People v. Marsden

Decision Date26 February 1970
Docket NumberCr. 14119
CourtCalifornia Supreme Court
Parties, 465 P.2d 44 The PEOPLE, Plaintiff and Respondent, v. Michael John MARSDEN, Defendant and Appellant.

Stephen H. Silver, Los Angeles, under appointment by the Supreme Court, and Long & Levit, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Jerome C. Utz and Joyce P. Nedde, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

On August 22, 1968, the District Attorney of Monterey County filed an information charging defendant and Laura Catheryn Repine with five counts of forgery, a violation of section 476 of the Penal Code. It was asserted that defendant and Miss Repine fraudulently cashed $100 money orders at five different motels in Monterey County on August 3 and 4. The money orders had been stolen from a grocery store and were cashed by means of fictitious identification. Defendant was arraigned on August 30, and the court appointed Michael Antoncich as defense counsel. Defendant pleaded not guilty, but was convicted on all five counts after a two-day jury trial. He was sentenced to the state penitentiary.

Defendant's only contention on this appeal is that he was deprived of his constitutional right to the effective assistance of counsel because the trial court denied his motion to substitute new counsel without giving him an opportunity to state the reasons for his request.

After the People completed the presentation of their case to the jury, the following colloquy occurred in the judge's chambers:

'THE DEFENDANT MARSDEN: I don't know how to go about making the motion, Your Honor, but I don't feel that I am being competently or adequately represented by counsel.

'THE COURT: All right. Any comment wished to be made by anyone else on this point? All right. Well, the comment has been made for the court so it's noted, it's on the record.


'THE COURT: All right, that's all.'

The next day at the instigation of the prosecutor the problem relating to defendant and his counsel was again raised in the judge's chambers and this colloquy ensued:

'THE COURT: The Court doesn't recall hearing a motion made or asking any relief from the Court on the part of the defendant Marsden, that's why when he made his statement, the Court said your statement is noted in the record, however, in the interests of caution, the Court will consider it a motion that according to the defendant Marsden he claims his attorney is not representing him properly and therefore the Court will infer that he wishes another attorney or wishes to represent himself, I don't know which. What do you say on that, Mr. Marsden?

'THE DEFENDANT MARSDEN: Yes, sir, I don't feel that I am getting adequately represented or competently represented, I'd like to make a motion.

'THE COURT: For what?

'THE DEFENDANT MARSDEN: For proper counsel. I'm not adequate to give it myself and I don't feel I'm being adequately represented. I think the transcript, court's transcript prior to this meeting here can reveal that fact.'

The court then questioned Mr. Antoncich and established that he had represented defendant since his arraignment in municipal court, and that he had also represented Miss Repine until the time of arraignment in the superior court when separate counsel was appointed for her to avoid a possible conflict of interest between the two defendants. The judge proceeded to interrogate defendant as to his background and learned that defendant had served time for burglary and escape in the state prison, that he had never completed high school, that he received a certificate of completion of a high school equivalency course in the Marine Corps, and that he was working before his arrest as a mathematician operating and programming digital computers. Then this discussion occurred between the court and defendant:

'THE COURT: You seem to be (an) intelligent sort of a person. In the times you have been before the court have you been represented by an attorney?


'THE COURT: And during these previous occasions when you have been represented by an attorney, have you ever discharged your attorney?


'THE COURT: Have you ever represented yourself without an attorney in any of these prior proceedings?


'THE COURT: Well, the Court denies the defendant's motion. The Court feels Mr. Antoncich is alert and has raised questions during the course of this hearing that have been good questions to raise. The Court feels he has taken good care of his client to the present time, at least.


'THE COURT: (Interrupting) And so the Court--yes?

'THE DEFENDANT MARSDEN: Could I bring up some specific instances?

'THE COURT: I don't want you to say anything that might prejudice you before me as to the case, you see.

'THE DEFENDANT MARSDEN: I don't think it would.

'THE COURT: I don't want to take that chance.

'There are lots of times when a person--lots of times, and I emphasize that, where a defendant is represented by an attorney where he has just sufficient knowledge to be ignorant and lots of times people want to tell their attorneys how to run a case, which they are not qualified to do. I think possibly you are a bright person and who thinks a case should be conducted in a certain way, which you are not qualified to determine.


'THE COURT: Therefore the Court denies the motion. The Court is not going to have a case that has--where the prosecution has been completed and then a person raises this sort of thing where the Court doesn't feel it's appropriate. If this were done, and the Court has this type of thing come up from time to time, you never could complete a case, you'd get in the middle of the case, a defendant, particularly a bright one, raises some question and you never could come to the completion of a trial.

'THE DEFENDANT MARSDEN: Your Honor, I believe I can show cause. Would the Court show me how I could go about doing this?

'THE COURT: The Court--

'THE DEFENDANT MARSDEN: (Interrupting) I'm ignorant of the law.

'THE COURT: That's right, that's why you have lawyers, Mr. Marsden, the Court it prohibited from giving legal advice to people, so I can't advise you as to legal procedures. I commit a misdemeanor, a criminal offense, if I give legal advice to anybody, whether defendant or anyone else. That's all for this matter, the jury is waiting.'

Defendant now contends that the denial of the motion for substitution of attorneys, without giving him an opportunity to enumerate specific examples of inadequate representation, deprived him of a fair trial.

We start with the proposition in Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, that criminal defendants are entitled under the Constitution to the assistance of court-appointed counsel if they are unable to employ private counsel. However, 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. 'A defendant's right to a court-appointed counsel does not include the right to require the court to appoint more than one counsel, except in a situation where the record clearly shows that the first appointed counsel is not adequately representing the accused. * * * '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. '' (People v. Mitchell (1960) 185 Cal.App.2d 507, 512, 8 Cal.Rptr. 319, 323, quoting 157 A.L.R. 1225, 1226; See People v. Johnson (1969) 271 A.C.A. 963, 971; People v. Foust (1968) 267 Cal.App.2d 222, 228, 72 Cal.Rptr. 675; In re Bunker (1967) 252 Cal.App.2d 297, 311, 60 Cal.Rptr. 344; People v. Bourland (1966) 247 Cal.App.2d 76, 84--85, 55 Cal.Rptr. 357; People v. Jackson (1960) 186 Cal.App.2d 307, 315, 8 Cal.Rptr. 849.)

Defendant properly contends that the trial court cannot thoughtfully exercise its discretion in this matter without listening to his reasons for requesting a change of attorneys. A trial judge is unable to intelligently deal with a defendant's request for substitution of attorneys unless he is cognizant of the grounds which prompted the request. The defendant may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four corners of the courtroom. Indeed, '(w)hen inadequate representation is alleged, the critical factual inquiry ordinarily relates to matters outside the trial record: whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choice of trial tactics and strategy.' (Brubaker v. Dickson (9th Cir. 1962) 310 F.2d 30, 32.) Thus, a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant's offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of...

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