appellant stated that “ 105 and a half” East Belle was a nonexistent address but McNamara refused to challenge the search warrant on that basis.
Appellant also complained McNamara refused to file a pretrial motion to challenge whether there was probable cause to stop his truck and arrest him at the motel, and that the informant failed to give sufficient information to support the stop. McNamara refused to subpoena telephone records between the police and the informant (Nye), and appellant declared the telephone conversations were recorded and counsel never tried to get them. Appellant also complained counsel failed to subpoena his landlord to show appellant actually lived somewhere else, challenge the informant’s reliability and credibility, or challenge the informant’s credibility because of his mental illness and medications. Appellant complained he gave the names of several witnesses to McNamara, he recited those names to the court, and said one person even arrived to testify but McNamara refused to call any of his suggested witnesses.
Appellant stated he was denied a fair trial because McNamara refused to schedule meetings, discuss or consider these issues, refused to subpoena witnesses and file his requested motions, failed to appear at hearings, and allowed the prosecutor to appear on his behalf at a readiness hearing.
The court asked McNamara to respond. McNamara stated that Bob Wall, the defense investigator, talked to “ every single one of these witnesses more than once and each one of these witnesses pointed to the guilt of [appellant], so in terms of subpoenaing them it would have been stupid from that standpoint, and so— and he’s playing a double-edge sword here where he knew this. [¶ ] And it was our trial tactic not to call these people because they would have hung it out to dry quick on cross-examination by the District [Attorney] and it all pointed to [appellant’s] guilt in this respect.”
Next, McNamara explained he extensively attacked Nye’s credibility, including the fact that Nye never even knew appellant.
McNamara also explained he filed a motion to suppress evidence and traverse the search warrant, the court conducted a full hearing, appellant met the first burden to challenge the affidavit, but the court denied the motion. McNamara explained he did not challenge the address because “ the warrant itself was a good warrant. That was my reading of it.... I discussed it with [appellant] and he would only hear what he wanted to. Hear and in terms of that, we went out on wild goose chases with every witness we interviewed.”
McNamara stated his defense investigator did an excellent job, and it would have been “ incompetent for me to subpoena witnesses based upon what’s testified to ....” McNamara said he was never too busy to discuss the case because “ personally I took the case to heart in many respects, but I certainly put a lot [of] time into that.” McNamara said he fully discussed the case with appellant on several occasions, he forced himself to return all telephone calls, and he always called clients before hearings to let them know what was going on.
Appellant also complained McNamara failed to appear at a hearing and had the prosecutor make the appearance for him. McNamara explained the attorney for codefendant Montecino appeared on appellant’s behalf at a readiness hearing simply to confirm a trial date, and the prosecutor never appeared for appellant.
“ It didn’t work out at trial and certainly we had our tactics coming in and we were— had to control the evidence to some extent so it didn’t get out of the box in terms of that. We had to be careful, and I believe we did that. The jury took it down and they deliberated quite a long time in the case.... [¶ ] The fact it didn’t go our way, I cannot control, and [appellant] was aware I could never guarantee 100 percent. I knew [appellant] was shopping around for attorneys, and in talking with his attorneys because they called me each and recommended that he should take a deal prior to the trial based on the evidence presented, and that was the situation. ... [Appellant] was adamant form [sic] day one he would not accept anything in this case, and that’s why we went to trial.”
Appellant acknowledged McNamara warned him that certain witnesses would make him “ look guilty of being some known drug dealer because of my reputation or my past,” but appellant did not care what those witnesses thought about him, or whether they liked him, and “ I’ m fighting for my freedom” and the police still needed to legally search his property. Appellant argued his witnesses would testify the premises were searched illegally, so it did not matter what they thought about him.
The court agreed with McNamara that appellant only heard what he wanted to hear. “ If somebody comes in before a jury and starts talking about you being a drug dealer, the jury will convict you of anything you’ re charged about that’s what happens. [¶ ] Mr. McNamara is an experienced trial attorney. He knows what can happen when you get somebody— you don’ t care about it because you’ re focusing on some issue and failing to see the whole picture.”
Appellant replied that McNamara did not interview any of the proposed witnesses and improperly relied on the recommendations of an investigator, “ somebody that was not here.” The court said it was appropriate for the defense attorney to use an investigator, just as the prosecution uses law enforcement officers. Appellant again complained McNamara failed to file several pretrial motions. The court asked why he did not complain sooner. Appellant said he filed a pretrial Marsden motion but the court would not let him talk about the case.
Our review of the first Marsden hearing refutes appellant’s statement.
Judge Oberholzer denied appellant’s Marsden motion:
“ I’ve heard the matters that you wish to bring to the attention of the Court and heard rebuttal or explanation by Mr. McNamara, and you have the burden to convince the Court he should be relieved and a new attorney appointed and you failed to meet the burden.”
Thereafter, the court reconfirmed the sentencing hearing would be held on September 12, 2006.
B. Analysis.
Appellant contends the court should have granted his posttrial Marsden motion based on McNamara’s failure to raise various Fourth Amendment challenges to the searches in this case. Appellant argues McNamara failed to challenge the reliability of Nye as the police informant, the validity of appellant’s detention at the motel, the seizure of his keys and the methamphetamine from the truck, the use of his keys to gain entry to the living space, and the officers’ entry and presence in that area before the search warrant was issued. Appellant further argues Deputy Stevenson’s reliance upon these tainted facts rendered the search warrant invalid. Appellant asserts that the court should have considered these issues at the Marsden hearings and granted his motion to discharge McNamara because of his failure to pursue the Fourth Amendment issues.
At the posttrial Marsden hearing, appellant raised specific challenges to McNamara’s representation, and we again review those complaints against the well-settled standards of a Marsden motion. Appellant complained McNamara should have challenged the accuracy of the address on the search warrant but, as explained in issue I, ante, such a challenge would have been meritless in light of the entirety of the record, and McNamara was not required to file meritless or frivolous motions. Appellant also complained McNamara failed to call certain witnesses who would have supported various arguments that other people had access to the areas searched, that his brother never said appellant lived on East Belle, his landlord would have testified that appellant lived elsewhere, and the officers searched the East Belle premises before the warrant was issued. However, McNamara extensively explained the defense investigator interviewed every witness suggested by appellant, and those witnesses would have also offered extremely damaging testimony. Again, appellant’s disagreement with McNamara’s tactical decisions did not support granting the Marsden motion.
Appellant asserted the telephone conversations between Deputy Stevenson and Nye were tape-recorded, and McNamara refused to subpoena those recordings. The record, however, is silent as to whether those recordings were tape-recorded. Appellant complained McNamara failed to attack Nye’s credibility, but Nye was extensively impeached with his admissions about his mental illness and use of psychiatric medications. Appellant complained McNamara refused to schedule meetings or discuss strategy with him. McNamara again explained that he repeatedly met with and discussed the case with appellant. The trial court’s resolution of the factual conflicts in the Marsden hearing is supported by substantial evidence.
Appellant’s complaints at the posttrial Marsden hearing seemed to be based upon his tactical disagreements with McNamara, and McNamara’s failure to call certain witnesses who would have allegedly supported appellant’s claims about the illegality of his detention and the subsequent searches. McNamara explained the defense investigator interviewed appellant’s witnesses and determined the witnesses would be harmful to the defense. Based on appellant’s complaints at the posttrial Marsden hearing, the court did not abuse its discretion when it denied his Marsden motion.
On appeal, appellant asserts the court should have considered additional Fourth Amendment issues at the posttrial Marsden hearing. We note appellant did not raise these specific issues at either the pre- or posttrial Marsden hearings. Instead, he complained McNamara failed to challenge the validity of the address on the search warrant, and that he had several witnesses who would have supported appellant’s proposed Fourth Amendment challenges to his detention and the searches in this case. A trial court is not obliged to conduct a Marsden inquiry sua sponte. (People v. Montiel (1993) 5 Cal.4th 877, 906; People v. Lara (2001) 86 Cal.App.4th 139, 150-151.) Appellant’s statements at the Marsden hearing did not implicate the issues which he now contends constituted McNamara’s alleged ineffective assistance, and the court was not obliged to expand the nature of the hearings into issues which were not raised.
Appellant anticipates a possible waiver problem and asserts McNamara was prejudicially ineffective for failing to raise these challenges. We will address this contention in issue III, post.
III.
MOTION FOR CONTINUANCE AND RETENTION OF PRIVATE COUNSEL
Appellant next contends the court should have granted his posttrial motion for continuance so that a privately-retained attorney could assume representation and file a new trial motion, based on McNamara’s ineffectiveness for failing to challenge certain aspects of the searches in this case. In the alternative, appellant asserts McNamara was prejudicially ineffective for failing to raise certain issues based on the evidence that developed at trial
A. Background
As set forth ante, appellant was convicted on August 2, 2006, the court found the prior convictions true on August 3, 2006, and the court set the sentencing hearing for August 22, 2006. The sentencing hearing was continued to August 29, 2006, but the record is silent as to why the hearing was continued.
On August 25, 2006, appellant filed a motion for bail pending appeal; the motion was filed by McNamara. On August 29, 2006, Judge Oberholzer convened the sentencing hearing and granted McNamara’s motion for a continuance. Thereafter, the court heard appellant’s posttrial Marsden motion, denied the motion, and continued the sentencing hearing to September 12, 2006.
On September 5, 2006, appellant filed a sentencing statement in mitigation, and request for the court to dismiss the prior convictions. The motion was filed by McNamara.
On September 8, 2006, appellant filed a motion to continue the sentencing hearing. The motion was filed on appellant’s behalf by William Slocumb, another attorney, who declared that he had been retained by appellant to file a new trial motion and other matters before the sentencing hearing. Slocumb declared he needed to obtain the reporter’s transcript and other documents to prepare such motion, and requested at least a 30-day continuance of the sentencing hearing for that purpose.
On September 12, 2006, Judge Oberholzer convened the sentencing hearing. Appellant appeared with Slocumb; McNamara was not present. Slocumb advised the court that he had just been retained by appellant to represent him in this case. Slocumb stated he had not received appellant’s file from McNamara, but appellant asked him to review the case and make a motion for new trial. Slocumb asked for a continuance because he did not know what grounds existed “ other than what [appellant] has told me, and I would prefer not to make a motion for a new trial based on that alone.”
The court replied the sentencing hearing had already been continued twice since August, and appellant had to show “ some reasonable grounds for making a motion for new trial.” “ If you’ve just waited until now to change attorneys, then the Court looks on that as nothing more than a delaying tactic. So I’ m not in a position where I feel there is sufficient justification shown to proffer a motion to continue this particular matter.” Slocumb replied the prosecutor did not oppose his request for a continuance, he needed to review McNamara’s files before he could file any posttrial motions, and retention of a new attorney was good cause for a continuance.
The court asked whether McNamara was appointed counsel. Slocumb confirmed McNamara was appointed, but Slocumb had been retained by appellant’s family to represent him now. The court asked the clerk to contact McNamara and determine if he had been relieved, and called a brief recess.
When the court reconvened, McNamara was present. The court stated that it realized McNamara was appointed counsel and had filed several sentencing motions. The court was “ not in a position to relieve you at this time” based on the existence of the pending sentencing motions. Thereafter, the court conducted the sentencing hearing, heard arguments from McNamara and the prosecutor as to whether it should impose the upper terms or dismiss the prior convictions, and then imposed sentence.
At the conclusion of the sentencing hearing, McNamara asked the court to consider his pending motion to grant appellant bail pending appeal. McNamara believed appellant hired Slocumb to look into the legality of the search warrant on appeal. Slocumb interrupted and said he had not been retained to prepare appellant’s appeal. The court denied the request for bail.
Mr. Slocumb represents appellant on appeal.
B. Analysis
Appellant contends the court improperly denied his posttrial motion to continue the sentencing hearing, to permit Slocumb to represent him and prepare a new trial motion based on McNamara’s alleged ineffective assistance. Appellant argues there was no evidence that he sought the continuance, or retained Slocumb, solely to delay the proceedings, and that Slocumb timely filed the motion for continuance a few days before the scheduled sentencing hearing.
“ The right to the effective assistance of counsel ‘ encompasses the right to retain counsel of one’s own choosing. [Citations.]’ [Citation.] Underlying this right is the premise that ‘ chosen representation is the preferred representation. Defendant’s confidence in his lawyer is vital to his defense. His right to decide for himself who best can conduct the case must be respected wherever feasible.’ [Citation.]” (People v. Courts (1985) 37 Cal.3d 784, 789 (Courts).)
“ Both this court and the United States Supreme Court have emphasized that trial courts have the responsibility to protect a financially able individual’s right to appear and defend with counsel of his own choosing. ‘ A necessary corollary [of the right] is that a defendant must be given a reasonable opportunity to employ and consult with counsel; otherwise, the right to be heard by counsel would be of little worth. [Citations.]’ [Citations.] In addition, counsel, ‘ once retained, [must be] given a reasonable time in which to prepare the defense.’ [Citation.] Failure to respect these rights constitutes a denial of due process. [Citations.]” (Courts, supra, 37 Cal.3d at p. 790.) The trial court must make all reasonable efforts to ensure that a defendant financially able to retain an attorney can be represented by his or her chosen attorney. (Ibid.)
“ Any limitations on the right to counsel of one’s choosing are carefully circumscribed. Thus, the right ‘ can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.’ [Citations.] The right to such counsel ‘ must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case.’ [Citation.]” (Courts, supra, 37 Cal.3d at p. 790; People v. Leonard (2000) 78 Cal.App.4th 776, 784 (Leonard).)
While due process secures a defendant’s right to appear with retained counsel of choice, this right is not absolute, and the court may exercise discretion to ensure orderly and expeditious judicial administration if the defendant is unjustifiably dilatory or arbitrarily desires to substitute counsel at the time of trial. (Leonard, supra, 78 Cal.App.4th at p. 784; People v. Jeffers (1987) 188 Cal.App.3d 840, 850 (Jeffers).) However, in assessing a claim based on the denial of the defendant’s right to counsel of choice, the court cannot engage in a harmless error analysis. (Ortiz, supra, 51 Cal.3d at p. 988; Courts, supra, 37 Cal.3d at p. 796.)
Moreover, once counsel is retained, he or she must be given a reasonable time in which to prepare the defense. (Courts, supra, 37 Cal.3d at p. 790.) The trial court has the discretion to grant a defendant’s request for a continuance in order to obtain private counsel, or to allow privately retained counsel to prepare the defense. (People v. Pigage (2003) 112 Cal.App.4th 1359, 1367; Courts, supra, 37 Cal.3d at p. 790; Jeffers, supra, 188 Cal.App.3d at p. 850.) “ Where a continuance is requested on the day of trial, the lateness of the request may be a significant factor justifying denial absent compelling circumstances to the contrary. [Citation.]” (Jeffers, supra, 188 Cal.App.3d at p. 850.) A good faith, reasonable effort to retain private counsel must be “ sharply contrasted with cases which have upheld the denial of a continuance on the ground that participation by a particular private attorney was still quite speculative at the time the motion for continuance was made.” (Courts, supra, 37 Cal.3d at p. 791, fn. 3.) A court does not abuse its discretion by denying a last minute request for a continuance where the party has not even attempted to retain counsel. (People v. Pigage, supra, 112 Cal.App.4th at p. 1367.)
We review an order denying a motion to continue for an abuse of discretion. (People v. Sakarias (2000) 22 Cal.4th 596, 646-647.) Once a continuance has been denied, the burden is on the defendant to establish an abuse of that discretion. (People v. Strozier (1993) 20 Cal.App.4th 55, 60; Jeffers, supra, 188 Cal.App.3d at p. 850.) In determining whether the denial was so arbitrary as to deny due process, we look to the circumstances of each case, paying particular attention to the reasons presented to the court at the time the request was denied. (Courts, supra, 37 Cal.3d at p. 791; Jeffers, supra, 188 Cal.App.3d at p. 850; People v. Frye (1998) 18 Cal.4th 894, 1013.) In reviewing such a denial, we must keep in mind the California Supreme Court’s admonition that “ ‘ 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.] For this reason, trial courts should accommodate such requests— when they are linked to an assertion of the right to retained counsel— ‘ to the fullest extent consistent with effective judicial administration.’ [Citation.]” (Courts, supra, 37 Cal.3d at p. 791.)
In the instant case, appellant made two Marsden motions based on tactical disagreements with McNamara, his failure to call particular witnesses, and claims about the allegedly mistaken address on the search warrant, all of which were insufficient to require discharge of appointed counsel under Marsden. McNamara obtained two continuances of the sentencing hearing in order to file a motion for bail on appeal, a sentencing statement, and a request to dismiss the prior convictions, and the sentencing hearing was set for September 12, 2006, just one month after the convictions in this case. On September 8, 2006, however, Slocumb filed a motion for continuance on appellant’s behalf, and declared appellant had retained him to file posttrial motions and he needed time to review the record.
At the sentencing hearing, the court appeared somewhat confused when Slocumb appeared with appellant and asked for the continuance. The court finally realized that appellant was still represented by appointed counsel and McNamara had not appeared for the sentencing hearing. The court obtained McNamara’s presence and announced it would not grant any more continuances, it would not allow Slocumb to assume representation of appellant, and it was “ not in a position” to relieve McNamara based on the existence of the pending sentencing motions.
The court abused its discretion in denying both appellant’s request for Slocumb to assume his representation, and Slocumb’s request for a continuance to review the file and determine if posttrial motions were necessary. When the court denied the motions, it complained the sentencing hearing had already been continued twice and that appellant’s request to change attorneys appeared “ as nothing more than a delaying tactic.” The record refutes such a finding. Appellant was convicted on August 2, 2006, the court found the prior convictions true on August 3, the sentencing hearing was originally set for August 22, 2006, it was continued to August 29, 2006, and the record is silent as to the reason for the first continuance. On August 29, 2006, McNamara requested a continuance, appellant agreed to waive time, and the prosecutor did not object. The court heard and denied appellant’s second Marsden motion and continued the sentencing hearing to September 12, 2006, when Slocumb appeared and requested the court rule upon his pending motion to assume representation and for a continuance. While there had already been two continuances, the matter had not been unreasonably delayed, the prosecutor never objected to the continuances, and it had been just over one month since the convictions had been returned.
The record refutes any inference that appellant engaged in delaying tactics when he retained Slocumb as his attorney and moved for a continuance. While he had already made two Marsden motions, the court heard the first motion before trial, appellant did not disrupt the trial to demand another attorney, and he made the second Marsden motion after the convictions were returned. Moreover, appellant raised specific complaints about McNamara’s tactical decisions. While such tactical disagreements were insufficient to support a Marsden motion, appellant’s statements at the Marsden hearings reflect his “ genuine concern about the adequacy of his defense rather than any intent to delay” the proceedings. (Ortiz, supra, 51 Cal.3d at p. 987; People v. Munoz (2006) 138 Cal.App.4th 860, 870.)
We further note there was no evidence that appellant’s request for Slocumb and the motion for continuance would have interfered with the orderly administration of justice. The prosecutor never objected to any of the posttrial continuances in this case, and remained silent as Slocumb advised the court that the prosecutor did not oppose the pending request for him to assume representation and obtain another continuance. The nature of appellant’s convictions for drug offenses infers there were no victims who were waiting to appear at the sentencing hearing, such that third parties were not being inconvenienced by another continuance. Moreover, appellant’s motions were not based upon some hopeful speculation that he might be able to retain a private attorney. Instead, Slocumb had already been retained by appellant, he filed the motion for continuance as his attorney, and he was prepared to review the record to determine the nature of any posttrial motions. Indeed, Slocumb has continued to represent appellant as retained counsel on appeal.
On appeal, appellant contends the court should have granted his Marsden motions, and the court should have considered additional Fourth Amendment issues at the Marsden hearings based on his complaints about McNamara’s failure to challenge various aspects of the searches. Appellant further contends that if this court finds he failed to raise specific Fourth Amendment issues in the Marsden hearings or in the course of trial, then McNamara was prejudicially ineffective for failing to challenge the detention and searches. Appellant also argues the court should have permitted Slocumb to assume his representation and grant the motion for continuance, so that Slocumb could have filed a motion for new trial based on McNamara’s alleged ineffectiveness in failing to raise these Fourth Amendment issues.
Respondent notes that Slocumb represents appellant on appeal, but then curiously states that Slocumb has decided “ not to challenge the trial or trial evidence as appellate counsel,” which means that “ he decided no meritorious issue of trial error occurred below. For if he determined trial error existed, he certainly would have raised it on direct appeal here,” and appellant’s failure to reassert certain issues on appeal cures any possible Marsden errors in this case. We note appellant has raised Marsden, ineffective assistance, and Fourth Amendment issues on appeal, such that he has not waived appellate review of the contentions he made at trial.
We conclude the court abused its discretion when it denied both appellant’s request for Slocumb to represent him and the motion for continuance of the sentencing hearing to prepare posttrial motions. We will affirm the convictions herein but reverse the sentence and remand the matter for appellant’s retained counsel to determine what, if any, posttrial motions should be filed. We need not address appellant’s ineffective assistance claims given our decision to remand the matter. In doing so, however, we do not comment on the merits of any of appellant’s Fourth Amendment claims.
DISPOSITION
The convictions of each of the substantive offenses and the true findings on each of the special allegations and enhancements attached thereto are affirmed. The sentence is vacated and the matter remanded to the superior court with instructions to hold a hearing within 30 days after the remittitur in this appeal is filed, and determine if appellant has retained counsel. If appellant has retained counsel, the court shall discharge appointed counsel, such that retained counsel shall assume representation of appellant and have the opportunity to file any appropriate posttrial motions. If retained counsel files any posttrial motions, the matter shall proceed accordingly. If retained counsel fails to file any such motions within 30 days of the hearing, unless the trial court grants an order extending time for good cause shown, the sentence shall be reinstated.
WE CONCUR: DAWSON, J., KANE, J.