People v. Lindstrom
| Decision Date | 16 September 2021 |
| Docket Number | C088699 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. MICHAEL KAJ LINDSTROM, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
Defendant Michael Kaj Lindstrom's dog attacked and severely injured his neighbor. A court afterward, following a bench trial convicted him of knowingly possessing a “mischievous animal” that caused serious bodily injury to another. The court sentenced defendant to 364 days in jail, suspended execution of sentence, and placed defendant on formal probation for five years.
On appeal, defendant raises five issues. He contends (1) the court wrongly denied his request to relieve his retained attorney, (2) his counsel was ineffective because he failed to request pretrial mental health diversion, (3) his counsel was ineffective because he advocated against, rather than for, him at sentencing, (4) the court wrongly imposed a probation term that would extend beyond the five-year term of probation, and (5) he should be discharged from probation because a recent change in the law reduced felony probation to two years.
We agree with defendant's first contention and find his remaining four arguments moot. Defendant sought to discharge his attorney after his conviction and before sentencing stating that his attorney would not meet with him and did not provide adequate representation. But the trial court denied the request. Applying the standard applicable for indigent defendants who seek to replace their appointed counsel, the court denied defendant's request because it found he had failed to show that his attorney was providing inadequate representation or that he and his attorney were embroiled in irreconcilable conflict. But because defendant sought to replace his retained counsel, not appointed counsel, the court should have evaluated defendant's request under a different standard. In particular, the court needed to grant his request unless it concluded that granting it would significantly prejudice defendant or cause unreasonable delay in the processes of justice. (People v. Ortiz (1990) 51 Cal.3d 975, 983, 987 (Ortiz).) Because we find the trial court wrongly denied defendant's request, we reverse and remand for further proceedings.
Defendant formerly owned a pit bull named Red. According to his neighbor, Julian Salazar, Red “was outside running loose most of the days, ” generally without supervision. Salazar often went outside “to make sure he wouldn't hurt the kids” in the neighborhood and on most days, when Salazar told Red to “go home ” Red complied.
But on one date in late 2016, he did not. After hearing Red barking outside in early November of 2016, Salazar became concerned “[h]e might hurt one of the kids” and so came outside and told Red to go home. When Red failed to listen, Salazar moved closer to Red and again told him to go home. But rather than return home, Red pounced on Salazar and knocked him to the ground. Salazar, who was nearly 90 years old at the time, yelled for help as Red bit his neck, his face, and the rest of his body. Eventually, Salazar's stepson, who had been sleeping, awoke and came outside. He initially asked defendant to help, but, when defendant expressed concern at being bit himself and refused, he approached the dog and pulled him off of Salazar.
Salazar was afterward brought to the hospital, where he remained for the next two weeks. He “had bites and scratches all over” requiring “something like 75 stitches, ” had his lower lip torn down to his chin, and had “a big gash” along his neck and a “big hole” in his check. He also lost half of an ear, part of a finger, and a three-inch-long flap of skin from his forehead, though the piece of skin was later reattached. Some of Salazar's wounds eventually healed, but others did not. At the time of trial, for example, Salazar could no longer fully close his mouth and one of his hands and could no longer feel his lower lip and the ends of his fingers. His hearing and his ability to eat also had deteriorated as a result of the attack.
Apart from attacking Salazar, Red had also previously attacked other people and dogs. In 2014, a man noticed Red off-leash across the street while walking a friend's dog. Shortly after, Red charged and bit the man and the dog. In 2015, defendant received care from a paramedic after Red attacked him, and a few months later, also in 2015, defendant was hospitalized after Red attacked him again. Finally, in 2016, a woman noticed Red off-leash across the street while walking her dog. Red afterward charged and attempted to attack her dog, but the owner successfully shielded her dog from Red.
After the attack on Salazar, the Sacramento County District Attorney charged defendant with two felony counts. In count one, the prosecution alleged that defendant knowingly possessed a dog trained to fight, attack, or kill, and because of defendant's negligence, the dog caused substantial physical injury to Salazar. (Pen. Code, § 399.5, subd. (a).)[1] In count two, the prosecution alleged that defendant knowingly possessed a “mischievous” dog, and, because of defendant's negligence, the dog caused serious bodily injury to Salazar. (§ 399, subd. (b).)
On September 7, 2018, following a bench trial, the trial court found defendant not guilty of count one and guilty of count two. Counsel and the court afterward discussed next steps, including the possibility of pursuing mental health court and referring the matter to probation. In the end, at the request of both the prosecutor and defense counsel, the court referred the matter to probation and instructed defendant to cooperate with his counsel to complete the necessary forms for mental health court. The court then scheduled another hearing for November 2, 2018.
At the November 2, 2018 hearing, defendant's counsel requested additional time to pursue mental health court. To be eligible for mental health court, defense counsel explained, defendant needed to be “actively, currently treating with a psychiatrist with a diagnosis, a medical treatment plan, and that sort of thing.” But because defendant was not currently being treated, defense counsel asked for a continuance until November 7, 2018, to allow defendant time to see a psychiatrist and begin “some kind of treatment plan.” The court agreed to the requested continuance but expressed an interest in moving things along. It noted that there had already “been such a delay” and “Lindstrom had made zero efforts.”
The court later rescheduled the November 7 hearing for November 6, 2018 “to accommodate the Court, ” but, when defendant failed to appear on the rescheduled date, the court scheduled another hearing for November 30, 2018. At the November 30, 2018 hearing, defendant's counsel informed the court that defendant saw a doctor, was evaluated and received a diagnosis and a treatment plan, but he declined to participate in the treatment plan. A family friend of defendant supplied further information. She explained that defendant refused treatment because the doctor “wanted to give him these injections and there was no... choice of other medications at all.” She added that she would “make sure that... he gets a different doctor.”
After the court expressed disappointment in defendant's failure to obtain a treatment plan, defendant asked for an opportunity to speak. He then asked if he could “fire [his] attorney and get a new attorney.” He explained that he “ha[d] not had one single opportunity to meet with [his] attorney and discuss the case with him, not one time, and [he] ha[d] requested it over and over and over.” He added that he did not “think [he was being] well represented.”
Based on defendant's comments, the court found it necessary to hold a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118, 123. At the hearing, defendant asserted that his counsel had failed to meet with him to discuss his case and to develop a strategy. He further asserted that he wanted to call various witnesses about his character and the facts of the case, but, because his attorney failed to meet with him, these witnesses were never called. He then, among other things, claimed that one person admitted she opened the door to his house to let his dog outside and asserted that various individuals “did this on purpose to make [him] look bad.” He also claimed that someone had trained his dog to attack because “[t]here is someone trying to get rid of me or kill me”; “[t]hey want my house really bad.” Defendant's counsel, who spoke next, acknowledged he did not spend much time with defendant. But he said that was because defendant “want[ed] [him] to pursue defenses that [we]re not pursuable, that [we]re not based in reality.” He added: “I can't track down phantom witnesses or pursue conspiracy theories or things like that.” After hearing from both defendant and his attorney, the court denied defendant's request to relieve his counsel. It reasoned that it “d[id] not find that there [wa]s a breakdown in the relationship between Mr. Lindstrom and [his counsel], ” and that Lindstrom's counsel “ha[d] more than competently and professionally represented Mr. Lindstrom.” After the so-called “Marsden” hearing, the court allowed defendant another week to obtain a second medical opinion.
A week later, on December 7, 2018, defendant came, according to his counsel, “basically empty handed.” Defendant had met with a registered nurse and obtained pills of some sort to treat his condition, but he had been unable to meet with another psychiatrist. According to defendant, his healthcare provider said it would take “between two weeks and two months to get...
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