People v. Hidalgo
| Decision Date | 15 March 1978 |
| Docket Number | Cr. 29823,30082 |
| Citation | 144 Cal.Rptr. 515,78 Cal.App.3d 675 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Peter Rodriguez HIDALGO, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Paul Halvonik, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, Aurelio Munoz and Allison Stein, Deputy State Public Defenders, for defendant and appellant.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Juliet H. Swoboda, Paul C. Ament, Roger W. Boren, and Ronald N. Ito, Deputy Attys. Gen., for plaintiff and respondent.
In case numbered 30082, the information charging defendant with burglary was filed on June 1, 1976. The public defender was appointed to defend defendant. Defendant entered a plea of not guilty. He made a motion to have his current counsel relieved and new counsel appointed. The trial judge conducted several hearings on this motion and, at the conclusion of the hearings, the motion was denied. Defendant's trial was before a jury. The jury returned a verdict finding defendant guilty of burglary in the first degree. Probation was denied and defendant was sentenced to state prison for the term prescribed by law. The sentence was ordered to run concurrently with Superior Court Case No. A015895, which is our appeal case numbered 29823.
In case 29823, defendant was charged with burglary by an information filed on August 8, 1975. Defendant entered a plea of guilty and, on September 8, 1975, proceedings were suspended and defendant was granted probation for three years on various terms and conditions. One condition was that he was not to use or possess any narcotics or dangerous or restricted drugs. A second condition stated that he must submit to periodic anti-narcotic tests as directed by the probation officer. A third condition was that he obey all laws. On July 13, 1976, a probation violation hearing was scheduled, but defendant failed to appear. After a series of continuances, the probation violation came on for hearing on October 8, 1976. At that hearing the court received into evidence various probation reports and a copy of a five-page police report which pertained to the burglary for which defendant was sentenced on December 8, 1976, in case 30082. At the conclusion of the hearing of October 8, 1976, defendant's probation was revoked and he was sentenced to prison for the term prescribed by law.
1. The factual background.
At approximately 8:30 p. m. on May 1, 1976, Linda Funkhouser and Robert Moore were in Linda's living room when they heard a noise from the back of the house. Shortly thereafter, they were looking out the living room window and observed a male carrying a television. Linda then went to her bedroom, observed that her window had been broken, her television had been taken, and contents of her purse strewn over the bed, with money missing. Linda and Robert then proceeded to give chase to this male. They got close to the suspect, but he was able to disappear from view. They then observed the suspect running out from behind a building, but no longer carrying the television.
The Sheriff's Department was called and Deputies Cabe and Turner searched for the suspect. About 50 feet away from the place where Robert indicated he had last seen the suspect, the deputies saw defendant, who met the description given by Linda and Robert. When the deputies first noticed defendant, he was walking along, brushing debris and grass from his clothing. The deputies drew their pistols, handcuffed defendant, placed him in their vehicle, and transported him back to the scene of the crime the home of Linda. Deputy Cabe testified to the detention of defendant and his transportation back to Linda's home. A Deputy Sheriff David Moore (no relation to Robert) testified that at Linda's home, approximately 15 or 20 minutes after the report to the Sheriff's Department, he observed Deputy Cabe remove defendant from the police vehicle and Linda and Robert identified defendant as the suspect they had seen carrying the television. 2. The validity of defendant's contention that he was deprived of his constitutional right to the effective assistance of counsel because the trial court denied his motion for substitution of counsel under the erroneous assumption that the law does not provide for such substitution when the defendant is indigent.
Defendant contends that the trial court committed constitutional and reversible error in denying defendant's motion to substitute a new court-appointed counsel for the public defender previously appointed and then representing defendant.
We start our discussion with a statement of the principle set forth in Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, that a defendant has a constitutional right to the assistance of court-appointed counsel if he is unable to employ private counsel. The question before us, however, is whether an indigent defendant has a right to discharge his court-appointed counsel and obtain a different court-appointed counsel. The guiding rule of law on this point is set forth in People v. Marsden (1970) 2 Cal.3d 118, 123, 84 Cal.Rptr. 156, 159, 465 P.2d 44, 47, in which the court stated that "the decision whether to permit a defendant to discharge his appointed counsel and substitute another attorney during the trial is within the discretion of the trial court, and a defendant has no absolute right to more than one appointed attorney."
In describing this discretion, Marsden also points out that: " '. . . " The right of a defendant in a criminal case to have the assistance of counsel for his defense . . . may include the right to have counsel appointed by the court . . . discharged or other counsel substituted, if it is shown . . . that failure to do so would substantially impair or deny the right . . ., but the right to such discharge or substitution is not absolute, in the sense that the court is bound to accede to its assertion without a sufficient showing . . . that the right to the assistance of counsel would be substantially impaired . . . in case the request is not granted, and within these limits there is a field of discretion for the court. " ' (Citations.)" (Id.)
Marsden was followed by People v. Williams (1970) 2 Cal.3d 894, 88 Cal.Rptr. 208, 471 P.2d 1008, which held that a disagreement between defendant and his counsel over trial tactics such as what witnesses to call in defendant's defense does not "necessarily compel the appointment of another attorney." (Id., at p. 905, 88 Cal.Rptr., at p. 215, 471 P.2d, at p. 1015.) (Emphasis added.) The question of whether to call certain witnesses is generally a matter of trial tactics. (See People v. Monk (1961) 56 Cal.2d 288, 14 Cal.Rptr. 633, 363 P.2d 865; People v. Garn (1966) 246 Cal.App.2d 482, 54 Cal.Rptr. 867.) "A disagreement between a defendant and appointed counsel regarding the defendant's fundamental right to testify in his own behalf does not necessarily require the appointment of another attorney." (Williams, supra, 2 Cal.3d 894, 905, 88 Cal.Rptr. 208, 215, 491 P.2d 1008, 1015.) (Emphasis added.)
But Williams does seem to recognize that there can be a breakdown of the attorney-client relationship of such magnitude as to substantially impair defendant's right to the assistance of counsel. Thus, the Williams court remarked that in the situation there presented, where the attorney-client dispute concerned the question of witnesses to be called, it did not appear "that the trial court erred in impliedly concluding that there was not a breakdown of the attorney-client relationship of such magnitude as to substantially impair defendant's right to the assistance of counsel." (Williams, supra, 2 Cal.3d 884, 905, 88 Cal.Rptr. 208, 215, 471 P.2d 1008, 2015.) (Emphasis added.)
The case at bench is not unlike that of People v. Munoz (1974) 41 Cal.App.3d 62, 115 Cal.Rptr. 726. In Munoz, in a session in chambers while defendant's counsel was present, defendant requested a change of attorneys, stating with reference to his counsel: (Id. at 64, 115 Cal.Rptr. at 727.) The trial judge refused defendant's request to substitute counsel although the accused counsel did not deny the truth of defendant's allegations, and the trial judge made no effort to ascertain the truth or falsity of defendant's allegations.
The Munoz court held that the record before it established reversible error because "the (trial) court's ruling denying appellant's request for a substitution of attorneys, without an inquiry into the state of mind of the court-appointed attorney and without attempting to ascertain in what particulars the attorney was not providing appellant with a competent defense was tantamount to a refusal on the part of the court to adjudicate a fundamental issue; the court's failure to make the inquiry also resulted in a silent record, making intelligent appellate review impossible." (Munoz, supra, 41 Cal.App.3d 62, 66, 115 Cal.Rptr. 726, 728.)
The Munoz court based its view of the trial court's abuse of discretion on the rationale enunciated in Marsden. Munoz gleans from Marsden the principle "that under some circumstances a court's ruling denying the request for a substitution of attorneys without a careful inquiry into the defendant's reasons for requesting the substitution 'is lacking in all the attributes of a judicial determination.' " (Munoz, supra, 41 Cal.App.3d 62, 66, 115 Cal.Rptr. 726, 728.) And in In re Miller (1973) 33 Cal.App.3d 1005, 109 Cal.Rptr. 648, the court applied the Marsden rationale to a factual situation basically...
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