PEOPLE v. PARK (1992)

ORDER

Defendant, Chong Kuk Park, appeals his conviction for voluntary manslaughter arising from the killing of his four-month old son, contending that he was denied his right to counsel of choice and effective representation when his day-of-sentencing motion to substitute attorneys was rejected.   We reject each contention and affirm the judgment.

FACTUAL AND PROCEDURAL MATTERS

The probation officer's report, which was available to the court at the time the motion to substitute counsel was resolved, indicates the following concerning the baby's death.   On September 5, 1990, defendant drove his wife and infant son to a swap meet.   Defendant left his wife at the swap meet and drove home with the child who was healthy.   As he was returning three hours later to pick up his wife, according to defendant's initial story, the child developed breathing problems.   Rather than call the paramedics himself, defendant “contacted his spouse, advised her of the problem and she immediately contacted 911.”   The “paramedics did administer CPR but were unable to resuscitate the child.”   The infant was pronounced dead at Queen Of The Valley Hospital.   Defendant became a suspect when he gave statements inconsistent with those of his wife, mother-in-law, and sister-in-law.   A postmortem examination indicated the baby was the victim of a homicide.   The infant's head, neck, and body were the subject of an extensive number of bruises.   There were “numerous bruises and compressions on the [baby's] neck” and his “ribs had been previously broken and were in a state of mending at the time of his death.”   The extensive bruising indicated defendant's son “had been battered․”  The medical examiner who performed the autopsy had “no doubt” in his mind concerning the fact that the child had been beaten.

On September 11, 1991, a felony complaint was filed in the Municipal Court for the Citrus Judicial District.   On January 3, 1991, 116 days after the complaint was filed and while the case was still in the municipal court, the parties agreed that the complaint could be amended to charge as count two the crime of voluntary manslaughter.   At all times during the proceedings of January 3, 1991, defendant was assisted by a Korean translator whose interpreter's oath was on file with the court clerk.  (See Evid.Code, § 751, subd. (d).)  The deputy district attorney stated:  “Your Honor, in felony complaint KA005439 the People would move to orally to amend to add a count, a lessor [sic] included crime occurring on the same date September 5th, 1990, the crime of Voluntary Manslaughter, Penal Code section 192(a), a felony, a serious felony within the meaning of Penal Code Section 1192.7(c)(1).   Upon the court's acceptance of that oral amendment the People would propose to settle the case for a plea of no contest as to count two the voluntary manslaughter with the stipulated and understood sentence of the upper term of 11 years in state prison.   That this matter would then be certified to the superior court for that judge to accept the waivers we take at this time, and the court imposing a sentence of the upper term 11 years as to count two, the People would here now agree to then make a motion to dismiss count one.   I believe that is the sum total of our agreement.”   Defense counsel indicated that the prosecutor had correctly set forth the agreement and pursuant to the stipulation the complaint was amended to charge as to count two, the offense of voluntary manslaughter.

Thereupon, the prosecutor directly addressed defendant.   The following transpired:  “[The prosecutor]:  Mr. Park, in the information KA005439 you are charged in count two of that information the crime of Voluntary Manslaughter, Penal Code Section 192(a), a felony, that is a serious felony within the meaning of Penal Code Section 1192.7(c)(1).   This crime is charged to have occurred on September 5th, 1990 with the victim's name Paul Park.   Mr. Park, have you had enough time to discuss with your attorney the nature of these charges against you including the elements of those offenses and any possible defenses you have to those charges[?]  [¶] THE DEFENDANT:  Yes.  [¶] [The Prosecutor]:  Mr. Park, the maximum period of confinement you would face as to that charge is a total of 11 years in state prison.   That charge carries with it a sentence structure of 36—or 11 years in state prison, also the potential possibility of probation;  however, in order to secure a dismissal of the greater charge, count one, the murder, your attorneys and the People have agreed to recommend to the court and the court will agree to impose a sentence of the upper term of 11 years in state prison.  [¶] Mr. Park, when you are sent to state prison you will be released before the completion of that term.   When you are released, you'd be placed on parole.   Parole will last for three years.  [¶] If you violate any term or condition of that parole you can be returned to state prison for up to one year for each separate violations [sic ] of parole up to a maximum recommitment of three years.  [¶] Mr. Park, do you understand what the sentence in this case will be including how parole will work?  [¶] THE DEFENDANT:  Yes.”

A further discussion was held concerning other consequences of the plea, apart from the 11–year sentence.   After defendant indicated he understood the additional consequences, defense counsel stated:  “Your Honor, with respect to the sentence of 11 years the record should indicate that obviously because this case has—is being reduced from a murder down to a manslaughter there are circumstances which convey in favor of Mr. Park.   I have indicated to [the prosecutor and he] has agreed that at the time of sentencing in the Pomona Court we will be able to make a full statement on behalf of Mr. Park explaining his involvement in this unfortunate situation, a terrible situation involving the death of an infant.   And also explaining for anyone who might want to look at it down the road that this was, as I say, an unfortunate situation and Mr. Park is not a murderer.   And we would want that to come to the attention of the correctional authorities in the future.   In no way will this affect or have any impact on the 11 year sentence which we have stipulated to.”   The deputy district attorney then stated:  “Mr. Park, do you understand that whatever your counsel says at that sentence hearing in superior court will no way affect the sentence of 11 years in state prison?   You will be sent to state prison for 11 years.  [¶] Do you understand, sir?”   Defendant responded, “Yes.”   The prosecutor then asked whether he had any other questions concerning the consequences of his plea and defendant responded in the negative.   After an extensive advisement of constitutional rights as well as waivers, the prosecutor asked the following questions:  “Mr. Park, at this time do you have any questions concerning the nature of the charge against you, the rights that you have or the consequences of your plea?   Any questions about what we are doing here today?”   Defendant responded, “No questions.”

On January 17, 1991, two weeks after defendant had entered his plea, the case was set for a probation and sentence hearing in superior court.   When the matter was called, the trial court indicated the first issue would be to determine who would represent defendant.   Defendant stated that he wanted an attorney named Tyson Park to represent him.   The prosecutor objected and asked the court to inquire as to what were the reasons for the substitution of attorneys on the day the case had been set for a probation and sentence hearing.   Defendant had been represented in municipal court by Robert Sheahen ¹ and Christopher Lee, both of whom were present in superior court and ready for the sentencing hearing.   Mr. Sheahen asked to address the court and stated the following:  “Mr. Park is entitled to be represented by whomever he wishes to be represented by.   That is his right under the 6th and 14th amendment.  [¶] I would simply note, if someone looks at this in the future, we spent a lot of hours on this case working out this disposition.   We had numerous discussions and conversations with Mr. Burns, the district attorney ordinarily assigned to the case.   We worked with the coroner on this case.   [¶] This is a child battering and murder case.   The facts are terribly unfortunate.  [¶] If the People's case were to be believed, the child in question was systematically battered over a period of time and ultimately strangled and the coroner's office says the cause of death was strangulation.   [¶] Mr. Park, the defendant, prior to the death there was evidence that two sisters of the wife from Colorado were going to testify to statements indicating an intent to kill the child, and intent to hurt and possibly kill the child.  [¶] After the killing Mr. Park contended that the child was alive at seven o'clock in the evening.  [¶] The coroner's evidence—if the coroner's evidence is going to be believed, we put the time of death around three o'clock in the afternoon, indicating Mr. Park was carrying around a dead child some four hours while he was trying to think up a story to protect himself.  [¶] Mr. Park then told the authorities a number of stories all of which are questionable.  [¶] I'm not stating the People's case for purposes of stating the People's case.  [¶] I'm stating it so that the importance of this plea with respect to Mr. Park's future can be understood.  [¶] I have been doing this and doing homicide cases for a long, long time.   Probably done 30 of them.   I know how these things go․”

The court inquired, “What you are trying to tell me, what, you believe the plea was worked out in good faith and that it was to his advantage to enter this plea rather then [sic ] to expose himself to a greater charge which would carry with it a substantially heavier sentence up to possibly life imprisonment;  is that right?”   Mr. Sheahen responded:  “Absolutely, Your Honor.  [¶] On these facts it would be 25 to life on a first degree or 15 to life on a second degree.  [¶] Given his state of remorse he wouldn't likely make the first parole date.   Probably be kept there for awhile.  [¶] I thought to lock this in at eleven years was manifestly in his interest and there was no question and I couldn't conceive of any question as to a voluntary on those facts in this case.   I thought a remarkable result for this defendant, and I wanted the record to indicate that.”   Mr. Sheahen's co-counsel, Mr. Lee joined in the foregoing comments.   The prosecutor objected to any further delay by motion to withdraw the plea.

The court then inquired of Mr. Park, the proposed new attorney, as to why there should be a substitution on the day of the probation and sentence hearing.   Mr. Park responded:  “Well, Your Honor, the in concert with the D.A. and the former attorney's statement is very compelling.  [¶] Nevertheless, I were [sic ] given a substitution.   He has every right he can choose if he knew profusely what he had done.  [¶] I have never been there or never heard of it.   Only heard from my client, and to say the long story short, January '91, a Caucasian male called me in my office and he told me the story.  [¶] I said I heard several stories.   I said, fine, but why don't you let him call me and he told me that he was working as a trustee there.   He has to have a new attorney.   I was disregarded and that same afternoon the church people kept calling me, I have to see Mr. Park.  [¶] That because of—I was also a member of the church and I went there and I heard this story and his full story never told, and I don't want to—I don't care what the public defender did.   It's not my business.  [¶] The way I heard several interviews, I think, I didn't promise any promise land.   I didn't promise him your potential sentence be reduced.   I didn't.   You can ask him.  [¶] All I did, I do my best.   I believe what he said.  [¶] Actually, he didn't know what the voluntary manslaughter is because there is a misinterpretation.  [¶] At the same time the reason he called me January 9th while his inmate read of the L.A. Times article is on the 11 year sentence.”

The trial court then interrupted to determine what was the basis of defendant's apparent request to withdraw his plea.   The court asked, “Is your contention he didn't understand the Korean interpreter when he took this plea?”   Mr. Park responded:  “Not Korean interpreter, Your Honor.  [¶] According to his story he wasn't fully informed.   Never told his sentence was 11 years.   All he knew was five years.   He might get two or three years within.   You can ask him directly.”   The following then transpired:  “THE COURT:  Have you read the certified plea?  [¶] MR. PARK:  I did.  [¶] THE COURT:  “Doesn't it say 11 years in there?  [¶] MR. PARK:  Yes, it is.  [¶] THE COURT:  At the time he had an interpreter?  [¶] MR. PARK:  I don't know.   I think you should ask the defendant.  [[¶] I don't want to get involved in this argument, but I would like to protect his constitutional rights.”

After a colloquy between the court and the prosecutor concerning whether to allow a substitution, Mr. Park continued:  “Your Honor, if I may.   [¶] Not the issue of whether he can have a new attorney.  [¶] The issue is whether he plead guilty with all known facts.  [¶] According to his story, none of his attorneys spent more than five minutes in the same date in the courtroom.   Numerously requested to see him in jail and they never visited him after he paid in the end of November.  [¶] Kind of a sad story.   Not my intention to get money or I just compel.   The cultural shock and three months and I can't—I am going to represent him.   Not my interest.  [¶] The way I was heard this story․”  The court interrupted and asked:  “Repeat, not your intention to represent him?”   Mr. Park responded:  “Main issue is not my representation.  [¶] Main issue is whether he plead guilty with all known facts to him.   That is the issue, Your Honor.”   The trial court then denied the motion that had been made at the beginning of the proceedings to substitute counsel.

A probation and sentence hearing followed.   Mr. Sheahen proceeded to argue those factors which favored defendant.   Mr. Sheahen argument pointed to defendant's youth as well as his recent arrival in the United States.   Further, Mr. Sheahen noted that defendant had come from a different culture and he was unable to accommodate the pressures of having a new child with all of the other stresses he was facing.   Defendant had a past psychiatric history which Mr. Sheahen contended was a mitigating consideration.   Mr. Sheahen concluded, “I would submit for anybody that [sic ] looks at this down the road, Mr. Park is the young man who is remorseful and given the opportunity he will be building his own church and complete his theology degree and he would like to get this horrible event behind him, and anything the Department of Corrections can do by way of therapy or anything else to help him overcome that, we would appreciate it.”   Pursuant to the plea agreement, the court then imposed the upper term of 11–years pursuant to the plea agreement with appropriate credits for time served.

DISCUSSION

RIGHT TO COUNSEL OF CHOICE

 Defendant contends that he was entitled to have Mr. Park replace Mr. Sheahen and Mr. Lee as retained counsel.   Defendant cites a series of cases which quite logically establish that a defendant is the person best qualified to decide who will be his or her attorney.  (See Maxwell v. Superior Court (1982) 30 Cal.3d 606, 615, 180 Cal.Rptr. 177, 639 P.2d 248.)   However, the California Supreme Court has repeatedly emphasized that the right to retain counsel of choice is not absolute.²  (People v. Ortiz (1990) 51 Cal.3d 975, 983–984, 275 Cal.Rptr. 191, 800 P.2d 547;  People v. Courts (1985) 37 Cal.3d 784, 790, 210 Cal.Rptr. 193, 693 P.2d 778;  People v. Gzikowski (1982) 32 Cal.3d 580, 586–587, 186 Cal.Rptr. 339, 651 P.2d 1145;  Maxwell v. Superior Court, supra, 30 Cal.3d at pp. 612–614, 180 Cal.Rptr. 177, 639 P.2d 248;  People v. Holland (1978) 23 Cal.3d 77, 86, 151 Cal.Rptr. 625, 588 P.2d 765;  People v. Crovedi (1966) 65 Cal.2d 199, 207, 53 Cal.Rptr. 284, 417 P.2d 868.)   The general rule of law in this area and standard of appellate review were described by our Supreme Court in People v. Ortiz, supra, 51 Cal.3d at pp. 983–984, 275 Cal.Rptr. 191, 800 P.2d 547 as follows:  “Thus, we conclude that the right to counsel of choice reflects not only a defendant's choice of a particular attorney, but also his decision to discharge an attorney whom he hired but no longer wishes to retain.  [¶] A nonindigent defendant's right to discharge his retained counsel, however, is not absolute.   The trial court, in its discretion, may deny such a motion if discharge will result in ‘significant prejudice’ to the defendant [citation], or if it is not timely, i.e., if it will result in ‘disruption of the orderly processes of justice’ [citations].   As the court stated in Sampley v. Attorney General of North Carolina (4th Cir.1986) 786 F.2d 610, 613, the ‘fair opportunity’ to secure counsel of choice provided by the Sixth Amendment ‘is necessarily [limited by] the countervailing state interest against which the sixth amendment right provides explicit protection:  the interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of “assembling the witnesses, lawyers, and jurors at the same place at the same time.” ’   The trial court, however, must exercise its discretion reasonably:  ‘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.’ ”  (Id., 51 Cal.3d at pp. 983–984, 275 Cal.Rptr. 191, 800 P.2d 547.)

 The trial court reasonably exercised its discretion in denying the initial substitution request.   At the commencement of the proceedings of January 19, 1991, it appeared that Mr. Park desired to represent defendant.   However, as matters proceeded, eventually Mr. Park said he did not intend to represent defendant.   According to Mr. Park, he had received telephone calls from fellow church members concerning defendant's legal predicament.   In response to those requests, he went to the county jail to speak with defendant.   Mr. Park related, “I was also a member of the church and I went there and I heard this story and his full story never told․”  It is also clear that he had read the transcript of the certified plea which was entered on January 3, 1991, in municipal court.   As the hearing progressed, Mr. Park admitted that Mr. Sheahen's explanation as to the reasons why defendant entered into the plea agreement was “very compelling.”   When Mr. Park raised the issue of whether defendant had been misadvised as to the consequences of his plea, the superior court judge pointed to the transcript of the certified plea.   The court asked whether defendant had an interpreter and Mr. Park responded:  “I don't know.   I think you should ask the defendant [¶] I don't want to get involved in this argument, but I would like to protect his constitutional rights.”   After the prosecutor and the court engaged in a brief colloquy, Mr. Park interrupted and stated:  “Not the issue of whether he can have a new attorney.  [¶] The issue is whether he plead guilty with all known facts.  [¶] According to his story, none of his attorneys spent more than five minutes in the same date in the courtroom.   Numerously requested to see him in jail and they never visited him after he paid in the end of November.  [¶] Kind of a sad story.   Not my intention to get money or I just compel.   The cultural shock and three months and I can't—I am going to represent him.   Not my interest.   [¶] The way I heard this story․”  The court interrupted, “Repeat, not your intention to represent him?”   Mr. Park responded:  “Main issue is not my representation.  [¶] Main issue is whether he plead guilty with all known facts.   That is the issue, Your Honor.”   Under these circumstances, the trial court reasonably could have concluded that Mr. Park did not wish to formally represent defendant.   The trial judge could reasonably conclude Mr. Park's purpose in being present at the request of his fellow church members was to insure that defendant's constitutional rights had been protected.   If Mr. Park did not desire to represent defendant, we are aware of no authority which would require, as a matter of law, an attorney to provide legal representation.

The present case is in sharp contrast to other cases which have held that a defendant has been denied the constitutional right to counsel of choice.   For example, in People v. Crovedi, supra, 65 Cal.2d at pp. 201–202, 208–209, 53 Cal.Rptr. 284, 417 P.2d 868 the defendant expressly stated he wanted to be represented by a particular lawyer.   That attorney never expressed a desire to withdraw from representation of the defendant.   In People v. Holland, supra, 23 Cal.3d at pp. 81, 86–89, 151 Cal.Rptr. 625, 588 P.2d 765, the defendant stated that he wanted to hire private counsel.   In Holland, defense counsel did not express a desire not to represent the defendant.   In People v. Courts, supra, 37 Cal.3d at pp. 787–789, 791–796, 210 Cal.Rptr. 193, 693 P.2d 778, defendant had hired a particular attorney to represent him.   At no time did that attorney indicate that he no longer wanted to represent defendant.   Clearly, the present matter is materially different from cases where reversals have occurred when defense counsel was available within a reasonable period of time to represent the defendant.   The present case is far different:  defense counsel withdrew his request to provide legal representation and was merely present to insure the defendant's constitutional rights had not been violated.

EFFECTIVE REPRESENTATION BY COUNSEL

 Defendant contends in the alternative that Mr. Sheahan and Mr. Lee failed to provide effective representation.   Defendant reasons that had a substitution of attorneys occurred, Mr. Park, despite the fact that he no longer desired to provide representation, could have moved to withdraw the guilty plea to the charge of voluntary manslaughter.   The argument that he is therefore entitled to a reversal is without merit.

To begin with, Mr. Park no longer desired to be substituted in as counsel.   Additionally, in order to prevail on an ineffective representation by counsel claim, the following must be present:  “The defendant must demonstrate that counsel's performance was deficient and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.  [Citation.]”  (In re Sixto (1989) 48 Cal.3d 1247, 1257, 259 Cal.Rptr. 491, 774 P.2d 164.)   In the present case, had Mr. Park filed a motion to withdraw defendant's plea, there is insufficient evidence of a reasonable probability that there would have been a different result.   The transcript of the proceedings in municipal court clearly indicated that defendant was repeatedly advised he would receive an 11–year sentence.   When Mr. Park suggested that defendant had been misled, the sentencing judge pointed to the certified plea transcript with the repeated references to the 11–year term.   Confronted by the court on this issue, Mr. Park stated, “I don't want to get involved in this argument.”   Defendant has filed no habeas corpus petition which can provide a basis for concluding that he could have secured an order withdrawing his guilty plea.  (See People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 590 P.2d 859.)   Accordingly, there is no merit to defendant's contention that he has been denied effective representation by counsel or Mr. Park would have been successful in securing the withdrawal of defendant's plea.

DISPOSITION

The judgment is affirmed.

I concur in Associate Justice Ashby's extraordinarily well stated opinion.   I agree that although Mr. Park desired to represent defendant at the beginning of the hearing, by the conclusion of the proceedings, he had withdrawn the substitution request.   The fairest reading of the record, as Associate Justice Ashby notes with succinct yet eloquent precision, is that at the end of the hearing, Mr. Park merely desired to assure defendant's constitutional rights were protected.   However, this concurring opinion will address the question of what if the record were to be read, as I do not believe it should, to indicate that Mr. Park, at the conclusion of the hearing when the motion was denied, still desired to represent defendant.   In other words, this concurring opinion will assume for the sake of argument, that defendant's extraordinarily able, professional, and highly skilled appellate attorney's reading of the record is correct—namely Mr. Park still desired to provide legal representation despite his explicit statement to the contrary.

The standard of appellate review of a trial court's denial of a request to substitute retained counsel is as follows:  “The trial court, in its discretion, may deny such a motion if discharge will result ‘significant prejudice’ to the defendant [citation], or if it is not timely, i.e., if it would result in ‘disruption of the orderly processes of justice [citations].’   As the court stated in Sampley v. Attorney General of North Carolina (4th Cir.1986) 786 F.2d 610, 613, the ‘fair opportunity’ to secure counsel of choice provided by the Sixth Amendment ‘is necessarily [limited by] the countervailing state interest against which the sixth amendment right provides explicit protection:  the interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of “assembling the witnesses, lawyers, and jurors at the same place at the same time.” ’   The trial court, however, must exercise its discretion reasonably:  ‘a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel and an empty formality.’ ”  (People v. Ortiz (1990) 51 Cal.3d 975, 983–984, 275 Cal.Rptr. 191, 800 P.2d 547.)   In the present case, the trial court did not abuse its discretion and never engaged in the prohibited “ ‘myopic insistence upon expeditiousness in the face of a justifiable request for delay․’ ”  (Id. at p. 984, 275 Cal.Rptr. 191, 800 P.2d 547.)   The following reasons, when taken together, in addition to the analysis appearing in the lead opinion, demonstrate there has been no abuse of discretion.

First, the trial judge could reasonably conclude that discharge of Mr. Sheahan and Mr. Lee would “result in ‘significant prejudice’ to the defendant․”  (People v. Ortiz, supra, 51 Cal.3d at p. 983, 275 Cal.Rptr. 191, 800 P.2d 547.)   The facts of defendant's horrible crime are described in telling detail by Associate Justice Ashby.   Defendant's two attorneys believed that the disposition in this case involving the brutal killing of a young child was “a remarkable result.”   Further, Mr. Park admitted that the prosecutor's and defense attorneys' statements concerning the reasons justifying the disposition were “very compelling.”   Defendant admitted to the probation officer that “he viewed the indicated state prison sentence as appropriate since he and his attorney do not feel that they would have been successful in convincing a jury as to his total innocence.”   Mr. Park desired to represent defendant, at least at the commencement of the hearing, despite the fact that all he knew about the case was what he had been told by defendant and what appeared in the certified plea transcript.   On appeal, defendant argues that Mr. Park desired to make a motion to withdraw defendant's plea.   In other words, when the issue of substitution of counsel was presented to the trial court, it had before it the opinion of two competent criminal defense lawyers that a very favorable disposition had been reached.   Under the terms of the case settlement agreement, defendant would serve approximately five and one-half years in state prison for the fatal beating of an infant.

However, Mr. Park knew virtually nothing about the case other than what he had been told by defendant or read in the certified plea transcript.   In People v. Pope (1979) 23 Cal.3d 412, 424–425, 152 Cal.Rptr. 732, 590 P.2d 859, the California Supreme Court defined the reasonably competent assistance to which a defendant is constitutionally entitled as follows:  “Generally, the Sixth Amendment and article I, section 15 require counsel's ‘diligence and active participation in the full and effective preparation of his client's case.’  [Citation.]  Criminal defense attorneys have a ‘ “duty to investigate carefully all defenses of fact and of law that may be available to the defendant․” ’  [Citation.]   This obligation includes conferring with the client ‘without undue delay and as often as necessary ․ to elicit matters of defense․’  [Citation.]  ‘Counsel should promptly advise his client of his rights and take all actions necessary to preserve them․  Counsel should also be concerned with the accused's right to be released from custody pending trial, and be prepared, where appropriate, to make motions for a pretrial psychiatric examination or for the suppression of evidence.  [Fns. omitted.]’   [Citations.]  If counsel's failure to perform these obligations results in the withdrawal of a crucial or potentially meritorious defense, ‘ “the defendant has not had the assistance to which he is entitled.” ’  [Fn. omitted.]   [Citation.]”  Prior to trial, a criminal defense lawyer must “become thoroughly familiar with the factual and legal circumstances of the case․”  (Keenan v. Superior Court (1982) 31 Cal.3d 424, 431, 180 Cal.Rptr. 489, 640 P.2d 108.)   The California Supreme Court has noted that “[r]epresentation of an accused murderer is a mammoth responsibility.”  (In re Hall (1981) 30 Cal.3d 408, 434, 179 Cal.Rptr. 223, 637 P.2d 690.)   In the present case, there was no evidence Mr. Park had investigated carefully any of the defenses of fact and law that might have been available to defendant.   In fact, the record on appeal indicates Mr. Park had not investigated the crime itself at all.   He certainly was not in a position to ethically advise defendant as to whether it would be in his best interests to move to set aside the plea agreement.

The sentencing judge reasonably could have concluded that it would have been unethical for Mr. Park to move to set aside the plea.   It is unethical and improper for an attorney to make a frivolous motion to withdraw a plea.   (People v. McLeod (1989) 210 Cal.App.3d 585, 589–591, 258 Cal.Rptr. 496;  see Nix v. Whiteside (1986) 475 U.S. 157, 166–176, 106 S.Ct. 988, 994–999, 89 L.Ed.2d 123.)   On January 11, 1991, Mr. Park raised the issue of whether defendant had been apprised of the fact that he would receive an 11–year term.   Mr. Park was confronted by the sentencing judge with the repeated references in the certified plea transcript to the fact there would be a mandatory 11–year term.   Mr. Park then indicated that he did not want to press that issue—which would have been a frivolous assertion.   Criminal defense attorneys may not raise frivolous arguments.   The sentencing judge properly could have denied the substitution request because any effort to withdraw the plea would have been a frivolous and unethical act and which, if pursued by Mr. Park, would have been done in violation of his constitutional and professional duty to be properly prepared to represent defendant.

In U.S. v. Panzardi Alvarez (1st Cir.1987) 816 F.2d 813, 816–817, the Court of Appeals held, “Trial courts have ‘some discretion to limit the exercise of the right to counsel of choice where insistence upon it ․ would ․ interfere with the ethical and orderly administration of justice․’  [Citation.]”   In United States v. Rankin (3rd Cir.1986) 779 F.2d 956, 958, the Court of Appeals concluded, in a case involving questions of the constitutional right to choose retained counsel, “Thus, representation that constitutes a breach of professional ethics need not be tolerated.   [Citation.]”  In United States v. Dolan (3rd Cir.1978) 570 F.2d 1177, 1184, the Court of Appeals determined that the right to self-representation should give way when it would otherwise require a trial court “to tolerate an inadequate representation of a defendant.”   In the present case, the trial court intelligently could have concluded, based upon the presentation made by Mr. Park, that to have granted the initial substitution request would have led to a state-sponsored and abetted violation of the ethical responsibilities of lawyers to those charged with crime with resulting prejudice to defendant.   (See People v. Gzikowski (1982) 32 Cal.3d 580, 587, 186 Cal.Rptr. 339, 651 P.2d 1145.)

Second, the trial court reasonably could have determined that the request to change counsel was not timely in that it would result in “ ‘disruption of the orderly processes of justice’ [citations].”  (People v. Ortiz, supra, 51 Cal.3d at p. 983, 275 Cal.Rptr. 191, 800 P.2d 547.)   Mr. Park's first appearance was 124 days after the baby was killed and defendant was arrested as well as 118 days after the filing of the felony complaint.   He did not appear in court until the morning upon which the case was set for a probation and sentence hearing.   Although the record is silent as to whether Mr. Park would have sought a continuance if his initial request to represent defendant had been granted;  if there had been further delay, it would have frustrated the specific interests identified in Penal Code section 1050, subdivision (a) which requires that “criminal cases shall be set for trial and heard and determined at the earliest possible time.”   At the time the substitution request was made, no preliminary examination had been held and if the motion to withdraw the plea had been granted, there would have been further delay.   Additionally, the present prosecution, because a minor was the victim, was entitled to priority.   In the absence of good cause, trial had to be commenced within 30 days after the superior court arraignment.  (Pen.Code, § 1048, subd. (b).)  Accordingly, not only was the request for substitution untimely in that it occurred over four months after defendant was arrested, but additional delay in the case;  one which was entitled to priority in trial setting, could have been found by the sentencing judge to have been unreasonable.   Although the delay factor, by itself, could not serve as a basis for denying the substitution request (People v. Ortiz, supra, 51 Cal.3d at p. 984, 275 Cal.Rptr. 191, 800 P.2d 547);  nonetheless, when considered in conjunction with the other matters mentioned in this concurring opinion, it demonstrates that the sentencing judge did not abuse his discretion.

Third, if there was no continuance, the prosecution would have been prejudiced if the substitution had been permitted and a motion to withdraw the plea was made.   There was no notice of the motion and, until the morning of January 17, 1991, the prosecutor had been unaware of the grounds for the motion.   To have proceeded with a motion on that day would have denied the prosecution its due process rights to notice.  (Cal. Const. art. I, § 29.)   Fourth, the only ground articulated for setting aside the plea, defendant was only told he would receive a five-year sentence, was contradicted by the transcript of the certified plea proceedings.   Mr. Park was confronted with the contents of the transcript and he responded, “I don't want to get involved in this argument.”   Defendant was never told he would receive a five-year sentence;  rather, he was expressly informed on five occasions on January 3, 1991, that he would receive an 11–year sentence.   Further, he was asked on several occasions whether he had any questions.   There is no basis in the record on appeal for concluding that the plea could have lawfully been set aside.

Fifth, this case does not involve the “ ‘myopic insistence upon expeditiousness' ” as was warned about by our Supreme Court in People v. Ortiz, supra, 51 Cal.3d at p. 984, 275 Cal.Rptr. 191, 800 P.2d 547.   The sentencing court was confronted with persuasive evidence of prejudice to defendant as well as the prosecution by a request to represent him first made over four months after his arrest.   Proceeding with the motion without notice to the prosecution would have denied it the state constitutional right to due process of law and to grant a continuance would have further delayed a case that was entitled to statutory priority.   Moreover, as noted previously, the trial judge could have concluded the proposed motion to set aside the plea was frivolous.   This is a far cry from any “ ‘myopic insistence upon expeditiousness' ” and reflects a reasoned effort by an experienced and able superior court judge to accommodate the vitally important right of counsel to choice with other compelling considerations which were uniquely present on January 17, 1991, the day the case was called for the probation and sentence hearing.   No abuse of discretion occurred.

Defendant and appellant Chong Kuk Park appeals from a judgment of conviction after pleading nolo contendere to a charge of voluntary manslaughter.   He contends that:  (1) he was denied his right to counsel of his choice;  and (2) he was denied his right to effective assistance of counsel.   In my view, defendant was denied his right to counsel of his choice, as guaranteed by the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution.   This violation of defendant's constitutional right is reversible per se.   Accordingly, I would reverse.

FACTS AND PROCEDURAL BACKGROUND

Defendant was charged by felony complaint with the murder, on September 5, 1990, of his four-month-old son in violation of Penal Code section 187, subdivision (a).   Defendant appeared in municipal court on January 3, 1991, with his retained attorneys, Robert Sheahen and Christopher Lee.   Defendant participated in the proceedings through a Korean interpreter.

At the January 3, 1991 court proceedings, the prosecutor moved to orally amend the felony complaint to add a count 2 of voluntary manslaughter in violation of Penal Code section 192, subdivision (a), a lesser included offense of murder.   The prosecutor stated that the parties had agreed to a resolution of the matter.   Defendant would plead no contest to the amended count 2 and stipulate that the superior court would sentence him to the upper term of eleven years in state prison.   At the time of sentencing, count 1 would be dismissed.   The motion to add count 2 was granted.

The municipal court asked defendant if he had sufficient time to discuss with his attorney the nature, elements and possible defenses to the charges against him.   Defendant replied that he had.   The municipal court advised defendant that he would be sentenced to state prison for eleven years and would, thereafter, be subject to parole.   Defendant indicated he understood the sentence.   The municipal court advised defendant of possible immigration consequences, the imposition of a restitution fine and the “priorability” of the offense.   Defendant indicated he understood the consequences of his no contest plea.

Defense counsel informed the court that at the time of sentencing, he would make a statement in mitigation for the benefit of the record and state prison authorities.   Defense counsel acknowledged that the statement in mitigation would have no affect on the stipulated eleven-year sentence.   The municipal court again asked defendant if he understood that regardless of defense counsel's statement in mitigation, defendant would receive eleven years in state prison.   Defendant indicated he understood and had no questions concerning the consequences of his plea.

The municipal court advised defendant of and defendant indicated he understood and waived his right to a preliminary hearing, a jury trial, a court trial, confront and cross-examine witnesses, present a defense, subpoena witnesses and against self-incrimination.   Defendant indicated he understood a plea of no contest would be treated the same as a plea of guilty.   Defense counsel and defendant stipulated to the existence of a factual basis for the plea.   Defendant indicated, once again, he had no questions concerning the proceedings.   Defendant pled no contest to voluntary manslaughter.

The municipal court found that defendant had knowingly and voluntarily waived his constitutional rights, accepted the plea, and certified the matter to superior court for sentencing on January 17, 1991.

On January 17, 1991, defendant appeared in superior court with his attorneys Sheahen and Lee.   Once again, defendant participated in the proceedings through a Korean interpreter.   Defendant indicated to the superior court that he wanted attorney Tyson Park to represent him.   Attorney Park requested to be substituted in as attorney of record for defendant and indicated that defendant would make a motion to withdraw his plea on the basis of a misinterpretation as to the nature of voluntary manslaughter and the length of the sentence.   Apparently, defendant believed he would receive a sentence of five years and actually serve two or three years in state prison.   Apparently, defendant read about the eleven-year sentence in a Los Angeles Times article and called attorney Park on January 9, 1991.   Attorney Park indicated he had spoken with defendant and had reviewed the transcript of the certified guilty plea proceedings.   Attorney Park stated defendant had informed him that neither Sheahen nor Lee had spent more than five minutes with defendant in the courtroom and had not visited him in jail after the end of November.

Sheahen and the prosecutor informed the superior court of the circumstances surrounding the plea negotiations.   Sheahen and Lee had many discussions with the prosecutor over a three-month period.   Full discovery was undertaken and completed.   The coroner took part in the discussions.   The prosecution's evidence established the victim had been systematically battered over a period of time and ultimately strangled to death.   Witnesses were available to testify concerning defendant's statements indicating an intent to injure or kill the victim.   The victim died at 3:00 p.m.   Defendant stated the victim was alive at 7:00 p.m., indicating defendant had been carrying a dead child around for four hours while trying to think up a story to protect himself.   Defendant was facing a conviction for first or second degree murder resulting in a sentence of twenty-five-to-life or fifteen-to-life.

Sheahen and Lee indicated to the superior court that the negotiated plea was indisputably in defendant's best interest.   The superior court denied the motion to substitute attorneys, apparently on the grounds that substitution of attorneys would lead to a motion to withdraw the plea, which would not be in defendant's interest and would disrupt the sentencing proceedings.   At no time did defendant or attorney Park indicate that attorney Park was not ready to proceed.

Represented by Sheahen and Lee, defendant was sentenced to eleven years in state prison.   Defendant appealed.

DISCUSSION

Defendant contends that he was denied his state and federal constitutional right to be represented by counsel of his choice.   He asserts the trial court abused its discretion in denying his motion to substitute counsel.   Defendant argues that his right to counsel of choice was violated when his motion to substitute attorney Park, as newly retained counsel, was erroneously denied.

Under the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution, a criminal defendant has a right to select and be represented by the attorney of his choice.  (People v. Ortiz (1990) 51 Cal.3d 975, 982, 275 Cal.Rptr. 191, 800 P.2d 547;  People v. Bonin (1989) 47 Cal.3d 808, 834, 254 Cal.Rptr. 298, 765 P.2d 460.)   This right to counsel is fundamental and is among those constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.   (People v. Bonin, supra, citing Rose v. Clark (1986) 478 U.S. 570, 577–578, 106 S.Ct. 3101, 3105–3106, 92 L.Ed.2d 460.)   Therefore, a violation of this right constitutes reversible error per se.  (People v. Ortiz, supra, 51 Cal.3d at p. 988, 275 Cal.Rptr. 191, 800 P.2d 547.)

A non-indigent criminal defendant may discharge his retained attorney, with or without cause.  (People v. Ortiz, supra at p. 983, 275 Cal.Rptr. 191, 800 P.2d 547.)   The right to counsel of choice includes not only the right to retain a particular attorney, but also the right to discharge a retained attorney a defendant no longer wishes to retain.  (Ibid.)  A non-indigent criminal defendant need not provide the court with any reasons to support a substitution motion.   A non-indigent criminal defendant does not have to show inadequate representation or irreconcilable conflict in order to discharge his retained counsel.   Although the right to discharge retained counsel is not absolute and must compete with other important values such as the speedy resolution of criminal charges (id. at p. 982, 275 Cal.Rptr. 191, 800 P.2d 547), trial courts should make all reasonable efforts to ensure that a defendant, financially able to retain an attorney of his own choosing, can be represented by that attorney.  (People v. Crovedi (1966) 65 Cal.2d 199, 207, 53 Cal.Rptr. 284, 417 P.2d 868.)

“The state should keep to a necessary minimum its interference with the individual's desire to defend himself in whatever manner he deems best, using any legitimate means within his resources ․ and ․ that desire 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 process of justice unreasonable under the circumstances of the particular case.”   (People v. Crovedi, supra, 65 Cal.2d at p. 208, 53 Cal.Rptr. 284, 417 P.2d 868;  see also People v. Ortiz, supra, 51 Cal.3d 975, 275 Cal.Rptr. 191, 800 P.2d 547;  People v. Gzikowski (1982) 32 Cal.3d 580, 586–589, 186 Cal.Rptr. 339, 651 P.2d 1145.)   The exception relating to “disruption of the orderly process of justice” concerns “defendant[s] whose actions imply a disposition to abuse the patience of the court through dilatory efforts to seek counsel.”   (People v. Crovedi, supra, 65 Cal.2d at p. 208, 53 Cal.Rptr. 284, 417 P.2d 868.)

A criminal defendant has a fundamental right to make a motion to withdraw a guilty plea.  (People v. Brown (1986) 179 Cal.App.3d 207, 215, 224 Cal.Rptr. 476.)   Defense counsel's power to control the court proceedings may not be exercised to prevent the defendant from seeking withdrawal even where defense counsel believes it is not in the defendant's interest to withdraw his plea, such as where defendant would be subject to a vastly increased sentence upon conviction of the original counts.  (Ibid.)  Defense counsel may advise against the motion, but defendant has the final word.

Defendant asserts that he would not have been “significantly prejudiced” had the trial court granted his substitution motion.   He argues the granting of his substitution motion would have served to provide him the assistance of counsel in proceeding with his motion to withdraw his guilty plea.   Defendant also asserts the possibility of prejudice is speculative at best.   The prosecution contends a substitution of counsel, followed by a motion to withdraw the plea, might have prejudiced defendant by exposing him to a longer prison term than under his plea bargain.

I am not persuaded by the prosecutor's argument.   Instead of a longer prison term, withdrawal of defendant's plea might also have led to trial and acquittal, which would have greatly benefitted defendant.   Moreover, a defendant's right to counsel of choice can only be forced to yield when the prejudice to the defendant is manifest, not when it is merely a theoretical possibility.   In any event, defendant, not counsel or the court, has the right to decide whether or not to seek to withdraw his plea.   Because of the uncertainty that significant prejudice to defendant would result, and defendant's fundamental right to seek to withdraw his plea even if it apparently is not in his best interest, the trial court's denial of defendant's motion to substitute counsel cannot be justified on this ground.

Defendant also asserts that granting his motion to substitute counsel would not have resulted in a disruption of the orderly process of justice, because his motion was made in a timely fashion.   I concur in this assertion.   Here, defendant contacted attorney Park six days after the no contest plea had been entered.   This was the date on which he purportedly became aware of the newspaper article referring to his eleven-year prison sentence, and the date on which he purportedly realized that he did not fully understand the ramifications of his plea.   Defendant secured attorney Park's presence at the next scheduled court appearance, eight days later.   Thus, it appears defendant acted reasonably in his efforts to retain new counsel.   There is no indication in the record that defendant was engaging in delaying tactics.   Moreover, defendant did not request a continuance to allow attorney Park time to get acquainted with the case.   In fact, there is nothing in the record to indicate that attorney Park was not prepared to proceed with defendant's case immediately.   Therefore, the trial court's denial of defendant's motion to substitute counsel cannot be justified on the ground that it would have resulted in a disruption of the orderly process of justice.

I would conclude defendant was denied his constitutional right to be represented by counsel of his choice;  the trial court abused its discretion by denying defendant's motion to substitute counsel;  granting the substitution motion would not have resulted in significant prejudice to the defendant himself, nor would it have resulted in a disruption of the orderly process of justice.   Accordingly, the judgment of conviction should be reversed.

FOOTNOTES

FOOTNOTE.  

1.   Mr. Sheahen is an experienced criminal litigator.   Over the years he has represented rock stars (Personalities, The Washington Post (Aug. 26, 1991) p. C3);  successfully secured the dismissal of all charges of the man accused of starting the disastrous fire which destroyed the Los Angeles City Library (D.A. Office Won't Charge Suspect in L.A. Library Fire, Los Angeles Times (Mar. 3, 1987) Metro. p. 1, col. 5);  convinced a Court of Appeal division to uphold a grant of probation to a deputy sheriff convicted of murder of a fetus which occurred during a notorious illegal drug raid (Fetus Murder Verdict Against Deputy Upheld, Los Angeles Times (July 12, 1985) part 2, p. 2, col. 1.);   and was quoted by Time Magazine in an article addressing the scope of California's murder law.  (Belushi's Death;  The charge:  second degree (Mar. 28, 1983) Time, at p. 21.)

2.   There is no evidence defendant paid any money to Mr. Park.   As used in this opinion the term retained counsel refers to a relationship which is not the result of court appointment.

ASHBY, Associate Justice, Assigned.** FN** Assigned by the Chairperson of the Judicial Counsel.