Opinion
C081058
02-16-2017
THE PEOPLE, Plaintiff and Respondent, v. COURTNEY SHAMONT WILLIAMS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11F03594)
Convicted by a jury of possessing a weapon as an inmate of a state prison, defendant Courtney Shamont Williams contends the trial court erred prejudicially by treating his pretrial motion to discharge retained counsel as a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118), and also by denying his subsequent motion to represent himself at trial (Faretta v. California (1975) 422 U.S. 806 ). Agreeing with defendant's first contention, we reverse.
FACTS AND PROCEEDINGS
Because the facts of defendant's offense are not relevant to the issues raised on appeal, we do not discuss them.
On Thursday, October 29, 2015, the trial court heard motions in limine and announced that jury selection would begin on Monday, November 2, 2015. The parties stipulated to a substantial start of trial.
Defendant stated that he and his counsel were "clashing on certain issues" and that counsel had not sufficiently investigated the case or interviewed witnesses. The trial court and counsel advised defendant that these matters should be discussed privately with counsel.
On November 2, 2015, defendant filed a written "Mardens [sic] motion," asserting (1) counsel was ineffective in that he "with[held] services to encourage a plea," and (2) counsel had not done adequate investigation and was heavily influenced by the district attorney's office.
At the start of in limine proceedings, counsel told the trial court he was "not 100 percent sure" what defendant's motion (which he had not seen) was meant to do, but he believed defendant was "seeking to either fire me as his attorney or have me relieved as his attorney here." Defendant stated that it was a Marsden motion.
The trial court stated: "For the record, you said it's a Marsden motion but, Mr. Williams [defense counsel], you are retained in this matter; is that correct?" Counsel said he was retained.
The trial court asked defendant whether he wanted to "fire your counsel based on the reasons that you have in your motion." Defendant said: "Yeah."
The trial court asked counsel if he had had the opportunity to review the motion. Counsel said he would review it quickly.
The trial court advised defendant:
"Just for the record, [defendant], we are meeting in a closed session. The only people that are present are yourself, your counsel, and the essential court staff. The district attorney is not present so this is a closed hearing.
"What you say to me will be held in confidence so you can speak freely about any confidential communication so it will remain confidential. As well as the Marsden motion that you filed will be filed under seal so it will not be a public record.
"A Marsden motion is when you have a court appointed attorney and you want that court appointed attorney to be relieved and another attorney be appointed to represent you.
"It doesn't apply when you have a retained counsel. But since you are making claims that your counsel is ineffective by not doing things that you laid out in your motions, I'm going to treat it like a Marsden motion . . . that if your retained counsel is ineffective in representing you then it may not [be] appropriate for him to remain on the case. I want to let you know there's a distinction, but I'll treat it the same as a Marsden motion." (Italics added.)
Defendant reiterated the complaints stated in his written motion. The trial court gave counsel the opportunity to respond and allowed defendant to rebut counsel's response.
The trial court ruled:
"I do find . . . that your counsel has properly represented you and will continue to do so and will be able to continually properly represent you.
"I understand the differences of opinions that the two of you are having on certain issues, but it simply does not rise to the level of ineffectiveness of counsel under the law.
"So the motion to relieve him as your counsel is denied. He's going to remain as your counsel."
Defendant said: "He's my paid lawyer? There's no way I can fire him?" The trial court replied: "You are saying he's ineffective and because he's ineffective you do not want him to represent you so my finding is that he's not ineffective."
Counsel advised defendant off the record about his Faretta rights.
Defendant made an oral Faretta motion, but asked the trial court, if it granted the motion, to let counsel to stay on as cocounsel. The court observed that trial had already "technically" started and defendant could represent himself "if you are ready to go on time," but counsel could not act as cocounsel. The court also stated that if defendant hired other counsel, "they're not going to be ready to go in time."
After defendant reviewed the written Faretta advisement form, he confirmed that he wished to represent himself. The court questioned defendant about whether he understood the risks of self-representation; defendant said he did. Defendant then said he would need a continuance of two or three weeks to obtain discovery and to do legal research.
The prosecutor opposed any continuance, stating that the case involved only one count, two correctional officer eyewitnesses, and no known inmate witnesses; "[i]t doesn't have a lot of nuances to it." Furthermore, the case dated back to 2011 and defendant had had ample opportunity to read any reports. In the prosecutor's opinion, defendant was simply trying to stall.
The trial court denied the Faretta motion, finding that it was untimely and that the Windham factors (People v. Windham (1977) 19 Cal.3d 121, 127-129), which apply to untimely Faretta motions, weighed against granting the motion. Counsel's representation of defendant had been very good; granting the motion would cause a significant delay in trial; and part of defendant's alleged lack of information was due to his refusals to meet with counsel. In short, defendant had not shown reasonable cause for a late Faretta request.
DISCUSSION
Defendant contends the trial court erred prejudicially by analyzing his motion to discharge retained counsel under Marsden, rather than under People v. Ortiz (1990) 51 Cal.3d 975 (Ortiz), which sets out the proper test for motions to discharge retained counsel. The Attorney General concedes error, but calls it harmless because the court's reasoning in denying defendant's Faretta motion effectively addressed the Ortiz criteria as to defendant's first motion.
Even before Ortiz was decided, it had long been settled law that "[w]hile we do require an indigent criminal defendant who is seeking to substitute one appointed attorney for another to demonstrate either that the first appointed attorney is providing inadequate representation [citations], or that he and the attorney are embroiled in irreconcilable conflict [citation], we have never required a nonindigent criminal defendant to make such a showing in order to discharge his retained counsel." (Ortiz, supra, 51 Cal.3d at p. 984.) Ortiz extended this rule to cases involving indigent criminal defendants with retained counsel. (Id. at pp. 984-987.)
As the Ortiz court explained, it is error to require an indigent defendant to demonstrate the incompetence of retained counsel before allowing the defendant to discharge such counsel. "In light of the importance of the right to counsel of choice and the sensitive nature of the relationship between a criminal defendant and his lawyer, we must not allow a defendant's indigence to prevent him from discharging in a timely manner the retained counsel he no longer wishes to represent him." (Ortiz, supra, 51 Cal.3d at p. 987.) Furthermore, where the trial court has made this error, prejudice is presumed. (Ibid.)
The right to discharge retained counsel is not absolute. The trial court may exercise discretion to deny a motion to discharge retained counsel if, among other things, the motion is untimely and to grant it would disrupt the orderly process of justice in a manner that is unreasonable under the circumstances of the case. (Ortiz, supra, 51 Cal.3d at p. 982; People v. Lara (2001) 86 Cal.App.4th 139, 153 (Lara).) But where the trial court does not address those issues, but instead denies the motion on inappropriate grounds, reversal is required. (Ortiz, at p. 988; Lara, at p. 155.)
Here, as the Attorney General concedes, the trial court erroneously applied the Marsden standard to defendant's motion, even though the court knew counsel was retained. More specifically, the court treated defendant's legally irrelevant attack on counsel's performance as though it placed the burden on defendant to prove counsel's incompetence -- the very thing Ortiz made clear a trial court must not do when a defendant seeks to discharge retained counsel. (See also Lara, supra, 86 Cal.App.4th at p. 155.)
In Lara, the Attorney General conceded that the trial court erroneously applied Marsden to an Ortiz motion, but asserted that since the defendant's motion was untimely, the court's ruling was "correct in law even though based on an erroneous rationale." (Lara, supra, 86 Cal.App.4th at p. 165.) The reviewing court rejected this argument for the following reasons: " '[W]here fundamental rights are affected by the exercise of discretion by the trial court, . . . such discretion can only be truly exercised if there is no misconception by the trial court as to the legal basis for its action.' [Citations.] To exercise the power of judicial discretion, all material facts and evidence must be both known and considered, together with legal principles essential to an informed, intelligent and just decision. [Citation.] A court which is unaware of the scope of its discretionary powers can no more exercise informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record. [Citation.] [¶] . . . Given the court's misunderstanding of the nature of appellant's motion, we cannot say the court properly exercised its discretion in its treatment of appellant's attempt to discharge his retained counsel." (Id. at pp. 165-166.)
Here, the Attorney General makes the argument the court in Lara rejected. However, she seeks to improve on that argument by citing the trial court's ruling on defendant's subsequent Faretta motion. She asserts that because the court found that motion untimely and disruptive, we must conclude the court "effectively addressed the issues it should have considered in the course of an Ortiz motion regarding retained counsel." (Lara, supra, 86 Cal.App.4th at p. 156.) We are not persuaded. Neither the facts nor the legal issues were the same on the two motions.
On defendant's motion to discharge retained counsel, the trial court considered only the merits of defendant's complaints about counsel's performance. The court did not even impliedly consider the timeliness or the disruptive potential of the motion. Furthermore, the court had not yet heard the facts which caused it to find the Faretta motion untimely and disruptive
Under the circumstances, we are compelled to reverse defendant's conviction. We therefore need not consider whether his Faretta motion was wrongly denied.
DISPOSITION
The judgment is reversed.
HULL, Acting P. J. We concur: MAURO, J. HOCH, J.