People v. Ortiz

• Decision Date: 26 November 1990
• Docket Number: No. S010853,S010853
• Court: California Supreme Court
• Parties: , 800 P.2d 547 The PEOPLE, Plaintiff and Respondent, v. Carlos Shawn ORTIZ, Defendant and Appellant.

Page 191

275 Cal.Rptr. 191

51 Cal.3d 975, 800 P.2d 547

The PEOPLE, Plaintiff and Respondent, v. Carlos Shawn ORTIZ, Defendant and Appellant.

No. S010853.

Supreme Court of California,

In Bank.

Nov. 26, 1990.

Deanna F. Lamb, under appointment by the Supreme Court, Michael Kresser and Gretchen Burford-Dernetz, Santa Clara, for defendant and appellant.

Gerald F. Uelman and Ephraim Margolin, as amici curiae on behalf of defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White and Richard B. Igelehart, Chief Asst. Attys. Gen., John H. Sugiyama, Asst. Atty. Gen., Ann K. Jensen, Edward P. O'Brien, Aileen Bunney, David D. Salmon, Blair W. Hoffman and Christopher Grove, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

MOSK, Justice.

Defendant appeals from a conviction of second degree murder. The sole issue arises from the denial of defendant's motion to discharge counsel: we are asked to resolve a conflict in the Courts of Appeal regarding the duty of a trial court when a defendant who has retained counsel, but becomes indigent, makes a timely motion to discharge his attorney and to obtain court-appointed counsel.

Here, the Court of Appeal held the trial court erred in denying such a motion on the ground that defendant failed to demonstrate his attorneys were incompetent. We conclude the Court of Appeal is correct: when a criminal defendant makes a timely motion to discharge his retained attorney he should not be required to demonstrate the latter's incompetence, as long as the discharge will not result in prejudice to the defendant or in an unreasonable disruption of the orderly processes of justice. For this reason, we affirm the judgment of the Court of Appeal reversing the conviction. In addition, although the Court of Appeal limited the scope of its analysis to the "erroneous denial of [defendant's] motion to discharge counsel," we also discuss--for the guidance of trial courts--the proper procedure for appointment of counsel after a trial court grants such a motion.

On June 17, 1985, defendant was charged with murder (Pen.Code, § 187) by an information filed in Santa Clara Superior Court. Attorney Daniel Hernandez, who had represented defendant at his preliminary hearing, appeared specially at the arraignment and received a continuance of the matter for defendant to obtain counsel. After two more such continuances the court, satisfied of defendant's indigency, appointed the public defender to represent him, and he pleaded not guilty. On July 18, 1985, defendant substituted Daniel Hernandez as attorney of record and, at various times, either Daniel Hernandez or Arturo Hernandez, or both, represented defendant until the matter reached the Court of Appeal.

A jury trial of the charge began on August 22, 1985. The central issue was the murderer's identity. After five weeks of trial and two days of deliberation, the court declared a mistrial because of juror misconduct. According to defense counsel, the jury was divided "more or less six to six" at that time.

After the court returned the matter to the master trial calendar, Arturo Hernandez appeared and obtained a continuance. On October 10, 1985, Daniel Hernandez was fined $100 for failing to appear with defendant. On November 27, the Hernandezes moved to withdraw as counsel, but the motion was denied; in support of their motion, they cited the failure of defendant's family to pay them in full either for their services at the first trial or for fees they advanced for expert testimony at that trial. They also cited defendant's inability to pay for future services.

On January 2, 1986, defendant filed a motion to discharge both counsel. The record bears the comment, "Defendant request[s] Marsden hearing." ¹ Defendant's declared reasons for seeking to discharge the Hernandezes were the publicity that accompanied their concurrent representation of Richard Ramirez, who was subsequently convicted of the so-called "Night Stalker" crimes, their refusal to return his calls, and his dissatisfaction with their investigation of potentially exculpatory blood tests. The Hernandezes replied that the main issue was defendant's refusal to cooperate with them and the fact that defendant had shown a loss of confidence in their ability to represent him. The court heard the motion in camera and denied it on the ground that defendant had not demonstrated his attorneys' incompetence.

One week later, defense counsel moved for a continuance and a transcript of the trial at county expense, predicting that retrial would be even more "lengthy and complex" and would include "more witnesses and expert testimony" than the first. In support of the motion, Arturo Hernandez pointed to delays resulting from defendant's request to discharge them as counsel, his own motion to be relieved as counsel, and the concurrent Ramirez trial in Southern California. The transcript request was based on defendant's indigence. The court granted both motions.

On May 15, 1986, the court received two additional motions: one by the Hernandezes to be relieved, and another by defendant that was again labeled a Marsden motion. In a declaration in support of his motion, defendant listed, among other concerns, that (1) he did not believe the Hernandezes would represent him to their full capacity at trial, (2) he had requested but had not received preliminary hearing transcripts at county expense, (3) he owed money to the Hernandezes for the first trial and they were asking for more for the second, (4) the Hernandezes had told his mother and wife that the witnesses at the first trial would not testify at the second, and (5) although almost a year had passed since his first trial, the Hernandezes continued to waive time, did not speak to him, and failed to appear in court when required. The court denied both motions.

A series of continuances followed, as did further sanctions imposed on the Hernandezes for failing to appear at trial. Finally, in August 1986 defendant submitted the matter as a "Bunnell plea" (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086), on the condition he not be found guilty of any crime more serious than second degree murder. On the basis of the preliminary hearing transcript, the transcript of the first trial, and the testimony of one prosecution witness, the court found defendant guilty of second degree murder and sentenced him to state prison for 15 years to life.

I. Defendant's Right to Discharge Retained Counsel

Defendant contends, and the People agree, that a defendant--whether indigent or not--who seeks in a timely manner to discharge retained counsel, ordinarily should be permitted to do so. The Court of Appeal held the trial court erred in requiring defendant to prove the Hernandezes were incompetent before it would allow him to discharge them. We granted review to resolve a conflict between that holding--which is consistent with People v. Stevens (1984) 156 Cal.App.3d 1119, 203 Cal.Rptr. 505--and two contrary decisions, People v. Barnes (1983) 146 Cal.App.3d 663, 194 Cal.Rptr. 317, and South v. Superior Court (1986) 188 Cal.App.3d 1055, 233 Cal.Rptr. 765.

A. Conflict of Decisions

In People v. Barnes, supra, 146 Cal.App.3d 663, 665-667, 194 Cal.Rptr. 317 (hereafter Barnes ), the Court of Appeal, Third Appellate District, held that a criminal defendant's motion to relieve his privately retained counsel and appoint the public defender in his stead is governed by the same standard as a motion for substitution of one appointed counsel for another, i.e., the court must allow the defendant to explain his reasons and then should exercise judicial discretion. The court reasoned that when a defendant seeks appointment of the public defender, his motion "is tantamount to a substitution of appointed counsel...." (Id. at p. 666, 194 Cal.Rptr. 317.)

One year later, the Court of Appeal, Fifth Appellate District, in People v. Stevens, supra, 156 Cal.App.3d 1119, 203 Cal.Rptr. 505 (hereafter Stevens ), impliedly rejected Barnes (id. at p. 1127, fn. 6, 203 Cal.Rptr. 505) and held that an indigent criminal defendant was denied his right to effective assistance of counsel when the trial court "unjustifiably" denied his request to relieve his volunteer attorney in favor of the public defender (id. at pp. 1121, 1123, 203 Cal.Rptr. 505). The court concluded, "a defendant's constitutionally protected interest in obtaining counsel of his choice encompasses the right to discharge retained counsel regardless of financial ability to hire another attorney. Absent a proper finding of unwarranted disruption of the orderly processes of justice, a court may not force a defendant who timely requests substitution to go to trial represented by retained counsel he no longer trusts." (Id. at p. 1128, 203 Cal.Rptr. 505.)

Subsequently, a panel of the Sixth Appellate District of the Court of Appeal in South v. Superior Court, supra, 188 Cal.App.3d 1055, 1060, 233 Cal.Rptr. 765, rejected Stevens and adopted the Barnes approach, stating, "We do not believe that a defendant's motion to discharge retained counsel ... should be decided in a vacuum.... [A] court must concern itself with who will be representing the defendant if present counsel is discharged." The court held that the defendant, who requested appointment of the public defender, bore the burden of showing that his relieved counsel's representation would "substantially impair his right to counsel." (Ibid.)

Finally, in the case at bar a different panel of the Sixth Appellate District held to the contrary, stating that "where, as here, a criminal defendant brings a timely motion to discharge his retained attorney it is error to deny the motion on the grounds he has not demonstrated his attorney's incompetence." For the reasons given below, we adopt the approach taken by the Court of Appeal in this case and in Stevens, supra, 156 Cal.App.3d 1119, 203 Cal.Rptr. 505. ²

B. Right to Counse...