People v. Lara, No. F031900.

CourtCalifornia Court of Appeals
Writing for the CourtHarris
Citation103 Cal.Rptr.2d 201,86 Cal.App.4th 139
PartiesThe PEOPLE, Plaintiff and Respondent, v. Mario LARA, Defendant and Appellant.
Decision Date10 January 2001
Docket NumberNo. F031900.
103 Cal.Rptr.2d 201
86 Cal.App.4th 139
The PEOPLE, Plaintiff and Respondent,
v.
Mario LARA, Defendant and Appellant.
No. F031900.
Court of Appeal, Fifth District.
January 10, 2001.

[103 Cal.Rptr.2d 205]

[86 Cal.App.4th 143]

Elaine Forrester, Santa Cruz, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, W. Scott Thorpe and Laura Wetzel Simpton, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

HARRIS, J.


FACTUAL BACKGROUND

Appellant Mario Lara was charged and convicted of first degree burglary and sentenced to the third strike term of 25 years to life, with an additional 11 years for prior serious felonies and prior prison term enhancements.

86 Cal.App.4th 144

Appellant hired privately retained counsel, David Roberts, to represent him throughout the criminal proceedings. Appellant's trial was delayed over one and one-half years. On the day the trial was scheduled to begin, appellant requested to discharge his attorney. However, the trial court mistakenly treated appellant's request as a motion to discharge his court-appointed attorney, pursuant to People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44, and denied appellant's motion. On appeal, appellant contends he was entitled to discharge his privately retained counsel without complying with the factors required by Marsden, and the trial court's erroneous treatment of his motion resulted in the violation of his Sixth Amendment right to counsel.

We will find the trial court improperly treated appellant's request to discharge his privately retained counsel as a Marsden motion and will reverse appellant's conviction.

The crime

We begin with a brief summary of the evidence presented at trial. On the morning of December 31, 1996, two men entered the open garage of the residence of Mr. T. and his family. Mr. T.'s daughters observed the suspects' vehicle parked in the driveway adjoining the garage and watched the suspects walk out of the garage with a tool box. When the suspects saw Mr. T.'s daughters, they dropped the tool box, ran to their car and drove away. Mr. T. ran outside, jumped into his own car, and chased the suspects through the neighborhood. The suspects subsequently abandoned the vehicle and escaped on foot. One of the suspects, Michael Woodley, was immediately apprehended a few blocks away, but the second suspect escaped. Woodley was arrested for the burglary, and he immediately implicated appellant Mario Lara as the second suspect. Woodley stated they committed the burglary to finance their drug addiction. Mr. T. and his daughter later identified appellant from a photographic lineup as the second suspect. As it turned out, appellant was already in custody because he had turned himself in on or about January 1, 1997, for violating parole on an unrelated matter.

At trial, Mr. T. and his daughter were unable to identify appellant as the second suspect, but confirmed they had earlier identified an individual from the photographic lineup and they were sure about their identification at that time. Appellant presented an alibi defense and testified he spent the day with his brother and some friends. Appellant also explained that he used to be friends with Michael Woodley

103 Cal.Rptr.2d 206

but they became enemies after Woodley fathered a child with appellant's sister and abandoned them. Appellant had not spoken with Woodley for several months but believed his nephew was

86 Cal.App.4th 145

still friendly with Woodley. Appellant testified his nephew told Woodley that appellant intended to turn himself in after New Year's Eve because he failed a drug test and violated parole, and he believed Woodley blamed him for the burglary because they were enemies.

The procedural history and continuances

We now turn to the lengthy procedural history of this case. On or about January 7, 1997, a criminal complaint was filed charging appellant with the instant burglary. Appellant was already in custody in the Fresno County detention facility for the unrelated parole violation. According to appellant, he was not arraigned on the complaint until August 1997, and the preliminary hearing was set for September 1997. Also according to appellant, the complaint was dismissed in September 1997 on the motion of the district attorney, and appellant was discharged and released from custody.

On or about October 15, 1997, a new complaint was filed against appellant charging him with first degree burglary in the instant matter. (Pen.Code, §§ 459 & 460.) In November 1997, appellant was arrested and arraigned on the new complaint and remained in custody for the remainder of the proceedings. The preliminary hearing was set for December 1997, but it was continued.

On January 8, 1998, the preliminary hearing was held. Appellant was represented by retained counsel David Roberts, who represented him throughout the pretrial proceedings. Appellant was held to answer on the complaint.

On January 22, 1998, the instant information was filed in superior court charging appellant with first degree burglary. The information further alleged appellant had suffered two prior serious felony convictions (Pen.Code § 667, subd. (a)), two prior serious and/or violent felony convictions within the meaning of the three strikes law, and had served one prior prison term pursuant to Penal Code section 667.5, subdivision (b).

On January 23, 1998, appellant pleaded not guilty. Appellant's trial was set for March 19, 1998, and appellant entered a general time waiver.

On March 19, 1998, the case was called for trial assignment, and the matter was continued to March 23. On that day, both the prosecutor and defense counsel moved to continue because of their conflicting trial schedules, and stated they needed more time for preparation. The court continued the matter to April 27, 1998.

86 Cal.App.4th 146

On April 27, 1998, the case was again called for trial assignment. The prosecutor requested another continuance because of the difficulty of securing the attendance of Mr. T. and his family who had moved out of the state. Defense counsel agreed to the continuance, and the court reset the matter for June 1, 1998.

On June 1, 1998, the case was called for trial assignment. Both sides advised the court of their agreement to again continue the matter because the prosecution witnesses were not available, and defense counsel had a calendar conflict. The court reset the matter to July 1998.

On July 6, 1998, the matter was continued to July 20, and appellant entered a general time waiver. On July 20, 1998, the matter was continued to August 3, 1998.

The "Marsden" hearing

The instant dispute arises from a hearing held on August 3, 1998, when appellant's case was finally assigned for trial. As soon as the court convened the proceedings, Mr. Roberts, his privately retained counsel, immediately informed the court that appellant "has indicated, I don't know if he still feels of that mind, he has indicated something to say to the Court about some conflicts that he and I have

103 Cal.Rptr.2d 207

had just recently." The prosecutor offered to leave the courtroom, but the court asked her to wait because "I am not sure it is a Marsden motion yet." Mr. Roberts continued: "I don't think [appellant] knows the name, but I have a feeling that is probably what it is."

The court asked appellant if he had "some question that you want the Court to respond to with regard to a disagreement between you and Mr. Roberts?" Appellant replied he did, and the court cleared the courtroom.

Thereafter, the court conducted a closed hearing and invited appellant to speak. Appellant stated he did not feel like Mr. Roberts was "prepared with the witnesses or anything in the case. I haven't even talked to him before now. Until I came in." The court asked whether they disagreed about witnesses. Appellant replied, "I haven't even been able to confer with him until right now. And then he started running everything down to me and I'm lost." Appellant further stated he did not know what to do, and there were some things "I think should happen and he doesn't agree with, ..."

The court stated it was not sure about appellant's complaints, and asked whether they disagreed about "a matter of tactics" regarding which witnesses

86 Cal.App.4th 147

to call. Appellant replied he disagreed with some things which Mr. Roberts told him. Appellant also disagreed about "some other things about the witnesses and stuff. I haven't seen—talked about this case at all one day is coming on top of me."

The court asked Mr. Roberts to respond. Mr. Roberts stated they disagreed about calling Michael Woodley, appellant's accomplice, as a witness. Mr. Roberts felt Woodley should not be called by the defense, but appellant strongly disagreed. They had also discussed whether appellant should testify, and "that is something I think we can eventually resolve, initially that created problems, too. I am just having difficulty because, how do I say it? Trying to explain some of the realities of the case are difficult when we are not thinking on the same level. I mean we are not thinking about the same thing. He is thinking about what he is going to say, and I'm trying to explain to him what evidence I anticipate and what decisions I am going to have to make and why I don't want to make those decisions. I am not getting across to him very well and it is upsetting him. I think the only real heavy disagreement we have is over Michael Woodley." While Woodley's initial statement had implicated appellant, Mr. Roberts believed Woodley was "going to take the stand and tell the truth and exculpate [appellant]." Mr. Roberts further believed there would be a "real problem" for Woodley to withstand the prosecution's impeachment of his testimony with his prior statement. Mr. Roberts did not want to call Woodley as a defense witness "because I am...

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