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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Carlos Shawn ORTIZ, Defendant and Appellant. IN RE: Carlos Shawn ORTIZ, On Habeas Corpus.

Nos. H002568, H005225.

Decided: May 18, 1989

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Ann K. Jensen, Supervising Deputy Atty. Gen., Edward P. O'Brien, Deputy Atty. Gen., Office of the Atty. Gen., San Francisco, for the People. Gretchen Burford–Dernetz, Deanna Lamb, Sixth District Appellate Program, Santa Clara, for Carlos Shawn Ortiz.

Appellant contends that the trial court erred in denying his motion to discharge his retained counsel.   We agree and reverse and thereby render appellant's accompanying writ moot.   We limit the scope of our analysis and our description of the proceedings below to the erroneous denial of his motion to discharge counsel.

On June 17, 1985, appellant was charged with murder (Pen.Code, § 187) by an information filed in Superior Court.   Attorney Daniel Hernandez, who had represented appellant at his preliminary hearing, appeared specially at the arraignment and continued the matter for identification of counsel.   After two more such continuances, the court appointed the Public Defender to represent appellant and he entered a not guilty plea.   On July 18, 1985 Daniel Hernandez became attorney of record and, at various times, either he or Attorney Arturo Hernandez, or both, represented appellant until this appeal.

Appellant's jury trial commenced August 22, 1985.   The central issue was the identity of the murderer.   After five weeks of trial and two days of deliberation, the court declared a mistrial based on juror misconduct.   According to defense counsel, the jury was divided “more or less six to six” at that time.   The trial court returned the matter to the master trial calendar.   On October 10, the court fined Daniel Hernandez $100 for failing to appear with appellant.   Two months later, defense counsel moved to withdraw as attorney of record and the court denied the motion.

On January 2, 1986, appellant's case appeared on calendar for a “motion to withdraw counsel” with the comment “Defendant request [sic] Marsden hearing”.   The court heard the motion in camera and denied it.   One week later, defense counsel requested a transcript of the trial declaring that “I anticipate the re-trial to be even more lengthy and complex than the first and will include more witnesses and expert testimony.”

Five months later defense counsel made a “motion to be relieved” which the court denied along with another “Marsden ” motion.   A series of continuances followed, with further sanctions to defense counsel for failing to appear.   Finally, in August of 1986, the matter was submitted on the preliminary hearing transcript, the just completed trial transcript, and the testimony of one prosecution witness.   The court found appellant guilty of second degree murder, and sentenced him to state prison for fifteen years to life.

 When appellant first moved, in January of 1986, to discharge his attorneys the court responded by conducting what is commonly referred to as a Marsden hearing.  (People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44.)   The court denied appellant's motion because appellant had not demonstrated to the court's satisfaction that his attorneys were incompetent.1  The trial Court erred in requiring appellant to make this showing for a motion to discharge retained counsel.

A motion to discharge counsel is governed by Code of Civil Procedure section 284 (hereinafter section 284) which provides:

“The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows:

1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes;

2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.”   This statute applies to criminal cases.  (Smith v. Superior Court (1968) 68 Cal.2d 547, 558, 68 Cal.Rptr. 1, 440 P.2d 65.)

A change of attorneys within the meaning of section 284, subdivision (1), occurred in this case in February of 1986 when Arturo Hernandez substituted in for Daniel Hernandez simply by filing a document with the court.   A more complicated situation arises when, as here, an indigent criminal defendant moves to discharge retained counsel.   Even with the consent of both the client and the attorney, the substitution could not take place until the court supplied the substitute, now appointed, counsel.   This brings the matter under subdivision (2) of section 284.  (In re Jackson (1985) 170 Cal.App.3d 773, 780–781, 216 Cal.Rptr. 539.)

Although how appellant's motion first became characterized as a Marsden motion is unclear, the record in this case establishes that it was timely, since it was made several months before the case was ready for retrial.   The issue presented by the motion, this appeal, and conflicting decisional precedent is described succinctly by the following exchange at the January 2nd hearing:

“THE DEFENDANT:  As I—I think the law—you know, I'm entitled to go to trial with who I want to represent me, right?

THE COURT:  That's true.

THE DEFENDANT:  I don't like these people.

THE COURT:  Right now we're here to determine whether these lawyers should be relieved for incompetence and other lawyers appointed to represent you․  This isn't a question of choice.   This is a question of whether they are competent to do their job.”  (emphasis added.)

The court denied appellant's motion to discharge counsel because appellant was unable to demonstrate to the court's satisfaction that the attorneys retained to represent him were incompetent.   In so doing, the court confused the right to counsel of one's choosing with the right to effective assistance of counsel.   The right to counsel of one's choice is “broader than or additional to the bare right to legal representation.”  (People v. Byoune (1966) 65 Cal.2d 345, 348, 54 Cal.Rptr. 749, 420 P.2d 221.)

 The right to counsel guarantees that the court will appoint an attorney for an indigent criminal defendant desiring representation.  (Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799;  Pen.Code, § 987.)   To fulfill its obligation to provide counsel, the court must make sure that the attorney appointed provides effective assistance.   The court is under no obligation to substitute a new attorney unless the currently appointed one is not providing competent representation.  (People v. Walker (1976) 18 Cal.3d 232, 238, 133 Cal.Rptr. 520, 555 P.2d 306.)   A Marsden hearing is one to resolve the issue of whether appointed counsel, the attorney “chosen” for the defendant by the court, is providing effective assistance.   When the defendant has done the choosing, by retaining his own counsel, a Marsden hearing is inappropriate.

In denying a Marsden motion the court expresses confidence that its choice of attorney for the defendant is providing competent representation.   When the defendant has chosen the attorney, “[i]t is the defendant's confidence which is at stake, not that of the court.”  (Magee v. Superior Court (1973) 8 Cal.3d 949, 953, 106 Cal.Rptr. 647, 506 P.2d 1023, emphasis in original.)   The court's determination that the retained attorney is competent is extraneous to the issues raised by a motion to discharge counsel.

 A criminal defendant has a constitutional right to counsel of his choosing.  (U.S. Const., 6th & 14th Amends.;  Cal. Const., art. I, § 15.)   Our state Supreme Court has spoken forcefully about the importance of this right, declaring:  “[C]hosen 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.”  (Maxwell v. Superior Court (1982) 30 Cal.3d 606, 615, 180 Cal.Rptr. 177, 639 P.2d 248, fn. omitted.)  “Any limitations on the right to counsel of one's choosing are carefully circumscribed.”   (People v. Courts (1985) 37 Cal.3d 784, 790, 210 Cal.Rptr. 193, 693 P.2d 778.)   An individual's desire to defend himself in whatever manner he deems best “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.”  (People v. Crovedi (1966) 65 Cal.2d 199, 208, 53 Cal.Rptr. 284, 417 P.2d 868.)

Subject only to the kind of limits described in Crovedi, a criminal defendant's right to be represented by counsel of his choosing must be respected at every stage of the proceedings.   It follows, then, that if a defendant retains counsel, and later, for some reason, becomes dissatisfied with his original choice, his timely motion to discharge counsel should be granted.

 The trial court erred in requiring appellant to show that his retained counsel was incompetent.   In so doing, the court overstepped the bounds of permissible court interference in the attorney-client relationship.   Any unwarranted interference with one's right to counsel of his choice requires reversal.  (People v. Courts, supra, 37 Cal.3d at p. 796, 210 Cal.Rptr. 193, 693 P.2d 778, citing People v. Gzikowski (1982) 32 Cal.3d 580, 589, 186 Cal.Rptr. 339, 651 P.2d 1145;  see also People v. Holland (1978) 23 Cal.3d 77, 87, 151 Cal.Rptr. 625, 588 P.2d 765.)   The court committed reversible error in denying appellant's motion to discharge counsel.

In People v. Barnes (1983) 146 Cal.App.3d 663, 194 Cal.Rptr. 317, the court reasoned that a motion to relieve private counsel and appoint the Public Defender is “tantamount to a substitution of appointed counsel ․” (Id. at p. 666, 194 Cal.Rptr. 317) and placed on the defendant the burden of showing that his right to counsel would be substantially impaired without the substitution.  People v. Stevens (1984) 156 Cal.App.3d 1119, 203 Cal.Rptr. 505, criticizes this view as being “without analysis or authority” (Id. at p. 1127, fn. 6, 203 Cal.Rptr. 505), and hold that “[a]s a matter of logic and justice, a defendant's constitutionally protected interest in obtaining counsel of his choice encompasses the right to discharge retained counsel regardless of financial ability to hire another attorney.   Absent a proper finding of unwarranted disruption of the orderly processes of justice, a court may not force a defendant who timely requests substitution to go to trial represented by retained counsel he no longer trusts.”  (Id. at p. 1128, 203 Cal.Rptr. 505, fn. omitted.)

Our colleagues in this district in the case of South v. Superior Court (1986) 188 Cal.App.3d 1055, 233 Cal.Rptr. 765 adopted the holding in Barnes, and rejected the reasoning in Stevens.   This court in South held that a motion to discharge privately retained counsel should not be decided “in a vacuum, ․ a court must concern itself with who will be representing the defendant if present counsel is discharged.”  (Id. at p. 1060, 233 Cal.Rptr. 765.)   We respectfully disagree.   It is obvious that it was this very concern which motivated the trial court here to declare, “The County is not going to provide other counsel for you because you're not happy with these lawyers.”  (emphasis added.)   Consistent with South, the trial court would take the frugal approach of refusing to appoint new counsel, at County expense, for an indigent defendant who has somehow managed to retain an at least minimally competent attorney.

The trial court considered appellant's constitutional right to counsel of his choosing to be subject to the court's desire to minimize the expense of providing counsel for unrepresented indigents.   The “fundamental flaw” in this view is the “unstated assumption that the court's are the guardians of the county coffers.   In our system of government this is not, and should not be, their role.”  (Ingram v. Justice Court (1968) 69 Cal.2d 832, 842, 73 Cal.Rptr. 410, 447 P.2d 650.)   The appropriate division of concern is described, in a related context, in Phillips v. Seely (1974) 43 Cal.App.3d 104, 117 Cal.Rptr. 863.  “The availability of ․ money to reasonably compensate assigned counsel ․ is the responsibility of the board of supervisors;  whether indigent persons entitled to counsel at public expense are being adequately represented by ․ counsel is for the court to determine.”  (Id. at p. 115, 117 Cal.Rptr. 863.)

Our decision contemplates many reasons why a trial court would legitimately be reluctant to grant an indigent's motion to discharge retained counsel.   For example, the court may wish not to burden the Public Defender with a fragmented case a private attorney has, for whatever reason, essentially abandoned.   But nothing that we have said here relieves private counsel of the ethical obligation to continue to vigorously represent a defendant who is satisfied with counsel's services.  (Bus. & Prof.Code, § 6068.)   The trial court has the power to see to it that counsel does not circumvent this obligation by collusive measures.  (In re Jackson, supra, 170 Cal.App.3d 773, 216 Cal.Rptr. 539.)   Our decision in this case does not mandate the granting of a motion made under inappropriate circumstances.  (See, e.g., People v. Lau (1986) 177 Cal.App.3d 473, 223 Cal.Rptr. 48.)   But where, as here, a criminal defendant brings a timely motion to discharge his retained attorney it is error to deny the motion on the grounds he has not demonstrated his attorney's incompetence.   The trial court cannot avoid its obligation to appoint counsel for an indigent by denying a timely motion to discharge retained counsel because of financial considerations.

The judgment of conviction in case No. H002568 is reversed and the matter is remanded.   The petition for habeas corpus in case No. H005225 is dismissed as moot.


1.   Because this request was characterized as a Marsden motion, the prosecutor was excluded from the hearing and the transcript sealed.   On appeal, this transcript was unavailable to respondent.   However, we refer here only to those portions of the transcript quoted in Appellant's Opening Brief.

ELIA, Associate Justice.

CAPACCIOLI, Acting P.J., and COTTLE, J., concur.

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